New Fletcher Paper: “The Rise and Fall of the Ogemakaan”

Please check out my new paper, “The Rise and Fall of the Ogemakaan,” now available on SSRN. Here is the abstract:

Anishinaabe (Odawa, Bodewadmi, and Ojibwe) legal and political philosophy is buried under the infrastructure of modern self-determination law and policy. Modern Anishinaabe tribes are rough copies of American governments. The Anishinaabeg (people) usually choose their ogemaag (leaders) through an at-large election process that infects tribal politics with individualized self-interest. Those elected leaders, what I call ogemaakaan (artificial leaders) preside over modern governments that encourage hierarchy, political opportunism, and tyranny of the majority. While modern tribal governments are extraordinary successes compared to the era of total federal control, a significant number of tribes face intractable political disputes that can traced to the philosophical disconnect from culture and tradition.

Anishinaabe philosophy prioritizes ogemaag who are deferential and serve as leaders only for limited purposes and times. Ogemaag are true representatives who act only when and how instructed to do so by their constituents. Their decisions are rooted in cultural and traditional philosophies, including for example Mino-Bimaadiziwin (the act of living a good life), Inawendewin (relational accountability), Niizhwaaswii Mishomis/Nokomis Kinoomaagewinawaan (the Seven Gifts the Grandfathers or Grandmothers), and the Dodemaag (clans). I offer suggestions on how modern tribal government structures can be lightly modified to restore much of this philosophy.

SCOTUSBlog (Ronald Mann) Preview of Patchak v. Zinke


An excerpt, and a little horn tooting:

The most telling argument for the government is the recitation (in an amicus brief filed by a group of law professors) of the dozens of statutes Congress has adopted through the centuries resolving Indian land disputes and dealing high-handedly with Indian lands. It is notable that Bank Markazi emphasized Congress’ supreme authority over foreign affairs in its rejection of the Klein claim in that case. Congress’ plenary authority to regulate and protect Indian tribes leaves room for a similar resolution of this case without explicitly rejecting the Klein rule. Bank Markazi of course said nothing about Congress’s power over Indian affairs, so that result wouldn’t really follow from Bank Markazi. It would, though, afford the justices a way to decide the case narrowly, which seems to have been their goal in these cases. The key thing to watch for in the argument will be any sense that any of the members of the Bank Markazi majority show a willingness to treat this case differently than they did that one.

You can read that amicus brief here, along with the rest of the briefs

Patchak v. Zinke Background Materials

Here are the merits briefs:

Patchak Merits Brief

Joint Appendix

US Merits Brief

Gun Lake Merits Brief

Patchak Merits Reply

Here are the amicus briefs:

Federal Courts Scholars Brief in Support of Petitioners

Fed. Cts. and Indian Law Scholars in Support of Respondents

Brief Amici Curiae of Wayland Township, et al. in Support of Respondents

Brief for the U.S. House of Representatives as Amicus Curiae Supporting Respondents

Brief Amicus Curiae of National Congress of American Indians in Support of Respondents

Brief Amicus Curiae of Professor Edward A Hartnett in Support of Respondents

Here are the cert stage briefs:

Patchak Cert Petition

Federal Cert Opp

Gun Lake Cert Opp

Patchak Reply

Here are the D.C. Circuit materials:


Patchak Opening Brief

Tribe Response Brief

US Response Brief

Patchak Reply Brief

District court materials:

Patchak v Jewell – Gun Lake Tribe (Judge Leon Opinion)

78 Gun Lake Tribe Motion for Summary J

80-1 Patchak Motion for Summary J

85 US Opposition

86 Gun Lake Tribe Opposition

87 Patchak Opposition to Gun Lake Tribe Motion

88 Gun Lake Tribe Reply

90 Patchak Reply

Legislative materials:

Senate Hearing

House Report

Gun Lake Trust Land Reaffirmation Act

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email

Hopi Tribe

Chief Prosecutor. Responsible for the executive and administrative control of the Tribal Prosecutor’s Office, as well as prosecuting crimes committed within the Hopi Reservation and its boundaries, and prosecuting delinquency and minor child in need of care petitions.

