My Interests – as a Geographer

1. My Interests – as a Geographer • For the most part my intellectual interests are descriptive, attempting to document how the U.S. landscapes has evolved – by focusing on the institutional forces, law, that provide the framework for virtually all human behaviors

2. My Interests – as a Geographer • For the most part my intellectual interests are descriptive, attempting to document how the U.S. landscapes has evolved – by focusing on the institutional forces, law, that provide the framework for virtually all human behaviors • How societies organize space and behavior

3. My Interests – as a Geographer • For the most part my intellectual interests are descriptive, attempting to document how the U.S. landscapes has evolved – by focusing on the institutional forces, law, that provide the framework for virtually all human behaviors • How societies organize space and behavior • How legal entities – individuals, organizations, governments, and American Indian bands – with rights to use • Exercise those rights to produce goods and provide services and thus create landscapes – the visible effects of human behavior

4. My Interests – as a Geographer • For the most part my intellectual interests are descriptive, attempting to document how the U.S. landscapes has evolved – by focusing on the institutional forces, law, that provide the framework for virtually all human behaviors • How societies organize space and behavior • How legal entities – individuals, organizations, governments, and American Indian bands – with rights to use • Exercise those rights to produce goods and provide services and thus create landscapes – the visible effects of human behavior • Government influence on material culture

5. Law organizes space over which certain entities have power - Jurisdictions City State Township County

6. Law organizes space over which certain entities have power - Jurisdictions City State Township County

7. Law organizes space over which certain entities have power – Jurisdictions State City Township County

8. Law organizes space over which certain entities have power – Ownership units Township

9. Law organizes space over which certain entities have power – Ownership units Section Subdivision Plat Township Blocks & Lots

10. Ownership Units – the picture is complex • Spatial extent of rights • horizontal • vertical

11. Ownership Units – the picture is complex • Spatial extent of rights • horizontal • vertical • Temporal extent of rights

12. Ownership Units – the picture is complex • Spatial extent of rights • horizontal • vertical • Temporal extent of rights • Physical stuff over which rights can exist • land surface • subsurface – mineral rights • water • air • wildlife

13. Ownership Units – the picture is complex • Spatial extent of rights • horizontal • vertical • Temporal extent of rights • Physical stuff over which rights can exist • land surface • subsurface – mineral rights • water • air • wildlife • Legal entities • individuals • organizations – collection of individuals • governments • American Indians

14. The Nature of Landscape • “Our human landscape is our unwitting autobiography, reflecting our tastes, or aspirations, and even our fears, in tangible, visible form.... All our cultural warts and blemishes are there, and our glories too; but above all, our ordinary day-to-day qualities are exhibited for anybody who wants to find them and knows how to look for them” (Peirce Lewis "Axioms for reading the landscape, some Guides to the American Scene" in Donald Meinig (ed) Interpretations of Ordinary Landscapes New York, Oxford University Press, 1979 11-32)

15. The Nature of Landscape • “Our human landscape is our unwitting autobiography, reflecting our tastes, or aspirations, and even our fears, in tangible, visible form.... All our cultural warts and blemishes are there, and our glories too; but above all, our ordinary day-to-day qualities are exhibited for anybody who wants to find them and knows how to look for them” (Peirce Lewis "Axioms for reading the landscape, some Guides to the American Scene" in Donald Meinig (ed) Interpretations of Ordinary Landscapes New York, Oxford University Press, 1979 11-32)

16. The Nature of Landscape • “Our human landscape is our unwitting autobiography, reflecting our tastes, or aspirations, and even our fears, in tangible, visible form.... All our cultural warts and blemishes are there, and our glories too; but above all, our ordinary day-to-day qualities are exhibited for anybody who wants to find them and knows how to look for them” (Peirce Lewis "Axioms for reading the landscape, some Guides to the American Scene" in Donald Meinig (ed) Interpretations of Ordinary Landscapes New York, Oxford University Press, 1979 11-32) • “To say that American Indians have not been integrated into American history is a profound understatement” (Melissa L. Meyer The White Earth Tragedy: Ethnicity and Dispossession at a Minnesota Anishinaabe Reservation, 1889-1920(Lincoln, University of Nebraska Press, 1994 xi)

17.  I do not claim a general interest in American Indians but rather an interest in their landownership or, more precisely, how they, individually and collectively were dispossessed of their land

18.  I do not claim a general interest in American Indians but rather an interest in their landownership or, more precisely, how they, individually and collectively were dispossessed of their land • I am interested how the United States government acquired the occupancy and use rights of American Indian bands via various treaties and then acquired a large proportion of the land in the reservations established for those bands 

