Scholarship

Research Note on Barriers to Indian Land Claims

Matthew L.M. Fletcher1 Comment

I’ve posted a short paper called “‘Now What the Hell You Gonna Do in Those Days?’ A Research Note on Practical Barriers to Indian Land Claims” on SSRN. Here is the abstract:

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised – why didn’t the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question – why didn’t Indians and tribes file suit to vindicate their rights to land?

Rose Villazor on Indian Blood Quantum and Equal Protection

Matthew L.M. Fletcher

Rose Cuison Villazr (SMU) has posted her wonderful paper, “Blood Quantum Land Laws and the Race Versus Political Dilemma,” forthcoming in the California Law Review, on SSRN. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

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Student Author on Tribal Courts

Matthew L.M. Fletcher

R. Stephen McNeil, a law student at Washington & Lee, has posted “In a Class by Themselves: a Proposal to Incorporate Tribal Courts into the Federal Court System Without Compromising Their Unique Status as “Domestic Dependent Nations” on SSRN. Here is the abstract:

This Note proposes a solution to the longstanding problem of how to fit tribal courts into the existing federal court system. After setting forth the well-established problems with the current system, the Note discusses the various practical and constitutional problems with classifying Indian tribes as states, foreign nations, administrative agencies, or federal territories. Ultimately, the Note proposes a statutory scheme that is tailored to the unique situation of the Indian tribes by focusing on the competing goals of protecting tribal culture, maximizing tribal sovereignty, and protecting the rights of non-Indians from abuses in tribal courts.

Aside from the hanging modifier in the title, looks like a decent paper. I’m glad to see students from schools that aren’t known for teaching Indian law taking a stab at this field.

Call for Papers — Living Treaties Anishinaabe Summit

Matthew L.M. Fletcher2 Comments

The presence of the US/Canada Border is a fact of life for Aboriginal People. It is also a simple fact of life that Indigenous people along the border have established their relationship with both US and Canadian governments through Treaty, and those Treaties affect people along the border in profound ways.

As “treaty rights” are continually challenged in the courts, the courts are given opportunities to continually “re-interpret” these treaties.  Thus it is important to explore these treaties and related issues in some depth.  To that end, The Anishinaabeg Joint Commission (Batchewana First Nation, Bay Mills Indian Community, Garden River First Nation, and the Sault Ste. Marie Tribe of Chippewa Indians), in cooperation with the Center for the Study of Indigenous Border Issues, is issuing a Call For Papers for the Living Treaties Anishinaabeg Summit. The gathering will be held August 13 – 15, 2008, at the Sault Tribe Conference and Convention Center in Sault Ste. Marie, Michigan.

The primary objective of this gathering is to bring together Tribal Elders, Traditional Knowledge Keepers, Tribal historians, college and university faculty and students, land claims researchers, Government officials (US, Canadian, Tribal), and Indigenous Community members so that we can all benefit from a thorough discussion and understanding of the role that Treaties play in the lives of Native Peoples along the US/Canada border.

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Federal Lawyer Articles on Indian Law

Matthew L.M. Fletcher

The March/April 2008 issue of the Federal Lawyer featured several articles on Indian law.

Zeke Fletcher on the legacy of Martinez, Wheeler, and Oliphant: trappedinthespringof1978

Casey Douma on the Indian Civil Rights Act: 40thanniversaryoficra

Mike McBride and Susan Huntsman on tribal labor relations: organizedlaborstrategiesforindiangaming

Goodman and Maxfield on the NIGC’s gaming management contracting: isthatyourfinalanswergoodmanmaxfield

Matthew Fletcher on the Supreme Court and the rule of law: supremecourtandtheruleoflaw

Requiem for South Fox Island

Matthew L.M. Fletcher1 Comment

A few years ago, we wrote a short article that included a section on South Fox Island, traditional home to many Michigan Anishinaabeg families, that was lost during the Termination Era of the 1950s. An Indian cemetery is out there, hidden, but now the island is owned by non-Indian real estate developers (see here). This is what we wrote about this question:

