cultural resources

ICT Coverage of Eagle Rock Protest

Matthew L.M. Fletcher

From ICT:

As the spirits whispered through the towering pines on 40 mile per hour winds atop sacred Eagle Rock, American Indian warrior Levi Tadgerson said, “you can feel our relatives and the spirits with us.”

He stood on the cliff’s edge looking out upon northern Michigan’s Yellow Dog Plains for another approaching storm – literally and figuratively – as Tadgerson’s fellow warriors are trying to stop an international mining giant from destroying the site where Ojibwa ceremonies have taken place as long as elders can remember.

In late April, Kennecott Eagle Minerals began site preparation work for its sulfide mine called the Eagle Project. The entrance to the nickel and copper mine will be built at sacred Eagle Rock.

“We are defending the water, we are defending our treaty rights and our right to practice our culture,” said Tadgerson, who describes himself as “an Anishinaabe man who loves and respects the environment.

“We’re defending our right to live a healthy life and have our kids live a healthy life.”

The Keweenaw Bay Indian Community and numerous environment groups are worried because sulfuric acid is a byproduct of sulfide mining plus several companies have announced plans for dozens of similar mines.

Kennecott says environmental protection is a major concern, but opponents say the way the company has operated other mines doesn’t show it.

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N.Y. Appellate Court Reverses Eminent Domain Acquisition of Land that Includes “Historic Indian Remains”

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re Courtland County.

An excerpt:

Petitioner argues that the taking should nevertheless be upheld on the alternative ground that it was exempt from the hearing requirements of EDPL article 2 because the taking was de minimis ( see EDPL 206[D] ). The fact that the amount of land is not substantial does not necessarily render a taking de minimis ( see Matter of Marshall v. Town of Pittsford, 105 A.D.2d 1140, 1140-1141 [1984], lv denied 64 N.Y.2d 606 [1985] ). Initially, we are reluctant to retroactively find compliance with the EDPL under the facts of this case where petitioner opted to attempt to pursue condemnation under a separate statute with different procedures. In any event, we are unpersuaded that this record supports a de minimis determination in light of the close proximity of the project to land with significant historic remains (there are two letters in the record from Native American groups articulating concerns), together with the fact that petitioner expanded the scope of the project from what was originally proposed and such expansion resulted in the State Office of Historic Preservation suspending its earlier approval.

Lonny Winrich on the UND Name Change

Matthew L.M. Fletcher

From the Grand Forks Herald:

GRAND FORKS — If there’s one thing that’s clear in all the fog surrounding the Fighting Sioux name controversy, it’s that the Board of Higher Education has the authority to decide what will be done.

That’s what the North Dakota State Constitution says, as interpreted by the North Dakota Supreme Court. The court’s ruling also serves as a reminder that a modern democratic government is constrained by a constitution that delimits its powers.

Democracy is not to be found in a spontaneous plebiscite whenever there is an unpopular decision. Democracy means governing by the requirements of a constitution.

This brings up another point: The Standing Rock Sioux Tribe also is governed by a constitution. That constitution has no provision for — and gives no official standing to — the proposed referendum.

If the Standing Rock Sioux Tribe is allowed to vote, any interpretation of the results will owe more to a hyperactive media than to any lawful authority. The duly elected tribal council speaks for the tribe, and I think the board has been wise to base its decisions on the actions of the tribal council.

The board has dealt with a very difficult and contentious issue. I doubt there is anyone, including board members, who is happy with all the twists and turns this problem has taken.

But the board has made its decision — which only it can do — based on a thoughtful consideration of all aspects of the issue. As North Dakotans, we cannot expect more from our public officials.

I, for one, want to express my thanks to the board members for their service in this tough situation.

Lonny Winrich

Winrich, a Democrat, represents District 18 in the North Dakota House.

Havasupai Press Release on the Arizona State DNA Settlement

Matthew L.M. Fletcher

Here (Havasupai ASU Press Release):

FOR IMMEDIATE RELEASE                          CONTACT (Plaintiffs): Shayna Samuels, 718-541-4785

April 21, 2010                                              CONTACT (ABOR): Katie Paquet, 602-229-2543

Havasupai Tribe and Arizona Board of Regents Resolve Lawsuit, Announce Future Collaborations

(April 21, 2010 — Phoenix, AZ) – Yesterday the Arizona State Legislature’s Joint Legislative Budget Committee approved a settlement agreement between the Havasupai Tribe and the Arizona Board of Regents resolving litigation involving allegations of unauthorized genetic studies of Havasupai people.

