legal history

Walter Echohawk’s Ten Worst Indian Law Cases Ever Decided Book Announcement

Matthew L.M. Fletcher3 Comments

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided

Book website here.

Press release here: InTheCourts_release.

Blurb:

The fate of Native Americans has been dependent in large part upon the recognition and enforcement of their legal, political, property, and cultural rights as indigenous peoples by American courts. Most people think that the goal of the judiciary, and especially the US Supreme Court, is to achieve universal notions of truth and justice. In this in-depth examination, however, Walter R. Echo-Hawk reveals the troubling fact that American law has rendered legal the destruction of Native Americans and their culture.

Echo-Hawk analyzes ten cases that embody or expose the roots of injustice and highlight the use of nefarious legal doctrines. He delves into the dark side of the courts, calling for a paradigm shift in American legal thinking. Each case study includes historical, contemporary, and political context from a Native American perspective, and the case’s legacy on Native America. In the Courts of the Conqueror is a comprehensive history of Indian Country, from a new and unique viewpoint. It is a vital contribution to American history.

Justice Breyer on Cherokee Cases and the Supreme Court’s History

Matthew L.M. Fletcher2 Comments

From the Yale Daily News via How Appealing:

Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.

Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”

Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.

Thirty-five years later, Levin said he could sum up Breyer in a single word.

“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”

The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.

Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.

“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.

Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.

“Even Jackson figured out that was not such a good idea,” Breyer said. Continue reading →

Saginaw Chippewa v. Granholm Update — Court Order on Experts

Matthew L.M. Fletcher1 Comment

SCIT Order on Michigan Experts

An excerpt:

Legal scholars have suggested a variety of solutions to the problems associated with evaluating historical testimony, including the use of neutral, court-appointed experts; requiring the judge, or a special master, to evaluate the primary source data personally; and eliminating the “reliability” prong of the Daubert test. See Maxine D. Goodman,Slipping Through the Gate: Trusting Daubert and Trial Procedures to Reveal the ‘Pseudo-Historian’ Expert Witness and to Enable the Reliable Historian Expert Witness–Troubling Lessons from Holocaust-Related Trials, 60 Baylor L. Rev. 824, 861-73 (2008). Perhaps some of those solutions would provide for more nuanced and reliable historical testimony. In this case, however, a neutral expert was not requested or appointed, the demands of the Court’s docket make independent primary-source research impracticable, and development of a new test for admissibility of historical testimony seems unnecessary. More importantly, the expert opinions provided, while perhaps flawed in some respects, are reasonably reliable and will be helpful in determining the ultimate issue in this case. Consequently, they are admissible under Rule 702, and will be considered and weighed appropriately.

Natural Resources Journal (UNM) Symposium on New Mexico Land Grants

Matthew L.M. Fletcher

Here:

Symposium on
Land Grants and the Law:
The Disputed Legal Histories
of New Mexico’s Land Grants

Introduction ix
Kristina G. Fisher

Essay
Persistence and Disintegration: New Mexico’s Community Land Grants in Historical Perspective 847
Manuel García y Griego

Articles
Righting the Record: A Response to the GAO’s 2004 Report “Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico” 857
David Benavides & Ryan Golten

Appendix to Righting the Record: Land Grant Speculation in New Mexico During the Territorial Period 927
David Correia

Continue reading →

Knauer on Legal Fictions and Juristic Truth

Matthew L.M. Fletcher

Nancy Knauer has posted “Legal Fictions and Juristic Truth” on SSRN. It is forthcoming from the St. Thomas Law Review. There is extensive discussion of Johnson v. M’Intosh, truly a case of legal fiction on numerous levels.

Here is the abstract:

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term “constructive” in their titles adopt an “as if” rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge). Continue reading →

Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

Matthew L.M. Fletcher1 Comment

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

Did Indian Nations Influence the American Founders?

