Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Fletcher Webinar on Indian Land Tenure Foundation’s “Native Land Law” — Treaties — June 11

ILTF is pleased to announce that Matthew Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center at Michigan State University College of Law, will be presenting at the June 11th Native Land Law CLE. Professor Fletcher will be discussing treaties.nativelandlaw_1

Professor Fletcher recently published the sixth edition of Cases and Materials on Federal Indian Law (Thomson West 2011) with David Getches, Charles Wilkinson, and Robert Williams and American Indian Tribal Law (Aspen 2011), the first casebook for law students on tribal law. Fletcher’s book, The Return of the Eagle: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians, was released by Michigan State University Press in 2012. Professor Fletcher has published articles with Arizona Law Review, Harvard Journal on Legislation, Hastings Law Journal, University of Colorado Law Review, Houston Law Review, Tulane Law Review, and many others. He is the primary editor and author of Turtle Talk, the leading law blog on American Indian law and policy.

The Native Land Law CLE series provides an overview of the 17 legal principles outlined in the legal treatise, Native Land Law: General Principles of Law Relating to Native Lands and Natural Resources, and offers analysis of federal laws and policies that impact the field of Indian law today. Professor Fletcher will offer his own insights into the significance of treaties during this month’s two-hour program.

The CLE will be offered from 1:00 – 3:00 p.m. (CST) on Tuesday, June 11th.

Click here to learn more about the CLE and register for the program. http://www.iltf.org/native-land-law.

All of the previous CLE programs offered as part of the Native Land Law Series are available on demand. To view Professor Colette Routel’s presentation on the Fundamentals of Policy and History or Professor Lindsay Robertson’s presentation on the Discovery Doctrine, Plenary Power & Termination, visit us at http://www.iltf.org/native-land-law.

Harvard Law Review Student Note: “Indian Canon Originalism”

Harvard Law Review has published “Indian Canon Originalism.”

From the article:

Indian treaties are “quasi-constitutional” documents. So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties “in the same manner as [they do] constitutional provisions.” But no scholar has ever explained how the principles of constitutional interpretation would actually apply to an Indian treaty — and whether those principles might change in that new environment. This Note attempts to do just that.

Second Circuit, over a Dissent, Denies En Banc Review of Shinnecock Casino Construction/Aboriginal Title Suit

Here is the dissent from the order denying en banc review:

CA2 Dissent from Denial of En Banc Petition — Shinnecock

The panel opinion and briefs are here.

Lower court materials are here and here.

Briefs in Shinnecock Second Circuit Gaming Case Now Available

We posted the opinion and lower court materials here.

And now the briefs:

Westwoods – Appellants

Westwoods – Appellees

Westwoods – Reply

Second Circuit Vacates Federal Court Injunction against Shinnecock Casino Construction in Southampton (Updated with Briefs)

Here is the opinion:


It’s the Second Circuit, so there are no briefs (unless someone sends them along). Here are the briefs:

Shinnecock Brief

State and Town Brief

An excerpt:

The Shinnecock Indian Nation and its tribal officials (collectively, the “Shinnecock” or the “Tribe”) appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the district court’s factual and legal conclusions, including its findings: (1) that tribal sovereign immunity from suit does not bar this action; (2) that the Shinnecock’s aboriginal title to the land at Westwoods was extinguished in the seventeenth century; (3) that even if aboriginal title had not been extinguished, equitable principles would prevent the Shinnecock’s development of a casino in violation of state and local law; and (4) that the federal Indian Gaming Regulatory Act (“IGRA”) supplanted any federal common law right the Tribe may have had to operate the casino. They also argue that the Bureau of Indian Affairs’s recent recognition of the Shinnecock Indian Nation moots the injunction.

We conclude that the district court lacked subject matter jurisdiction over this action, and thus do not reach the merits of this appeal.

Lower court materials are here and here.

Bob Anderson on Treaty Substitutes in the Modern Era

Bob Anderson has posted “Treaty Substitutes in the Modern Era” on SSRN. This paper is a book chapter in the forthcoming book “The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest,” edited by Alexandra Harmon.

Here is the abstract:

This chapter compares two modern Indian property settlements processes – the Alaska Native Claims Settlement Act and the Snake River Basin Water Rights Settlement – with the mode of agreements in the Pacific Northwest in the mid-19th Century.

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.