This is a big week at Michigan State. Our Spring Speakers event is this Thursday at 2pm in the Castle Board Room at MSU Law. The 1491s will be on campus Friday.
Scholarship
New Scholarship on How Shelby County v. Holder Affects Indian Country Voting Rights
Ryan D. Dreveskracht has published “Enfranchising Native Americans After Shelby County v. Holder: Congress’s Duty to Act“ in the National Lawyers Guild Review.
Radical History Review Article on the Cobell Settlement
Alyosha Goldstein has posted “Finance and Foreclosure in the Colonial Present,” published in the Radical History Review. Here is the abstract:
The Claims Resolution Act (CRA) of 2010, which brought together and financed a series of historic US civil rights and Native American class-action lawsuit settlements, serves as the lens through which this essay examines debates over accountability, debt, and reconciliation and provides a means to consider how present-day efforts to foreclose the genealogies of historical injustice have been shaped in response to the contemporary crisis of global capitalism and financialization. Focusing on the salience of racialization and settler colonialism, this essay studies how and why the CRA’s juridical assemblage brings into proximity discrepant histories of dispossession and racism so as to situate these within an overarching teleology of progress and improvement in the face of contemporary economic volatility and social instability.
New Scholarship on the Sarayaku v. Ecuador Inter-American Court of Human Rights Decision
Thomas M. Antkowiak has posted “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,” forthcoming in the University of Pennsylvania Journal of International Law, on SSRN. Here is the abstract:
In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
Article on Allotment-Era Literature and Cases on Tribal Jurisdiction and Reservation Diminishment
My article. “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” was recently published in volume 82 of the University of Toronto Quarterly, in a special issue on law and literature.
I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.
Unfortunately, the article isn’t available on Lexis or Westlaw, but it is on Muse, if you have access to that. A sightly older version is on my ssrn page.
Fall 2013 Issue of the American Indian Law Journal Available
| Asserting Treaty Rights to Harness the Wind on the Great Lakes | Gerald Carr |
| An American Indian Supreme Court | Eugene R. Fidell |
| The Utility of Amicus Briefs in the Supreme Court’s Indian Cases | Matthew L.M. Fletcher |
| The unextinguished Militia Power of Indian Tribes | Seth Fortin |
| Tribal Advocacy and the Art of Dam Removal: The Lower Elwha Klallam and the Elwha Dams | Julia Guarino |
| Until Yesterday: Deterring and Healing the Cyclical Gender-Based Violence in Indian Country | Samantha Ivette Morales |
| The Washington State Indian Child Welfare Act: Putting the Policy Back Into the Law | William N. Smith and Richard T. Okrent |
| Native American Winters Doctrine and Stevens Treaty Water Rights: Recognition, Quantification, Management | Rachael Paschal Osborn |
| Political Cooperation and Procedural (In)Justice: A Study of the Indian Reorganization Act | Sam Thypin-Bermeo |
First Nations File Suit in Yukon Supreme Court Over Protection of Peel Watershed
Coverage here.
Chief Ed Champion of the Nacho Nyak Dun First Nation said his community is not against mining and development.
“We have lived closely with mining for over 100 years. Many of my people are miners or work in the mining industry. We have excellent relationships with mining companies that we work hard to maintain,” Champion said.
“That said, we do not want to see mining in the Peel watershed. To us, that land and water is sacred and should be preserved for future generations.”
The government’s decision created uncertainty for mining and industrial developers, as well, the groups said.
Fletcher, Fort, and Reo on “Tribal Disruption” Theory in the Michigan Law Review First Impressions
Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo have published “Tribal Disruption and Indian Claims” in Michigan Law Review’s First Impressions. PDF. Here is a taste:
Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims.[1] The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York,[2] because it considered the claims so disruptive.
We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York,[3] the Saginaw Chippewa Indian Tribe,[4] and five Michigan Anishinaabe tribes[5] demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.
Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-ecological systems offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests, or other ecosystems. Floods, forest fires, and windstorms break down existing structures, allowing space for reorganization, diversification, and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.
Fletcher Brownbag Talk at Arizona State: “A Unifying Theory of Tribal Civil Jurisdiction” — Feb. 13, 2014
New Scholarship by Ann Piccard: “Death by Boarding School”
Ann Piccard has published Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137 (2014).
A summary:
There is a special kind of racism in this country against Native Americans, and it is the “last acceptable racism.” The author of that poignantly accurate description of most Americans’ attitudes towards Native Americans, who is both a Native American and a Jew, noted,
Not that long ago, white administrators of Indian boarding schools told our children that the “Indian in you shall die.” This kind of treatment and forced thinking has a lasting generational effect. It can be difficult to break through that type of programming. Many of our people, however, have shaken off these forced ideological shackles to speak the truth and demand long overdue respect. Our voice is getting louder.
Our words are being said with more frequency and emphasis. But people need to hear us. Societal racism should no longer be an ad hoc affair, which is routinely accepted when directed against a certain group. It should be universally condemned. Perpetuating past wrongs and dehumanizing concepts hurts everyone.
This last acceptable racism is rarely mentioned in the U.S. However, one day in a very small town in northern Minnesota, in an area that has been economically depressed ever since the decline of the taconite and iron ore mining industry several decades ago, I watched two Native American men park a pickup truck in front of the local pawn shop.
I could tell the young men were Native Americans only because of the Bois Forte Band license plate on their truck; other than that, they looked, sounded, and acted like most of the other men in that rural north woods town. Upon reflection, of course, I realized that their skin was slightly darker than most residents of the town; I also began to notice that I did not see dark-skinned people working or shopping in any of the town’s stores. My eye was untrained, a fact that I attribute to my upbringing in the Deep South,6 where I was in a small minority of white children who were raised by our parents to see and to protest (and refuse to accept) the prevailing racism toward African-Americans. The subtle differences in appearances between the Native Americans and the “whites” in Minnesota had gone unnoticed by my Southern eyes. But as we watched the young men take their chain saws into the pawnshop that day, my husband remarked that men in northern Minnesota who hock their chain saws must be in pretty bad shape, because how could they survive, let alone make a living, without such tools?
Turtle Talk 
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