Scholarship

Kirsten Carlson’s “Priceless Property”

Matthew L.M. Fletcher

Kirsten Matoy Carlson recently published “Priceless Property” in the Georgia State Law Review.

Here is the abstract:

In 2011, the poorest American Indians in the United States refused to accept over one billion dollars from the United States government. They reiterated their long-held belief that money–even $ 1.3 billion–could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless property by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation. It illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claim’s emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today. The article concludes with a suggestion for successful resolution of the Black Hills claim based on acceptance of the Black Hills as priceless property to the Sioux Nation.

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Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long

Victoria Sweet

I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.

Polar Law Conference

Arctic Circle Conference

Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.

This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.

Here are some highlights from presentations made at both conferences:

Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.

Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.

Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.

Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.

Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.

Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.

Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!

Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.

The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.

It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.

Commentary on the Final Dismissal of the Onondaga Nation’s Land Claims: “Tribal Disruption and Indian Claims”

Matthew L.M. Fletcher2 Comments

Today, the Court surprised no one by denying the cert petition in Onondaga Nation v. New York. The Court did the same thing twice before, in the claims of the Cayuga and Oneida Nations. You may recall that the Second Circuit affirmed the dismissal of the Onondaga land claims using this language: “The disruptive nature of the claims is indisputable as a matter of law.” According to the Second Circuit, all Indian land claims are too disruptive to be heard on the merits, as a matter of law.

Later this year, Kate Fort, Nick Reo, and myself will publish a short paper in the Michigan Law Review’s online supplement, First Impressions, titled “Tribal Disruption and Indian Claims.” It is our intention to demonstrate that even the most disruptive tribal claims are beneficial to the governance of Indians and non-Indians alike on or near Indian country. We will expand this nub of an idea in a full-scale paper next year. We also thank Wenona Singel for her significant intellectual contributions to this idea.

Here is an excerpt:

We agree that Indian claims are inherently disruptive, and may implicate the settled expectations of state and local governments and non-Indians going back centuries, but it is empirically and categorically false that the remedies sought by tribal interests are impossible to enforce or implement in a fair or equitable manner. Every year Indian tribes settle long-standing claims against state governments and their political subdivisions that at their outset often appear intractable, if not downright impossible to remedy. The recent settlement of claims by the Oneida Indian Nation of New York,[1] the Saginaw Chippewa Indian Tribe,[2] and five Michigan Anishinaabe tribes[3] demonstrates the falsehood 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.

We argue that ecological disruption theory 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 fire, 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.

[1] See Settlement Agreement by the Oneida Nation, the State of New York, the County of Madison, and the County of Oneida (May 2013), available at https://turtletalk.blog/wp-content/uploads/2013/05/142783486-oneida-indian-nation-settlement-agreement.pdf.

[2] See Joint Motion to Enter Order for Judgment Upon Completion of a Public Comment Period and Opportunity For the Parties To Respond, Saginaw Chippewa Indian Tribe of Michigan v. Granholm, No. 05-10296-BC (E.D. Mich., Nov. 9, 2010), available at https://turtletalk.wordpress.com/2010/11/10/saginaw-chippewa-reservation-boundaries-settlement-materials/.

[3] See Consent Decree, United States v. Michigan, No. 2:73-cv-00026-RAE (W.D. Mich., Nov. 2, 2007), available at https://turtletalk.wordpress.com/2007/11/07/inland-settlement-consent-decree-materials/.

New Scholarship on the Jay Treaty Right to Free Access for Indians

Matthew L.M. Fletcher

Greg Boos and Greg McLawsen have posted “American Indians Born in Canada and the Right of Free Access to the United States” on SSRN. Here is the abstract:

Certain American Indians born in Canada enjoy access to the United States unrestricted by the Immigration and Nationality Act, a right stemming from the Jay Treaty of 1794. An examination of this right, reflected by codification as § 289 of the INA, reveals qualifying ABCs are entitled to privileges unparalleled by all but United States citizens to enter and remain in the U.S. “for the purpose of employment, study, retirement, investing, and/or immigration” or any other reason.

“Mastering American Indian Law” Now Available

Matthew L.M. Fletcher2 Comments

Congrats to Stacy and Angelique!

Here’s my copy:

MAI

Website here.

