My review of David Grann’s Killers of the Flower Moon has been published in the Michigan Law Review. You can download the paper here or here.
Killers of the Flower Moon will be an eye-opener for those who are not aware of what it means for the United States to shirk its duties to Indian people. Osage people alive today are direct victims of the Osage Reign of Terror (pp. 280–91). Grann’s book tells an interesting story about the early days of the FBI, the development of early criminal investigation techniques, and the slow death of frontier injustice and corruption. It is a story ripe for a suspenseful and entertaining film. But Killers of the Flower Moon could be so much more. For whatever reason—be it the fame of the author, the focus on major American historical figures like J. Edgar Hoover, or the fact that the FBI is investigating the current president—Grann’s work has the attention of much of the American public. Killers of the Flower Moon should be a call to action for the United States to take its duty of protection seriously, but instead the stories of real American Indian lives are a framing mechanism for a true-crime FBI story. Indian tribes standing against the political winds that threaten the trust relationship, the duty of protection the ancestors negotiated for in the nineteenth century, deserve more. The thousands of American Indian women who suffer sexual assaults every year and the thousands of American Indian children who witness and suffer violence every year deserve much more.
Continuing thanks to Wilson Pipestem and Alex Skibine.
Here is “Failed Protectors: The Indian Trust and Killers of the Flower Moon,” forthcoming in the Michigan Law Review.
This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.
Petition for a Writ of Certiorari
1. Whether the court of appeals had jurisdiction over the appeal filed by a nonparty when the nonparty did not participate in any capacity in the district court proceedings.
2. Whether the Tenth Circuit improperly invoked the Indian canon of construction to deprive surface-estate owners who are members or successors-in-interest to Indian tribe members of important property rights by overriding clear regulatory language for the express purpose of favoring the economic interests of an Indian tribe without examining congressional intent.
Lower court materials here.
Osage Minerals Council BIO
SG Brief [Osage]
Petitioner Supplemental Brief
A long and sad opinion here, but a few things of note:
-as usual, Jay Treaty arguments are brushed aside.
-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.
-there is or was a dedicated ICWA court or docket in Los Angeles County.
-the foster parents were not interested in helping with reunification in the slightest.
Here are the new materials in Fletcher v. United States (N.D. Okla.):
1148 Motion to Certify Class
1154 US Response
1196 DCT Order Certifying Class
This case is on remand from the Tenth Circuit; post here.