The opinion and coverage is on Indianz, and here are the briefs:
cultural resources
Comanche Nation v. US — Preliminary Injunction Granted in Fort Sill Case
Our earlier posting was here.
Now, the court has granted a preliminary injunction against further construction at Medicine Bluffs at Fort Sill.
“American Indian Education” Profiled by ICT
From ICT:
TEMPE, Ariz. – Matthew L.M. Fletcher is an associate professor at Michigan State University College of Law and he is the director of the Indigenous Law and Policy Center. He recently published, ”American Indian Education: Counternarrative in Racism, Struggle, and the Law” through Routledge. He graduated from University of Michigan Law School.
Indian Country Today: Why did you choose to pursue a career in law?
Matthew L.M. Fletcher: I just want to be able to contribute something to the community and I also was thinking in different ways, even before I started college, what I could do. I had talks with people who are from my community and elders from Michigan who talked a lot about how in the ’70s and ’80s, the big treaty fishing cases were going on and people were really happy with the outcomes with those cases but they were sad to see all the litigation conducted and organized and control by people that were not from the community.
ICT: Do you feel like you have helped your tribe?
Fletcher: I feel like I’ve contributed something and I continue to contribute something. My whole life will be a process of contributing. I think it has been real good.
ICT: What is the future of Indian law?
Fletcher: It’s interesting. The ’70s and ’80s were about litigating treaty rights. The key for Indian lawyers is not so much about going to court but it’s about developing governmental structures within the tribe which is what lawyers do. It’s actually a folly to go to federal courts now. All you have to do is ask anyone who does any kind of litigation in federal court if you’re representing a tribe or tribal interest you can’t expect to win. It’s going to be that way for a long time. The thing that you see is institution building within Indian country. There are some incredible things going on that are not getting a lot of attention. There is a lot of creativity with people bringing back indigenous culture and tradition.
ICT: How would you define sovereignty?
Fletcher: My view of sovereignty is that it is the right to make your own mistakes and to decide things for yourselves. That is really what it is about. Tribes have the wherewithal, the ability and the legal authority to pursue different avenues of governance. They are going to do something where everyone shakes their heads, and then they are going to do other things where people are going to just say, ”Wow.” There is an incredible amount of diversity and creativity going on right now.
Ronald Krotoszynski on Employment Division v. Smith II
Ronald Krotoszynski has published “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith” in the Northwestern University Law Review. Here is an excerpt from the introduction:
Thus, the standard approach is to link the importance of religious autonomy with a strict form of judicial scrutiny for governmental actions that have the incidental effect of denying religionists, including but not limited to members of minority religions, the ability to engage in religiously motivated conduct. Viewed from this vantage point, Smith is highly objectionable because it makes successful free exercise challenges to general laws virtually impossible to win. Even if the federal courts have not applied strict scrutiny in an exacting fashion, lowering the standard of review to mere rationality virtually ensures that most free exercise claims will fail. Thus, the Justices who support strict scrutiny of neutral laws of general applicability that burden religiously motivated practices, such as Justice Brennan and Justice O’Connor, object strenuously to Smith’s change in the governing standard of review from earlier cases, such as Sherbert and Wisconsin v. Yoder, the latter a case that upheld a free exercise claim brought by Amish parents who wished to remove their children from the public schools after the eighth grade. If the Free Exercise Clause exists to facilitate absolute religious autonomy, the Sherbert approach advocated by Justices Brennan and O’Connor would better honor free exercise values. At the very least, it certainly seems reasonable to frame the Free Exercise Clause in terms of religious autonomy.
Rather than as advancing religious liberty or autonomy values, one could alternatively conceive of the Free Exercise Clause as primarily promoting religious equality. If equality among sects is the primary purpose of the Free Exercise Clause, the Smith test (or something like it) might offer a better reading of the Clause than Sherbert and Yoder.
Feds Do Not Enforce NAGPRA — NATHPO Report
From the National Association of Tribal Historic Preservation Officers (H/T Falmouth):
“Federal Agency Implementation Of NAGPRA”
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This study was undertaken to prepare a substantive foundation for assessing the implementation of the Native American Graves Protection and Repatriation Act (NAGPRA) and identifying where improvements might be made.
The Background section of this report includes historic information that describes one systemic effort that led to Native American ancestors and objects becoming separated from their local communities. The Research Findings section includes original research, analysis of existing public information, and two national surveys conducted to determine how the Act is being implemented and how Federal agencies and Native Americans are working together to achieve the goals of the Act. Findings and Recommendations included in this report reflect the current state of Federal agency compliance with the Act, as of May 2008.
Comanche Nation v. US – TRO on Federal Construction at Fort Sill
The Western District of Oklahoma granted the Comanche Nation’s emergency motion for a temporary restraining order enjoining construction at a location at Fort Sill, Oklahoma. Here are the materials:
From the order:
Before the Court is the Plaintiffs’ Motion for Temporary Restraining Order [Doc. No. 2] filed on August 15, 2008. Plaintiffs ask the Court to enter a temporary restraining order enjoining Defendants from commencing or continuing the construction of a warehouse on the Ft. Sill Military Reservation at the southern base of Medicine Bluffs. Medicine Bluffs is listed on the National Register of Historic Places, and Plaintiffs contend that the proposed warehouse location, just south of the boundary of the historic features area, is a significant religious and ceremonial site protected by federal law from disruption or interference.