 

A Positive ICWA Case Out of California

Kate Fort

We almost never see a positive case out of California. Here is one (In re C.S.), and the words of the juvenile referee Sobel from state court:

The court granted the section 388 petitions filed by mother and father, concluding, “We have an American Indian child. That’s different. We have siblings who are with relatives. That’s different. We have a new baby who has been safely in the mother’s care since the [non-detain] petition was filed. That’s different. So, when you say that the children who are placed with foster parents at birth, that is their parent, the parent that is there night and day, you are correct, in every case, that’s correct. But the point of this is what happens to parents in the part that we call reunification? Where at some point do the parents earn the right to become those people? Where is that transference into being able to be a parent? Now, with the two other children . . . , they are with relatives. Those relatives are glad to step back and be relatives. If they need to adopt, they will. But the fact is they are grandparents. They prefer to be grandparents. I have two parents in complete compliance with their original case plan and American Indian. As to [C.’s older sibling and half-sibling], there’s no question there are changed circumstances here. The issue is best interest and I find it’s in the best interest of [the older sibling and half-sibling] to grant the 388 and place the children home of parents: mom for [the half-sibling and sibling], dad and mom for [the sibling]. We’ve already taken [the baby] off the track [by dismissing the non-detain petition as to her]. . . . [C.] is American Indian. She has three siblings. Those siblings are going home. . . . I am telling you, from my heart, an American Indian child belongs in an American Indian home, especially when that home has siblings in it and parents who are appropriate. There is no question that ICWA requires that I do what is right under ICWA; that I do what’s right for this family, understanding and knowing that C. loves [her de facto parents] both as a primary attachment. . . .    I’m granting mother[’s] and father’s 388 as to C., finding there are changed circumstances and that it is in the child’s best interest to be returned to her parents.”

Colette Routel on Bounties on Dakota Men During the US-Dakota War

Matthew L.M. Fletcher1 Comment

Highly recommended paper.

Colette Routel has posted “Minnesota Bounties on Dakota Men During the US-Dakota War” on SSRN. Here is the abstract:

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove westward.

While dozens of books and articles have been written about these events, scholars have largely ignored an important legal development that occurred in Minnesota during the following summer. The Minnesota Adjutant General, at the direction of Minnesota Governors Alexander Ramsey and Henry Swift, issued a series of orders offering rewards for the killing of Dakota men found within the State. The first order authorized the creation of a corps of volunteer scouts that would scour the “Big Woods” in search of Dakota men. They were to be paid not only a daily wage, but an additional $25 for each scalp they were able to provide the Adjutant General’s Office. Subsequent orders permitted individual citizens who were not part of the volunteer corps to claim up to $200 for proof that they had killed a Dakota. These bounty orders remained in effect until at least 1868, when their constitutionality was finally questioned by the Minnesota Supreme Court in State v. Gut.

Minnesota was not the only state that placed a bounty on their Indian inhabitants. Around the same time, a bounty system was enacted by the Territory of Arizona, and one was also implemented by private citizens and local governments within the State of California. Like the bounty system in Minnesota, these programs were creatures of state and territorial law, but they were implicitly and explicitly approved by the federal government. In fact, they could be viewed as part of a much broader extermination program that was at the heart of federal Indian policy during this time period.

This article uses primary historical sources to describe the events leading up to the enactment of a bounty system in Minnesota, its creation, and subsequent on-the-ground implementation. In an attempt to avoid the pitfalls of “presentism,” the legality of this bounty system is analyzed according to the laws in effect in 1863, when it was created. This article concludes that the Minnesota bounty system was illegal from its inception, as it was contrary not only the international law of war, but also the Lieber Code, which was issued by the U.S. Secretary of War in April 1863, and used to govern the conduct of Union soldiers during the ongoing Civil War.

Indian Law Related Panels at AALS 2014

Matthew L.M. Fletcher

AALS Indian Nations and Indigenous Peoples Section Program 2014:

“The Relationship Between Indian Law and Tribal Law”

Saturday, Jan. 4, 2014 from 4:00-5:45 pm

Moderator

Christine Zuni Cruz (New Mexico)

Presenters

Samuel E. Ennis (Sonosky) & Caroline P. Mayhew (Hobbs Straus) – Federal Indian Law and Tribal Criminal Justice in the Self-Determination Era

Alexander Tallchief Skibine (Utah) – Constitutionalizing Tribal Sovereignty and the Legitimacy of VAWA

Suzianne D. Painter-Thorne (Mercer) – A Strange Kind of Identity Theft: Can Cultural Identity Be Stolen?

