cultural resources

Oklahoma Supreme Court Orders Transfer of Indian Child Welfare Case to Puyallup Tribal Court

Matthew L.M. Fletcher

Here is the opinion in In the Matter of M.S.

The court’s syllabus:

The Puyallup Tribe of Indians moved to transfer jurisdiction of a case involving two Puyallup Tribe Indian children to tribal court or, in the alternative, to change placement to a tribal member after the termination of the parental rights of their parents. The trial court denied relief, finding “good cause” for denying transfer existed because of the length of time the State had exercised jurisdiction prior to the Tribe’s motion, the relationships the children had developed and the relevant evidence located in Oklahoma. The Tribe appealed, and the Court of Civil Appeals affirmed. This Court previously granted certiorari.

EPA Visits Eagle Rock

Matthew L.M. Fletcher

From ICT, via Pechanga:

BIG BAY, Mich. – As the top government official who oversees Great Lakes water quality stood on the edge of sacred Eagle Rock, overlooking a pristine expanse of the Yellow Dog Plains, she gained a better understanding about why the state-owned land is sacred to Michigan’s Ojibwa.

“I very much understand what their concerns are – and that is one of the things we are considering as we moved forward on this,” said Tinka Hyde, Water Division director for Environmental Protection Region 5. “We realize that Eagle Rock is of cultural and religious importance to the tribe.”

Hyde was one of three EPA regional bosses from Chicago and the agency’s tribal liaison for Michigan who were given a tour of the area May 13 by officials from the Keweenaw Bay Indian Community during a two-day visit to Michigan’s Upper Peninsula.

Members of numerous tribes including Ojibwa, Cherokee and Lakota had been camping at the base of Eagle Rock since April 23 in hopes of preventing Kennecott Eagle Minerals from building a nickel and copper sulfide mine – named the Eagle Project. At the company’s request, state and local police officers raided the encampment May 27 arresting two campers.

Under federal treaties, Ojibwa have rights to hunt, fish and gather on the state of Michigan owned land. The state leased the land to Kennecott with the understanding that all permits must be approved.

Hyde said any ruling the EPA makes about the withdrawal of state and federal permit applications by Kennecott subsidiaries will be based solely on environmental protection laws, primarily the 1974 Safe Drinking Water Act.

Continue reading →

IPR on Eagle Rock Controversy

Matthew L.M. Fletcher

From IPR:

Photo courtesy of Yellow Dog Summer

By Bob Allen

Protestors of Michigan’s decision to permit underground mining at Eagle Rock near Marquette took petitions to the state capitol Thursday. Members of the Keweenaw Bay Indian Community say Eagle Rock is a sacred site to them, and a mine dug into the face of the rock will destroy it.

Eagle Rock is located on state land leased to Kennecott Minerals.

State law says mining operations have to take into consideration impacts to places of worship. But state officials ruled that places of worship means those located in a building such as a church.

Matthew Fletcher is an American Indian and professor of law at Michigan State University. He says any appeal of the state’s ruling about sacred places may not be a sure winner.

Listen to Bob Allen’s chat with Fletcher by playing the audio above.

Interlochen Public Radio Points North Rebroadcast on Eagle Mine–Friday at 7Pm Eastern

Matthew L.M. Fletcher

Here.

We’ll post it here as well when it is archived.

Saginaw Chippewa Activist Loses Title VII Claim Against E. Illinois Univ.

Matthew L.M. Fletcher

Here is the Seventh Circuit’s opinion in Leonard v. Eastern Illinois University.

New York Magazine Describes Cate Blanchett as Having Face of a “Wooden Squaw” in “Robin Hood”

Matthew L.M. Fletcher4 Comments

Suppose this might get me in trouble with the pro-squaw people again, but isn’t this the epitome of using the word as a racial epithet?

