legal history – Page 13

This paper addresses the Indian country criminal justice system’s difficulties through the context of the Great Lakes Anishinaabeg’s traditional customs, traditions, and laws, and their modern treatment of crime. Louise Erdrich’s The Round House expertly captures the reality of crime and fear of crime in Anishinaabe Indian country, and offers a bleak view of the future of criminal justice absent serious reform in the near future.

Review of The Other Slavery: The Uncovered Story of Indian Enslavement in America

April 26, 2017April 26, 2017Ann Tweedy1 Comment

My review of Andrés Reséndez’s The Other Slavery: The Uncovered Story of Indian Enslavement in America is up on JOTWELL: Equality. I highly recommend the book. It’s a dense and emotionally difficult read but well worth it for the knowledge you will gain. One of the things I was struck with was that the removal of Indian children from their homes by social services agencies has its roots in hundreds of years of stealing Indian children into slavery.

A Little History on Andrew Jackson and the Supreme Court (for Mike Huckabee)

March 18, 2017March 18, 2017Matthew L.M. Fletcher

Mike Huckabee invoked Andrew Jackson in encouraging the President to not comply with federal court orders striking the Muslim travel ban, saying “Hoping @POTUS tells Hawaii judge what Andrew Jackson told overreaching court-“I’ll ignore it and let the court enforce their order.”, invoking the aftermath of Worcester v. Georgia, in which the Supreme Court held that Georgia could not prosecute a white man (Worcester) for setting foot in Cherokee Indian country without its permission.

Like the President, Mr. Huckabee should look into history to see not only how offensive that statement is to both Indian people and to the integrity of United States, but how President Jackson ultimately and completely capitulated to the Supreme Court.

Here is Justice Breyer’s retelling of the incident:

But then North Carolina . . . said, “We will not give the United States customs duties that we owe them because we prefer to keep them. Andrew Jackson woke up to the problem and he ended up saying to the governor of Georgia, You must release Worcester.” They had a negotiation and Worcester was let out of jail.

Stephen G. Breyer, Reflections of a Junior Justice, 54 Drake L. Rev. 7, 9 (2005). In short, once President Jackson realized that South Carolina heard his comment about the Supreme Court enforcing their own orders and were ready to stop paying federal tariffs, he contacted Georgia Governor Lumpkin privately and asked him to release Worcester. He also got Congress to pass a “Force Act,” authorizing him to use the military against South Carolina to enforce those federal tariffs. He effectively capitulated to the Supreme Court in order to save the Union, leaving that mess for future Presidents.

And, finally, here is Chief Justice Marshall’s private mockery of Andrew Jackson after the President had capitulated:

Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra-Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist–a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.

David Loth, Chief Justice: John Marshall and the Growth of the Republic 368 (1949) (quoting a letter from Chief Justice Marshall to Justice Story). The Chief Justice was near death when he wrote this letter, and months earlier had believed that President Jackson’s refusal to enforce the Court’s order in Worcester was going to be the end of the Court, and perhaps the Constitution, and perhaps the Union. This letter expressed his relief that the Worcester order would be enforced, and his mockery of President Jackson for seemingly turning on his states’ rights ideology.

“Life on the Pine Ridge Native American reservation” — Al Jazeera

November 7, 2016Matthew L.M. Fletcher

Here.

Attorney Alan Stay on the Culverts Decision

October 28, 2016October 28, 2016Ann Tweedy

Here. My colleague Alan Stay was integrally involved in bringing the first treaty habitat case in U.S. v. WA, so this article makes for an interesting read.

New Paper Focuses on Double Taxation in Indian Country

May 6, 2016Sarah M Donnelly

Link to article here.

Citation and abstract:

Croman, K. S., & Taylor, J. B. (2016). Why beggar thy Indian neighbor? The case for tribal primacy in taxation in Indian country. Joint Occasional Papers on Native Affairs (JOPNA 2016-1). Tucson, AZ and Cambridge, MA: Native Nations Institute and Harvard Project on American Indian Economic Development.

The law governing taxation in Indian country is a mess. The accretion of common law precedents and the general tendency of states to assert primacy over the taxation of non-Indians create absurd outcomes. This article makes the case three ways. The argument based on the law shows that particularized, fact-specific precedents create a thicket of rulings that impede business development. The argument based on facts shows that these impediments to economic development harm not only tribal economies, but state and local economies, too. And the argument based on just claims testifies to the fact that the current arrangement could hardly have emerged from the actions of willing and informed governments operating in good faith. To borrow from Adam Smith, states beggar their Indian neighbors, seeking fiscal gain to the tribes’ detriment and, ultimately, their own. We conclude by recommending actions to bring fairness and certainty to the law governing taxation in Indian country.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

April 28, 2016April 28, 2016Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.