19.  I do not claim a general interest in American Indians but rather an interest in their landownership or, more precisely, how they, individually and collectively were dispossessed of their land • I am interested how the United States government acquired the occupancy and use rights of American Indian bands via various treaties and then acquired a large proportion of the land in the reservations established for those bands  • Inevitably, such research leads to the way in which the various United States courts have dealt with the government dealings 

20. I have been involved in two federal court cases,  • Mille Lacs Chippewa et al v the State of Minnesota et al, was eventually decided by the U.S. Supreme Court • “Do the bands retain the right to hunt and fish in the area they ceded in an 1837 treaty without state regulation”

21. I have been involved in two federal court cases,  • Mille Lacs Chippewa et al v the State of Minnesota et al, was eventually decided by the U.S. Supreme Court • “Do the bands retain the right to hunt and fish in the area they ceded in an 1837 treaty without state regulation” • United States, Bay Mills Indian Community, et al. v State of Michigan et al was settled before any trial took place • “What did the words “until required for occupation” mean in 1836”

22. American Indians bands as jurisdictions • American Indian spaces • reservations • trust lands • off reservation rights • BIA Frequently Asked Questions • Tribal Court Clearinghouse (Tribal Law and Policy Institute) • Federally Recognized Native American Tribes (Healing-arts.org) • American Indian Communities in Minnesota (Minnesota Senate) • Indian Reservation (Wikipedia) • Resources on Minnesota Issues Indian Fishing and Hunting Rights (Minnesota Legislative Reference Library)

23. General References • Selected Resources for American Indian Studies (UMN Library) • Pathfinder to American Indian Law (Minnesota State Law Library) • Overview of Federal Indian Policy • The History of Federal Indian Policies (Robert J. Miller, 2008) • Bureau of Indian Affairs • Extinguishment of Native Title: The High Court and American Law (Australian Indigenous Law Reporter) • Indian Land Titles (Stewart Virtual Underwriter)

24. Origins of Land Ownership (Federal Law) • Acquiring jurisdiction from foreign (European) nations • B. Acquiring title • Acquiring American Indian bands (aboriginal) occupancy and use (usufructuary) rights – not fee because the concept was unknown to bands • Subdividing the land surface – creating an unambiguous legal description • Conveying title to the surface – creating landowners • C. Creating jurisdictions to guarantee titles to surface • Dependent territories • Sovereign states “on an equal footing”

25. Origins of Land Ownership (Federal Law) • Ironic – the efforts to remove occupancy and use rights – to acquire clear and marketable title – would prove to be a lasting pain in the posterior • Native American tribes, aboriginal occupancy and use rights, and reservations not integrated into ideas of jurisdictions or real property regimes

26. American Indian Bands as Sovereign

27. Current Federal Indian Policy • Congress possesses plenary power under the Federal Constitution • Article 1 Section 8 Clause 3. “The Congress shall have power .... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” Rarely exercised • Article II Clause 2. “The President shall have power by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur” • 25 United States Code. Indians • 25 Code of Federal Regulations. Indians • Handbook of American Indian Law (Felix Cohen) • Indian Affairs: Laws & Treaties (Kappler)

28. American Indian Sovereignty • Recognized by United States to sign treaties • Recognized by the courts – possessing standing to sue • Recognized under the Indian Reorganization Act – a federally recognized band • Lower Sioux Indian Community • Wolfchild v United States • Mendota Mdewakanton Dakota Community – 300 members • Sandy Lake Band of Mississippi Chippewa

30. United States – Native American Public Policy • Indian Intercourse Acts 1790, 1802, 1834 • Indian treaties and the Removal Act of 1830 • General Allotment Act,1887 (Wikipedia) • Nelson Act, 1889 (Wikipedia) • Indian Reorganization Act (Wikipedia) • Indian Gaming Regulatory Act (National Indian Gaming Commission) “Peoples Distinct from Others”: The Making of Modern Indian Law (Wilkinson, 2006)

31. Ambiguities in American Indian Law Unsurprising

32. Ambiguities in American Indian Law • Congress possesses "plenary" power over American Indians – which is not clearly exercised • There are  over two centuries of conflicting federal policy – Congressional action, Executive action, and Judicial opinions of these actions • American Indian tribes are distinct legal entities with an ambiguous status • Recognized bands/tribes • Indian Sovereignty and Government-to-Government Relations with Indian Tribes (US Department of Justice, Office of Tribal Justice) • Domestic dependent nations • Entities recognized and eligible for funding and services from the Bureau of Indian Affairs • Roberto Iraola“The Administrative Tribal Recognition Process and the Courts” 38 Akron L. Rev. (2005) 867

33. Individuals • Persons of Native American descent occupy a unique legal position • They are U.S. citizens and are entitled to the same legal rights and protections under the Constitution that all other U.S. citizens enjoy • U.S. citizen with special legal rights – exempt from state law – with exceptions • They are members of self-governing tribes whose existence far predates the arrival of Europeans on American shores • Descendants of peoples who had their own inherent rights – rights that required no validation or legitimation from newcomers • These combined, and in many ways conflicting, legal positions have resulted in a complex relationship between Native American tribes and the federal government • Although the historic events and specific details of each tribe's situation vary considerably, the legal rights and status maintained by Native Americans are the result of their shared history of dealings with the U.S.

