legal history

Paul Spruhan on Blood Quantum at Navajo

Matthew L.M. Fletcher

Paul Spruhan has published “The Origins, Current Status, and Future Prospects of Blood Quantum as the Definition of Membership in The Navajo Nation” in the Tribal Law Journal. Here is the abstract:

In this article, the author discusses the origin of the Navajo Nation’s blood requirement. Mr. Spruhan examines the intended purpose of the quarter-blood quantum definition and the role of the Bureau of Indian Affairs. He reviews the current status, regulation, and recent attempts to change the quarter-blood quantum requirement. He discusses the future of the quarter-blood quantum requirement with respect to the Navajo Nation Council’s 2002 resolution known as the “Fundamental Laws of the Diné,” a resolution mandating the application of traditional law, customary law, natural law, and common law to the Navajo Nation Government and its entities. In this regard, Mr. Spruhan inquires as to the impact the “Fundamental Laws of the Diné” will have on the quarter-blood quantum requirement and future membership requirements.

MSU Working Paper 2009-03 — Carcieri’s Impact on Michigan Tribes

Matthew L.M. Fletcher1 Comment

Novaline Wilson (MSU Law ’08) has written a nice paper on the impact of Carcieri v. Salazar on Michigan tribes, many of whom (8 out of 12) were not federally recognized in 1934. It is here. Note that she wrote this before Carcieri was decided. An excerpt:

The Supreme Court must consider unique historical circumstances of Michigan Indian tribes before effectively barring these administratively aggrieved tribes from the federal land-to-trust process. Michigan Indian tribes have a distinct political history as treaty tribes that were illegally administratively terminated in a “situation [that] is not simply an injustice of major proportions, it is a travesty of logic that boggles the rational mind.” Carcieri was correctly decided at the administrative appeals level, by the District Court, and by the First Circuit Court of Appeals. This case is not only without merit, it directly contravenes the BIA’s authority to fulfill their federally mandated trust obligations to tribes. The BIA has to administer the same general federal fiduciary obligations to all tribes, regardless of the year the federal government finally got around to “formally recognizing” tribes. As demonstrated through Michigan Indian tribal history, an outright bar on land-to-trust for those tribes not recognized in 1934 would not only eviscerate fundamental Indian law and administrative law principles, it would demonstrate deliberate ignorance of hundreds of years of American history between Indian tribes and the federal government.

Stuart Banner Talk Tuesday, March 24

Matthew L.M. Fletcher

The Indigenous Law and Policy Center is pleased to host Stuart Banner, a UCLA law professor and author of “Possessing the Pacific” and “How the Indians Lost Their Land” Tuesday, March 24, at 11 AM.

Prof. Banner will be talking about these two books. Michigan State Prof. Charles Ten Brink and U-M History VAP/ post-doctoral fellow at the Michigan Society of Fellows Miranda Johnson will be serving as commentators after Prof. Banner speaks.

Prof. Banner’s talk is part of the Center’s spring speaker series, in which we bring in authors of recent books relating in some way to Federal Indian Law.

The talk is at 11 AM in the Castle Board Room, and a light lunch will be provided. Hope to see you there!

Two Recent ICWA Articles

Matthew L.M. Fletcher

Here are two relatively recent law review articles on the Indian Child Welfare Act. First, Prof. Solangel Madonado published “Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield” in the Columbia Journal of Gender & Law. Prof. Maldonado is also the author of a chapter on Holyfield in Family Law Stories, from West. Here is an excerpt:

While the idea of allowing individuals to choose their racial, ethnic, or cultural identity based on their activities rather than biology has a certain appeal, it is difficult to imagine a court telling a person of African American descent that she is not really African American simply because she does not live in an African American neighborhood, have African American friends, or show interest in political issues that concern the African American community. Although political pundits and private citizens have suggested that Justice Clarence Thomas is “not really Black,” it is quite another thing for lawmakers to imply the same. Instead, we allow individuals to self-identify regarding race and ethnicity, regardless of their contact with the relevant community.

And another:

The willingness of Congress in enacting ICWA and the Court in Holyfield to consider social prejudices might also signal that antidiscrimination norms are much weaker in cases involving tribal Indians. The Supreme Court has held that, while societal biases might cause children emotional harm, the law cannot consider these biases when determining children’s best interests. However, ICWA’s drafters and the Holyfield court might have unwittingly given effect to such biases when they considered white communities’ rejection of Native American children and the potential psychological harm as a reason to keep them in Indian communities.

