Scholarship

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.

FBA Indian Law Section Newsletter Published

Matthew L.M. Fletcher

Here it is!

FBA Indian Law Section Newsletter Spring 2008

Authors include two Turtle Talk bloggers, Kirsten Carlson and Kate Fort.

Kirsty Gover on Tribal Membership Criteria

Matthew L.M. Fletcher1 Comment

Kirsty Gover, a grad student, has posted “Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance” on SSRN. Here is the abstract:

This article presents the findings of a large-scale study of current and historic tribal membership rules contained in the constitutions of federally-recognized tribes. The constitutions of 245 tribes in the lower 48 states are surveyed. The article explains changes in membership governance by reference to changes in the political, legal and social environments of tribes, including especially shifts in federal Indian policy and tribal demography. It discusses the increasing tribal preference for lineal descent and tribal blood quantum rules, relative to older criteria such as parental enrollment, parental residence and Indian blood quantum rules. It explains that these rules are tribe-specific, in contrast to the pan-tribal measures of Indianness and Indian blood quantum used in federal law and policy, and suggests that while tribes deploy familiar administrative mechanisms, such as blood quantum, they increasingly refashion these as measures of genealogy rather than race. It further argues that these rules are a form of tribal self-help, that assist a tribe to repair disruptions in its continuity, especially those occurring as a result of the operation of termination policy.

American Indians and the Death Penalty

Matthew L.M. Fletcher

This site includes links to scholarship on the application of the death penalty to American Indians throughout American history (and earlier).

Native Americans and the Death Penalty

Thanks to Patrick O’Donnell.