Non-Indians also used strained or invalid constructions of statutory authority to dispossess tribal communities of their lands. Returning to the notion that the United States compensated Indians and Indian tribes for their land cessions, there still remain the lands government officials sold without the consent of Indians and Indian tribes under the color of federal law. While there are numerous types or classes of lands dispossessed in accordance with the political will of non-Indians, the focus of this Part is on the so-called “‘secretarial transfers,”’ a subset of the kind of transactions often grouped together with “‘forced fee patents.”’ In a secretarial transfer, “BIA officials approved sales of inherited allotments on reservations without the consent of all beneficial heirs.” Under federal law, many secretarial transfers were valid. For example, the Secretary had authority to take an allotment out of trust status where the Indian beneficiary passed away and had one or more heirs who were “competent to manage their own affairs.” However, as discussed below, the Secretary abused this authority on numerous occasions, illegally extending the authority to lands that would not have been covered by the statutory authority.

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Ezra Rosser on the Property Consequences of Indians

Matthew L.M. Fletcher

Ezra Rosser (American U.) has posted “Protecting Non-Indians from Harm: The Property Consequences of Indians“, forthcoming from the Oregon Law Review, on SSRN. Here is the abstract:

This article is an exploration of the assumption, last made by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, that non-Indian property owners are harmed by Indian acquisition and control of land. Accepting for the moment the Court’s prioritization of a non-Indian perspective, the article explores (a) what lies behind non-Indian resistance to Indian land ownership, and (b) whether in fact non-Indians are harmed by proximity to Indian land. The article combines in its analysis core property law concepts with an empirical examination of the changes over time in assessed land value of properties located near Indian land.

Lorie Graham on Reparations

Matthew L.M. Fletcher

Lorie Graham just published her paper, “Reparations, Self-Determination, and the Seventh Generation” (SSRN link), with the Harvard Human Rights Journal. From the intro:

Indigenous teachings on law and family help define our responsibility toward future generations and how the decisions that we make today can impact the wellbeing of each generation to come. This message is particularly relevant in this time of climate change, warfare, and lack of respect for basic human rights. So too is it an important message as we reflect upon the thirtieth anniversary of the Indian Child Welfare Act of 1978 (“ICWA”) and look to the future. We are just over one generation removed from this landmark legislation–legislation that I will argue in this article constitutes partial reparations for human rights violations committed against Native peoples and their children. According to the Haudenosaunee’s Great Law of Peace, we have six more generations to consider before we can truly understand the full impact of this law.

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Patrick O’Donnell’s Bibliography of American Indian Law

Matthew L.M. Fletcher

Patrick S. O’Connell’s excellent resource is available at Ratio Juris (here).

Here is the text of the announcement:

American Indian Law Bibliography: Yes, Custer Died for Our Sins

Here is the bibliography for American Indian Law. What follows is meant to prod and provoke you, dear reader, to cultivate an ardent if only amateur interest in this domain of law as well as in the peoples to whom (in the first instance) it applies.

Easy knowledge about Indians is a historical tradition.
—Vine Deloria, Jr.

European explorers and invaders discovered an inhabited land.
—Francis Jennings
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Kevin Maillard on Black Seminoles and History

Matthew L.M. Fletcher

Kevin Noble Maillard (Syracuse) has posted “Redwashing History: Tribal Anachronisms in the Seminole Nation Cases” on SSRN. It is forthcoming from the Freedom Center Journal. Here is the abstract:

The status of people of African descent in indigenous nations generates important questions about what it means to be Indian. A fair understanding of the Freedmen controversy necessitates an explanation of the historical sites of contention that affect the Freedmen’s inclusion in the Nation. This essay critically examines the plasticity of memory – how both parties remember and forget the past in order to justify the present. It directly addresses the radically disparate interpretations of government documents by Indians and blacks, and how these readings of federal texts are constitutive of Seminole membership. The rigid adhesion to Indian blood by tribal governments marks a curious manifestation of sovereignty and self-determination. This dogged claim to autonomy and authenticity exemplifies a misapplied and dangerous discrimination hiding behind the mask of political ideology.