Probation Officer. Manages a case load and enforces court ordered probationary sentences by supervising and monitoring probationers under the direct supervision of the Chief Probation Officer. The incumbent performs paraprofessional duties requiring knowledge and skill in assessments, investigation, counseling, and supervision of probationers.

Deputy General Counsel. Provides professional legal counsel and representation to the Hopi Tribal government – including the legislative and executive branches of the Hopi Tribe, the administrative departments, offices, and programs – as specified by the Tribal Council and the General Council.

Licensed Deputy Prosecutor. Performs professional legal work in prosecuting criminal offense, juvenile offenses, and certain civil cases in the Hopi Tribal Courts, including legal research and preparation of Court documents; response to citizen inquiries relating to tribal court procedures and violations of Tribal laws prosecuted in Tribal Court.

Link: Hopi Tribe job listings and application details

The Match-E-Be-Nash-She-Wish Band of Potawatomi Indians

Tribal Court Clerk. Grant Funded Coordinated Tribal Assistance Solicitation Grant – Bureau of Justice Assistant. Three (3) year temporary grant project. Projected End Date: 9/30/2018. Funding may be available at the end of the grant to sustain this position. Closes 8/7/2017.

Legal Services of South Central Michigan

Paid Law Clerk, Lansing. Students who have completed their first year in law
school are welcome to apply.

Pueblo of Laguna

Attorney. Under general direction of Government Affairs Director, serves as an in-house legal adviser, representative, and counselor. Ensures the adherence to applicable laws to protect and enhance tribal sovereignty, to avoid or prevent expensive legal disputes and litigation, and to protect the legal interests of the Pueblo government. Consistently applies the Pueblo’s Core Values in support of Workforce Excellence. Maintains confidentiality of all privileged information.

National Indian Gaming Commission

Financial Analyst, Washington, D.C. Will review and analyze complex financial data, reconcile general ledger, coordinate budget process, calculate fees and various user charge rates, and prepare reports and analyses which are critical to the agency’s financial operations. The incumbent may work with various Divisions and other programs of the agency to carry out duties.

Link: 7/28/17 Friday Job Announcements

Gun Lake Tribe to Release Lake Sturgeon into Kalamazoo River

WHO: Gun Lake Tribe of Pottawatomi Indians; Michigan Department of Natural Resources; U.S. Fish & Wildlife Service; Kalamazoo River Chapter of Sturgeon for Tomorrow.

WHAT: Public celebration / release of juvenile sturgeon into the Kalamazoo River.

WHEN: Monday, August 29, 2016 from 6 pm to 8 pm.

WHERE: New Richmond Bridge County Park, 5700 Old Allegan Road, Hamilton, Mich.  Google Maps click here                            

DETAILS: The Gun Lake Tribe has organized an annual release of lake sturgeon into the Kalamazoo River.  Participating parties include the Michigan Department of Natural Resources, U.S. Fish & Wildlife, and the Kalamazoo River chapter of Sturgeon for Tomorrow.  The 8-inch sturgeon set for release were reared in a streamside hatchery and will be hand-released back into the river.

Sturgeon, or Nmé in Pottawatomi, is culturally important to the Tribe as the fish represents an animal clan in traditional beliefs.  Sturgeon clan people have spiritual knowledge offered as guidance to others and they live to an old age, just like lake sturgeon.  The rehabilitation of lake sturgeon is a reflection of the Tribe’s present-day progression as a community and a tribal government.

A welcome will be provided by Chairperson Leah Sprague-Fodor.  Tribal youth drum group, ThunderBuddies, will perform.  Also taking part in the ceremony are tribal elders John Bush, Punkin and Dave Shananaquet, and Miss Potawatomi Mary Bush.  The event will also include hatchery tours and light dinner for up to 200 people in attendance.  The general public is encouraged to attend this event.

