cultural resources

Jenny Reardon and Kim Tallbear on DNA, Genomics, and Anthropology

Matthew L.M. Fletcher1 Comment

Last year, Jenny Reardon and Kim Tallbear published “‘Your DNA is Our History’: Genomics, Anthropology, and the Construction of Whiteness as Property” in Current Anthropology. PDF here.

Important paper.

The abstract:

During the nineteenth century, the American School of Anthropology enfolded Native peoples into their histories, claiming knowledge about and artifacts of these cultures as their rightful inheritance and property. Drawing both on the Genographic Project and the recent struggles between Arizona State University and the Havasupai Tribe over the use of Havasupai DNA, in this essay we describe how similar enfoldments continue today—despite most contemporary human scientists’ explicit rejection of hierarchical ideas of race. We seek to bring greater clarity and visibility to these constitutive links between whiteness, property, and the human sciences in order that the fields of biological anthropology and population genetics might work to move toward their stated commitments to antiracism (a goal, we argue, that the fields’ antiracialism impedes). Specifically, we reflect on how these links can inform extralegal strategies to address tensions between U.S. and other indigenous peoples and genome scientists and their facilitators (ethicists, lawyers, and policy makers). We conclude by suggesting changes to scientific education and professional standards that might improve relations between indigenous peoples and those who study them, and we introduce mechanisms for networking between indigenous peoples, scholars, and policy makers concerned with expanding indigenous governance of science and technology.

D.C. Council Member David Grosso Takes Stand against Washington Redskins

Matthew L.M. Fletcher1 Comment

Washington Redtails!

WaPo.

HuffPo.

Call for Tribal Opposition to California State Corrections’ Deprivation of Native Religious Rights

Matthew L.M. Fletcher1 Comment

Here are the materials:

Call to Action Re California’s Proposed Violation of American Indian Prisoners’ Religious Freedoms

CA-DCR_(NCR_13-01)_2013-04-24

Sample Comment – California Department of Corrections and Rehabilitation NCR 13-01

UN_Letter of Support for HUY_2013-04-24

Arizona COA Holds Hopi Tribe May Proceed on Public Nuisance Claim against City of Flagstaff/Arizona Snowbowl

Matthew L.M. Fletcher2 Comments

Here is the unpublished opinion:

CV12-0370

An excerpt:

The superior court’s judgment dismissing the Tribe’s public nuisance claim is reversed. Although reversing, this decision does not address the merits of the public nuisance claim but, instead, addresses only the issues properly presented and decided on this appeal from the dismissal of the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6).

News coverage.

Huy Letter to UN Special Rapporteur James Anaya re: Indian Prisoner Religious Freedom

Matthew L.M. Fletcher1 Comment

Here:

UNSR Letter of Allegation Indigenous Prisoners Religious Freedom

Excerpt:

A pattern of restricting American indigenous prisoners’ religious freedoms is currently occurring throughout the United States. In recent years, states have issued new regulations curtailing the ability of American indigenous prisoners to possess religious items, participate in religious ceremonies, and otherwise engage in traditional practices. Further, changes in regulations continue to move forward absent meaningful consultation with indigenous peoples.

