legal history

Penn. Law Review Note on Judicial Abolition of Indian Slavery in Virginia

Matthew L.M. Fletcher1 Comment

Here is a pdf link to the article, which is titled, “Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy.” Also available on SSRN.

An excerpt:

In 1772, George Mason, later famous as the “Father of the Bill of Rights,” represented a slave named Robin and eleven other enslaved plaintiffs in the General Court of Virginia, the colony’s highest court. The slaves claimed that maternal descent from an American Indian made their enslavement illegal, and Mason marshaled arguments from natural law and statutory history to support that contention. In a terse one-paragraph opinion typical of the era, the court agreed, freeing the plaintiffs and ordering their former master to pay them nominal damages.

Freedom suits were common in colonial Virginia. Although defined as property for almost all legal purposes and denied rights of citizenship, slaves could allege illegal enslavement and sue for their freedom. Courts recognized such claims throughout the slaveholding South from slavery’s seventeenth-century beginnings onward; these suits offered one of the few routes to manumission in early America.

The ordinary posture of the Robin v. Hardaway case, though, belied its extraordinary result. The court’s decision marked a watershed in the legal history of Virginian slavery; it was the first recorded holding of an Anglo-American court that maternal descent from an American Indian alone established the right to freedom. This outcome was remarkable in the context of early America, where, despite present-day conceptions that all slaves were Africans, Indian slavery was ubiquitous. Indian slaves could be found in all thirteen mainland British colonies in 1772, as well as in the French and Spanish colonies of North America. In Virginia alone, thousands of descendants of enslaved Indians toiled alongside African slaves on plantations. Robin v. Hardaway repudiated this history and deemed the previously common institution illegal in all but a few circumstances, inaugurating a line of cases that culminated in 1806. In the end, Virginia courts concluded that enslaved descendants of Native Americans were “prima facie free,” judicially abolishing Indian slavery in Virginia. This precedent spread: throughout the antebellum period, courts in Connecticut, Louisiana, Missouri, New Jersey, South Carolina, and Tennessee all grappled with Virginia’s decisions and debated whether maternal descent from American Indians was sufficient to establish freedom.

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew L.M. Fletcher

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

New Book on California v. Cabazon Band of Mission Indians

Matthew L.M. Fletcher1 Comment

Ralph A. Rossum has published, “The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians,” as part of Landmark Law Cases and American Society series from the University of Kansas Press. 

Here is the press’s blurb:

When the Cabazon Band of Mission Indians—a small tribe of only 25 members—first opened a high-stakes bingo parlor, the operation was shut down by the State of California as a violation of its gambling laws. It took a Supreme Court decision to overturn the state’s action, confirm the autonomy of tribes, and pave the way for other tribes to operate gaming centers throughout America.

Ralph Rossum explores the origins, arguments, and impact of California v. Cabazon Band of Mission Indians, the 1987 Supreme Court decision that reasserted the unique federally supported sovereignty of Indian nations, effectively barring individual states from interfering with that sovereignty and opening the door for the explosive growth of Indian casinos over the next two decades.

Rossum has crafted an evenhanded overview of the case itself—its origins, how it was argued at every level of the judicial system, and the decision’s impact—as he brings to life the essential debates pitting Indian rights against the regulatory powers of the states. He also provides historical grounding for the case through a cogent analysis of previous Supreme Court decisions and legislative efforts from the late colonial period to the present, tracking the troubled course of Indian law through a terrain of abrogated treaties, unenforced court decisions, confused statutes, and harsh administrative rulings.

In its decision, the Court held that states are barred from interfering with tribal gaming enterprises catering primarily to non-Indian participants and operating in Indian country. As a result of that ruling—and of Congress’s subsequent passage of the Indian Gaming Regulatory Act—tribal gaming has become a multibillion dollar business encompassing 425 casinos operated by 238 tribes in 29 states. Such enormous growth has funded a renaissance of reservation self-governance and culture, once written off as permanently impoverished.

As Rossum shows, Cabazon also brings together in one case a debate over the meaning of tribal sovereignty, the relationship of tribes to the federal government and the states, and the appropriateness of having distinctive canons of construction for federal Indian law. His concise and insightful study makes clear the significance of this landmark case as it attests to the sovereignty of both Native Americans and the law.

“Some view Cabazon as an emphatic ruling supporting tribal sovereignty, while others see it as a deeply compromised decision that elevated state government’s role in internal native affairs. Rossum deftly situates the case historically, legally, and culturally, and persuasively argues that this is one of the more important decisions ever handed down by the High Court.”—David E. Wilkins, author of American Indian Sovereignty and the U.S. Supreme Court

“Rossum’s well researched book hits all the crucial topics and deals comprehensively with a host of complex issues in a clear, concise, and interesting manner. I wholeheartedly endorse it.”—Alexander Tallchief Skibine, S.J. Quinney Professor of Law, University of Utah

RALPH A. ROSSUM is Salvatori Professor of American Constitutionalism at Claremont McKenna College and author of Antonin Scalia’s Jurisprudence, also from Kansas.

Building Strong Sovereign Nations: Anishinaabek Leadership For Seven Generations Tribal Governance Training Conference ~ May 19/20 ~

Peter Scott Vicaire

The Building Strong Sovereign Nations Tribal Governance Training Conference is quickly approaching.  It’s happening on May 19th and 20th at the Odawa Casino Resort in Petoskey.  Here’s a link to the registration page. 

Richard Pomp on the Indian Commerce Clause and State Taxation

Matthew L.M. Fletcher

Richard Pomp’s incredible opus, “The Unfilled Promise of the Indian Commerce Clause and State Taxation,” has been published in the Tax Lawyer.

