Scholarship

Christian McMillen Talk

Matthew L.M. Fletcher

From Legal History Blog:

On Friday, January 23, Professor Christian McMillen, Department of History, University of Virginia, will be discussing two papers. First, he will talk about the Historians’ Brief in Carcieri v Kempthorne, an Indian law case from the Supreme Court’s current term which considers whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934, if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state. Next, McMillen will discuss “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims.

Professor McMillen is Assistant Professor of Native American Studies and the U.S. West in the Corcoran Department of History at U.Va. He received his BA in history from Earlham College, his MA in history from the University of Montana, and his PhD in history from Yale University. McMillen’s book, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007) won the 2008 William Nelson Cromwell Book Award, the 2008 John Phillip Reid Book Award, and the 2008 Erminie Wheeler-Voegelin Prize, and garnered a nomination for the Bancroft Prize. The book examines a watershed Indian property rights case that continues to impact the outcome of indigenous land claim cases throughout the world.
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John Cross on Indigenous Property Rights

Matthew L.M. Fletcher

John Cross has posted “Justifying Property Rights in Native American Traditional Knowledge” on SSRN, a paper coming out of the Texas Wesleyan symposium on Intellectual Property and Indigenous Peoples. Here is the abstract:

This paper explores various reasons why Congress might elect to protect the traditional knowledge and traditional cultural expression of Indian tribes. It also addresses whether Congress would have the constitutional authority to enact such legislation.

American Indian Law Review to Publish Papers from MSU Conference “American Indian Law and Literature”

Matthew L.M. Fletcher

Here is a listing of the articles to be published in volume 33, no. 1:

  • From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples – Larry Catá Backer
  • “Channeling Thought”: The Legacy of Legal Fictions from 1823 – Jen Camden & Kathryn E. Fort
  • Interpretive Sovereignty: A Research Agenda – Kristen A. Carpenter
  • Crossover – Richard Delgado & Jean Stefancic
  • Red Leaves and the Dirty Ground: The Cannibalism of Law and Economics – Matthew L.M. Fletcher
  • Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance in the United States – Kirsty Gover
  • Writing the Living Law: American Indian Literature as Legal Narrative – Amelia V. Katanski
  • How Lawyers Resolve Ethical Dilemmas: An Essay on James Welch’s The Indian Lawyer – Renee Newman Knake
  • Narrative Braids: Performing Racial Literacy – Margaret Montoya & Christine Zuni Cruz, interviewed by Gene Grant
  • At the Edge of Indian Law Scholarship: A Poem Instead of a Footnote – Frank Pommersheim

Indian Law-Related Panels at AALS

Matthew L.M. Fletcher

Thursday, January 8, 2009, 8:30-10:15

Section on Indian Nations and Indigenous Peoples
Columbia 3, North Tower/Lobby Level, San Diego Marriott Hotel & Marina

New Directions for International Law and Indigenous Peoples

(Program to be published in Idaho Law Review)

The United Nations’ adoption of the “Declaration on the Rights of Indigenous Peoples” in September 2007 marked an historic moment for the world’s 300 million indigenous peoples. The Declaration is the first time that the United Nations has formally recognized indigenous peoples’ rights to self-determination and control over their lands and natural resources. This year’s program will address the following issues related to the Declaration: How can the Declaration be used to improve the lives of indigenous peoples; What national laws and policies violate the Declaration, and what are the most effective remedial measures to address these violations?; and, How will the Declaration influence Congress, the administration and the courts?

Business Meeting at Program Conclusion.

Robert T. Coulter – Speaker
Angelique A. Eaglewoman – Speaker
G. W. Rice – Speaker
Wenona T. Singel – Moderator

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Two Recent Indian Law Related Posts at the Legal History Blog

Kate Fort

Here are two recent Legal History Blog posts which may be of interests to readers of this blog.  Follow the links for more information about both:

Hernandez-Saenz Reviews “Empire of Laws and Indian Justice in Colonial Mexico”

H-Law has published “Law and Indigenous Peoples in Seventeenth-Century Mexico,” a review by Luz Maria Hernandez-Saenz, Department of History, University of Western Ontario, of Brian Philip Owensby’s Empire of Law and Indian Justice in Colonial Mexico (Stanford University Press, 2008).

Soliz and Joseph on Native American Literature, Ceremony and Law

Native American Literature, Ceremony, and Law is a new essay by Cristine Soliz, Colorado State University-Pueblo, and Harold Joseph. It will appear in MLA OPTIONS FOR TEACHING LITERATURE AND LAW, Austin Sarat, Cathrine Frank, Matthew Anderson, eds., 2009. Here’s the abstract (only the abstract, not a fuller essay, is available to download on SSRN).

