Charles Cleland’s New Book: “Faith in Paper: The Ethnohistory and Litigation of Upper Great Lakes Indian Treaties”

Charles Cleland’s heavily anticipated new book (Univ. of Michigan Press website here) is now available! I’ve read the first few chapters and it’s wonderful.

Here is the book blurb:

Faith in Paper examines the reinstitution of Indian treaty rights in the upper Great Lakes region during the last quarter of the twentieth century, focusing on the treaties and legal cases that together have awakened a new day in Native American sovereignty and established the place of Indian tribes in the modern political landscape. The book discusses the development of Indian treaties in historic time and their social and legal context; specific treaties regarding hunting, fishing, and gathering rights as well as reservation issues; and the impact of treaty litigation on the modern Indian and non-Indian communities of the Great Lakes region. The book is both an important contribution to the scholarship of Indian legal matters and a rich resource for Indians themselves as they strive to retain or regain rights that have eroded over the years.

And here is the Traverse City Record-Eagle news coverage of the release of the book. An excerpt:

Written over the last five years, this 390-page book is the first comprehensive examination of 18 primary and 21 secondary treaty court cases in Michigan, Wisconsin and Minnesota. Cleland was the only person to be involved in all of the cases.

The decisions significantly changed perceptions of Native American tribes and their fishing, hunting and gathering rights, Cleland said.

The treaties gave Native Americans a different status under the law than other Americans, he said. Native Americans had always had fishing, hunting and gathering rights. The rights were not granted by the state or federal government.

“The string of court victories gave today’s Indians a legitimacy in the eyes of the larger population,” Cleland said. “It gave them a newfound political sovereignty, real clout and power.”

State governments claimed the treaties were “dead” and irrelevant at the time the cases were filed.

The Michigan Department of Natural Resources argued that the state had a right to regulate tribal fishermen who used gill nets because Michigan had banned the nets in the 1960s.

State attorneys also claimed that the nets were not native technology but introduced by the French in the early 17th century.

But Cleland’s 1966 dissertation, “The Prehistoric Animal Ecology and Ethnozoology of the Upper Great Lakes Region,” noted that Michigan’s earliest Native Americans had been using the nets at least 1,000 years before European contact.

U.S. District Judge Noel Fox reaffirmed treaty rights for Michigan’s federally recognized Ottawa and Chippewa tribes in a landmark 1979 ruling.

Nottawseppi Huron Band Potawatomi Staff Attorney Job Posting

Here:

Staff Attorney

Grand Rapids Press Coverage of Gun Lake Supreme Court Case

Here. An excerpt:

WAYLAND TOWNSHIP — The Supreme Court will decide next year whether the federal government properly took land into trust for the Gun Lake Tribe to build a casino, in a case that experts say reaches far beyond the borders of Allegan County.

On Monday, the court agreed to hearformer Wayland Township trustee David Patchak’s reinstated lawsuit against the Gun Lake Band of Pottawatomi and the federal Interior Department, a case which could force the Gun Lake Casino to shut its doors.

The casino, which employs about 900 people, opened in February and has since paid out $10.4 million in state and local revenue sharing while raking in about $104 million in net profits on electronic games after payouts in less than a year of operation.

“This is an incredibly high-stakes case,” said Matthew Fletcher, a law professor at Michigan State University who specializes in Indian gaming law. “This casino is generating a lot of revenue — a lot more than they thought they would.”

But the Supreme Court, which accepts only about 3 to 4 percent of cases for which they’re petitioned each year, would not be scheduling arguments if the lawsuit were simply about jobs, profits and revenue sharing for municipalities, although that helps, said Fletcher.

Rather, the Roberts Court justices are likely hoping to clear-up a gray-area in the law that governs decisions by the Department of Interior about taking land in trust on behalf of Indian tribes; a wrinkle that bodes well for the tribe and the government, he said.

The Supreme Court typically reverses about 70 to 75 percent of cases they hear, Fletcher said. “They usually agree to hear a case when they think a lower court is wrong.”

