Here is the Tenth Circuit’s decision in United States v. Friday — us-v-friday-ca10 (thanks to Sarah Krakoff for the heads-up).
Judge McConnell wrote the decision. Here is our previous commentary on the case (here). Guess no circuit split….
treaty rights
Kannan on the Constitutionality of the 1871 Act re: Treaty-Making with Indian Tribes
Phillip M. Kannan has published “Reinstating Treaty-Making with Native American Tribes” in the William and Mary Bill of Rights Journal. An excerpt:
This Article proceeds as follows. The legal history of treaties and treaty-making with Indian tribes and the significance of these treaties to United States law are explored in Part I. The dissatisfaction of the House of Representatives with the practice of Indian policy being established by the President with the advice and consent of *813 the Senate is outlined in Part II. Part III then recounts major legislation that followed the enactment of section 71 and the harm these laws caused Indian tribes. In Part III, I also analyze the mischaracterizations of that law by the Supreme Court and the harm this has caused. Building on this background, Part IV develops the argument that section 71 violates the express provisions of the Constitution and the political theory on which it was based; Part V analyzes applicable Supreme Court precedent and concludes that section 71 violates the principles established by these cases; and Part VI argues that it is inconsistent with a theory developed by Justice Kennedy, namely, the guarantee of political liberty provided to each citizen by the federal structure of the Constitution. Part VII then explores the constitutional consequences that would follow from upholding section 71. I conclude with some suggestions of how section 71 could be repealed or overturned.
Research Note on Barriers to Indian Land Claims
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?
Case to Watch — Stockbridge Munsee Reservation Diminishment Case
Years ago, Wisconsin sued the Stockbridge-Munsee Community over the site of its Class III gaming operation, alleging that the land upon which the casino was located was outside the reservation boundaries, or that the reservation had been disestablished. The case is in the Seventh Circuit now and briefing is underway:
1999-dct-opinion-wisconsin-v-stockbridge-munsee
2004-dct-opinion-wisconsin-v-stockbridge-munsee
25th Anniversary of Voigt Decision in Wisconsin
From the Wisconsin State Journal:
Northern Wisconsin marks an anniversary this year, but not everyone is celebrating. It involves 19th century Indian treaties that brought walleyes, fork-like spears, rock-throwing protesters and claims of racism to the forefront.
Twenty-five years ago, the 7th U.S. Circuit Court of Appeals in Chicago affirmed that Chippewa Indian tribes retained off-reservation fishing and hunting rights in 1837 and 1842 treaties that ceded millions of acres of what is now the northern third of Wisconsin to the U.S. government.
It led to a revival of an ancient Chippewa practice — spearing spawning walleyes from lakes in the spring — and led to fears from hook-and-line anglers that the fisheries would be ruined by a fishing method they claimed wasn’t sporting at all.
More Info on Mother Earth Water Walk
Our previous post is here.
And here is the Mother Earth Walk poster.
U.S. v. Oregon — Denial of Yakama Treaty Rights
Yakama’s quest for treaty rights in United States v. Oregon suffered another setback in federal district court. Here are the materials:
Requiem for South Fox Island
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.
Kevin Maillard on Black Seminoles and History
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.
Ninth Circuit Affirms Constitutionality of Bald Eagle Protection Act
In consolidated cases, the Ninth Circuit affirmed the constitutionality of prosecuting American Indians under the Bald and Golden Eagles Protection Act, rejecting a challenge under the Religious Freedom Restoration Act. A similar case is under review by the Tenth Circuit (United States v. Friday).
The Ninth Circuit applied a 2003 precedent, United States v. Antoine, upholding the law under similar facts. Here are the materials.
Turtle Talk 
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