University of Michigan Journal of Law Reform Symposium — Panel on History of Property Dispossession

Moderator, Bernadette Atuahene, Beryl Satter, Louise Seamster, Michael Witgen, Mary Kathlene Sickel (symposium editor)

Michigan Journal of Law Reform 2019-2020 Symposium — “Dispossessing Detroit: How the Law Takes Property”

Here:

Law Reform Symposium

WHEN: Saturday, November 9, 8 AM – 5 PM 

WHERE: Hutchins Hall (various locations) 

WHAT: The goals of this Symposium are to provide historical and political context for current issues of property dispossession and to consider how governments, private industry, and private citizens can together seek reform. We are excited to bring together voices from law, policy, city government, community organizations, and more to engage the audience on this critical topic! Whether your interests are in tax foreclosure, bankruptcy, or Detroit’s story of dispossession, we hope you will join us. 

RSVP: https://dispossessingdetroitsymposium.com/rsvp-comment/ 

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News Profile of Lyda Conley, 1st Native Woman to Argue before SCOTUS

Here is “Lyda Conley and the battle for Wyandot recognition.”

“Thank you, TurtleTalk, for this story.  Lyda Conley is an inspiration to all of us who practice in the field.  Oftentimes, I have been identified as the first native woman to argue in the Supreme Court, wrongly so as it turns out.  For one, I’m proud to stand behind Lyda in second, third, or whatever place it puts me.  Let the record stand corrected.”  Arlinda Locklear

We at Turtle Talk have always thought of Arlinda as the first in the modern era. 🙂

New Scholarship on Sohappy v. Smith/United States v. Oregon

Michael C. Blumm and Cari Baermann have posted “The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching Effects After a Half-Century” on SSRN. It is forthcoming in Environmental Law.

Abstract:

Fifty years ago, Judge Robert Belloni handed down an historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination. 

The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers. 

Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal-state co-management in history and a model for other co-management efforts. This article examines the origins, effects, and legacy of the Belloni decision over the last half-century.

Gregory Ablavsky on the Origins of Dual Federalism

Gregory Ablavsky has published “Empire States: The Coming of Dual Federalism” in the Yale Law Journal (PDF).

Here is the abstract:

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors—an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism—became questions of vertical federalism, issues of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

Fletcher: “Indian Children and the Fifth Amendment”

Forthcoming in the Montana Law Review’s Browning Symposium issue, available at SSRN here.

An excerpt:

Many of my first memories revolve around my grandmother Laura Mamagona’s apartment in Grand Rapids, Michigan. She shared the apartment with my uncle Crockett, who was a college student. Her apartment was the upstairs room of an old house on the side of a hill on College Street. My memories are mostly of domestic activities. Cooking. Sweeping. Sitting around. Playing with trains. Leafing through Crockett’s Sports Illustrated magazine collection. Laura worked the night shift at the veteran’s hospital across from Riverside Park. Early on weekday mornings, June, my mother, would drop me off at Laura’s place in her VW bug, the first car I remember. I had my own crib at Laura’s, one I can remember escaping pretty easily. Often, Laura would sleep most of the morning while I puttered around the house. Sometimes, Crockett would be there. Family lore tells that once, June dropped me off earlier than usual and Laura had worked a little late, so I was probably there alone for a short while. I heard the story so often growing up that I can seemingly remember that day, too. This was in the mid-1970s, before Congress enacted the Indian Child Welfare Act.

Recently, my wife Wenona Singel discovered documents about Laura’s childhood home life in the National Archives in Chicago. Wenona was there to research family boarding school histories. Laura’s name as a young woman, Laura Stevens, was listed alongside several of her brothers and sisters as former students at Mount Pleasant Indian Industrial Boarding School. They were all born with the Pokagon surname, but Laura’s dad, Peter Stevens, changed their names, thinking it would help the family blend in with white America. Laura never attended the boarding school, and instead spent those years in quarantine in a hospital in Kalamazoo. We think she tested positive for tuberculosis at the boarding school intake and was diverted to quarantine. While Laura was there in the hospital during several of her early teen years, her biological mother walked on. Laura had younger brothers and sisters in her family home in Allegan County, Michigan. So, Peter—who was single then—drove to Kalamazoo and took Laura home. As a young woman, but the oldest sibling left in the house, Laura was forced to replace her mom. The archive documents contain reports by social workers who visited the house, we think, on somewhat random occasions. They were spot checks, of sorts, by the State of Michigan, to see how this Indian family with no mother in the home was coming along. The social workers detailed every aspect of the Stevens’ home in the reports. They noted how many Bibles were in the house and where they were placed. They noted how many portraits of Jesus Christ there were and the location each was hung. They reported Laura’s younger siblings were all dressed for company and quietly studying. They focused especially on teenaged Laura. There she was, sweeping the kitchen. There she was, cooking dinner. There she was, folding clothes. The social workers were impressed. Well, they were barely impressed. Laura was, after all, still an Indian. Reading the reports, one can’t help but think that young Laura Stevens was the only thing stopping the State from taking Peter Stevens’s kids away from him. Imagine if she had been out shopping on the day of the spot visit. The little Stevens kids would have been home alone, dishes in the sink and dirty clothes on the floor. Laura might have come home from shopping, and then later Peter from work, to find a home stripped of its children. However, this never came to be. Perhaps out of sheer luck, Laura was always home when the social workers showed up.

And:

The Fifth Amendment of the United States Constitution is a truly fateful provision for Indian people. On occasion, Wenona and I teach at the Pre-Law Summer Institute (PLSI) for American Indians. It’s an eight week program that serves a little bit like a summer boot camp for Indian people who are planning to matriculate to law schools in the fall. Wenona teaches Property and I teach Indian Law. Compared with the regular law school survey-the-field course in Federal Indian Law, the short class I teach at PLSI is even more truncated. I can only assign a cross-section of the “greatest hits” of Indian law Supreme Court decisions because I don’t have time to conduct a full survey. I also try to assign cases where tribal interests prevailed. It turns out tribal interests and Indian people prevail more than not when the Fifth Amendment is in play. However, there are cases where tribal interests painfully and dramatically suffer under the Supreme Court’s interpretation of the Fifth Amendment.