  • California: On February 21, 2013, the Department of Corrections issued an “emergency” regulation significantly limiting prisoners’ religious property.[i]  Effective immediately, prisoners no longer have access to sacred medicines like kinninnick, copal, and osha root, cloth for prayer ties, beads, pipes and pipe bags, and numerous other traditional items. The process for getting religious items approved was also made significantly more burdensome. Because the regulations constituted an emergency regulatory action, they went into effect immediately, without any consultation whatsoever with American indigenous peoples or opportunity for public comment.
  • Texas: Prison authorities recently changed regulations for an American indigenous prisoners’ unit, significantly restricting ceremonial participation. American indigenous prisoners are no longer allowed to participate directly in pipe ceremonies, smudge indoors, keep locks of hair from deceased relatives, or perform important ceremonies such as the Wiping Away the Tears ceremony.[ii]  Texas prison guards are also known to engage in overt racism toward indigenous prisoners. The media reports that on January 27, 2013, prison guards searched an indigenous prisoner’s cell, handling his medicine bag. When the prisoner stated that the guards were not supposed to touch his sacred items, a guard said “I don’t give a shit,” and that “being an Indian didn’t make him special.”[iii]
  • Montana: American indigenous prisoners in Montana are currently challenging en masse strip searches conducted prior to sweat lodge ceremonies as well as the confiscation or prohibition of smudge tobacco, antlers, herbs, and other sacred materials.[iv] The state of Montana issued an investigatory report in 2009 confirming almost all of the allegations as well as describing the derogatory treatment of indigenous prisoners by guards.[v]
  • South Dakota: American indigenous peoples comprise 27 percent of the South Dakota prison population, the highest proportion of any state in the country.[vi] On October 19, 2009, the Department of Corrections extended a ban on tobacco to indigenous religious uses. Indigenous prisoners were no longer allowed to use tobacco in sweat lodge ceremonies, pipe ceremonies, or for prayer ties and flags. When a federal district court held the ban violated federal law, prison authorities were still unable to agree with prisoners on an accommodation, forcing the court to issue a remedial order.[vii] South Dakota has appealed the case to the Eighth Circuit Court of Appeals.
  • Washington: In 2010, the Washington Department of Corrections barred almost all American indigenous prisoners’ religious practices, banned tobacco, reclassified sacred medicines such as sage and sweet grass as non-religious, prohibited foods for traditional meals such as frybread and buffalo, disallowed children from attending summer prison pow wows, and altered regulations so that certain religious items could no longer be securely stored.  After ten tribes petitioned the governor, the Department of Corrections reversed course, consulting with tribal leaders about reforms and reaching an accommodation to restore American indigenous prisoners’ religious rights.[viii]  Events in Washington demonstrate both the larger pattern of rising restrictions on indigenous prisoners’ rights as well as the importance of consultation with American indigenous peoples concerning administrative measures that affect them.  That state-tribal consultation and reform effort is what gave rise to Huy.

[i] State of California Office of Administrative Law, Notice of Approval of Emergency Regulatory Action, http://www.oal.ca.gov/res/docs/pdf/emergency_postings/2013-0206-01EON_App.pdf.

[ii] Appellant’s Opening Brief, Chance v. Texas Department of Criminal Justice, No. 12-41015 (January 14, 2013), https://turtletalk.blog/wp-content/uploads/2013/01/chance-opening-brief-filed.pdf.

[iii] Brian Daffron, “Inmate’s Religious Rights Allegedly Violated Within Texas Prison System,” Indian Country Today (March 8, 2013), http://indiancountrytodaymedianetwork.com/2013/03/08/inmates-religious-rights-allegedly-violated-within-texas-prison-system-148058.

[iv] Knows His Gun v. Montana, 866 F.Supp.2d 1235 (D. Mont. 2012), http://www.narf.org/nill/bulletins/dct/documents/knows_his_gun.html.

[v] Montana Department of Corrections Investigation Team, “Investigation into Complaints from Native American Inmates at the Crossroads Correctional Center, Shelby, Montana,” May 14, 2009, Part 1: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation1.pdf, Part 2: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation2.pdf.

[vi] Native Am. Council of Tribes v. Weber, No. Civ. 09-4182, 2012 WL 4119652 (D.S.D. Sept. 19, 2012), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[vii] Id.; Remedial Order, Native Am. Council of Tribes v. Weber, Civ. 09-4182-KES (D. S.D. 2013), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[viii] Gabriel S. Galanda, “Native American Prisoners Obtain Religious Freedom,” King County Bar Association Bar Bulletin (July 2012), https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=07&Year=2012&AID=article1.htm.

NNABA Resolution Supporting the Free Exercise of Indigenous Religion by American Indian, Alaska Native and Native Hawaiian Prisoners in Domestic Detention Facilities

Matthew L.M. Fletcher1 Comment

Here:

NNABA Resolution 2013-3

Excerpts:

NOW THEREFORE BE IT RESOLVED, that the National Native American Bar Association calls upon the United States, all fifty American states and the District of Columbia – including federal and state executive, agency, legislative, corrections and judicial officials and employees – to:

(a) Take all reasonable and any least restrictive steps to commend, support and facilitate incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion,

(b) Denounce or cease any unduly burdensome or patently illegal or illegitimate federal, state or local government restriction upon incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion, and

(c) Explore how federal, state and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples.

