I blogged on this issue a few days ago – http://lawlib.lclark.edu/blog/native_america/?p=5679

Up to 70 Hopi maks were offered for sale at a French auction house. The Tribe and others objected but a French judge allowed the auction to proceed over the objections of the Hopi Tribe and the U.S. government.

The auction was interrupted by protests, but dozens of Native American masks were sold last Friday.

The Drouot auction house said one mask was bought by an association to give to the Hopis.

Read more: http://www.law.com/jsp/law/international/LawArticleFriendlyIntl.jsp?id=1202595932047

The federal government rarely enters the family law arena.  In fact, that is one of the challenges that was made to the federal Defense of Marriage Act that the Supreme Court heard argument on in the last few weeks.

On Tuesday, the Court will hear arguments regarding the Indian Child Welfare Act (ICWA), 25 U.S.C. sec. 1901 et seq., enacted in 1978. The case is best known as the Baby Veronica case.

Congress entered family law in this instance because of the federal/tribal relationship that has existed since 1789. Under federal Indian law, the United States government owes a "trust" responsibility to tribes and Indian peoples. See 25 U.S.C. sec. 1901(2) & (3). Thus, the ICWA was enacted to try to stem the abusive practices state agencies were perpetrating against Indians and tribes through wholesale adoptions and foster care placements of Indian children. 25 U.S.C. sec. 1901(4) & (5).

The article, linked below, asks this poignant question about the case: "The question at the center of it has been asked (and answered) over and over again on this blessed continent for the past 400 years: Is the law of the land going to preclude or permit yet another attempt to take something precious away from an Indian?"

The Indian father has custody of the child at issue in this case as ordered by two South Carolina state cases.  

http://www.theatlantic.com/national/archive/2013/04/indian-affairs-adoption-and-race-the-baby-veronica-case-comes-to-washington/274758/

Even more worrisome, according to the article, is that the attorney "representing the child's guardian in the case, has made an extraordinary argument designed to undercut federal oversight over Indian affairs: These statutes, he argues, are unconstitutional because they are based upon racial classifications that violate the equal protection rights of non-Indians."

This argument goes against a primary tenet of federal Indian law that the relationship between the United States and tribal nations is a political basis, a government-to-government relationship. Morton v. Mancari, 417 U.S. 535 (1974). This political relationship calls on the federal courts to defer to congressional acts regarding Indian nations instead of applying the "strict scrutiny" review that federal courts use in reviewing federal laws that are based on racial classifications.

The Associated Press reports that an Arizona tribe is asking a Paris auction house to cancel an upcoming sale of dozens of items that the tribe says is central to its religious practices. The tribe also demands their return to their original home.

The auction house describes the collection as katsina masks of the Hopi Indians of Arizona.

Read more: http://www.usnews.com/news/us/articles/2013/04/03/arizona-tribe-seeks-artifacts-up-for-auction
 

American Indians and tribal nations have been too long overlooked in the teaching and scholarship of the history of the United States. I have written about the crucial role that indigenous peoples and nations played, for example, in the Lewis and Clark expedition and in American Manifest Destiny.  Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny (Prager Publishers, 2006; paperback University of Nebraska Press, 2008). 

I am posting here a list of primary documents that teachers should consider using to teach a more complete, wholistic, diverse, and true history of these events.

1. Papal documents from 1436 and 1453 granting Portugal license to conquer and christianize the Canary Islands and the west coast of Africa. (1436 Papal bull Romanus Pontifex.)

2. 1492 Spanish contracts and instructions to Columbus that agreed to make him the admiral of any lands he acquired for King Ferdinand and Queen Isabella in the New World.

