Blast from Past — 1982 Conference on 100th Anniversary of Indian Rights Association [Indian Truth, Dec. 1982]
legal history
Oklahoma City Federal Courthouse to Host CLE Seminar and Exhibit on Osage Reign of Terror
From the court:
The federal murder trials of two men charged with killing Osage Indians in the early 1920’s will be featured in a seminar and exhibit opening December 7 at the Old U.S. Post Office Building and Courthouse. Presented by the Historical Society of the U.S. District Court for the Western District of Oklahoma, “The Osage Reign of Terror: The Untold Legal History” tracksthe murders of wealthy Osage tribal members, the arrival of agents with the Bureau of Investigation who investigated, and the Federal Prosecutors who charged William K. Hale and John Ramsey with a number of the murders. The federal trials that followed resulted in a landmark Supreme Court ruling, charges of witness and juror tampering, and high courtroom drama. The events took place in Fairfax, Pawhuska, Guthrie and Oklahoma City and are featured in a book and movie of the same name, “Killers of the Flower Moon.”
A reception hosted by the Historical Society and featuring a documentary film about the trials as well as Federal Court and Osage dignitaries will be held on December 7 at 4 pm in the Federal Judicial Learning Center and Museum. The event is co-sponsored by the Bank of Oklahoma and The Federal Bar Association – Oklahoma City Chapter. The exhibit is open to the public beginning December 8, 2023, through October 2024.
Email Leigh Dudley, Executive Director at leigh@fjlcm.org or Arvo Mikkanen arvo.mikkanen@usdoj.gov for more information. Contact via text at 405/697-6117 or 405/420-9912.
Tanner Allread on SCOTUS’ Improper Use of Indian Removal Era Analysis in Modern Day Indian Law Cases
W. Tanner Allread has published “The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law” in the Columbia Law Review. PDF
Abstract:
In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.
This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.
This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.
Tribal Law Journal Symposium on the 200th Anniversary of Johnson v. McIntosh — November 9, 2023
The Osage Reign of Terror: A Legal Perspective; CLE Seminar 10/24/23 1:00-5:00 pm, CST; 10/27/23 1:00 – 5:00 pm CST ($50 discount offer for “Turtle Talk” subscribers)
Greg Ablavsky on Akhil Amar’s Unusable History
Gregory Ablavsky has published “Akhil Amar’s Unusable Past” in the Michigan Law Review.
Greg Ablavsky on Castro-Huerta
Gregory Ablavsky has posted “Too Much History: Castro Huerta and the Problem of Change in Indian Law,” forthcoming in the Supreme Court Review, on SSRN. Here is the abstract:
The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma dramatically rewrote the rules of criminal jurisdiction in federal Indian law. For the first time since 1882, the Court judicially expanded the scope of state criminal jurisdiction in Indian country, finding that states hold jurisdiction over Indian-on-non-Indian crime concurrently with the federal government. In reaching this conclusion, the Court exemplified the subjectivism that scholars have criticized in the Court’s Indian law jurisprudence for decades. The opinion distinguished or cast aside at least six prior decisions where the Court had seemingly reached the opposite conclusion, as well as concluding that the Court had already substantially limited the Court’s foundational holding in Worcester v. Georgia (1833) that Indian country ordinarily lies outside state authority.
Building on these earlier critiques, this Article uses Castro-Huerta to examine a less explored flaw in the Court’s Indian law rulings—what I call the problem of “too much history.” In Indian law, judges and litigants must make sense of over two centuries of jurisdictional debates, recorded largely not in statutes or constitutional provisions but in dozens of shifting Supreme Court decisions. The key question in Castro-Huerta, and the core of the dispute between majority and dissent, was change–how the law on state jurisdiction in Indian country had shifted over time. But the sheer mass of history makes it hard for the Justices to identify legitimate legal change in Indian law.
This conundrum leads to two broad types of judicial use of history in Indian law. “Good” history decisions, epitomized by this Term’s decision in Ysleta del Sur Pueblo v. Texas, employ specific context to examine narrowly defined legal questions. By contrast, “bad” history opinions, exemplified by Castro-Huerta, turn to the past as an independent source of law, ask broad, unanswerable questions of it, and provide no clear way to assess the inevitable heap of conflicting evidence.
Having laid out this challenge, the Article reexamines the question of the specific historical change at the core at Castro-Huerta. Rather than the majority’s narrative of abandonment and the dissent’s narrative of continuity, I think a more accurate account of what the Court has done with respect to state jurisdiction in Indian country is translation—trying to make sense of older legal principles within a new jurisprudential frame. But this approach makes the Court’s decisions in this area especially prone to misreading and selective citation, as Castro-Huerta underscored.
Greg Ablavsky and Tanner Allread on How Indigenous Peoples Debated the U.S. Constitution
Gregory Ablavsky and W. Tanner Allread have posted “We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution,” forthcoming in the Columbia Law Review, on SSRN.
Here is the abstract:
The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.
This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal.
This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.
Korematsu Day Talk Today at UMLS
Jack Fiander on the Constitutional Foundation of Federal-Tribal Relations
Jack Fiander has posted “The Melding of International Law and the Customary Law of Tribal Nations; The Constitutional Origin of Federal-Tribal Relations” on SSRN.
Here is the abstract:
To seek understanding of the basis for the relationship of the government of the United States with tribal nations it is necessary to examine not only the intent of the “Founding Fathers” but also that of the tribal nations with whom those framers of the United States Constitution dealt at the time of America’s founding. To do otherwise is ethnocentric, at best, and omits half the equation. Establishing a Constitutional relationship requires the perspective of both sides, not only that of those acting on behalf of the fledgling United States. At the time this nation’s founding, tribal nations were mighty in number and therefor treated by Colonists as sovereign nations to be dealt with in conformity with respect for their respective forms of customary and international law. Recognizing tribal sovereignty required adherence to what might be described as tribal laws of nations to manage their own internal affairs, as is evident in the framers’ deferential dealings with Tribal Nations in the founding era and thereafter. Because Colonists understood the need to gain alliances with the powerful tribal nations to secure protection against foreign powers, the Framers appropriated concepts from Tribal nations, which paralleled those in the international Law of Nations, to which much Constitutional authority for the relationship of the United States with tribal nations is traceable.
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