International conference on Unraveling the Doctrine of Discovery March 10, 2023

Please join our zoom conference on March 10, 2023 on the 200th anniversary of the first U.S. Supreme Court Indian Law case, Johnson v. M’Intosh (1823). In Johnson, the Court adopted for the United States, and as the organizing principle of U.S. Indian Law, the international law of colonialism that is better known today as the Doctrine of Discovery. Listen to experts from around the world discuss how Indigenous Peoples are resisting this pernicious legal principle and working to ameliorate the impacts of colonization.

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American memories of Thanksgiving and “Critical Race Theory”

The Scholars’ Circle Podcast this week discussed memories of Thanksgiving and delved into thoughts on memory in general. Our conversation started on the real history of Thanksgiving but then we turned to the actual reasons European nations explored and sent settlers to the New World: the European colonization of North America and the creation of European empires.

Here’s the link to the interview. Our discussion is the final 24 minutes of the 58 minute program:

Being on this program and speaking with the host about “memory” of history, has made me think more carefully about Critical Race Theory (CRT). CRT is a current hot-button political and school curriculum issue as many Americans are debating exactly what “kind” of history should be taught in our schools.

I believe that advocates of CRT should stop using that phrase!

It seems that CRT is not the best title, and is not even an accurate title, for what people are actually advocating for in demanding the teaching of the truth about American history. I suggest that instead of CRT, we should use the phrase “actual history” – the initials “AH” if we need to use initials. The advocates of CRT to be taught to their children and in our universities are really just arguing for the teaching of the “actual history” of the United States. Can we as Americans face up to the true history of our country?

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New law review article on tribal sovereign immunity and business issues

You might enjoy reading my new article in the Washington Law Review. It’s entitled Tribal Sovereignty and Economic Efficiency Versus the Courts. You can download the article with one click from here –

Here is the abstract:

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business entities to bring jobs and income to Indian Country, improve the standard of living for their citizens, and earn profits to help fund their governments.

As constitutionally recognized governments, Indian nations possess inherent sovereign powers, including sovereign immunity wherein they cannot be sued by anyone (except the United States) or in any court unless the tribe consents. Their sovereign rights, and especially sovereign immunity, assist Indian nations to be successful and profitable in their economic endeavors.

In the last few decades, however, state and lower federal courts have interfered with tribal sovereign decisions and sovereign immunity. These courts have imposed onerous and even outrageous requirements on tribal governments that violate well-recognized principles of efficiency, profitability, and common sense. These court decisions are defeating the very reasons Indian nations operate business concerns. In contrast, the United States and the states engage in a wide array of economic activities and they benefit from the protections of sovereign immunity. Those governments operate almost totally free of judicial restraints on how they establish, manage, and operate their businesses. Indian nations and their legislative and executive decisions should be treated with the same judicial respect and deference that state and federal legislative and executive branches receive.

This Article describes and critiques the improper approach many state and lower federal courts have taken in forcing tribal governments to create, manage, and operate their economic entities. The Article argues that Indian nations, the U.S. Supreme Court, and Congress should not tolerate this judicial overreach and infringement on the sovereign rights of Native governments. The Article briefly lays out four possible strategies Indian nations, Congress, and the Supreme Court should consider to prevent this judicial activism. The very future of Indian Country as viable places where Indigenous governments, peoples, and cultures can survive and thrive is at issue.

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Cherokee Nation pushing the issue of its 1835 Treaty provision to be allowed a delegate in the Congress

The New York Times and others have been reporting on the Cherokee Nation calling on the United States to fulfill its treaty promise to provide for a delegate of the Nation to become a non-voting member of the House of Representatives such as Guam, the Virgin Islands, and Puerto Rico enjoy.

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The Indian Child Welfare Act in the New York Times

With the oral argument in Brackeen v. Haaland being held in the Supreme Court Nov. 9, a lot of attention is being paid to the ramifications of this crucial case not only on ICWA but perhaps on all of Federal Indian Law.

One quote from the article demonstrates the significance of what the Supreme Court could do in this case: “It would put at risk every treaty, every property and political right and every power that Indian nations possess today,” said Robert Miller, a professor of federal Indian law at Arizona State University, tribal court judge and enrolled citizen of the Eastern Shawnee Tribe. “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government,” he said. “Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”

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Philadelphia Talk Nov. 17 on the Indigenous Influence on the U.S. Constitution

Feel free to attend my talk in person November 17 at noon EST at the United States National Constitution Center in Philadelphia, 525 Arch Street. If you can’t make it in person, you can register to watch it live on Zoom over the NCC network. Very few people realize the impact Indian political science principles and the practices of organized Indian governments had on the Founding Fathers and how many Native American principles are reflected in the U.S. Constitution. Attend my talk to hear more.!1s0x89c6c8814be07267%3A0xe648c82ca822df72!3m1!7e115!!5snational%20constitution%20center%20-%20Google%20Search!15sCgIgAQ&imagekey=!1e10!2sAF1QipP-Y7j5nHOWhaIinHZ4NKdN5aZbqsMxWG6mC1re&hl=en&sa=X&ved=2ahUKEwjfjeefx5X7AhWvLkQIHeqiCk4Qoip6BAh1EAM#

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McGirt book will be in print Jan. 26, 2023

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The law of colonialism in Africa

My most recent article on the Doctrine of Discovery, the international law of colonialism, examines how European nations carved up Africa for colonization using international law. I and my coauthor Olivia Stitz researched English and German law, and the Berlin Conference of 1884-85, to investigate how Europeans came to “legally” colonize most of Africa. Our article came out in April 2022 from the Duke Journal of Comparative and International Law. You can read The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery for free online.

The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery

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New book on McGirt v. Oklahoma U.S. S. Court (2020)

The first book on the “bombshell” Indian Law case, McGirt v. Oklahoma, can now be pre-ordered from University of Oklahoma Press. I and my co-author Robbie Ethridge examine the history and law of this crucial Indian law case. We then attempt to predict the consequences that will develop over the next several decades for tribal, federal, and state governments due to McGirt.

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McGirt v. Oklahoma: The Supreme Court Indian Law Bombshell case from 2020

Check out this 100 minute podcast from the Sandra Day O’Connor College of Law at Arizona State University’s Indian Legal Program.

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