Jeanette Wolfley (New Mexico) – Tribal Environmental Programs: Providing Meaningful Involvement and Fair Treatment

And if you are going to AALS this year, please note that the Section’s Breakfast is also on Saturday Jan. 4, 2014 from 7:00-8:30 am.

Section on Law & Anthropology

Friday, January 3, 2014 from 8:30 -10:15 a.m.

Topic: “The Language of the Law in Indigenous Rights.” This program will deal with the concept of “language” in indigenous peoples’ claims, from real property to criminal justice, and from both instrumental/practical (e.g., law on Indian language revitalization) and theoretical perspectives about language (issues of meaning, translation, interpretation, and expression) as they inform advocacy and analysis in Indian law.

Speakers:

Kristen Carpenter (Colorado) & Angela Riley (UCLA), (Indigenous) Property Lost by Translation

Allison Dussias (New England Law School), Native American Languages & the Law

Matthew Fletcher (Michigan State),  Anishinaabe Law and The Round House

Carole Goldberg (UCLA), A Native Vision of Justice

Justin Richland (Chicago), Language of/as Cultural Patrimony: Negotiating NAGPRA in Hopitutskwa

Business Meeting at Program Conclusion.  Please attend if you would like to become more active in our section.  Leadership positions will be available.

New Scholarship on Explaining the Difference between Self-Determination and Self-Government

Matthew L.M. Fletcher

Cheryl L. Daytec has published “Fraternal Twins with Different Mothers: Explaining Differences between Self-Determination and Self-Government Using the Indian Tribal Sovereignty Model as Context” in the Minnesota Journal of International Law; also on SSRN.

Here is the abstract:

There are various legislative and judicial rhetorical flourishes on the sovereignty of at least 565 federally recognized American Indian tribes in the United States. Several legislative enactments, executive orders, policy statements, and federal opinions textually recognize the right of American Indians to self-determination. However, self-determination with its entitlements under international law particularly the International Covenant on Civil and Political Rights is not equivalent to tribal self-determination or sovereignty expressed in the United States statutes, policy statements, and judicial decisions.

The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the presence of a plenitude of federal policy statements and laws using the term self-determination, surfaced the fact that indigenous self-determination under international law is the same as self-determination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States aside from the federal and state governments with a nation-to-nation relationship with Washington, the words ‘sovereignty’ and ‘self-determination’ affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decision-making processes at the minimum or self-government or autonomy at the maximum. In Montana v. United States and its derivative cases, it is asseverated that the exercise of inherent tribal sovereignty is limited to what is necessary for self-government or to control internal relations, and this has been re-echoed in Montana’s derivative cases.

While sharing the same gene pool, self-determination and self-government or autonomy do not have identical DNA. This paper advances four reasons: First, self-determination is an inherent right, whereas self-government is a grant. Clearly, the Supreme Court has since abandoned the doctrine that Indian tribes possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or by Congress. Lone Wolf v. Hitcock, Oliphant v. Suquamish Indian Tribe and their derivative cases stand for the doctrine that Indian tribes may exercise only those powers federally granted unto them via the exercise of congressional plenary power. Second, self-determination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although self-government is the political aspect of self-determination, it is not – by itself – the self-determination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the ICCPR. It is a gift that that flows from the liberality of the grantor. Third, self-government is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against self-determination. Self-determination on the other hand is the shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, self-determination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, self-government does not necessary entitle the self-governing entity sovereignty over natural resources whereas self-determination protects the people’s right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and they are mere usufructuaries. Exercising plenary powers, the government may sell or condemn tribal lands in favor of outsiders.

American University Law Review Article on Tribal Sovereign Immunity

Matthew L.M. Fletcher1 Comment

Here. By Bill Wood.

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court’s marginalization of tribal immunity to limit the doctrine’s scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa’s discrediting of tribal sovereign immunity’s legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity’s origins, development, and purposes.