ICT Profile of Fletcher’s New Book: “The Eagle Returns”

Here. An excerpt:

The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa  and Chippewa Indians (Michigan State University Press, 2012) is a  governmental, legal and political history of the tribe. The volume focuses on  their status as a treaty tribe and as the first tribe to be recognized—or,  perhaps more accurately, re-recognized—by the federal government under the  Bureau of Indian Affairs’s administrative recognition process.

“It is the story of survival against the arrival and savage intervention of  several European nations—and the United States—in the affairs and property of  the Anishinaabek of the Grand Traverse Bay region,” Fletcher writes in his  introduction. Professor of law and director of the Indigenous Law & Policy  Center at Michigan State University College of Law, Fletcher also runs Turtle  Talk, the Indigenous Law & Policy Center’s legal blog and an unrivaled  source of court documents pertaining to Indian casework and law.

In The Eagle Returns, Fletcher takes on the guise of storyteller,  and that role is reflected in the chapter headings: “The Story of the 1836  Treaty of Washington,” “The Story of the 1855 Treaty of Detroit” and “The Story  of the Dispossession of the Grand Traverse Band Land Base” are just some of the  entries.

Although the chapter titles are specific to the Grand Traverse Band, in a  more general sense they could serve as a template for any number of indigenous  nations. The book is a reminder that so many of them have followed the same  post-European settlement trajectory of cultural and economic erosion, genocide,  dispossession and poverty, up to the brink of legal extinction—only to survive  through resilience and resourcefulness to emerge strong and prosperous in the  latter part of the 20th century.

The Eagle Returns is not just a legal history. It is also filled  with details about the material lives of the pre-treaty Anishinaabek peoples. At  one point Fletcher writes deftly of their renowned birchbark canoes: They were “the finest canoes in the northern hemisphere, capable of carrying over a ton of  people and equipment for two-year treks, creating an ability to travel over all  of the Great Lakes and their major tributaries.”

Other compelling passages detail episodes like the negotiations between the  Anishinaabek leaders, who were called ogemuk, and Henry Schoolcraft,  the Indian Commissioner for the United States and “an ardent land speculator  prone to fits of deep ethnocentrism.” On March 28, 1836, Schoolcraft signed off  on the Treaty of Washington, whereby the tribes ceded an area of 13,837,207  acres—more than one-third of Michigan’s land area. The treaty provided for  permanent reservations and prohibited the ethnic cleansing of Michigan Indians.  But within months the Senate rewrote it to limit the reservations to five years  and provide an option to remove Indian communities to the south and west.

“The Senate added the carrot of $200,000 to the bands that chose to remove to  these lands in exchange for their reservations lands,” Fletcher writes. The  president agreed to the amended treaty on May 27, 1836, but the Anishinaabek  were not notified of the changes until July.

Still other chapters detail the further dispossession of the Grand Traverse  Band and its “administrative termination” beginning in the 1870s. The story  brightens with the band’s re–recognition on May 27, 1980; its famous victorious  battle for treaty rights to hunt, fish and gather on public lands; its  successful gaming enter-prises; and the modernization of the tribe’s ancient law  and justice systems.

Fletcher says that he intends The Eagle Returns to serve as a  reference for policymakers, lawyers and Indian people and for an educated  general audience. But for the author, the book is also a considerable labor of  love.

“It is written for the people of the Grand Traverse Band,” writes the author, “who have not had the benefit of drawing upon one source for the bulk of their  legal and political history.”

Read more: http://indiancountrytodaymedianetwork.com/2012/05/06/a-history-of-the-chippewa-and-ottawa-by-one-of-their-own-111388#ixzz1uHEDbdZr

ICT Analysis of Patchak Oral Argument

Here.

Michigan SCT Decides In re Morris and In re Gordon; Adopts “Conditional Reversal” Rule for ICWA Notice Violations

Here

An excerpt from Justice Cavanagh’s unanimous opinion:

While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child’s tribe and that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a) and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.

Briefs are here and here.

Little River Band Ottawa Seeks Associate Legislative Counsel

Here is the posting:

Associate Legislative Counsel

IPR on KBIC/Bad River Letter to UN Special Rapporteur re: Mining

Here.

An excerpt:

A tribe in the Upper Peninsula is appealing to the United Nations in an effort to restrain sulfide mining. The tribe hopes to strengthen its position through an international agreement signed by the Obama Administration.

The Keweenaw Bay Indian Community says mines that produce sulfuric acid can pollute the water and threaten places sacred to tribes in the Great Lakes. The Keweenaw tribe fought the Eagle Mine, a new copper and nickel mine under construction in Marquette County.