Quick Commentary on SCOTUS, Patchak, and Corboy

The Supreme Court granted cert in an Indian law case where the petition was filed in favor of tribal interests. This is, of course, the Patchak case involving the Department of Interior’s decision to take land into trust for gaming purposes on behalf of the Gun Lake Band. The last time the Court granted a petition filed on behalf of tribal interests was Cherokee Nation v. Leavitt, a case decided in 2005. The Court might also grant cert this Term in Ramah Navajo v. Salazar. Key to these successful cert petitions is the participation of the United States as supportive of the granting of the petition (if not the merits). In fact, every cert petition granted on behalf of tribal interests in recent memory has the support of the federal government, the last one (I believe) being Mississippi Band Choctaw v. Holyfield. Only Justice Scalia remains from that Court.

Key point: A cert petition on behalf of tribal interests has almost no chance of being granted by the Roberts Court unless the United States favors of the petition. Even then, as the Oneida and Cayuga land claims petitions demonstrates, it is a bit of a crap shoot.

Corboy v. Louie is more representative of where the Supreme Court is in relation to Indian law (though I suppose this isn’t an Indian law case, precisely). There’s nothing certworthy in this case whatsover (no split, nothing of national importance, a case brought by a private tax protester), but the Court is thinking carefully about this case perhaps because Indian law-type legal doctrines are outside of what Dean Getches called the “mainstream” of constitutional law, and should be reeled in. I have no doubt the OSG will recommend a denial because there simply is nothing worthy of Supreme Court review, but the fact this isn’t already a denied petition is telling.

Key point: A cert petition opposing tribal interests (regardless of its merit) receives more attention from the Supreme Court than a petition favoring tribal interests. End of story.

Yet Another Michigan Conditional Affirmation ICWA Case

In re King/Little, here.

From the opinion:

Petitioner responds to this issue by stating that, after respondent signed the form indicating that the children were eligible for membership in the Cherokee Tribe, it did comply with the requirements of the ICWA by sending the proper notice to both the Cherokee Boys Club and the Cherokee Nation. Petitioner contends it received responses from both organizations indicating that the children were not considered “Indian” in the Cherokee Nation and were not eligible for membership. Petitioner further contends that all the proper paperwork is on file at the Office of the Prosecuting Attorney and the Department of Human Services and invites this Court to view the failure to place this information on the trial court record as harmless error. However, we may not expand the record on appeal. MCR 7.210(A)(1).

Cherokee Boys Club?!? After all these years, how many different ways can DHS mess up notice and still defend their practice? There are only three federally recognized Cherokee tribes, and not one of them is the Cherokee Boys Club.

Library Recieves Large Grant to Complete Documentary on Michigan Indians in the Union Army

From Central Michigan Life (student paper for Central Michigan University):

Clarke Historical Library received a grant of $15,000 to complete its documentary on American Indians fighting in the Civil War.

The library was among 14 organizations awarded the major grant by the Michigan Humanities Council.

“This grant will support the completion and dissemination of ‘The Road to Andersonville: Michigan Native Americans Sharpshooters in the Civil War,’ a film documenting the history of the Native American soldiers of the first Michigan Sharpshooters during the Civil War,” according to a news release.

 

Gun Lake Band Revenue Sharing News Coverage

Here, from Indianz.

Left to Right: Lindsay Vogelsberg (Rep. Bob Genetski’s Office on behalf of State of Michigan); Punkin Shananaquet (Tribal Council); D.K. Sprague (Tribal Chairman); Mark DeYoung (Chairman, Allegan County Board of Commissioners); Norm Taylor (Superintendent Wayland Union Schools); Phyllis Davis (Tribal Council); Linden Anderson (Local Revenue Sharing Board). Photo courtesy Gun Lake Tribe.

Interior Cert Stage Reply Brief in Patchak

Here.

Gun Lake Band Cert Stage Reply Brief in Patchak Case

Here:

Gun Lake Cert Stage Reply

New Bay Mills Chair Supports Off Reservation Gaming Efforts

Here.