CONTACT: Elizabeth Binoniemi-Smith (269) 397-1780 (office), (616) 885-2155 (on-site)

D.K. Sprague Retires after Twenty-Four Years as Chairman of the Gun Lake Tribe

D.K. Sprague Retires after Twenty-Four Years as Chairman of the Gun Lake Tribe  

Sprague Led Tribe from Pre-Recognition to Successful Modern Tribal Government 

(Bradley, Mich.) – Today, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake Tribe) (Tribe) announced the retirement of David K. (D.K.) Sprague as chairman.  Sprague served as chairman since his initial election by the Bradley Settlement Elder’s Council in 1992.  He is distinguished as one the longest serving tribal chairman, in consecutive terms, throughout Indian Country in the Unites States.

“It has been an honor and privilege to serve my community as chairman for the last twenty-four years,” said D.K. Sprague, former chairman.  “I thank my family and the Tribe for supporting me, and God for allowing me to serve at a time when our dreams came to reality.  I give recognition to our tribal leaders who came before me, as I merely finished what they started when the Bradley Indian Mission was established in the 1830s.”

The Tribe achieved federal re-acknowledgment in 1999 after many years of working through the federal acknowledgment process.  The Tribe’s goal of reaching self-sufficiency through its pursuit of economic development under the Indian Gaming Regulatory Act would take over a decade.  During the last twenty-four years the Tribe went from having nothing to becoming a modern tribal government that can now provide for the needs of its people.

“I am proud to have served the Tribe under the leadership of D.K. Sprague,” said Vice Chairman Ed Pigeon.  “I witnessed steady and consistent leadership in extremely difficult situations over a long period of time.  It was amazing to see him put to the test so many times, but never waver.  The Tribe is truly blessed that a person with such rare leadership qualities was in place at a time when it was most needed.”

Many friends, family and staff members have expressed their gratitude to the former chairman for his dedication to the needs of tribal government staff and the team members who work in the gaming enterprise.  He was always approachable and jovial with everyone around him.

“No one ever wanted this day to come,” said Leah Sprague-Fodor, Tribal Council member.  “However, asking him to continue serving would be selfish of us.  We know he served with everything he had for so many years.  He has earned his retirement and now he should enjoy golf, traveling, baseball games and spending time with his family and friends.”

Sprague grew up in the Bradley area where he remained most of his life.  He joined the U.S. Army and served in the Vietnam War.  He served in 14 natural disasters worldwide as a Red Cross volunteer, which included an extended time of service in Louisiana for the victims of Hurricane Katrina.  He is a lifelong member of the Methodist Church at the Bradley Indian Mission.

In the next 90-120 days the Tribe will hold a special election to fill the seat on the Tribal Council vacated by Sprague’s retirement.  Afterwards, the Tribal Council will select the next chairman.  In the interim, Vice Chairman Ed Pigeon will serve as acting Chairman.

Timeline of Gun Lake Tribe events occurring under the leadership of D.K. Sprague

1992 Bradley Settlement Elder’s Council elects D.K. Sprague to serve as Chairman.
August 23, 1999 Federal re-acknowledgment by the United States as a sovereign tribal government.
August 2001 Tribe submits land-into-trust application to re-establish reservation lands for the purpose of economic development under the Indian Gaming Regulatory Act.
January 30, 2009 Federal government takes land in trust for Tribe to construct Gun Lake Casino.
February 10, 2011 Gun Lake Casino opens.
May 14, 2014 Bradley Indian Mission Church building turns 100 years old, at that time the Mission is approx. 176 years old.
September 26, 2014 President Obama signs into law the Gun Lake Trust Land Reaffirmation Act.
October 2014 Approx. 300 acres of additional land placed into trust.
August 2015 Government Campus opens to tribal citizens and tribal government staff.  Becomes the “Capitol Building” of the Gun Lake Tribe.
January 29, 2016 D.K. Sprague retires as chairman.