3. Pope Alexander VI’s papal bulls, Inter caetera divinai and Inter caetera II, in May 1493 that granted Portugal and Spain the rights to conquer and christianize the non-christian world and to take title to the “discovered” lands. The Pope divided the world with a line of demarcation 100 leagues west of the Azore Islands and authorized Spain to “discover” west of the line and granted Portugal the same right east of the line. (The 1493 Bull “Inter caetera divinae” granting Americas to Spain, May 4, 1493, Church and State Through the Centuries 153-57 (Sidney Z. Ehler & John 13. Morrall, trans. & eds 1967).)

4. The 1494 Treaty of Tordesillas between Spain and Portugal which moved the Pope’s line of demarcation westward to 370 leagues west of the Cape Verde Islands so that Portugal could possess the Brazilian part of South America. In 1529, the countries signed the Treaty of Saragossa to determine the dividing line between their designated areas in the Pacific Ocean.

5. Writings of the priest, royal advisor, and University of Salamanca professor Francisco de Vitoria that natives had natural human rights that Spain had to honor, that the Papal bulls did not pass title to the lands to Spain, but that Indians had duties under the Law of Nations to allow the Spanish to travel in their lands, to take profits from communally held lands and assets like minerals, and to preach the gospel. If the natives prevented the Spanish from exercising these rights, the Spanish could “defend” themselves and wage a “lawful” and “just” war on the natives. Franciscus de Victoria, De Indis et de Iure Belli Relectiones 128 (E. Nys ed., J. Bate trans. 1917) (book is in Latin and English).

6. The Requerimiento which King Ferdinand ordered to be drafted to control Spanish conquests in the New World. This document was used from 1513-1556. It was required to be read to natives so that they could accept christianity before the Spanish attacked them in a “just war” to force their conversion. The document informed Indians that God had given charge of the human race to the Pope and that he had donated their lands to the Spanish King and Queen. Indians could take time to consider the document, but they had to accept the Church and Pope as their ruler and the Spanish King and Queen or if they did not or delayed, then the Spanish would forcefully enter the country and make war on the natives. Reprinted in The Spanish Tradition in America 5 8-60 (Charles Gibson ed. 1968).

7. King Henry VII’s 1497 charter to John Cabot to explore and conquer the New World: "Seek out, discover, and find whatsoever isles, countries, regions or provinces of the heathen and infidels whatsoever they be, and in what part of the world soever they be, which before this time have been unknown to all Christians." Reprinted in Documents of American History 5-6 (Henry S. Commager ed. 8th ed. 1968).

8. Queen Elizabeth I charters to Humphrey Gilbert in 1578 and in 1584 to Walter Raleigh to colonize Virginia and find “heathen and barbarous lands . . . not actually possessed of any Christian prince or people … to have, hold, occupy and enjoy . . . ."

9. King James I 1606 charter to the Virginia Company to colonize Virginia and to propagate christianity and bring the infidels and savages to human civility. Reprinted in Documents of American History 8-12 (Henry S. Commager ed. 8th ed. 1968).

10. King George III’s Royal Proclamation of 1763 preventing his colonists and colonies from buying or even entering Indian lands, which were defined as all lands west of the crest of the Allegheny and Applachia Mountains. The King said these lands were reserved for him although he had not yet purchased them.

11. The American Articles of Confederation, art. IX (1781) attempting to keep the states from buying Indian lands.

12. George Washington’s Sept. 7, 1783 letter to a congressional committee calling Indians “The Savage as Wolf’ and predicting that they would disappear before the advance of the American frontier just as the wolf and animals. Reprinted in Documents of United States Indian Policy (Francis Paul Prucha ed., 3d ed. 2000).

13. The NorthWest Ordinance of 1787 promising to protect Indian property and rights unless the U.S. had to attack them in “just and lawful wars.” (“Just wars” straight out of de Victoria and Spanish Discovery theory of 1536 and English ideas from the late 1550s & early 1600s.)

14. The Interstate and Indian Commerce Clause of the U.S. Constitution, art. I, sec. 8, cl. 3, placing all responsibility to control commerce "with the Indian Tribes" in the hands of Congress; and the references to Indians in art. I, sec.2 and the 14th Amendment, sec.2; and the Treaty clause in Article VI.

