Harvest Inst. Freedmen Federation v. United States Cert Petition

This has no chance of being granted, but it’s interesting anyway — Harvest Institute Freedmen Federation v United States Cert Petition.

The question presented:

The claims in this action were brought on behalf of representatives of persons formerly held in bondage by the so-called “Five Civilized” Indian Tribes, hereinafter “Freedmen.” The Freedmen were beneficiaries of the various trusts established between the Five Civilized Tribes and the United States by 1866 treaties, which were later modified by further allotments in 1902. The question presented is whether the United States Court of Appeals for the Federal Circuit erroneously affirmed dismissal under28 U.S.C. §2501 of Petitioners’ claims without addressing in any manner whatsoever Petitioners’ Repudiation Rule argument that the statute of limitations does not begin to run on claims by a trust beneficiary like Petitioners’, against a trustee, here the United States, to enforce the terms of a trust until, the trustee repudiates the trust relationship, something that to date the United States has not done.

Here are the district court materials and and the Federal Circuit decision.

Podcast on Indian Freedmen Panel at AALS

The podcast is here. Speakers included:

Bell Jeannine – Speaker

Kathryn Fort – Speaker

Kevin Maillard – Speaker

Carla Pratt – Speaker

G.W. Rice – Speaker

Sherri N. Thomas — Speaker

Matthew L.M. Fletcher — moderator

Indian Law-Related Panels at AALS

Thursday, January 8, 2009, 8:30-10:15

Section on Indian Nations and Indigenous Peoples
Columbia 3, North Tower/Lobby Level, San Diego Marriott Hotel & Marina

New Directions for International Law and Indigenous Peoples

(Program to be published in Idaho Law Review)

The United Nations’ adoption of the “Declaration on the Rights of Indigenous Peoples” in September 2007 marked an historic moment for the world’s 300 million indigenous peoples. The Declaration is the first time that the United Nations has formally recognized indigenous peoples’ rights to self-determination and control over their lands and natural resources. This year’s program will address the following issues related to the Declaration: How can the Declaration be used to improve the lives of indigenous peoples; What national laws and policies violate the Declaration, and what are the most effective remedial measures to address these violations?; and, How will the Declaration influence Congress, the administration and the courts?

Business Meeting at Program Conclusion.

Robert T. Coulter – Speaker
Angelique A. Eaglewoman – Speaker
G. W. Rice – Speaker
Wenona T. Singel – Moderator

Continue reading

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.

Freedmen Claim Against United States Dismissed (Fed. Cl.)

The case is Harvest Institute Freedmen Federation v. United States. The court dismissed the claim under FRCP 12(b)(1) — failure to state a claim — but not on the government’s statute of limitations claim. Here are the materials:

1866 Freedmen Agreement

US Motion to Dismiss

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Cherokee Freedmen, 40 Acres, and a Mule

From the Atlantic:

Up From Slavery

How great a difference would the famous “40 acres and a mule”— the plot of land promised to freed slaves after the Civil War but never distributed—have made to the long-term prospects of African Americans? In a new paper, a University of Michigan economist examines the fortunes of slaves freed after the Civil War by the Cherokee Nation. As Cherokee citizens, these freedmen were granted the right to “claim and improve any unused land in the Nation’s public domain.” Analyzing farm data from 1880, 15 years after emancipation, the paper finds that a black freedman in a Cherokee community was five times as likely to be a landowner as the typical African American in the former Confederacy. The average black Cherokee man owned livestock worth 80 to 90 percent as much as the livestock of a nonblack Cherokee citizen, whereas the typical Southern black’s livestock was worth only 45 to 60 percent as much as the livestock of the average white man. And the data suggest that Cherokee blacks were more likely to make savvy long-term investments: in 1880, 60 percent of Cherokee freedmen farmers had planted peach and apple trees (which take three to seven years to bear fruit), compared with only 5 percent of black landowners in the South. This evidence, the author concludes, vindicates General O. O. Howard, the superintendent of the Freedmen’s Bureau, who claimed that “more might have been done to develop the industry and energy of the colored race if I had been able to furnish each family with a small tract of land to till for themselves.”

“The Righteous and Reasonable Ambition to Become a Landholder: What Would Have Happened If Former Slaves Had Received Land After the Civil War?,” Melinda Miller, University of Michigan

Marilyn Vann Talk Materials

On November 9, 2007, Marilyn Vann spoke about the history of the Cherokee Freedmen here at MSU law college. As she did during her talk at last April’s Federal Bar Association’s Indian Law Conference, she presented a slide show of numerous materials.

Here are the materials — Marilyn Vann Materials

And here is a description of each page in the materials provided by Marilyn: Continue reading

Vann v. Kempthorne Materials

Last December, the federal court denied the Cherokee Nation’s motion to dismiss Vann v. Kempthorne. The Nation had argued that it was a necessary and indispensable party under FRCP 19. And, because it hadn’t waived its immunity, the Nation argued that the federal case must be dismissed. The United States argued that the case should be dismissed under the tribal court exhaustion doctrine. The court disagreed.

Vann 2nd Amended Complaint

Cherokee Motion to Dismiss

Opposition to Cherokee Motion

Cherokee Reply Brief

US Brief

Order Denying Motion

My own article on Rule 19 and tribal interests is here.