From New York Magazine:

Ridley Scott’s Robin Hood is a pompous, interminable hash. Billed as a precursor to the legend we know, it’s rich in bogus historical context, along with enough mud, blood, and clutter to overwhelm our happy memories of Errol Flynn’s grin and Olivia de Havilland’s radiance. Here, Robin and Marian are played by a scowling Russell Crowe and a grim Cate Blanchett, who has the face of a wooden squaw stained by decades of cigar smoke. I can’t remember a more un-fun-looking couple.

Minnesota Supreme Court Assigns ICWA Indigent Counsel Costs to Counties, rather than State

Matthew L.M. Fletcher

Here are the two opinions and their syllabi: (1) In re S.L.J.

1.   Although indigent Indian parents have the right under the Indian Child Welfare Act, 25 U.S.C. § 1912(b) (2006), to representation by court-appointed counsel in juvenile protection proceedings, in the absence of express statutory authority under Minn. Stat. § 611.14 (2008) indigent Indian parents do not have the right under either Minn. Stat. §§ 611.16 or 611.18 (2008), to the appointment of public defenders to represent them.
2.   Under Minn. Stat. § 260C.331 (2008), the cost of court-appointed counsel to represent indigent Indian parents in juvenile protection proceedings is a charge upon the county in which the proceedings are held.
3.   Under Minn. Stat. § 375.1691 (2008), a judicial order compelling the payment of county funds must be paid no later than the first fiscal year after the order is received by the county.

(2) In re J.B.

1.   Although indigent parents, guardians, and custodians have the right under Minn. Stat. § 260C.163, subds. 3(a) and (b) (2008), to representation by court-appointed counsel in juvenile protection proceedings, in the absence of express statutory authority under Minn. Stat. ch. 611 (2008), indigent parents, guardians, and custodians do not have the right to the appointment of a public defender to represent them.
2.   Under Minn. Stat. § 260C.331 (2008), the cost of court-appointed counsel to represent indigent parents, guardians, and custodians in juvenile protection proceedings is a charge upon the county in which the proceedings are held.
3.   The district court did not err in holding the county in civil contempt for failing to obey the court’s order to pay in full the attorney fees of private counsel appointed to represent the indigent parents in juvenile protection proceedings.
4.   Courts’ enforcement of statutory obligations imposed on counties does not violate the Separation of Powers Clause of the Minnesota Constitution.

Federal Court Holds that Lakota Students Must Wear Traditional Cap and Gown

Matthew L.M. Fletcher1 Comment

Here are the materials in Dreaming Bear v. Fleming (D. S.D.) (news article here via Pechanga):

DCT Order Denying Dreaming Bear Motion for Injunction

Dreaming Bear Motion for PI

** Elizabeth Cook-Lyn Affidavit

School District Opposition

Dreaming Bear Reply

dré cummings on Media Bias and Indian Law

Matthew L.M. Fletcher

andré douglas pond cummings has posted his paper, “A Shifting Wind?: Media Stereotyping of American Indians and the Law,” on SSRN. Here is the abstract:

An accurate historical narrative of the treatment imposed upon American Indians at the hands of the United States Government reveals a sordid tale. The portrayal and stereotyping of North America’s indigenous civilizations by the United States’ popular media emulates this foul history. The U.S. legal system’s contemptuous judicial decrees and legal policies promulgated for more than two centuries testifies to the Government’s and the popular media’s hostility and historical abuse toward American Indians. Unfortunately for historical (and modern) purveyors, each of these abhorrent deeds is memorialized for the world to read and see in innumerable broken treaties, motion pictures, literary works and judicial reporters.

In recent decades, historians and scholars, both American Indian and non-native alike have skillfully documented the deceitful trail of broken promises and near annihilation. In addition, the popular U.S. media and the U.S. legal system have intersected curiously over the years in connection with a tag-team treatment of and discrimination against American Indians. The media, including print advertising, newspapers, literary works, television, online sources and motion pictures, seems to have borrowed historical stereotypical characterizations from the judiciary and U.S. government policies, and vice versa, simultaneously portraying American Indians as ferocious and savage yet simple and helpless. Proven instances of governmental abuse and discrimination, hostile portrayal and stereotyping by the media and contemptible judicial decrees are innumerable.