34. American Indian Bands – tribes, nations, villages, pueblos • American Indian lands in the lower 48 States comprise over 45 million acres within the boundaries of reservation and an additional 10 million in individual allotments • There are another 40 million acres of traditional Native lands in Alaska • Home to more than 560 Federally recognized tribes, these lands provide the living space, the sacred and cultural sites, and many of the natural resources that tribes need to keep their people and cultures alive • Tribal governments generally place a high priority on preserving these lands and their natural resources, including many vulnerable wildlife species

35. Minnesota Reservations (Minnesota Senate) • 7 Chippewa – Ojibwe, Anishinabe reservations • 6 Minnesota Chippewa • Red Lake • 4 Sioux – Dakota communities • A reservation or community is a segment of land that belongs to one or more groups of American Indians • Land retained by American Indian tribes after ceding large portions of the original homelands to the United States through treaties • It is not land that was given to American Indians by the federal government (historical fallacy) • Enrollment criteria • Minnesota Indian Affairs Council

36. Minnesota Chippewa Tribe • 1 White Earth Band • 2. Leech Lake Band • 4. Boise Forte Band (Nett Lake) • 5. Grand Portage Band • 6. Fond du Lac Band • 7. Mille Lac Band

37. Minnesota Red Lake Band • 3. Red Lake Band

38. Minnesota Dakota Communities • 8. Upper Sioux Community • 9. Lower Sioux Indian Community • 11.Prairie Island Indian Community • 10. Shakopee Mdewakanton Sioux Community

39. Native American Real Property Interests (Findlaw) • Indian Land Cessions • Instrument of Cessions – treaties • Judicial Challenges to cessions – what rights were ceded and the value of those rights

40. Native American Real Property Interests (Findlaw) • Indian Land Cessions • Instrument of Cessions – treaties • Judicial Challenges to cessions – what rights were ceded and the value of those rights • Indian Reservations • Continued existence • Allotment process

41. Native American Real Property Interests (Findlaw) • Indian Land Cessions • Instrument of Cessions – treaties • Judicial Challenges to cessions – what rights were ceded and the value of those rights • Indian Reservations • Continued existence • Allotment process • Indian Trust Lands inside and outside reservations – land acquired by bands

42. Big Picture • Lands ceded by various Native American tribes under the provisions of various treaties and agreements in the nineteenth century – virtually all litigated throughout the twentieth century • Lands reserved for various Native American tribes under the provisions of various treaties, agreements, and statutes – largely after 1850s • Lands acquired by the federal government and Native American tribes and placed “in trust” for the tribes – mostly in the twentieth century

43. Native American Land Cessions

44. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • Representatives of the United States and various American Indian bands negotiated 370 treaties of peace throughout  the country from 1787 to 1871 • Most involved land cessions – >1850s involved reservation

45. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • They were not neat expressions of public intent

46. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • They were not neat expressions of public intent • Reflected ambiguous and contradictory principles and practices that characterized federal American Indian policies – the relationship between American Indians and non-Indians when each was negotiated and signed

47. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • They were not neat expressions of public intent • Reflected ambiguous and contradictory principles and practices that characterized federal American Indian policies – the relationship between American Indians and non-Indians when each was negotiated and signed • The aboriginal title – occupancy and use rights – in a particular area were extinguished through treaty

48. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • They were not neat expressions of public intent • Reflected ambiguous and contradictory principles and practices that characterized federal American Indian policies – the relationship between American Indians and non-Indians when each was negotiated and signed • The aboriginal title – occupancy and use rights – in a particular area were extinguished through treaty • Usufructuary rights described in treaties – bands capable of ceding them and retaining them

49. Treaties (Yale University)Indian Affairs: Laws and Treaties (University of Oklahoma) • They were not neat expressions of public intent • Reflected ambiguous and contradictory principles and practices that characterized federal American Indian policies – the relationship between American Indians and non-Indians when each was negotiated and signed • The aboriginal title – occupancy and use rights – in a particular area were extinguished through treaty • Usufructuary rights described in treaties – bands capable of ceding them and retaining them • The language of each treaty has subsequently been examined to interpret what the Indian signatories would have understood the treaty to mean

50. American Indian Treaties • They have become subject of intense scrutiny • Historians, linguists, and other experts have attempted to understand what treaty language written during that time period means – ethnohistorians