From the website:
Angela Riley spoke in the Supreme Court chamber about the history of the Supreme Court and Native American lands. The lecture, which took place in the Supreme Court chamber, was one in a series hosted by the Supreme Court Historical Society on the Constitution, the Supreme Court, and property rights. Justice Ruth Bader Ginsburg introduced Professor Riley.
Video here.
Mary Kathryn Nagle has published “Nothing to Trust: The Unconstitutional Origins of the Post-Dawes Act Trust Doctrine” in the Tulsa Law Review (48 Tulsa L. Rev. 62 (2012)).
Here is the article:
These two papers — from 1970 and 1974 — are interesting tidbits on the 1970 Nixon message to Congress and perhaps some backgrounds on the 1975 Indian Self-Determination and Education Assistance Act. Miigwetch to Bob Anderson for the 1970 paper, and miigwetch to whomever sent me the 1974 paper (poor form in losing the accompanying docs).
Here is the My North notice:
Time: October 26, 2012 from 2pm to 3pm
Location: Eyaawing Museum & Cultural Center
Street: 2304 North West Bay Shore Dr.
City/Town: Peshawbestown
Phone: 231.534.7768
Event Type: literary
Organized By: Grand Traverse Band of Ottawa and Chippewa Indians
Ann E. Tweedy (Hamline Law) has published her paper “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers” in the Seattle University Law Review.
Here is the abstract:
During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones. This Article responds to this Supreme Court precedent with two main points. First, it shows that non-Indians at the time had notice that the allotment policy was unfair to tribes (and that they sometimes directly advocated for its injustices). From this information, I argue that non-Indian purchasers of tribal lands—and subsequent purchasers from them—should not be understood to have had justifiable expectations that the reservations would disappear and that they therefore could not be subject to tribal jurisdiction in the future. Second, I argue that the Supreme Court should stop using the troubled history of allotment, which it construes based on incomplete information and without taking account of tribal interests and perspectives, to justify further restrictions on tribal sovereignty. My purpose in this Article is to question both the substance of these presumed expectations and their justifiability. I begin this questioning with a thorough analysis of previously unexamined historical newspaper articles concerning non-Indian settlement of Indian reservations during the allotment era. I then argue that, as reflected by the above quote from Superintendent King, most non-Indians during the allotment period cared little about whether Indians were treated justly. Furthermore, I argue that many non-Indians had notice that tribes were being unjustly deprived of their lands through the allotment process, and that some non-Indians even advocated for this very injustice to occur. Both notice of injustice and complicity in the government’s unjust actions precluded non-Indian purchasers from forming justifiable expectations. This rigorous, context- specific look at non-Indian expectations suggests that, in sharp contrast to current Supreme Court practice, tribal jurisdiction over nonmembers should generally be upheld and Indian reservations should not generally be held to have been diminished or disestablished as a result of allotment.
Here:
Legend’s Grand Opening Announcement:
Don’t miss the exciting Grand Opening of “Legends of the Grand Traverse Region: Community out of Diversity.” This celebration is on Saturday, Sept. 22nd from 4:00pm to 6:30pm at the History Center of Traverse City. Attendees will tour the brand new Legends’ Exhibit, listen to the featured speaker, and then socialize at an elegant reception featuring adult beverages and tasty hors d’oeuvres. Admission is free, although good will offerings will be requested and are always appreciated!
The speaker is Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University College of Law, and member of the Grand Traverse Tribe of Ottawa and Chippewa Indians. He will be speaking on “The Story of the Grand Traverse Band’s Treaty Rights Fight.”
Professor Fletcher’s talk is designed to complement our fall 2012 Legend’s Exhibit. It highlights three of the “Legends” of the Traverse area: Art Duhamel of the Grand Traverse Band, well known for his stands regarding native fishing rights and federal recognition of the Grand Traverse Band; The Schaub family and their famous relative, Emelia Schaub, who was the first female prosecutor in Michigan; and Augusta Rosenthal-Thompson, who in 1884 arrived in northern Michigan as the first woman physician to practice in this area.
The Legends’ exhibit will be open through October 25th. That Thursday this fall’s Legends’ activities will close with an afternoon workshop and evening presentation by Dr. Elizabeth Faue, Professor of American History and the History of Women at Wayne State University. The afternoon workshop is on genealogy and “Lost Mothers.” The evening talk is entitled: “Barriers and Gateways: Women, Gender, and the Professions in the United States.”
Don’t miss this opening celebration of the Legends of the Grand Traverse Region. These fall 2012 Legends events are only an introduction to continuing Legends activities. Over the next several years we will celebrating more Legends: People and families from diverse backgrounds who came together to build the community we live in today. Our next three Legends will be celebrated starting in March of 2013, with more Legends being announced in Fall of 2013, Spring of 2014, and hopefully far into the future.
