UND Pedagogy of American Indian Law Conference Update

A revised agenda has been placed on the UND website.

Friday, October 13, 2006

8:30-10:00a.m.

Teaching the Marshall Trilogy

Moderator: Greg Gagnon

"Teaching the Trilogy"
- David H. Getches, University of Colorado School of Law

"The Iron Cold of the Marshall Trilogy"
- Matthew L.M. Fletcher, Michigan State University College of Law

10:00-10:15a.m. - BREAK

10:15-11:45a.m.

Teaching Santa Clara Pueblo v. Martinez

Moderator: Kathryn R. L. Rand

"Santa Clara Pueblo: Tribal Sovereignty in a Post-9/11 World"
- Angela Riley, Southwestern Law School

"Santa Clara Pueblo: Light or Shadow?"
- Frank Pommersheim, University of South Dakota School of Law

LUNCH

1:00-2:30 p.m.

Teaching Treaties

Moderator: James Grijalva

"Indian Treaty Abrogation and the Rule against Perpetuities"
- Robert Laurence, University of Arkansas School of Law – Fayetteville

"Teaching DeColonization: Re-Acquisition of Indian Land Within and Without the Box"
- G. William Rice, University of Tulsa College of Law

2:30-2:45 p.m. - BREAK

2:45-3:30p.m.

Teaching Lonewolf v. Hitchcock

Moderator: Tahira Hashmi

"Considering a Law and Literature Approach"
- Kristen A. Carpenter, Via Satellite from University of Denver Sturm College of Law

3:30-5:00 p.m.

Teaching Around the Supreme Court Indian Law Canon

Moderator: Michelle Rivard

"Beyond Indian Law 101"
- Alexander Skibine, S.J. Quinney College of Law – Utah

"When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations"
- Gloria Valencia-Weber, University of New Mexico School of Law

Saturday, October 14, 2006

8:30-10:00a.m.

The Indian Law "Difference"

Moderator:

"Title TK"
- Jim Grijalva, University of North Dakota School of Law

"Compared to What?: Teaching Federal Indian Law in Relation to Legal Doctrine Outside the Field"
- Carole Goldberg, UCLA School of Law

10:00-10:15a.m. - BREAK

10:15-11:45a.m.

Interdisciplinary Teaching

Moderator: Steven Light

"Justice, Culture, and Law: Teaching Law Students"
- Duane Champagne, UCLA

"The 'Actual State of Things:' Teaching About Law in Political-Historical Context"
- David Wilkins, University of Minnesota

11:45-12:00p.m. - BREAK

12:00-12:45p.m.

Indian Law Practical Teaching & Clinics

Moderator: Margaret Jackson

"Creating a Tribal Law Practice Clinic in Kansas: The Joys and Challenges of Bringing a Clinic into this World"
- Aliza Organick, Washburn University School of Law

Rediscovered Book II -- The Light People by Gordon Henry

Gordon Henry, a member of the White Earth Band of Chippewa and professor at Michigan State University, published "The Light People" in 1994. The book is a collection of vignettes featuring Anishinaabe people. One vignette, "Requiem for a Leg," is about the discovery of an Ojibwe leg in a Minneapolis museum, frozen and preserved for all time. The story is about the discovery of the leg by members of the leg's family, so to speak. They make a demand for the leg and the museum denies the claim. A federal trial ensues.

The story of the leg had already been told earlier in the book in a chapter titled, "Oshawa's Uncle's Story." The leg came from a guy named Moses Four Bears around in the early 20th century. He had the leg amputated as a result of frostbite. He ordered younger family members to dress the leg in his best regalia and bury it. Of course, it was during a fierce blizzard and the leg was lost in the white blindness.

During the trial in "Requiem," the anthro who discovered the leg floating downstream in the spring brought the leg to the museum. All the anthros opined that is was evidence of ancient culture and was hundreds of years old. This portion of the trial is hilarious. The defense attorney for the museum is named Nugush. I can't repeat here what my grandmother told me that word means.

In the end, the court awarded the leg back to the family. A good story.

New Book Announcement -- Native America, Discovered and Conquered by Robert J. Miller

Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny by Robert J. Miller (Lewis & Clark).

Professor Gerald Torres of the University of Texas Law School says of the book: "Everyone who is interested in Indian Law and the West will have to read this book."

The book is about the Doctrine of Discovery, Thomas Jefferson, Lewis & Clark, and Manifest Destiny. In the book, he addresses and proves three new ideas that have not been discussed elsewhere:

1. how the American colonies, states, and the federal government adopted the international law Doctrine of Discovery and applied it to the Indian Nations from 1620-2006.

2. how Thomas Jefferson and Lewis & Clark used the Doctrine of Discovery to exercise governmental authority in the Louisiana Territory and to claim the Pacific Northwest for the United States.

3. that Manifest Destiny arose from the identical legal elements and policies of the Doctrine of Discovery. Thus, the eurocentric, religious, and feudal principles of Discovery were adopted into the American law and
policy of westward expansion.

Contact Bob Miller with any questions.

Connecticut Law Review Symposium on the Cohen Handbook

Check it out. New articles from Joe Singer, Judith Royster, Phil Frickey, Alex Skibine, Carole Goldberg and Duane Champagne, John LaVelle, Kevin Washburn, Sarah Krakoff, and Bethany Berger. A good way to start the new school year.