Review of Tsuk Mitchell’s Book on Felix Cohen

Matthew L.M. Fletcher

Here is Steve Russell’s review in Wicaso Sa of Dalia Tsuk Mitchell’s wonderful book, “Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism” — russell-review-of-tsuk-mitchell

An excerpt:

Mitchell’s telling of Cohen’s career is a must read for American Indian intellectuals–that is, Indians who think theory matters. In our time, we fight our own battles, but there is no need to reinvent the thoughts of our late Jewish ally. All of us who find ourselves thrust willy-nilly into the sovereignty wars because of where we come from stand on the shoulders of the Felix S. Cohens as well as the Vine Deloria Jrs. It’s an honorable place to stand, and this book illuminates many of the reasons why.

Agreed.

Review of Constance Cappel’s “Smallpox Genocide”

Matthew L.M. Fletcher3 Comments

Greg Gagnon’s review of Constance Cappel’s monograph “The Smallpox Genocide of the Odawa Tribe at L’Arbre Croche, 1763: The History of a Native American People” is here (smallpox-genocide-review). It is not terribly favorable. Here is the full text:

Publication of American Indian perspectives on history is a positive trend that provides an antidote to colonizers’ perspectives. However, the antidote should not be a mirror image of previous bias. Cappel’s thesis is that unnamed British officials gave tins of smallpox spores to Odawa from L’Arbre Croche in 1763. This genocide “changed the course of history.” Substantiation comes from Web sites and Andrew Blackbird’s History of the Ottawa and Chippewa Indians of Michigan (1887), augmented by speculation related to Lord Jeffrey Amherst’s infamous letter. Cappel also indicates that copper from Michigan was traded to Mediterranean civilizations to create the Bronze Age; the Odawa community of L’Arbre Croche numbered around 30,000; scalping began in 1756; the French “encouraged an addiction to rum”; tens of thousands of Indians under a flag of truce were murdered by the British; and both the League of Nations and UN were modeled on the Indian system. One function of this book is its illustration of the ubiquity of plot theories and the historical inaccuracies that form their bases. It also demonstrates a beginning stage in historiography that includes Indian sources. Summing Up: Optional. Graduate students and faculty only.G. Gagnon, University of North Dakota

I also had some of the same concerns with this work. There are enough doubters about the origins of smallpox epidemics in Indian Country that a work like this could be very useful, but it lacks the primary documentation that doubters demand.

On the other hand, Simon Otto’s wonderful preface should remind us that the oral histories contained in works like these remain invaluable.

CQ Press Publishes “Encyclopedia of United States Indian Policy and Law”

Matthew L.M. Fletcher

Just outside my door this afternoon is the two-volume encyclopedia edited by Paul Finkelman and Tim Alan Garrison (CQ Press site here). Law profs Stacy Leeds, Judy Royster, and Rennard Strickland served on the editorial advisory board (and contributed several entries).

A veritable plethora of “Friends of Turtle Talk” (friends whether they know it or not!) contributed entries as well — Sebastian Braun, David J. Carlson, Christopher Chaney, Gavin Clarkson, Trent Crable (Turtle Talk contributor), Jill Doerfler, Angelique Eaglewoman, Kathryn Fort (Turtle Talk editor and contributor), Patrice Kunesh, Del Laverdure (the founder of MSU’s Indigenous Law and Policy Center), Vicki Limas, Doris Long,  Christian McMillen, Bob Miller, Cornel Pewewardy, Keith Richotte, Dean Suagee, Melissa Tatum, David Wilkins, and Mary Christina Wood — just to name a few!

Russell Busch on Lower Elwha Dam Removal

Matthew L.M. Fletcher2 Comments

Russell Busch has published “Tribal Advocacy for Elwha River Dams Removal on Washington’s Olympic Peninsula” in the Golden Gate Environmental Law Journal. Here is a taste:

“Torpedo the dams, full speed ahead!” This inversion of Farragut’s famous order seemed appropriate when offered at a celebration of the Elwha Act’s passage, but turned out to be premature. Dam removal is now scheduled to begin in 2012, twenty years after passage of the Elwha Act and a century after the first dam blocked the river.

For the Elwha Tribe, which advocated and worked so tenaciously for dam removal, the success of its efforts will be affirmed only when the United States has actually cleared the way for the salmon to begin reclaiming the spawning grounds of their ancestors. In the meantime, the Tribe, like the fish who keep faith by returning each year to the base of the lower dam, waits patiently for the day the dams finally come down.

Review of Barbara Perry’s New Book on Hate Crimes against American Indians

Matthew L.M. Fletcher

From the Law and Politics Book Review (H/T Patrick O’Donnell):

Vol. 18 No. 12 (December, 2008) pp.1087-1090

SILENT VICTIMS: HATE CRIMES AGAINST NATIVE AMERICANS, by Barbara Perry. Tucson: The University of Arizona Press, 2008.  176pp.  Paper $29.95.  ISBN: 9780816525966.

Reviewed by Renee Ann Cramer, Program in Law, Politics, and Society, Drake University.  Email: renee.cramer [at] drake.edu.

Disrespect of American Indians was a normal part of my growing up in rural South Dakota.  Here is an incident I remember from the 1980s:

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