15. U.S. legislative enforcement of the Doctrine of Discovery and the Indian Commerce Clause power on July 22, 1790 (now codified at 25 U.S.C. 177). No person or state can buy Indian or tribal lands without the permission of the U.S.

16. The 1802 Compact with Georgia, in which the Jefferson administration agreed to Remove the Cherokee Indians from Georgia as soon as possible even though the nation possessed treaty rights to remain on their lands forever.

17. President Jefferson’s Jan. 18, 1803 secret message to Congress seeking a $2,500 appropriation to fund the Lewis and Clark expedition for commercial purposes. This is the only authority for the mission Jefferson could perceive in the Constitution. He told Congress that the U.S. could cut England out of the lucrative fur trade with China. Donald Jackson, ed. Letters of the Lewis and Clark Expedition with Related Documents, 1783-1854, 2 volumes (Urbana: University of Illinois Press, 2d ed. 1978), Vol. 1, pp. 10-14 (Jefferson Message to Congress Jan. 18, 1803).

18. Jefferson’s June 20, 1803 letter of instructions to Meriwether Lewis showing the primary objectives of dealing commercially with tribes and Indians. Letters of the Lewis and Clark Expedition with Related Documents, 1783-1854, Vol. 1, pp. 61-66 (Jefferson Letter to Lewis June 20, 1803).

19. The Louisiana Purchase 1803 treaty with France. (It contains a provision on how the U.S. was to treat Indians and tribes that contrasts with the provision regarding how the U.S. would treat the French/Spanish inhabitants of the Territory).

20. President Jefferson’s Jan. 22, 1804 letter of instruction to Meriwether Lewis and how he was to take U.S. sovereignty to the tribes now that the U.S. had made the Louisiana Purchase; “Being now become sovereigns of the country, without however any diminution of the Indian rights of occupancy. . . .“ That simple sentence is a very good definition of how Chief Justice Marshall defined the Doctrine of Discovery in Johnson v. Mcintosh in 1823. Letters of the Lewis and Clark Expedition with Related Documents, 1783-1854, Vol. 1, pp. 165-66 (Jefferson Letter to Lewis January 22, 1804).

21. Jefferson’s understanding of the Doctrine of Discovery: (a) 1802 Compact with Georgia to remove the Cherokee Indians from Georgia; (b) his 1803 letter to Gov. William Henry Harrison that everyone knew  that all Indians would have to be removed west of the Mississippi River one day; (c) his 1804 letter to Lewis that the U.S. was now the sovereign of the Louisiana Territory; (d) his 1808 letter to Congress that the U.S. should start buying the land west of the Mississippi from the “native proprietors”; (e) by 1813 Jefferson wrote that “we now must pursue them [Indians] to extermination.”

22. Jefferson’s written comments on the successes of the Expedition show the extensive involvement of Indian affairs in the Expedition.

23. Johnson v. M'Intosh, 21 U.S. 543 (1823). The Supreme Court adopts and defines the Doctrine of Discovery as the federal common law under which this country was settled. The Doctrine limits Indian and tribal real property rights because tribes cannot sell to whomever they wish for whatever amount they can get. They can only sell to the United States. But until then, they hold the valuable property rights of use, occupancy, and development. Tribes also lost some sovereign powers because the U.S. gained power over tribes in that Indian tribes can only deal with the United States and no other country.

24. The Removal Act, 4 Stat. 411-12. One result of the Discovery Doctrine was the Removal Era of federal Indian policy that officially commenced in 1830. This Act led to the Trail of Tears and the removal of most Indians west of the Mississippi just as President Jefferson had planned. Jefferson's ideas, repeated by all subsequent presidents, was the genesis of Manifest Destiny.

25. Pres. Jackson’s Message to Congress on Removal of Southern Indians Dec. 1835.

26. President Polk’s 1845 Inaugural Address claiming the Oregon country and that American settlers were already perfecting the US claim by occupying Oregon.