Zander v. Zander -- Tribal Per Cap as Marital Property

In an interesting decision, the Minnesota Court of Appeals decided that per capita payments to a member of the Mdewakanton Sioux tribe are marital property under Minnesota law and must be distributed equally to a non-member spouse post-divorce, in this case, Husband.

The court wrote that the Mdewakanton Sioux Tribal Domestic Relations Code, which prohibits this kind of distribution, does not apply because Minnesota is a PL 280 state and the case was brought in Minnesota courts.

There might be a few weaknesses in the opinion:

First, the Minnesota statute suggests that property is not marital property if it was acquired before the marriage or is a gift, behest, devise or inheritance. Certainly, Minn. law doesn't take into consideration something like tribal per caps. Per caps would seem to be something like a gift or inheritance, since they come only because of someone's political and familial relationship to an Indian tribe. And that relationship exists before the marriage. Seems like a court could invoke either provision or create common law consistent with the state statute.

Second, it is unfortunate that the court so blithely decided that since Minn. is a PL280 state, state law applies and trumps the tribal law. PL280, as we should know by now, extends state civil jurisdiction to state courts for the purpose of providing a forum for tribal members where no tribal forum exists -- and state law where no tribal law exists. Here, there is a well-developed tribal law. Just because the parties (presumably) chose the state courts as their venue shouldn't mean that state law is an automatic trump. The purposes of PL280 aren't served by this automatic trump, one would think.

Finally, assuming the Minnesota Supreme Court upholds the decision, it would be interesting to see if Husband can recover the $42,000 per month the court held he is entitled to from Wife. The tribe's immune, so Husband can't recover there. Could Wife use a Cayman Island-style accounts to avoid paying the dough? She certainly could afford creative lawyers....

Regardless, the decision gives all per cap tribes something to think about, especially those in PL 280 states (read: California).

Rediscovered Book I -- The Imperialism of John Marshall

Wading through biographies of John Marshall, of the "famous" Marshall Trilogy, I discovered an old polemic against the Chief Justice. It's George Bryan's "The Imperialism of John Marshall: A Study in Expediency." My law school's (Mich. State) library didn't have it and even the university library didn't have it.

It was published in 1924 and features a line-by-line dissection of Johnson v. M'Intosh. One great comment:

"Like any other question which is decided by main strength upon 'principles' ethically unsound and avowedly justified only by 'necessity' and expediency, this solution of the issue in [Johnson] grows more difficult to grasp as the opinion continues. One can almost hear the enunciator panting under his burden." [p.64]

UND Pedagogy Conference Announcement

UND Indian Law Conference – “The Pedagogy of American Indian Law”

UPDATED August 23, 2006

October 13-14, 2006
University of North Dakota School of Law, Grand Forks, ND

The teaching methods used by the more experienced Indian law professors who earned their bones in treaty and civil rights cases and in legal aid might vary a great deal from the less experienced professors. Professors who became interested in Indian law from their scholarship in constitutional law, property, federal courts, and so on might have yet more views. It is time again to reflect on the pedagogical aspects of American Indian Law.

The teaching of what we call Indian law to law students is a new art, beginning with Professor Ralph Johnson’s first classes at the University of Washington (his teaching materials still an integral part of many law libraries, including UND) and Monroe Price’s Native American Law Manual, reproduced by the California Indian Legal Services in the late 1960s and early 1970s. We now have several pages of Indian law professors listed in the AALS Directory of Law Teachers, over 125 by our count, and many more professors that teach Indian law either not listed in the Directory or who teach primarily in other disciplines. And, as far as we can tell, there at least 35 American Indians that now teach Indian law in law schools and possibly many more.

Previous symposia in this vein have focused on the justification for teaching Indian law, as in the 1995 New Mexico symposium, or on the education of scholars unfamiliar with Indian law, such as the 2001 Tulsa symposium on integrating Indian law into the law school curricula. The North Dakota symposium, in contrast, would urge Indian law scholars and teachers to speak to each other. There are more of us every year and we have a lot to learn from each other, specifically as to how we teach our classes.

The North Dakota Law Review has agreed to publish the papers from this symposium in a special issue of its Volume 82.


Presenters (in no particular order):

Alexander Skibine, S.J. Quinney College of Law – Utah

Gloria Valencia-Weber, University of New Mexico School of Law

Carole Goldberg, UCLA School of Law -- “Compared to What? Teaching Federal Indian Law in Relation to Legal Doctrine Outside the Field”

Jim Grijalva, University of North Dakota School of Law

Aliza Organick, Washburn University School of Law

Christine Zuni Cruz, University of New Mexico School of Law

Duane Champagne, UCLA -- “Justice, Culture, and Law: Teaching Law Students”

David Wilkins, University of Minnesota -- “The ‘Actual State of Things:’ Teaching About Law in Political-Historical Context”

David H. Getches, University of Colorado School of Law -- “Teaching the Trilogy”

Matthew L.M. Fletcher, Michigan State University College of Law -- “The Iron Cold of the Marshall Trilogy”

Kristen A. Carpenter, University of Denver Sturm College of Law -- “Stories of Allotment: Using Law and Literature to Illuminate Indian Property Losses”

Robert Laurence, University of Arkansas School of Law – Fayetteville -- “Indian Treaty Interpretation and the Rule against Perpetuities”

Bill Rice, University of Tulsa College of Law -- "Teaching Decolonization: Re-Acquisition of Indian Land Within and Without the Box"

Angela Riley, Southwestern Law School -- “Tribal Sovereignty in a Post-9/11 World”

Frank Pommersheim, University of South Dakota School of Law

All titles are tentative.