The History Center of Traverse City thanks the Michigan Humanities Council for its crucial support of the Legends’ project. We also thank our Legends’ partners: The Grand Traverse Genealogical Society, the Northwest Lower Michigan Women’s History Project, Congregation Beth El, the Hispanic Apostolate of the Diocese of Gaylord, the Traverse City Human Rights Commission, Professor Jim Press of Northwestern Michigan College’s History Department, and Cindy Patek of the Grand Traverse Tribe’s Eyaawing Museum and Cultural Center
Kenneth Casebeer has posted his paper, “Subaltern Voices in the Trail of Tears: Cognition and Resistance of the Cherokee Nation to Removal in Building American Empire,” on SSRN.
Here is the abstract:
Empire, since publication of the book by the same name, by Michael Hardt and Antonio Negri has generated almost an obsession for revisionist social theorists. In this literature, the idea and history of empire is structurally dialectical – the ongoing interaction between imperialist colonizers and subordinated indigenous or subaltern populations and cultures connected with the colonized space. Included in this literature are two recent works that present a curious view of American Empire, and its relatively early and key history of removal of Eastern Native nations to west of the Mississippi. The curiosity in the book by Sean Wilentz, and an article more focused on law by Paul Frymer , is that the exceptional histories of removal they report includes the voice of none of the removed populations, the subalterns by which the imperialists are in part constructed. In this review the record is simply being documented as necessary to recover the subalterns assumed by the histories because they were there, and had to be there, in the history of subordination. Contrasting the stunted reasoning of the federal government with Cherokee resistance and subsequent dénouement links removal’s significant contribution to the legitimation campaign supporting slavery and Dred Scott, and in material terms, contributed to the inevitability of the secession and the Civil War.
Mark Killenbeck, author of several excellent legal histories, including one on M’Culloch v. Maryland and another on the Tenth Amendment, has posted his short history of the Interstate Commerce Clause, “A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States.”
Here is the abstract:
This lecture was delivered on May 23, 2012, as part of the Supreme Court Historical Society’s annual Leon Silverman Lecture Series. My goal was to discern what key founders envisioned when they crafted and approved the Commerce Clause and explore how it has been interpreted and applied by the Court. I take as my starting point themes struck by James Madison in his Vices of the Political system of the U. States, in which he noted a “want of concert in matters where the common interest requires it,” a flaw “strongly illustrated in the state of our commercial affairs,” to the point that “the national dignity, interest, and revenue [have] suffered from this cause.” Madison’s lament was not, however, about the need to guard against an overbearing federal government. Rather, he was concerned about the corrosive effects of a “a mistaken confidence” in “the justice, the good faith, the honor, the sound policy, of . . . several legislative assemblies” whose actions were marked by “caprice, jealousy, and diversity of opinions.” Madison also counseled against excessive reliance on interpretations grounded solely in the drafting and ratification debates, speaking of the need to “liquidate and ascertain” meaning over time, recognizing, as did Chief Justice John Marshall, that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A close and careful reading of both Madison and Marshall – in particular, Marshall’s opinion for the Court in Gibbons v. Ogden (1824) – suggests, accordingly, that sharp departures from the original understanding of the Commerce Clause occurred long before Wickard v. Filburn (1942), and that there is substantial support for an expansive reading of the nature and scope of the commerce power in the words and intentions of the founders.
EBCI Judge J. Matthew Martin continues his interesting scholarly work in the legal histories of tribal justice systems with “Chief Justice John Martin and the Origins of Westernized Tribal Jurisprudence,” recently published in the Elon Law Review.
From the article:
Judge John Martin created the modern Tribal Court. This template, still in use today, envisions a Court based on notions of jurisprudence easily recognizable to western eyes, yet leavened with aspects of Tribal culture and tradition. The model comprises a Court system that is familiar and dedicated not only to sovereignty, but also to defiance. The significance of the beginnings of the modern Tribal Court has been consistently underestimated, particularly by the Supreme Court of the United States. John Martin’s crucial role in it has largely been forgotten.
Here.
An excerpt:
Taxpayers clearly pay too much for too little justice. Changing to a truth-seeking system might be a remedy. This would require, at a minimum: outlawing the concealing of evidence; re-training academics to teach law students techniques of finding the truth instead of mugging up a million ways to defeat it; dismantling the professional cartel by training judges separately from lawyers; appointing six times as many judges, on the basis of rigorous examinations, and giving them back control of the process; compelling lawyers and judges to take an oath to tell the truth; having lay jurors and trial and appellate judges sit together to render their verdicts and levy penalties (if any) together.
Justice Russell Fox said the public knows that “justice marches with the truth.” It’s high time we tried to reunite the two.
Turtle Talk 
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