Two decades ago, two former Arizona State University (ASU) researchers collected hundreds of blood samples from Havasupai members, in connection with diabetes research. According to the Havasupai, without their consent or knowledge, the samples also were used in DNA studies that conflicted with Havasupai cultural beliefs, identity and privacy.

Carletta Tilousi, lead Plaintiff and Councilwoman for the Havasupai Tribe said, “We are glad to have come to a resolution with ASU, and hope that this experience helps create better awareness, understanding and cooperation between this institution and our people, and helps us to rebuild what we have lost.”

The Arizona Board of Regents (ABOR) and Arizona State University have formally apologized to the Havasupai people, and the Tribe has acknowledged that great efforts have been made to improve the oversight and conduct of human subject and biomedical research at ASU as a result of the lawsuit.

Key elements of the settlement include return of blood samples to the Havasupai Tribe, monetary compensation to the 41 individual plaintiffs, and collaborations between ABOR and the Havasupai people in areas such as health, education, economic development, and engineering planning. For example, the Havasupai will collaborate with ASU, the largest public research university in the United States, to seek third party funding to build a new health clinic and a high school.  Havasupai Tribal Members will also be eligible for scholarships at ASU, the University of Arizona and Northern Arizona University.

Ernest Calderón, President of the Arizona Board of Regents, said that “The Board of Regents has long wanted to remedy the wrong that was done. This solution is not simply the end of a dispute but is also the beginning of a partnership between the universities, principally ASU, and the Tribe.”

The Havasupai Tribe lives at the base of the Grand Canyon in Arizona, a place reachable by an hours-long hike or mule ride, or in the modern era, a helicopter. Currently the Tribe is composed of about 650 registered members. The remoteness of their location has allowed them to retain a strong cultural identity as well as the native Havasupai language.

“This is much more than a settlement; it is a victory for the Tribe,” said Robert Rosette, Attorney for the Havasupai Tribe. “This is an opportunity to partner with the largest research institution in the United States to create programs which will help the Tribe build a stronger sovereign nation.”

“As we see it, this settlement is far more than dismissing a lawsuit; the settlement is the restoration of hope for my people, and the beginning of Nation Building for my Tribe” said Chairwoman Bernadine Jones.

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Congrats to the Havasupai tribe and people, and to their lawyers at Rosette and Associates.

Hogan v. Kaltag Tribal Council — A Petition to Watch — Corrected

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a [member] and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

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Federal Court Declines to Dismiss Charges in Indian Artifact Theft Case

Matthew L.M. Fletcher

Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.

An excerpt:

Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.

However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.

Two New Books by John Borrows from University of Toronto Press

Matthew L.M. Fletcher

John’s work is very thought-provoking, especially for American Indian law scholars and practitioners seeking to discover and perhaps utilize Indian common law, customs and traditions.

1. Canada’s Indigenous Constitution

Canada’s Indigenous Constitution reflects on the nature and sources of law in Canada, beginning with the conviction that the Canadian legal system has helped to engender the high level of wealth and security enjoyed by people across the country. However, longstanding disputes about the origins, legitimacy, and applicability of certain aspects of the legal system have led John Borrows to argue that Canada’s constitution is incomplete without a broader acceptance of Indigenous legal traditions.

With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Drawing Out Law: A Spirit’s Guide.

2. Drawing Out Law: A Spirits’ Guide

The Anishinabek Nation’s legal traditions are deeply embedded in many aspects of customary life. In Drawing Out Law, John Borrows (Kegedonce) skillfully juxtaposes Canadian legal policy and practice with the more broadly defined Anishinabek perception of law as it applies to community life, nature, and individuals.

This innovative work combines fictional and non-fictional elements in a series of connected short stories that symbolize different ways of Anishinabek engagement with the world. Drawing on oral traditions, pictographic scrolls, dreams, common law case analysis, and philosophical reflection, Borrows’ narrative explores issues of pressing importance to the future of indigenous law and offers readers new ways to think about the direction of Canadian law.

Shedding light on Canadian law and policy as they relate to Indigenous peoples,Drawing Out Law illustrates past and present moral agency of Indigenous peoples and their approaches to the law and calls for the renewal of ancient Ojibway teaching in contemporary circumstances.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Canada’s Indigenous Constitution.