27. The United States Oregon Treaty with England (1846) drawing the boundary line in the Oregon country between Canada and the U.S. at the 49th parallel.

28. The Treaty of Guadalupe Hidalgo (1848) in which Mexico ceded much of the American southwest to the U.S.  Contrast the property rights protections for Mexican citizens and Indians and tribal nations.

29. The 14th Amendment (1868). Indians were still not U.S. citizens.

30. The Dawes General Allotment Act (1887) that attempted to break up the Indian reservations.

31. The Indian Citizenship Act of 1924, 8 U.S.C. sec. 1401(b) (all Indians are made U.S. citizens).

32. Indian/U.S. treaties showing the establishment of reservations, tribal trade restrictions, and the protective status of tribes under the U.S. authority.

A seemingly frantic struggle is occuring in Montana against a miniscule return of wild bison in that state. This fight reminds me of the efforts to block the restoration of wolves and grizzlies, and also demonstrates the fear that some cultures seem to have of the natural world. It bothers me that some Montana legislators are quickly trying to enact legislation against wild bison without conferring with the Indian Nations located in Montana and the Indian citizens, who are also Montana citizens. Surely, there is room in Montana for the buffalo to roam wild once again.

The Great Falls (Mont) Tribune reported on this story on March 13 and the slew of state bills that are aimed at managing or limiting the spread of wild bison/buffalo in Montana.

 Tribal leaders and sportsmen’s groups came to the capitol to advocate tolerance for the native grassland grazer.

“There is an understanding that needs to take place that isn’t always considered,” Thomas “Tommy” Christian, a member of the Fort Peck Assiniboine and Sioux Tribal Council, said during a two-hour rally in the Capitol rotunda. “We’re here to help you understand the significance of the buffalo in our culture.”

Indian leaders from the Fort Peck, Crow and Fort Belknap reservations joined wildlife advocates, sportsmen’s groups and conservationists in a demonstration against bison bills that are still making their way through the legislative process.

So far, there are 10 bills targeting bison, ranging from measures giving county commissioners the power to veto bison restoration plans that fall in their counties to a bill, that would create a zero-tolerance policy for free-roaming bison in the state, requiring Montana officials to “immediately” kill or remove all wild bison migrating into the state.

Sen. John Brenden, R-Scobey, chair of the Senate Fish and Game Committee and vice chair of the Senate Natural Resources Committee is an outspoken opponent of wild bison in Montana.  He argues that there are enough bison in Yellowstone National Park and on the National Bison Range. Brenden sponsored Senate Bill 143, that would forbid the translocation of wild bison anywhere in the state except the National Bison Range.

“I don’t think we can have free roaming bison in today’s modern society. That’s the bottom line,” Brenden said.

The United States Supreme Court has requested the opinion of the U.S. Solicitor General on the need to hear an appeal of a case regarding the status of the Oneida Indian Nation’s 300,000-acre historic reservation.

The case involves a petition from Madison and Oneida counties in New York for the Supreme Court to review the U.S. Second Circuit Court of Appeals ruling that the Oneida Indian Nation’s reservation remains intact.  The lower court issued this ruling in 2003 and affirmed it in 2010 and 2011.

The counties’ claim that Oneida's reservation was “disestablished” by the 1838 Treaty of Buffalo and by provisions in the Supreme Court’s ruling in City of Sherrill v. Oneida Nation.

The Oneida Nation argues that the counties’ request should be denied because the issue is factually unique only to the Oneida Nation and would have no impact on the wider area of law called "Indian law." The Supreme Court usually only reviews cases that might apply widely. 

Read more: http://indiancountrytodaymedianetwork.com/2013/03/04/supremes-seek-solicitor-general-review-oneida-reservation-case-147981

On Feb. 11, a federal judge affirmed a $28.6 million arbitration award against the Hualapai Tribe of northern Arizona last week favoring a Las Vegas developer who built the Skywalk tourist attraction on the Hualapai reservation overlooking the Grand Canyon.

