legal history

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.

Online Documents of Maori Legal History

Kate Fort

From the Legal History Blog:

The New Zealand Legal Text Centre had recently launched an on-line archive of documents relating to the legal history of the Maori, the indigenous people of the islands. Here is the announcement:

The New Zealand Electronic Text Centre is proud to announce the launch of the Legal Maori Archive, a collection of more than 14,000 pages of around 250 19th century documents that illustrate the bi-lingual nature of New Zealand’s legal history. The Legal Maori Archive is freely available to the public and can be accessed via the NZETC website.

Among the many documents featured in this collection are the following:

The Proceedings of the Kotahitanga Parliaments

Henry Hanson Turton’s Maori Deeds of Land Purchases in the North Island of New Zealand

Maori translations of Acts and Bills circulated among Maori communities by the Crown

The Archive has been created in conjunction with Mamari Stephens from the Victoria University of Wellington’s School of Law as part of a project to establish a corpus of legal Maori documents, which will allow the analysis of the language and eventually a dictionary of legal Maori terms and concepts. It is the first time the documents have been brought together in one place and is the largest collection of separate documents that the New Zealand Electronic Text Centre has digitised. The Legal Maori Project seeks to resource speakers of te reo Maori who may not currently have access to a shared vocabulary to describe Western legal concepts. This Project will collate, develop and make available the terminology from Legal Maori texts, including those from the Legal Maori Archive, to all speakers and learners of te reo Maori and all researchers

Podcast on the History of the Department of Interior: “Sick Man” of American Government

Matthew L.M. Fletcher

Thanks to Legal History Blog for this one (the “sick man” line is from that blog):

Patricia Limerick
Parks and Politics: Saving the American Environment
The University of Colorado, Boulder
July 22, 2008
Running Time: 51:41 (click here to find the play button)


Bureaucrats, University of Colorado professor of history Patricia Limerick argues, are often the most overlooked (at best) or reviled (at worst) of government officials, but they wield tremendous powers that shape Americans’ daily lives. Nowhere is this more true than in the bureaucracy of the U.S. Department of the Interior. A wide-ranging agency charged with both protecting land and promoting its use, the Department of the Interior implements federal law over millions of acres of land and mediates the claims of environmental, mining, foresting, farming, and ranching interests, among others. Bureaucracies like the Department of the Interior may be boring, Limerick argues, but historians cannot ignore their impact on the development of the American West.

Alistair Bonnett on Black Indians

Matthew L.M. Fletcher

Here is a short article about black Indians called “Shades of Difference,” published in the Dec. 2008 issue of History Today.

Bonnett — Shades of Difference

Book Review of “Race and the Cherokee Nation”

Matthew L.M. Fletcher

From H-Net (h/t to Legal History Blog):

Fay A. Yarbrough. Race and the Cherokee Nation: Sovereignty in the
Nineteenth Century. Philadephia University of Pennsylvania Press,
2008. x + 184 pp. ISBN 978-0-8122-4056-6; $55.00 (cloth), ISBN
978-0-8122-4056-6.

Reviewed by John Gesick
Published on H-Genocide (March, 2009)
Commissioned by Elisa G. von Joeden-Forgey

Nineteenth-Century Practices, Twenty-First Century Decisions

This seminal study of Cherokee race relations during the antebellum
and post-Civil War eras and their consequences in the twentieth and
twenty-first centuries has broad applications across many
disciplines–not just to history or sociology or anthropology, but to
the legal and educational fields as well. The author has approached
this subject with sensitivity and pragmatic analysis. She has drawn
thoughtful conclusions based on the empirical analysis of a host of
available documents and of numerical data that she collected from
census records, marriage records, and other demographic sources.
Where the results might be inconclusive, Yarbrough offers avenues for
further investigation and analysis.
Continue reading →

Douglas Harris on the Boldt Decision in Canada

Matthew L.M. Fletcher

Douglas C. Harris posted his paper,The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific, part of THE POWER OF PROMISES: RETHINKING INDIAN TREATIES IN THE PACIFIC NORTHWEST, Alexandra Harmon, ed., University of Washington Press, 2008. Here is the abstract:

The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, in 1854 and 1855.

Continue reading →