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Michigan Daily: Indians and Profs Discuss New NAGPRA Regs

Matthew L.M. Fletcher

From the Michigan Daily:

About 40 people met in East Hall Friday to participate in a roundtable discussion of the new regulations of the Native American Grave Protection and Repatriation Act and the effects it will have on the repatriation process of culturally unidentifiable remains currently in the University’s possession.

NAGPRA — a federal law that has been in place since 1990 — requires museums to maintain lists of Native American artifacts in their possession, make those inventories available to the public and work with tribes to repatriate the artifacts.

Last month, a NAGPRA committee approved changes to the act that require museums — including the University’s Museum of Anthropology, which currently holds about 1,400 culturally unidentifiable remains — to consult with tribes from the areas where the culturally unidentifiable remains were exhumed and ultimately to return the remains.

The roundtable was hosted by the Ethnography-As-Activism Workgroup, a group comprised mostly of University graduate students that is part of the Rackham Interdisciplinary Workgroup program and is committed to using ethnography to promote activism.

The discussion, which coincided with the annual Dance For Mother Earth Powwow that was held over the weekend at Saline Middle School, aimed to focus on how the University will implement the new NAGPRA regulations, which go into effect next month.

Representatives from several tribes from across the state received a rousing applause from the group as they spoke passionately about the importance of having the remains currently in the University’s possession repatriated.

“It’s easy. Right is right. Wrong is wrong. Immoral is immoral,” one of the representatives said. “The law is on the side of (our) grandparents who lie in cardboard boxes. That’s where the spirit of that law is. Nobody else. This is why the Indian people of this state are alienated from this University — because of that single issue that the University is unwilling to discuss it with any of us.”

In addition the representatives, Toni Antonucci, chair of the University’s Advisory Committee on Culturally Unidentifiable Human Remains under NAGPRA, Wenona Singel, associate director of the Indigenous Law and Policy Center at Michigan State University and University of Michigan Anthropology Prof. Stuart Kirsch each gave short presentations and helped facilitate a group discussion afterward.

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Scientists’ Suit over New NAGPRA Regs?

Matthew L.M. Fletcher

From Rob Capriccioso at ICT:

WASHINGTON – Scientists are considering a lawsuit against a new rule that would help repatriate thousands of Native American remains to tribes across the nation.

The rule, published March 15 and open for comment for 60 days, is a clarification from the Interior Department to the 1990 Native American Graves Protection and Repatriation Act. It states that after appropriate tribal consultation, transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. Civil penalties are proposed for museums and learning institutions that do not follow the law.

The development has been largely celebrated by Native American communities, although tribal advocates say it has shortcomings, like not including sacred culturally unidentifiable funerary objects in its scope. Some tribes are using the open comment period to make that concern known, noting that common law and some state laws require repatriation of such objects.

Some scientists, however, are outraged by the new rule, believing that important human knowledge could be lost if the remains go back to tribes.

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Freep Editorial on the Kennecott Mine and Its Impact on Indian Sacred Sites

Matthew L.M. Fletcher1 Comment

From the Freep:

UP mine threatens sacred tribal rights

BY JESSICA L. KOSKI

For far too long, the voices of affected and concerned Ojibwa people have been ignored in the midst of Kennecott’s proposed Eagle Mine in Michigan’s Upper Peninsula.

I am a member of the Keweenaw Bay Indian Community, and we did not invite Kennecott, a subsidiary of multinational mining giant Rio Tinto, to come into our ceded homelands and reservation territory to explore for minerals, blast into our sacred site, and leave behind a dying legacy of colonialism.

Indigenous peoples throughout the world are on the front lines of similar pressures to develop resources within their homelands, with little regard for their aboriginal rights. There is little mainstream media attention bringing awareness to these issues, despite a global movement for indigenous rights and numerous case studies on the impacts of mining and other extractive industries on indigenous communities.

In addition to the proposed Eagle Mine, Rio Tinto’s intentions to open up six additional mine sites, and increasing mineral exploration throughout the entire Lake Superior basin, are threatening Ojibwa treaty rights. Through treaties with the federal government, Ojibwa leaders ensured permanent reservations and retained rights to hunt, fish and gather on ceded lands. If the water and land are polluted from harmful mining, how will our treaty rights and cultural values be honored and continue into the future?

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