Another paper, by Daniel Albanil Adlong, called “The Terminator Terminates Terminators: Governor Schwarzeneggar’s Signature, SB 678, and How California Attempts to Abolish the Existing Indian Family Exception and Why Other States Should Follow“, published in the Appalachian Journal of Law, also discusses ICWA. Here is an excerpt:

Continue reading →

New Book: Unearthing Indian Land — Living with the Legacies of Allotment

Matthew L.M. Fletcher

Kristin T. Ruppel (Montana State) has published “Unearthing Indian Land: Living with the Legacies of Allotment” from the University of Arizona Press. Here’s the blurb:

Unearthing Indian Land offers a comprehensive examination of the consequences of more than a century of questionable public policies. In this book, Kristin Ruppel considers the complicated issues surrounding American Indian land ownership in the United States.

Under the General Allotment Act of 1887, also known as the Dawes Act,individual Indians were issued title to land allotments while so-called “surplus”Indian lands were opened to non-Indian settlement. During the forty-seven years that the act remained in effect, American Indians lost an estimated 90 million acres of land—about two-thirds of the land they had held in 1887. Worse, the loss of control over the land left to them has remained an ongoing and insidious result.

Unearthing Indian Land traces the complex legacies of allotment, including numerous instructive examples of a policy gone wrong. Aside from the initial catastrophic land loss, the fractionated land ownership that resulted from the act’s provisions has disrupted native families and their descendants for more than a century. With each new generation, the owners of tribal lands grow in number and therefore own ever smaller interests in parcels of land. It is not uncommon now to find reservation allotments co-owned by hundreds of individuals.Coupled with the federal government’s troubled trusteeship of Indian assets,this means that Indian landowners have very little control over their own lands.

Illuminated by interviews with Native American landholders, this book is essential reading for anyone who is interested in what happened as a result of the federal government’s quasi-privatization of native lands.

It has one of the best lines I’ve ever read on allotment — “on the whip end of someone else’s crazy” — a Judge Sally Willett quotation.

Tiya Miles on The Narrative of Nancy, a Cherokee Woman

Matthew L.M. Fletcher

Tiya Miles (University of Michigan) has published “The Narrative of Nancy, a Cherokee Woman” in the recent issue of Frontiers: A Journal of Women’s Studies (H/T Legal History Blog). From the intro:

On November 24, 1801, Nancy, “by appearance an Indian woman,” gave testimony at Fort Southwest Point, a garrison in eastern Tennessee established in 1792 to defend white settlements against Indian attack.1 In a statement recorded under the title “The Narrative of Nancy, A Cherokee Woman,” Nancy claimed that she had been wrongfully held as a slave in Virginia since the year 1778. At the time of her testimony, Nancy was approximately thirty one years old and living with a white man named, incredibly, Captain John Smith. Smith had purchased Nancy from John Fulton, who had bought her from William Kennedy. Nancy described the crime of her capture in graphic detail in the narrative, testifying that

[S]he was taken when a child from her mother, that the white people afterwards boasted that they held their guns over her mother’s head to frighten her when they took her away: that sometime afterwards she was carried a great way on horseback to a place where there were a number of houses . . . that she had two masters before Mr. Fulton bought her, that she had brothers and sisters when she was taken away from her mother, that she never saw any waters larger than the Tennessee and Clinch Rivers.

Continue reading →

Kate Fort on “The New Laches” in the George Mason Law Review

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort (MSU) has published “The New Laches: Creating Title Where None Existed” in the George Mason Law Review.  From the introduction:

Recent legal decisions dealing with Indian land claims have been cre-ating title for private property owners where no title previously existed. As has been explored by others, various areas of property law have been turned upside down in order to defeat tribes in court. However, one area, equity, has received special attention from the courts. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the United States Supreme Court in City of Sherrill v. Oneida Indian Nation to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims altogether. But is the use of these three defenses based on precedent them-selves? A careful examination of City of Sherrill and its progeny reveals that these defenses have in fact been combined to create a new defense, what I will call the “new laches” defense.

2009 Spring Speaker Series Announcement

Matthew L.M. Fletcher

Here is the announcement for our spring speaker series.

2009 Spring Speaker Series

Two Recent Indian Law Related Posts at the Legal History Blog

Kate Fort

Here are two recent Legal History Blog posts which may be of interests to readers of this blog.  Follow the links for more information about both:

Hernandez-Saenz Reviews “Empire of Laws and Indian Justice in Colonial Mexico”

H-Law has published “Law and Indigenous Peoples in Seventeenth-Century Mexico,” a review by Luz Maria Hernandez-Saenz, Department of History, University of Western Ontario, of Brian Philip Owensby’s Empire of Law and Indian Justice in Colonial Mexico (Stanford University Press, 2008).

Soliz and Joseph on Native American Literature, Ceremony and Law

Native American Literature, Ceremony, and Law is a new essay by Cristine Soliz, Colorado State University-Pueblo, and Harold Joseph. It will appear in MLA OPTIONS FOR TEACHING LITERATURE AND LAW, Austin Sarat, Cathrine Frank, Matthew Anderson, eds., 2009. Here’s the abstract (only the abstract, not a fuller essay, is available to download on SSRN).