New Scholarship by Ann Piccard: “Death by Boarding School”

Ann Piccard has published Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137 (2014).

A summary:

There is a special kind of racism in this country against Native Americans, and it is the “last acceptable racism.” The author of that poignantly accurate description of most Americans’ attitudes towards Native Americans, who is both a Native American and a Jew, noted,

Not that long ago, white administrators of Indian boarding schools told our children that the “Indian in you shall die.” This kind of treatment and forced thinking has a lasting generational effect. It can be difficult to break through that type of programming.  Many of our people, however, have shaken off these forced ideological shackles to speak the truth and demand long overdue respect. Our voice is getting louder.

Our words are being said with more frequency and emphasis. But people need to hear us. Societal racism should no longer be an ad hoc affair, which is routinely accepted when directed against a certain group. It should be universally condemned. Perpetuating past wrongs and dehumanizing concepts hurts everyone.

This last acceptable racism is rarely mentioned in the U.S. However, one day in a very small town in northern Minnesota, in an area that has been economically depressed ever since the decline of the taconite and iron ore mining industry several decades ago, I watched two Native American men park a pickup truck in front of the local pawn shop.

I could tell the young men were Native Americans only because of the Bois Forte Band license plate on their truck; other than that, they looked, sounded, and acted like most of the other men in that rural north woods town. Upon reflection, of course, I realized that their skin was slightly darker than most residents of the town; I also began to notice that I did not see dark-skinned people working or shopping in any of the town’s stores. My eye was untrained, a fact that I attribute to my upbringing in the Deep South,6 where I was in a small minority of white children who were raised by our parents to see and to protest (and refuse to accept) the prevailing racism toward African-Americans. The subtle differences in appearances between the Native Americans and the “whites” in Minnesota had gone unnoticed by my Southern eyes. But as we watched the young men take their chain saws into the pawnshop that day, my husband remarked that men in northern Minnesota who hock their chain saws must be in pretty bad shape, because how could they survive, let alone make a living, without such tools?

Gonzaga Law Review Publishes Indian Law Symposium Issue

Here is their press release, with links to the articles:

Modern Issues of Tribal Sovereignty and Jurisdiction

This month, the Gonzaga Law Review published its first issue devoted to Indian Law, titled Modern Issues of Tribal Sovereignty and Jurisdiction.  The issue features professor Joshua Jay Kanassatega’s case for a new application of the abstention doctrine—one in which federal and state courts should dismiss civil actions better left to the courts of the Indian tribes.  In a separate piece, Winter King, Eric Shepard, and Rob Roy Smith examine the 2011 Ninth Circuit Court of Appeals’ decision in Water Wheel Camp Recreational Area, Inc. v. LaRance.  The authors, who served as counsel for the Colorado River Indian Tribes and other amici in Water Wheel, explain that the Ninth Circuit’s decision has reinvigorated the oft-forgotten authority of Indian tribes to assert regulatory and adjudicatory jurisdiction over nonmembers using a tribe’s inherent authority to exclude.

These articles and the rest of the issue’s contents can be found at http://gonzagalawreview.org/.  Requests for print copies should be sent to Gonzaga Law Review, Gonzaga University School of Law, P.O. Box 3528, Spokane, WA 99220-3528 or by email to lawreview@lawschool.gonzaga.edu.

Brent Leonhard on PL 280 Retrocession in Washington State

M. Brent Leonhard has posted his paper, “Returning Washington PL 280 Jurisdiction to its Original Consent-Based Grounds,” on SSRN . It is forthcoming in the Gonzaga Law Review.

Here is the abstract:

When enacted in 1953, President Eisenhower expressed “grave doubts” about provisions of Public Law 83-280 (PL 280) that allowed a state to assert jurisdiction over Indian country without tribal consent. Consistent with President Eisenhower’s doubts, the State of Washington enacted legislation in 1957 to assert PL 280 jurisdiction over Indian country provided a tribe requested the State exercise such power. However, in 1963 the State amended its law and baldly asserted limited PL 280 jurisdiction over all of Indian country regardless of tribal consent. Five years later, recognizing the inappropriateness of non-consensual assertions of state authority over tribes, the federal government amended PL 280 in 1968 to require tribal consent and to create a path for retrocession of state authority. Despite changes in federal law, the State of Washington has never acted to rectify its assertion non-consensual authority over tribal nations.

In the 2011 Washington legislative session a joint executive-legislative workgroup on tribal retrocession was formed to study the desirability of enacting a law that would require the State to retrocede PL 280 jurisdiction back to the federal government when specifically requested by an affected tribe. This paper advocates for such changes in Washington’s law, which would effectively return the law to its original consent-based grounds. In doing so, it explains how Indian country criminal jurisdiction would work with such changes, how it currently works under PL 280 generally and Washington specifically, and why a mandatory retrocession provision ought to be adopted for both moral and pragmatic reasons.

Gonzaga Law Review CFP: Modern Issues of Tribal Sovereignty and Jurisdiction

Call for Papers

 GONZAGA LAW REVIEW

Volume 47:3

 Modern Issues of Tribal Sovereignty and Jurisdiction

 Gonzaga University has historically concerned itself with the advancement of Native rights.  Father Joseph Cataldo, S.J., founded the university in 1887 as a missionary school with a primary purpose of offering education to northwestern tribal children.  This commitment has grown over the years and is exemplified by the business school’s American Indian Entrepreneurship Program and the law school’s Indian Law Clinic.

Today, we further affirm this commitment and announce that Volume 47:3 of the Gonzaga Law Review will be devoted to Modern Issues of Tribal Sovereignty and Jurisdiction.  Some of the topics that we hope to explore include, but are not limited to:

·      Public Law 83-280 and the interplay between federal, state, and tribal jurisdiction

·      Tribal court jurisdiction and non-Indian activities and lands

·      Immigration and extradition between tribal and non-tribal lands

·      The Washington State Indian Child Welfare Act and any effects it implicates on implementation of the Federal Indian Child Welfare Act

Submissions, paper proposals, and questions should be sent to Mark Melter at mmelter@lawschool.gonzaga.edu.  Final drafts of accepted submissions are due on December 1, 2011.  Volume 47:3 will be published in April 2012.  The Gonzaga Law Review and the Indian Law Clinic are also considering a conference in Spring 2012 to coincide with the release of the issue.  Please indicate in your submission whether you have interest in participating in a potential conference regarding modern issues of tribal sovereignty and jurisdiction.  We look forward to your contributions.

Vann v. Kempthorne Materials

Last December, the federal court denied the Cherokee Nation’s motion to dismiss Vann v. Kempthorne. The Nation had argued that it was a necessary and indispensable party under FRCP 19. And, because it hadn’t waived its immunity, the Nation argued that the federal case must be dismissed. The United States argued that the case should be dismissed under the tribal court exhaustion doctrine. The court disagreed.

Vann 2nd Amended Complaint

Cherokee Motion to Dismiss

Opposition to Cherokee Motion

Cherokee Reply Brief

US Brief

Order Denying Motion

My own article on Rule 19 and tribal interests is here.