Mishewal Wappo Tribe Loses Trust Breach/Federal Recognition Claim

Here is the order in Mishewal Wappo Tribe  of Alexander Valley v. Jewell (N.D. Cal.):

197 DCT Order

Briefs are here.

ICWA Termination/Placement Case out of California

Here. Straightforward case, but an example of a clan mother from a tribe (Tuscarora) in New York working with California social services to find multiple placements for the baby.

Preliminary Injunction Issued by Paskenta Tribal Court

Here is the order in Freeman v. Freeman (Paskenta Tribal Court):

PTCV-14-001-2014-5-29 – Preliminary Injunction Order

Materials here.

More Tribal Court Filings in Paskenta Leadership Dispute

Here are the new materials in Freeman v. Freeman (Paskenta Band of Nomlaki Indians Tribal Court):

PTCV-14-001 – 2014-5-27 Motion for Preliminary Injuction and Default Judgment

PTCV-14-001 – 2014-5-27 – Declaration of M Jones

PTCV-14-001 – 2014-5-27 – Second Declaration of G. Freeman

Prior posts on this issue here, here, and here.

And a related document:

4-16-14 BIA Letter re Legitimate Paskenta Tribal Council

Sanders on Genomic Research in Indian Country

Marren Sanders has posted “Genomic Research in Indian Country: The New Road to Termination?” on SSRN.

The abstract:

Genomic science has generated controversy in the social, legal, and ethical arenas for decades, and indigenous populations continue to be a subject of great interest in this area. This article looks at the recent concept of population genomics, a biotechnology used to help scientists understand how genetic variation relates to human health and evolutionary history. Parts II and III examine the debate among scientists as to the migration of the “first Americans” into North America, a debate that is quickly being influenced by the DNA markers found in the human genome. Part IV surveys the history of scientific research involving indigenous peoples – a history predominantly colored by ignorance and bias – as science was presented as conclusive proof of their savage nature and inferiority as a race. Scientists today proffer evidence that the ancestors of Native Americans were, in reality, colonists who immigrated from Africa, Europe, and/or Asia, and Part V analyzes a number of indicators that point to the possibility of genomic research providing justification for another termination of the special status and rights of Native Americans. Part VI looks at a number of tools that tribes may wish to consider using to help protect the genetic information of their members as they are faced with the seemingly endless need of researchers for Native American DNA. The article concludes that while suppositions of geneticists are in actuality just theories of historic migration, these theories have gained acceptance as fact in mainstream society. Given current indicators, Congress and/or the courts may very well use genomic science to justify another termination of the federal/tribal trust relationship.

Federal Court Dismisses Challenge to Paskenta Band Governance

Here are the materials in Swearinger v. Paskenta Band of Nomlaki Indians Tribal Business Council (N.D. Cal.):

DCT Order Dismissing Complaint

Swearinger Complaint

Paskenta Band Motion to Dismiss

Swearinger Opposition

Paskenta Band Reply

An excerpt:

Plaintiffs are “enrolled members of the Paskenta Band of Nomlaki Indians,” a federally recognized Indian tribe with “approximately 240 members.” Docket No. 1, Compl. ¶¶ 11, 13-14. Although Congress revoked PBNI’s status as a federally recognized tribe in 1958, it  later restored the tribe’s federally recognized status in 1994 by enacting the Paskenta Band Restoration Act (PBRA), Pub. L. No. 103-454, §§ 301-03, 108 Stat. 4791 (codified as amended at 25 U.S.C. §§ 1300m et seq.). Compl. ¶ 21. The PBRA directed the Secretary of the Interior to conduct an “election for the purpose of adopting a constitution and bylaws for the Tribe.” 25 U.S.C. § 1300m-6. The PBRA further states that, after the tribe adopts a constitution, “such tribal constitution shall govern membership in the Tribe.” Id. § 1300m-4(b).

Summary Judgment Motions in Mishewal Wappo Tribe Federal Recognition/Termination/Trust Breach Case

Here are the materials in Mishewal Wappo Tribe of Alexander Valley v. Jewell (N.D. Cal.):

Interior Motion for Summary J

Mishewal Wappo Motion for Summary J

Interior Opposition

Mishewal Wappo Opposition

Interior Reply

Mishewal Wappo Reply

Requiem for South Fox Island

A few years ago, we wrote a short article that included a section on South Fox Island, traditional home to many Michigan Anishinaabeg families, that was lost during the Termination Era of the 1950s. An Indian cemetery is out there, hidden, but now the island is owned by non-Indian real estate developers (see here). This is what we wrote about this question:

Non-Indians also used strained or invalid constructions of statutory authority to dispossess tribal communities of their lands. Returning to the notion that the United States compensated Indians and Indian tribes for their land cessions, there still remain the lands government officials sold without the consent of Indians and Indian tribes under the color of federal law. While there are numerous types or classes of lands dispossessed in accordance with the political will of non-Indians, the focus of this Part is on the so-called “‘secretarial transfers,”’ a subset of the kind of transactions often grouped together with “‘forced fee patents.”’ In a secretarial transfer, “BIA officials approved sales of inherited allotments on reservations without the consent of all beneficial heirs.” Under federal law, many secretarial transfers were valid. For example, the Secretary had authority to take an allotment out of trust status where the Indian beneficiary passed away and had one or more heirs who were “competent to manage their own affairs.” However, as discussed below, the Secretary abused this authority on numerous occasions, illegally extending the authority to lands that would not have been covered by the statutory authority.

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