Matthew L.M. Fletcher6 Comments

Whether or not the Founders or Framers — the people who helped to form the American government — influenced the structure of the United States government is a fairly raucous debate that recurs again and again. We are reminded of it by the recent posting of Erik Jensen’s 1991 paper repudiating the connection between the Haudenosaunee Great Law of Peace and the American constitutional structure of federalism (here). Shortly thereafter (in 1993), Robert Miller published a paper purporting to show both significant “positive” and “negative” influences from tribal nations (not just the Haudenosaunee) on the Framers (Miller’s paper here). And there are numerous other studies in other fields, some of which get pretty vituperative.

We are struck by the superficial aspects of the origins of both the Haudenosaunee Confederation and the United States — uniting to confront a common enemy, it would seem.

And we are struck by the amount of scholarly (and other) literature that seeks a connection between the Haudenosaunee and Ben Franklin, and the amount of writing generated to harshly debunk those theories.

We want your opinions on this subject. Why is it important to many Indians that the American Constitution have Indian roots or influence? Why is it important to others that the American Constitution be free of Indian roots or influence?

And finally: Do you think the American Constitution would look the same if the Founders had no knowledge of tribal nations?

Strange Colonial Property Case in New York

Matthew L.M. Fletcher

Here is the opinion in O’Brien v. Town of Huntington, decided by the N.Y. Appellate Division. It involves a 125-acre parcel that the Town never knew it owned (allegedly) from colonial times to the 1970s. Now everyone’s suing for it, and the loser is the claimant who traces title back to a 17th century purchase from Indians. Hah!

An excerpt:

In any event, no evidence was adduced that Powell had consent from the defendants to acquire title to any of their land covered by royal patents. As indicated, by obtaining possessory rights from Native Americans in the seventeenth century, one did not acquire legally cognizable title (see Town of Oyster Bay v Stehli, 169 App Div 257, affd 221 NY 515). Moreover, the 1696 resolution only provided Powell with license to obtain further possessory rights from the Native Americans and, as such, did not confer fee title to the subject land. Even the plaintiffs’ experts conceded that this was not a deed, but rather a “license to purchase.” To the extent that such “license” creates ambiguity in title, it should be resolved in favor of the defendants’ retention of title (see People v New York & Staten Is. Ferry Co., 68 NY 71). Thus, it cannot be concluded that Powell acquired title to the subject tract of land which allegedly bulged over from Oyster Bay into the Town land and which had been granted to the defendants by the English Crown. Such a significant gap in the plaintiffs’ chain of title defeats their claim in the face of the defendants’ proof that the disputed property is part of the colonial land grants given to the Board of Trustees in the seventeenth century.

Amicus Brief in American Indian Religious Freedom Case

Matthew L.M. Fletcher1 Comment

We filed a short amicus brief in A.A. v. Needville Indep. Sch. District before the Fifth Circuit (Needville-Historian Amicus Brief) on behalf of Drs. Suzanne Cross and K. Tsianina Lomawaima.

The ACLU of Texas is lead counsel in this case, a challenge to a Texas public school’s decision to suspend a kindergarden student because he refused to cut his long hair. He is a member of the Lipan Apache Tribe. The family was successful before the district court, but the school district appealed.

Other materials:

Arocha DCT Order

Appellees Brief

2009.04.27 Appellants Brief

New Article about the Origins of Ex parte Young

Matthew L.M. Fletcher

From Legal History Blog:

Barry Friedman, New York University School of Law, has posted The Story of Ex Parte Young: Once Controversial, Now Canon,which is forthcoming in Federal Courts Stories, ed. Vicki Jackson & Judith Resnik. Here’s the abstract:

Ex parte Young is a central part of the federal courts canon, yet the underlying historical details are little known or understood. This is unfortunate. Many cases in the canon are contested by advocates of greater or lesser federal court intervention. Ex parte Young, however, is bedrock, almost universally admired across the ideological spectrum. At the time, though, this decision opening the doors to federal court was widely condemned by progressives who disdained judicial involvement in economic legislation. The Story of Ex Parte Young tells of the cases’ origins in Reconstruction and the Gilded Age, shedding light on how we should understand this now widely-accepted decision.