The owner, Kennecott Eagle Minerals says it is leading a resurgence of mining in the Upper Peninsula.

One of the issues raised was the mine’s proximity to Eagle Rock, a rock outcropping that has been used for sacred ceremonies. Eagle Rock is prominently cited in a document sent to the United Nations. It says tribes are overwhelmed by the development of new mines and the State of Michigan does not consider their cultures when issuing permits.

Many American Indian tribes are raising issues like these with the U.N. now because the U.S. endorsed the Declaration on the Rights of Indigenous People in 2010. A U.N. official is visiting this week to gather information about implementing the declaration.

An attorney for the Keweenaw tribe says the declaration is not law, it’s a political document that sets out principles. But she says it could lead to new laws that would help tribes in the Great Lakes region oppose sulfide mining.

Sault Tribe Membership Approves Lansing Casino Proposal

Here.

An excerpt:

The Sault Ste. Marie Tribe of Chippewa Indians voted 3,947 to 2,311, or 63 percent to 37 percent, throughout the past month on plans for the Kewadin Lansing casino, which the tribe would own and operate adjacent to the Lansing Center. Voting was conducted by mailed ballots and closed Thursday, when results were tallied.

Keweenaw Bay and Bad River Chippewa Media Release on Report on Mining to UN Special Rapporteur

Here (Media release. Bad River 5.2.2012):

Keweenaw Bay Indian Community and the Bad River Band of Lake Superior Chippewa recently collaborated on a Statement of Information submitted to the UN Special Rapporteur on the Rights of Indigenous Peoples documenting concerns about the activities of multinational mining corporations in Anishinabe territories.  The Statement of Information is available here http://www.badriver-nsn.gov/images/stories/docs/activities_anishinaabeg.pdf.

Today, members of the Bad River Band Council are attending a consultation with the UN Special Rapporteur in Mission, South Dakota.  Representatives from Keweenaw Bay Indian Community plan to attend another consultation with the UN Special Rapporteur later this month.

Patchak Oral Argument Audio Now Available

Here.

SCOTUSBlog Commentary on Patchak Argument (Updated with Commentary)

Here.

An excerpt:

Arguing for the Tribe, Patricia Millett likewise faced immediate skeptical questioning from Justice Scalia, who emphasized that a quiet title action is usually brought by someone claiming that he owns the land; in this case, Patchak does not claim ownership, but only that the government had no authority to take the land into trust. Ms. Millett argued that the focus of the Act is protecting the government from losing title to land; it does not matter whether it loses it to the person who brought the suit or to someone else.

The Chief Justice asked whether Patchak could get what he wanted by suing the Tribe directly, challenging its right to run the casino. He suggested that when the Tribe attempted to raise the trust status of the land as a defense, the court could then decide whether the trust was valid. Ms. Millett answered that such a suit might be theoretically possible, assuming that Patchak could overcome the Tribe’s independent possible claim of sovereign immunity.

Another excerpt (and a tentative prediction):

It was quite unclear from the argument whether the government will win if the Justices accept that this is an all-or-nothing choice. I would not be surprised to see a majority coalesce around the compromise position advocated most strongly by Justice Breyer – and seemingly not raised in any significant way in the briefs – that (1) an APA suit commenced before the land is taken into trust is not a quiet title action within the meaning of the Quiet Title Act (and therefore, is not barred by that Act’s reservation of sovereign immunity for trust lands); and (2) the suit retains that character, and can go forward, even after the land is taken into trust.

The alternative approach, advocated by the Tribe and the government, would be to say that the solution to the problem of premature mooting of the APA claim is to require the plaintiff to seek a preliminary injunction barring the transfer while the case is in litigation (which the landowner here did) and appeal the denial of any such injunction (which the landowner here did not).

Of course, if the Supreme Court went the route suggested in the first alternative, I suppose it would not be the first time in recent years that Court has given a win to those who oppose tribal interests on grounds not argued by that party (see, e.g, Sherrill). Moreover, such a hypothetical outcome recalls an earlier case where the Court overlooked or ignored the fact that an opponent to tribal interests waived critical arguments through procedural default (Plains Commerce Bank). Finally, such an outcome would continue to cement the decline of the federal government’s trust responsibility to Indian nations, a position often advanced by the United States itself in cases like Jicarilla Apache Nation (in what other context would an express reservation of federal immunity have so little import?).

WaPo Coverage of Patchak Argument

Here (h/t Pechanga). An excerpt:

 Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.

“It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the … case is moot, but you did wait for some three years before you brought this suit. The building was built.”