Here.
Michael Tomasky: “The Racist Redskins”
Here.
cultural resources
Turtle Talk Poll: Will Washington Pro Football Team Change Nickname?
New Student Scholarship on Appropriation of Native Culture
Brian Sheets has published “Papers or Plastic: The Difficulty in Protecting Native Spiritual Identity” in the Lewis & Clark Law Review (also SSRN).
Here is the abstract:
Sellers of Native ceremonies offer the opportunity to non-Natives to participate in ceremonial traditions with roots in Native spiritual communities—for a price. These “plastic shamans” have appropriated some Native ceremonies, sometimes with fatal results. Commodifying these spiritual practices removes important communal identities from their sources and furthers the stereotype that Native communities and their cultural practices are relics of the past—a concept reinforced through divorcing cultural practices from vibrant, modern Native societies struggling to maintain an identity. In response to ceremonial appropriation by plastic shamans, some Native spiritual communities have sued operators of botched ceremonies, and have further advocated for legal protection of Native ceremonies in Western legal concepts. However, Western law misses the mark. While spiritual identity is offered protection through exemptions to generally applicable laws, the Western requirement of a bright-line object to represent spiritual identity does not allow for the protection of an intangible ceremony from appropriation. Furthermore, Western concepts of intellectual property are market based, and directly conflict with the intent to protect Native ceremonies from being commodified. These conflicting values demonstrate the tension in protecting spiritual identity. And when Native cultural composition, transformative ceremonial practice, and distributions of ceremonies between Native groups are taken into account, the difficulty becomes even more apparent.
This Comment explores the approach of current Western laws seeking to protect cultural heritage, and then applies one Native proposal through a First Amendment analysis to demonstrate the difficulty of protecting Native spiritual identity in Western law. Some of the current means of protecting and preserving Native spiritual identity make appropriation even easier through documentation requirements. While there is a compelling reason to protect Native ceremonies from appropriation, Western courts are limited in their ability to favor one group’s religious practices over another. This Comment concludes that while difficult to protect in law, public awareness is the most likely cure to prevent shopping for spirituality—enlightenment and selfactualization cannot be bought off-the-shelf with the clerk asking at checkout “paper, or plastic?”
Eighth Circuit Upholds Dismissal of Spirit Lake Tribe ex rel Committee of Understanding and Respect v. N.C.A.A.
Opinion here.
The Spirit Lake Tribe of Indians, by its Committee of Understanding and Respect, and Archie Fool Bear, individually and as representative of more than 1,004
members of the Standing Rock Sioux Tribe – collectively, “the Committee” – sued the National Collegiate Athletic Association (NCAA) for interfering with the University of North Dakota’s use of the Fighting Sioux name, logo, and imagery. The NCAA moved to dismiss. The district court1 treated the motion as one for summary judgment and granted it. The Committee appeals. This court affirms.
Previous coverage here.
NYTs on Trend of International Museums to Repatriate Human Remains of Indigenous Peoples
Here.
An excerpt:
In many ways, the German association is drawing on the experiences of museums in Britain and the United States, which started facing claims for the repatriation of human remains decades ago. The Smithsonian began to repatriate American Indian bones in the late 1980s, and in 1990 the United States passed legislation to enforce the return of those remains by museums that benefit from federal funds. The Smithsonian independently returned remains to Australia in 2008 and 2010.
However, a report in 2011 from the Government Accountability Office still urged new measures to speed up the Smithsonian’s work, because by then it had returned only 5,000 remains, about one-third of its collection of such material.
Interesting Tenth Circuit Appeal on Confessions at Kewa Pueblo
Here are the materials in United States v. Aguilar:
From the opinion, which in part dealt with a motion to suppress under the Fourth Amendment’s voluntariness requirement:
Aguilar argues his consent to the agents to enter his home and view the eagle feathers was involuntary when considering the totality of the circumstances. In particular, Aguilar argues the district court understated the significance of his belief that the agents were acting under the authority of the Pueblo Governor, whom, he argues, he was bound to obey according to Pueblo custom and tradition. In response, the government argues Aguilar’s subjective beliefs are irrelevant to the issue of voluntariness of consent insofar as there is no indication the agents were aware of or took advantage of them.
***
The district court arrived at this finding by noting that, prior to the agents’ arrival, Aguilar had already spoken with the Governor about his having killed eagles on tribal land. From this, the court found it was possible Aguilar thought the Governor informed the USFWS about his killing of eagles, but that it was equally likely Aguilar considered the matter to have been resolved to the Governor’s satisfaction during their meeting.
Uranium Companies and Others Challenge Secretarial Withdrawal of Lands Around Grand Canyon on Establishment Grounds
In January of 2012, Secretary Salazar announced that he was withdrawing lands near the Grand Canyon. Specifically, the withdrawal prohibits new mining claims and development on old claims that lack “valid existing rights.”
Recently, uranium companies and others have challenged the withdrawal. A portion of Yount’s Second Amended Complaint:
SIXTH CLAIM
The Secretary of the Interior’s rationale for a withdrawal as stated in his Record of Decision is substantially based on granting an unconstitutional preference for the religious belief of Native Americans proximate to the NAPWA. By deferring to Native American religious and cultural beliefs this appears to convey a message of government endorsement of their religious beliefs contrary to established law.
A portion of Quaterra Alaska, Inc.’s Amended Complaint:
Federal law does not recognize the right to preclude land uses
based solely on religious or cultural sensibilities. Sensibilities or feelings that are separate from a site protected under the NHPA or religious practice protected by RLUIPA and enjoy no legal protection. A withdrawal based on protecting sensibilities independent of legally protected sites and religious practices is arbitrary and capricious and contrary to
law. It is based on irrelevant factors not recognized in law and exceeds the Secretary’s authority.
Tribes and the Michigan Wolf Hunt
The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.
In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in Michigan, Wisconsin, and Minnesota have opposed state-sanctioned wolf-hunting. Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.
Senator Casperson of Escanaba, the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:
“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”
Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States. The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan. In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.
Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”
Section 23 of the 2007 Agreement addresses consultation between the tribes and the State. In particular, Section 23.4 provides:
“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”
I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt. I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement. That issue may well be decided in the near future.
I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level. That is not the legally appropriate forum in which to address tribal treaty rights. If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.
Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.
It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan). This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.
To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.
*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations.
Borough to Appeal Jim Thorpe Ruling because It’s Cheaper to Do So
Here, via How Appealing.
The Guardian on Influence of American Indians on European Art
Here.
Turtle Talk 
You must be logged in to post a comment.