Here is the pdf: Richard Pomp Indian Commerce Clause Article

Excellent New Scholarship: Richard Pomp’s “The Unfulfilled Promise of the Indian Commerce Clause and State Taxation”

Matthew L.M. Fletcher

Richard Pomp has published his mammoth article in the ABA’s “The Tax Lawyer.” A short description of this paper is here. If you are a member of the ABA taxation section, you can get the whole thing here.

An excerpt:

This Article is an expanded version of luncheon remarks delivered at a symposium on the Commerce Clause at Georgetown Law School. A few things became clear after my address on the Indian Commerce Clause and state taxation. Many people at the Conference had only a faint memory that such a clause even existed. To most state tax practitioners and academics, “the Commerce Clause” meant the Interstate Commerce Clause and, perhaps secondarily, the Foreign Commerce Clause, but certainly not the Indian Commerce Clause.

True, a small group of “Indian law” insiders has long existed. These specialists have traditionally serviced tribes endowed with natural resources. More recently, revenue generated across the country from Indian gaming, hotels, restaurants, manufacturing, industrial parks, gas stations, cement factories, timber operations, smokeshops, or sports franchises has created legal work for firms that traditionally did not practice Indian law.

This new group of practitioners has quickly learned what the more experienced firms have long known: the issues raised by the taxation of Indians, the tribes, and those doing business with them are sui generis—and complicated, even by tax standards. To be sure, state tax lawyers are used to multijurisdictional issues. Taxes are levied by sewer, water, school, and transit districts; cities; counties; states; and the national government—tribal taxes would seem to add merely one more level.

Although comforting, this view would be misleading. Indian taxation drags lawyers into areas outside their normal comfort zone. Practitioners need to master treaties between the federal government and the tribes; state enabling acts; numerous Indian-specific statutes and executive orders that often reflect polar swings in Congressional policy; special Indian canons of construction; the unique patchwork pattern of land ownership on reservations; and concepts like “Indian sovereignty” that serve as a ubiquitous, amorphous, and malleable backdrop in many cases. Bread-and-butter issues for state tax lawyers—like apportionment and discrimination—take on new meanings. The Indian tax cases tolerate results that would violate the Interstate Commerce Clause. The formative Supreme Court cases on Indian taxation often reflect the composition of the bench and sympathies (or lack thereof) of individual justices for the Indians. Add to this the difficulty of obtaining up-to-date information on tribal tax codes, and the result is a labyrinth of unpredictability.

While the topic of my conference presentation and hence the subject of this Article is the Indian Commerce Clause and state taxation—and not a treatise on all aspects of state taxation (and nothing on federal taxation)—I would disserve the reader by not straying a bit afield. To cut to the chase, the Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. Readers would have every right to feel that slogging their way through this lengthy Article was not worth the effort if that were the only message at the end of the journey. And so, with the encouragement of the conference organizers and journal editors, I have interpreted my charge broadly to sketch the contours of other Indian tax doctrines so that the reader will have a feel for the signposts and boundaries. I have focused on a selection of prominent U.S. Supreme Court cases, mostly involving state taxation; many more could have been discussed. My goal is not to be exhaustive (or exhausting), but rather suggestive and illustrative.

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Kate Fort on The New Laches and the Iroquois Land Claims

Matthew L.M. Fletcher1 Comment

Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.

Here is the abstract:

That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.

The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.

Book Announcement: Charles Wilkinson’s History of the Siletz Tribe

Matthew L.M. Fletcher

The People Are Dancing Again

The History of the Siletz Tribe of Western Oregon

CHARLES WILKINSON

To be published in November by the University of Washington Press!

Book website here. Book trailer here.

Here’s the blurb:

The history of the Siletz is in many ways the history of many Indian tribes: a story of heartache, perseverance, survival, and revival. The history of the Siletz people began in a resource-rich homeland thousands of years ago. Today, the tribe is a vibrant, modern community with a deeply held commitment to tradition.

The Confederated Tribes of Siletz Indians-twenty-seven tribes speaking at least ten languages-were brought together on the Oregon Coast through treaties with the federal government in 1853-55. For decades after, the Siletz people lost many traditional practices, saw their languages almost wiped out, and experienced poverty, ill health, and humiliation. Again and again, the federal government took great chunks of the magnificent, timber-rich tribal homeland, reducing their reservation from the original allotment of 1.1 million acres-which reached a full 100 miles north to south on the Oregon Coast-to what is today several hundred acres of land near Siletz and 9,000 acres of forest. By 1956, the tribe had been “terminated” under the Western Oregon Indian Termination Act, selling off the remaining land, cutting off federal health and education benefits, and denying tribal status. Poverty worsened, and the sense of cultural loss deepened.

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Dan Lewerenz on the Jay Treaty Free Passage Right

Matthew L.M. Fletcher

Dan Lewerenz has published his award-winning paper, “Historical Context and the Survival of the Jay Treaty Free Passage Right: A Response to Marcia Yablon-Zug,” in the Arizona Journal of International and Comparative Law.

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Rose Cuison Villazor on Ariela Gross’s “What Blood Won’t Tell”

Matthew L.M. Fletcher

Rose Cuison Villazor has posted, “Reading Between the (Blood) Lines,” forthcoming the Southern California Law Review. This paper is her book review of Ariela Gross’s “What Blood Won’t Tell.” Here is the abstract:

Legal scholars and historians have depicted the rule of hypodescent – that “one drop” of African blood categorized one as Black – as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, “What Blood Won’t Tell: A History of Race on Trial in America,” boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, “What Blood Won’t Tell” argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, “What Blood Won’t Tell” highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, “What Blood Won’t Tell” also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.

This Review highlights the important contributions of “What Blood Won’t Tell” to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. “What Blood Won’t Tell” advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples.