Legal

February 17, 2016
By:
David Wilkins

Justice Antonia Scalia was one of the most rabidly anti-Native justices—closely aligned with former Chief Justice William Rehnquist—ever to serve on the High Court. His passing creates a vacancy on the influential court that will have lasting consequences.

February 14, 2016
By:
Steve Russell

I have always been chagrined to admit that the most engaging writer on the U.S. Supreme Court is Antonin Scalia, chagrined at having to say that about the right anchor, the prince of darkness. So it’s only fair that I admit his skills again on his passing.

February 13, 2016
By:
Cynthia Coleman Emery

The US Supreme Court has declined to weigh in on a lower court ruling that will, in effect, allow ancient bones to be returned to American Indians in California.

February 11, 2016
By:
Steven Newcomb

Part One of this essay examined how the United States has used certain creations of the

February 10, 2016
By:
Chase Iron Eyes

Our D/Lakota ancestors Vine Deloria, Jr., and Floyd "Red Crow" Westerman warned us of culture vultures. As Westerman sang:

And the anthros keep on digging our sacred ceremonial sites

February 09, 2016
By:
Charles Kader

The hubbub surrounding the Nevada militia occupying the Oregon

February 02, 2016
By:
Steve Russell

Video from the armed occupation of the Malheur National Wildlife Refuge often reveals the occupiers waving paperback copies of the U.S. Constitution. This claim of authority for their actions in the fundamental law of the U.S. leads to media descriptions of “cowboy legal scholars.”

January 31, 2016
By:
Mike Myers

After nine years the Canadian Human Rights Tribunal has made a landmark and far reaching decision about the quality of Indigenous child welfare.

January 28, 2016
By:
Steven Newcomb

On January 2, 2016, a group of white ranchers who are part of what has been called “the Sage Brush Rebellion” began an armed occupation of lands designated as “the Malheur Wildlife Refuge,” outside Burns, Oregon.

January 27, 2016
By:
Steve Russell

The Bundy Militia finally got the gunplay they demanded and I’m sorry.

January 26, 2016
By:
James Mills

Tribes conduct enrollment audits for a variety of reasons. Some conduct them for the right reasons: To clean up their records and to make sure that the errors of the past are not repeated.

January 18, 2016
By:
Mike Myers

Way back when the City of Sherrill case was headed to the U.S. Supreme Court I had a conversation with a non-Indigenous lawyer friend of mine about it.

January 13, 2016
By:
Stephen Selkirk

EDITOR'S NOTE: On December 17, 2015, Terrance Jackson, 24, was convicted of second-degree murder for the stabbing death of Gerald Smith, 22. The author witnessed that violent confrontation between two men he never knew, and testified at Jackson's trial.

January 11, 2016
By:
Steve Russell

When I write about Indian issues for a non-Indian audience, the effort always requires a history lesson. When I’m writing for a mixed audience, the challenge is to bring non-Indians along without boring Indians steeped in their own history. Federal Indian Law presents a similar challenge and it’s contained in the shorthand “Indian Law 101” and the question of how much of it must be served up before you talk about the real subject at hand.

The U.S. is a young country compared to the home countries of the colonists and also compared to the histories of peoples Canadians know by the splendid descriptor we do not have south of that border, First Nations.

The colonists, too, have historical pathways to get where they are today. Unlike Indians, they take pride in being ahistorical and always seem to think they’ve just invented some wheel that, to a historian, shows a lot of wear and tear. The Tea Party, for example, got its seed money from the same folks who seeded the John Birch Society, and so it’s no great surprise that the politics of the two organizations are similar.

As I write, an armed mob of “patriots” has occupied a bird sanctuary that occupies Northern Paiute land in Oregon. The Paiutes have no objection to a bird sanctuary, but the occupiers do.

If you asked the “patriots” to identify their historical forebears, they offer the Boston Tea Party, vandalism in faux Indian costumes engineered by the Sons of Liberty as they agitated their way toward the American Revolution. That’s not exactly so.

For one thing, the Sons of Liberty started out with an idea of “liberty” that came from the rights of Englishmen. They understood themselves to be Englishmen until George III trampled enough of their rights to make it clear that colonists would never have full citizenship rights.

For another, the Sons of Liberty did not start out threatening violence to fellow colonists or even to the redcoats. Even when revolution was in the air, it’s hard to picture the Sons of Liberty occupying a bird sanctuary with an implicit threat to shoot park rangers if the park rangers interfered.

No, the "patriots" have a different historical lineage in the opposition to Theodore Roosevelt’s plan to create a national park system. Indian history is joined at the hip with the national park system, since the first laws to set aside land for public use were enacted to protect the pre-history of the Americas from destruction by pothunters and grave robbers.

The Antiquities Act of 1906 was aimed squarely at the looting of American Indian archeological sites for profit by people who valued money above science. They also valued money far above the sensibilities of the people watching their ancestral homes ripped apart for souvenirs of extinct (but noble) savages.

U.S. Presidents acquired the authority to protect Indian sites from pothunters by declaring national monuments. The very first was Bear Lodge, a mountain in Wyoming known to the colonists as Devils Tower. Most of the early national monuments were chock full of Indian petroglyphs, sacred sites, and burials.

Federal protection of the cultural heritage of North America was not without controversy, and the controversy remained when the object of protection was natural heritage. When Theodore Roosevelt established the Malheur National Wildlife Refuge, the primary problem being addressed was the impending extinction of bird species dying because the fashion in women’s hats required their feathers, principally the roseate spoonbill and the snowy egret.

Farmers objected, and in a referendum framed as a competition between the interests of humans and the interests of birds, the humans won. The federal government sued to quiet title to the land it had stolen fair and square from the Northern Paiutes after the Bannock War.

The SCOTUS settled the ownership of the Malheur National Wildlife Refuge in United States v. Oregon (1935). The “patriots” currently occupying that land keep waving copies of the U.S. Constitution. Apparently their copies are missing Article III, which vests “the judicial Power of the United States” in the SCOTUS.

Malheur was not the only conservation attempt that was controversial. Historian H. Duane Hampton published an article pointing out that at the time (1981) two thirds of national parks had faced significant political opposition. Hampton categorized the disputes as follows:

1. The economic argument that the market will always reveal the highest and best use of land. Park nerds complain that the golden arches of a well-known hamburger joint have moved too close to the Grand Canyon. Those persuaded by the economic argument claim that the burgers are too far away and imagine what it would be like to have a bottled water concession halfway down the Bright Angel Trail.

2. The elitist argument that says nobody uses parks except the wealthy while working people pay for the upkeep and the lost economic opportunities. I visit the parks every chance I get and my mileage differs, but even if the elitist argument were correct it would seem prudent to save something for all of our grandchildren.

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