Plaintiffs provided notice to Defendants of the filing of this lawsuit as well as the Motion for a Temporary Restraining Order and, on August 15, 2008, the Court met with counsel for Plaintiffs and counsel for Defendants to hear argument and consider the request for a temporary restraining order.
By affidavit, Plaintiff Jimmy Arterberry, Jr., establishes that Defendants intend to begin deep excavation of the proposed warehouse site on Monday, August 18, 2008, and that this excavation precedes the laying of a permanent concrete foundation for the warehouse. Plaintiffs contend that, because the excavation location is a site considered by the Comanche Nation to be a sacred area and is used by members of the Comanche Nation for traditional religious and ceremonial purposes, the imminent excavation of the site will cause permanent, irreparable harm.
ICT Article on Indian Language Textbooks
From ICT:
SANTA FE, N.M. – Long-talked-about efforts to infuse Native culture and language learning in the public education system have resulted in action in New Mexico.
A textbook co-authored by Evangeline Parsons Yazzie, a Navajo professor at Northern Arizona University in Flagstaff, has been selected by the state’s education department as a high-quality resource that will soon be made available to all school districts in the state.
State officials believe that New Mexico is the first state to adopt a Navajo textbook for use in the American public education system.
So far, officials from 10 districts have already signed on to have teachers in their systems use the book and its companion teaching guide. BIA schools are also eligible to review the text and decide whether to use it starting in the 2009-10 school year.
”It’s just wonderful that an Indian language is being honored in this way,” Yazzie said. ”It’s so important that American Indians learn about their people, their language and their culture from their own people, rather than just reading about it in a textbook that’s written by a non-Indian.”
Yazzie’s book, ”Dine’ Bizaad Binahoo’ahh,” or ”Rediscovering the Navajo Language,” is filled with cultural and language lesson plans that are suitable for all ages of students, according to the author. It is illustrated with many historical and contemporary pictures of people who have lived on the Navajo reservation. It’s also accompanied by a CD with the voices of Yazzie and her brother, Berlyn Yazzie, a former educator on the Navajo Nation.
“In Defense of Property” from Kristen Carpenter, Sonia Katyal & Angela Riley
Kristen Carpenter, Sonia Katyal, and Angela Riley have posted “In Defense of Property” on SSRN. Here is the abstract:
This Article advances a comprehensive theory to explain and defend the emergence of indigenous cultural property claims. In doing so, it offers a vigorous response to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous culture and ideas. In our view, cultural property critiques arise largely because of the absence of a comprehensive and countervailing theory of indigenous cultural property. To remedy this absence, this Article articulates a robust theory of indigenous property that challenges the individual rights paradigm animating current property law. Specifically, this piece makes two broad contributions to existing property theory. First, it draws on but departs significantly from Margaret Jane Radin’s groundbreaking work linking property and ‘personhood,’ and defends cultural property claims, in contrast, within a paradigm of ‘peoplehood.’ Second, this piece posits that, whereas individual rights are overwhelmingly advanced by property law’s dominant ownership model, the interests of peoples, particularly indigenous peoples, are more appropriately and powerfully effectuated through a theory of property characterized most aptly by stewardship.
As this Article demonstrates, our stewardship paradigm suggests a theory of property that goes far beyond the cultural property context, with implications for property law generally. By introducing a fundamental paradigm shift that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners’ duties and rights to tangible and intangible goods, even in the absence of title or possession. This Article draws on a wealth of literature from the corporate, environmental, and indigenous contexts to introduce an innovative framework for rethinking ownership altogether. Ultimately, our stewardship theory of property makes a significant contribution to the field, filling an existing void in property theory and adding a much-needed perspective to the ongoing debate over cultural property protections.
Thunderhorse v. Pierce — Prisoner Religious Freedom Case
Hey, a successful challenge in a prisoner religious freedom case! That doesn’t happen very often.
NYT’s: Energy Exploration Threatens Indian Artifacts
From the NYTs:
DOLORES, Colo. — The dusty documentation of the Anasazi Indians a thousand years ago, from their pit houses and kivas to the observatories from which they charted the heavens, lies thick in the ground near here at Canyons of the Ancients National Monument.
Or so archaeologists believe. Less than a fifth of the park has been surveyed for artifacts because of limited federal money.
Much more definite is that a giant new project to drill for carbon dioxide is gathering steam on the park’s eastern flank. Miles of green pipe snake along the roadways, as trucks ply the dirt roads from a big gas compressor station. About 80 percent of the monument’s 164,000 acres is leased for energy development.
The consequences of energy exploration for wildlife and air quality have long been contentious in unspoiled corners of the West. But now with the urgent push for even more energy, there are new worries that history and prehistory — much of it still unexplored or unknown — could be lost.
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