NOW THEREFORE BE IT FURTHER RESOLVED, that the National Native American Bar Association calls upon the American Bar Association, Federal Bar Association and state and local bar associations, the National Congress of American Indians, regional inter-tribal associations and individual American indigenous governments, the United States Attorney General and Department of Justice, the American Correctional Association and American Association of State Correctional Administrators, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples, to also formally call upon the United States, all fifty American states and the District of Columbia, to:

(a) Take all reasonable and any least restrictive steps to commend, support and facilitate incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion,

(b) Denounce or cease any unduly burdensome or patently illegal or illegitimate federal, state or local government restriction upon incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion, and

(c) Explore how federal, state and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples.

Judge Orders Repatriation of Jim Thorpe’s Remains under NAGPRA

Andrew Adams III4 Comments

Judge Caputo (Mid. Dist. Penn.) entered an order granting a complete summary judgment in favor of Bill and Richard Thorpe and the Sac and Fox Nation in the litigation to repatriate the remains of Jim Thorpe pursuant to the Native American Graves Protection and Repatriation Act.

The judge concluded that NAGPRA applies to the remains of Jim Thorpe and to the Borough, and he also ruled that the passage of time between the enactment of NAGPRA and the filing of this case did not prevent a repatriation. This is a very significant ruling under NAGPRA, and it should be helpful to tribes in the future because it addresses and rejects some so-called defenses to NAGPRA that could be used to impede repatriation efforts.

Memorandum Decision

Order

Update w/ materials:

Borough Motion for Summary J

Sac and Fox Nation Motion for Summary J

Borough Response

Sac and Fox Nation Response

Havasupai prevails in WIPO Arbitration regarding the Havasupaitribe.com website.

Matthew Campbell

The arbitration decision can be found here.  The Respondent has filed a complaint in federal court to stay the arbitration decision, which we will try to obtain.  A snippet of the arbitration decision:

The Complainant is an Indian Tribe (termed a “Native Sovereign Nation” in more recent governmental documents) that is recognized by the Federal Government of the United States of America. The Complainant occupies a tribal reservation in and around the Grand Canyon of the Colorado River in the State of Arizona. It is undisputed that the Complainant is a legal entity that is competent, among other things, to engage in commerce and to own and use trademarks in commerce.

Since the 1950s, tourism has been the Complainant’s principal economic activity, commercialized through tribally owned enterprises. Despite the fact that there are no roads leading to the portion of the tribal reservation where world-famous waterfalls are located, some 20,000 tourists arrive annually on foot or on horseback, or by helicopter. The Complainant’s “Havasupai Tourism Enterprise” provides tourism services such as food, lodging, and guided horseback excursions and operates the “Havasupai Lodge”, the “Havasupai Tribal Café”, the “Havasupai Trading Post”, and campgrounds. The Complainant’s official website is found at “www.havasupai-nsn.gov”. . . .

The Respondent has since used the Domain Name for commercial gain, for paid advertising relating to Grand Canyon tours and lodging and other services, some of which compete with those offered by the Complainant. The Respondent has fostered a likelihood of confusion with the Complainant’s marks, by using the same Domain Name incorporating those marks that was formerly used by the Complainant itself, misleadingly displaying the Complainant’s name on the associated website and the Complainant’s contact information on the “Contact” page of that website, and providing no identification of the Respondent or disclaimer of affiliation with the Complainant. The Panel concludes that these facts fit the paradigm of bad faith described in the Policy, paragraph 4(b)(iv), as an attempt to mislead Internet users for commercial gain.

NYTs: French Court Allows Sale of Hopi Artifacts

Matthew L.M. Fletcher

Here.

Prior post here.

NYTs Op/Ed on the Possible Sale of Wounded Knee

Matthew L.M. Fletcher1 Comment

Here.

By Chief Joseph Brings Plenty, a former chairman of the Cheyenne River Sioux Tribe, teaches Lakota culture at the Takini School on the Cheyenne River Indian Reservation.