Michael Olivas Walks On

I learned late last week as the second restatement symposium was wrapping up that Michael Olivas had died (see also Ediberto Román’s moving post). Without Michael, there would have been no Indian law restatement (or it would have looked a lot different).

In 2010, Michael reached out to me and asked me if I wanted to be a member of the American Law Institute. I had never met the man, but he wanted to enable junior scholars from underprivileged backgrounds to become a part of the ALI. Barely knowing what the ALI was, I agreed. Within the next couple years, Wenona Singel and I were spearheading a restatement project and dragging along people like Venus Prince and Keith Harper to help us.

Over the years, Michael continued to elevate my work. When he became President of the American Association of Law Schools, he asked me to join the empirical research committee.

Michael added me to his rock and roll posse, where he discussed rock music and the law amongst friends. His emails were always a welcome respite from work, though they were frighteningly incisive on the law. Another time, he hosted me and our son Owen in Santa Fe for dinner, remarking that he could tell Owen’s parents were both lawyers; as a small boy, he already knew how use lawyer words like “actually” and how to hedge his opinions.

In 2020, when the Indigenous Law and Policy Center won the M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers, Michael gave us the award and spoke about the restatement project. He was far too kind, generous, and inspirational.

2020 SALT awards ceremony

Michael was such a good guy. It’s amazing how gracious and generous people can be. I’m glad I could get it together to wish him a good journey in time.

U. Washington Law School Symposium on the Restatement of the Law of American Indians

Register here.

Completely random images (badly photographed by Fletcher) at restatement project meetings (guess I only took pics in 2015 . . .):

Philadelphia 2015 ALI Council Meeting
D.C. 2015 Advisers Meeting
D.C. 2015 Advisers Meeting
D.C. 2015 ALI Membership Meeting

Semi-Split Tenth Circuit Decides Chegup v. Ute Indian Tribe of the Uintah and Ouray Reservation [banishment]

Here is the opinion.

Briefs here.

An excerpt:

We begin by discussing the tribal exhaustion doctrine involved in this case. “[W]hen a federal court has subject-matter jurisdiction over a claim arising in Indian country over which a tribal forum has colorable jurisdiction, principles of comity and the federal policy of promoting tribal self-government generally require that the plaintiff fully exhaust tribal remedies before proceeding in federal court.” Restatement of the Law of Am. Indians § 59 cmt. a (Am. Law Inst., Proposed Final Draft 2021).

slip op. at 14.

Maybe a little more Restatement. . . .

Post–Santa Clara Pueblo, federal review has been limited to habeas, leaving tribal courts to adjudicate any other civil rights claims. See Restatement of the Law of Am. Indians § 16 cmt. a (“With the exception of actions for habeas corpus relief [under § 1303, ICRA’s civil rights] guarantees are enforceable exclusively in tribal courts and other tribal fora.”).

slip op. at 21.
Ute Indians camped at Belle Fourche, South Dakota, who are dissatisfied with their treatment: Capt. Johnson, with the Sixth Cavalry from Ft. Meade, S.D., addressing Indians, who they were sent to arrest

And more. . . .

Tribal exhaustion doctrine exists to preserve tribal sovereignty and prevent the federal courts from running roughshod over tribal legal systems. See Norton, 862 F.3d at 1243; Restatement of the Law of Am. Indians § 28 cmt. a (“[A]djudication of matters impairing reservation affairs by any nontribal court . . . infringes upon tribal law-making authority, because tribal courts are best qualified to interpret and apply tribal law.”).

Slip op. at 34.

University of Washington Symposium on the Restatement of the Law of American Indians

Just a reminder that early bird registration for the Symposium on the Restatement of the Law of American Indians closes on January 31. The program is packed with speakers and panelists from around the nation who participated in the development of the Restatement and will feature keynote presentations from Judge William Fletcher of the 9th Circuit and Justice Montoya Lewis from the Washington Supreme Court. Use the link below to register soon for the best rates.

Home – 34th Annual Indian Law Symposium: Restatement of the Law of American Indians (cvent.com)

Fletcher Wisconsin Law Review Symposium Paper on the Indian Law Restatement

Here is “Restatement as Aadizookaan,” forthcoming in the Wisconsin Law Review. The abstract:

The goal of this essay for the Wisconsin Law Review’s symposium on the Restatement of the Law of American Indians is to develop a framework on the durability of this restatement. The aadizookaanag are unusually durable in terms of their transmission of underlying, foundational lessons, but the stories change all the time. The earth diver story explores and describes the critically important connection between the Anishinaabeg and the creatures of Anishinaabewaki, but only a very broad level of generality. How the Anishinaabe tribal government in the 21st century translates those principles into modern decision making requires new analysis, new stories. Additionally, old aadizookaanag may fade into irrelevance, even disrepute, as times and conditions change.

Law is the same. Restatements are intended to be durable and persuasive, supported by the great weight of authority, but not permanent. There are provisions in the Indian law restatement I believe are truly timeless, while the law restated in some sections is likely to change a great deal over the next few decades. I choose four sections in the restatement and match them with one of the four directions sacred to the Anishinaabeg. The youngest direction, Waabanong, the east, is the most likely to change. The next youngest, Zhaawanong, the south, is older, but still subject to change. Niingaabii’anong, the west, is still older, wiser, less likely to change, but also very dark in its philosophies. Kiiwedinong, the north, is the oldest, wisest, and most durable, yet distant. A restatement section includes black letter law, law that is well settled and indisputable. The reporters’ notes that accompany the black letter law constitute the legal support for that statement of law. The stronger the legal support, more durable the black letter.

In the east, I choose one of the plainest, easiest to restate principles of federal Indian law, the bar on tribal criminal jurisdiction over non-Indians. In the south, I choose the law interpreting the federal waivers of immunity allowing tribes to sue to the United States for money damages. In the west, I choose the darkest, yet perhaps the most foundational principles, the plenary authority of Congress in Indian affairs. For the north, I choose tribal powers, the oldest and most durable of all of the principles in the restatement.