In very recent years, there is some evidence that the winds are shifting. Slowly and steadily, segments of the mass media seem to be trending toward a more honest historical account of U.S. history, and the portrayal of American Indians is becoming more reflective of reality and humanity. In the past decade, encouraging signs that the wind is shifting have signaled a potential sea change in the way that American Indians are presented to the United States public through the media and the law.

That said, favorite American Indian stereotypes and comfortable discriminations die hard. As the law and media stumble forward awkwardly, attempting to get it right, an assortment of U.S. contingencies, including professional sports franchises and American Universities, cling desperately to time-worn typecasts and hostile imagery.

While a veritable candelabra of options exist when attempting to describe the shameful historical treatment of American Indians, the following three brief snapshots will be presented to capture the essence of that treatment and to contemplate any further change in the curious intersection between the media and the law. The three snapshots will include a glimpse of the historical United States Government treatment of American Indians, followed by a look at the traditional stereotyping of American Indians by U.S. mass media and finally a brief examination of a few of the historically offensive judicial decrees handed down by federal judges. Thereafter an examination of the connection between the modern media and the law will be undertaken to assess whether a sea change is truly upon us.

Univ. of Michigan Announces Shift in NAGPRA Compliance–Good News!!!!

Matthew L.M. Fletcher1 Comment

From the U-M Record Update:

A new federal rule that takes effect today regulating the transfer of Native American human remains provides an important opportunity for U-M to work with Native American communities.

More information
Click here to go to the Web site of the Advisory Committee on Culturally Unidentifiable Human Remains under NAGPRA.

That’s the view of Stephen Forrest, vice president for research. His office will oversee the transfer of human remains controlled by the university but for which no culturally affiliated Indian tribe has been identified.

“Of course we will respectfully comply with the law,” Forrest says. “But more importantly the rule gives us a framework for establishing trust and strengthening working relationships with Indian tribes in Michigan and elsewhere.”

The new rule was adopted as an extension of rules implementing the Native American Graves Protection and Repatriation Act of 1990, which gave standing to lineal descendents and culturally affiliated tribes to seek repatriation of burial remains, funerary objects, sacred objects, and cultural patrimony. It did not address the disposition of culturally unidentifiable human remains.

In the collection of the Museum of Anthropology, U-M has the remains of about 1,600 Native American individuals unidentifiable with an existing tribe.

Forrest says both his office and the Museum of Anthropology are seeking additional staff to facilitate the outreach to tribes, consultations and transfers.

While some are worried that the transfers will limit future research opportunities, Forrest sees it differently.

“Developing trusting relationships may facilitate future communications about ways of asking and answering questions of broad interest to both the university and native communities.”

Last fall Forrest appointed the 12-member Advisory Committee on Culturally Unidentifiable Human Remains under NAGPRA to provide advice and guidance on the procedures used to notify and consult with groups from whose tribal or aboriginal lands the remains were removed.

NAGPRA requires federal agencies and organizations that receive federal funds to submit to the U.S. Department of the Interior inventories of Native American human remains in their possession, and to include their best judgment as to whether the remains are culturally affiliated with a present day Indian tribe or known earlier group, or are culturally unidentifiable because no shared group identity can be reasonably traced.

Culturally affiliated remains are repatriated upon request after a public comment period.

The new rule specifies that after appropriate consultation, culturally unidentifiable remains are to be transferred to a Native American tribe from whose tribal or aboriginal lands the remains were excavated or removed.

Now that the new rule has clarified the process, Forrest says his office will be the university point of contact for requests and will take the necessary steps to facilitate the respectful transfer of Native American human remains in the U-M collection to tribes.