U.S. District Judge David Campbell upheld the arbitration decision that awarded David Jin, the builder of the glass-bottomed Skywalk, millions of dollars in ticket revenue that Jin said was owed to him under a 2003 contract with the tribe.

Experts on economic development in Indian country said the tribal council's move to take ownership of the Skywalk through eminent domain could hurt Indian reservations across the United States if investors evaluating deals on tribal land fear being wiped out by tribal condemnation proceedings.

Read more: http://www.usatoday.com/story/news/nation/2013/02/19/grand-canyon-skywalk-judgment-tribe/1929813/

The Portland Oregonian reports today on a law suit by Japanese whalers against the whale protestor group, the Sea Shepherd Society in part:

"A federal appeals court panel has branded a Northwest anti-whaling group "pirates," ordering a halt to attacks on Japanese whalers in Antarctic waters. . . .

The 9th Circuit U.S. Court of Appeals opinion issued late Monday is also unusual for ordering the transfer of a lower-court judge from the case, finding that U.S. District Judge Richard A. Jones made "numerous, serious and obvious errors" in the ruling that generated the appeal.

The majority opinion of the three-judge panel continues an earlier injunction ordering Sea Shepherd Conservation Society activists to stay at least 500 yards away from Japanese whaling ships.

"You don't need a peg leg or an eye patch," wrote Chief Judge Alex Kozinski in the majority opinion. "When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be." . . .

The Society is attempting to avoid the order by separating its American branch from Society's incorporated or chartered in Australia and other countries that are continuing protesting activities.

Read more: http://www.oregonlive.com/business/index.ssf/2013/02/sea_shepherd_whale_activists_c.html

Many high schools and some professional sports teams continue to use offensive and even racist mascots that demean American Indians.  I believe that the NCAA and colleges have fully addressed this issue and even the University of North Dakota State has now abandoned its "Fighting Sioux" mascot http://en.wikipedia.org/wiki/University_of_North_Dakota_athletics

The Smithsonian's National Museum of the American Indian on the mall in Washington D.C. recently held an informative conference on this continuing issue. http://www.indianz.com/News/2013/008442.asp

Interestingly, a Syracuse NY newspaper reported on Feb. 22 that Oneida Indian Nation leader Ray Halbritter says the Oneida and other tribes are creating a fund to buy new uniforms for schools that drop nicknames that are offensive to Indians.

Halbritter has already offered to help buy new uniforms for Cooperstown High School (NY) after the students recently voted to banish the "Redskins" nickname.

"In fact, to address this pervasive problem, the Oneida Nation is now working with Native American media outlets and other Indian nations to establish a fund that will help schools that follow in Cooperstown's footsteps to offset the cost of making similar transitions," Halbritter wrote in the New York Daily News.

Halbritter claims there are still 900 "ethnically insensitive" nicknames and mascots across the country at all levels of sport.

"The owners of professional sports franchises like the Cleveland Indians, the Atlanta Braves and the Washington Redskins continue to disrespect the heritage of Native American people with mascots and logos that insultingly portray aspects of our culture as a cheap cartoon — and nothing more," Halbritter wrote.

Read more: http://www.syracuse.com/news/index.ssf/2013/02/oneida_indian_nation_leader_ra.html?goback=%2Egde_159682_member_216901388

I have written and stated many times that American Indian tribes and Indigenous Peoples need to write their own histories because the mainstream academy and historians almost totally ignore the participation, involvement, and influence of Indigenous Peoples on world history and United States history.

Thus, I am especially delighted to participate in the following conference being held Friday, May 3, 2013 to Saturday, May 4, 2013 at the Newberry Library in Chicago Ruggles Hall.  The public is welcome and attendance is free.

The symposium is entitled - Why You Can’t Teach U.S. History without American Indians

Read more: http://www.newberry.org/why-you-cant-teach