Sawnawgezewog: "The Indian Problem

American Indian Law Review Volume 28 | Number 1 1-1-2003 Sawnawgezewog: "The Indian Problem" and the Lost Art of Survival Matthew L. M. Fletcher Michigan State University College of Law Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Matthew L. Fletcher, Sawnawgezewog: "The Indian Problem" and the Lost Art of Survival, 28 Am. Indian L. Rev. 35 (2003), https://digitalcommons.law.ou.edu/ailr/vol28/iss1/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . SAWNAWGEZEWOG': "THE INDIAN PROBLEM" AND THE LOST ART OF SURVIVAL Matthew L.M. Fletcher* Table of Contents 43 I. Historical Cases ........................................... A. United States v. Kagama - Power Created Out of Thin Air ...... 45 48 B. Lone Wolf v. Hitchcock - The Power to Break Treaties ........ C. Tee-Hit-Ton v. United States - The Power to Take Indian 49 Property Without Just Compensation .......................... 52 II. M odem Cases ............................................ 53 A. Oliphant v. Suquamish Indian Tribe ........................ ............ 58 Ass'n Protective Indian Cemetery B. Lyng v. Northwest 61 C. Hagen v. Utah ......................................... 65 D. Montana v. United States ................................. 69 E. Seminole Tribe of Florida v. Florida ........................ Slope and the Slippery 111. The Discovery of the Fountain of Youth 72 of Self-Reliance - An Anishinaabek Fable ....................... IV. Back to Reality: Treaty-Making in the Federal Courthouse ....... 100 After such knowledge, whatforgiveness? Think now History has many cunning passages,contrived corridors And issues, deceives with whispering ambitions, Guides us by vanities.' © 2003 Matthew L.M. Fletcher * "They are in difficulty." ANDREW J. BLACKBIRD, HISTORY OF THE OTTAWA AND CHIPPEWA INDIANS OF MICHIGAN 126 (1887) (reprinted by Little Traverse Regional Historical Society, Inc. 1977). ** Staff Attorney and Member, Grand Traverse Band of Ottawa and Chippewa Indians. Appellate Judge, Pokagon Band of Potawatomi Indians. B.A., 1994, University of Michigan; J.D., 1997, University of Michigan Law School. The author thanks John F. Petoskey and Wenona Singel for their helpful comments. The opinions expressed in this essay are the author's only, do not represent any position the Grand Traverse Band or the Pokagon Band may take or has taken, and may not be attributed to either tribe. 1. T.S. Eliot, Gerontion, in THE WASTELAND AND OTHER POEMS 17,20 (1930). Published by University of Oklahoma College of Law Digital Commons, 2003 AMERICAN INDIAN LAW REVIEW [Vol. 28 When I was a staff attorney for a Puget Sound Tribe in Washington, local property owners sued the Tribe, objecting to the Tribe's new housing development. They were a group of local non-Indian landowners residing within the reservation boundaries trying to stop the development. Many of them had moved out across the sound to get away from the city lights of Seattle, and they fought development unless it was their own. Others were long-time residents who had been fighting the Tribe tooth-and-nail for decades. In their complaint, which could have been a form prepared by the Federal District Court for the Western District of Washington in Tacoma based on how often these types of complaints are filed against Washington tribes, they claimed the reservation was disestablished and the Tribe wasn't really the successor in interest to the people that signed the treaty in 1855, the same arguments many of the same people had made in cases like United States v. Washington2 and UnitedStates v. Aam.3 Their attorneys - my co-worker called them "elevator lawyers" - practically threw the entire collected volumes of the United States Reports, the Federal Reporter Third, the United States Code, and the Code of Federal Regulations at the Tribe. Instead of just trying to oppose the development, they argued that the Tribe should be gone for good. A few weeks after I began work on the responsive pleading it was time for my dentist appointment, so I drove over to the Indian Health Service clinic to see a dentist. After the standard IHS wait, I was called in and a woman I'll call Kelly Clark cleaned my teeth. I recognized the name Kelly Clark from the caption on the complaint. One of the local landowners calling for the end of the Tribe was named Kelly Clark. I didn't think too much of it and I didn't say anything to the woman holding my mouth open. I figured there were many Kelly Clarks out there. Next day, I said something to one of the women working for the Tribe's housing department, joking that Kelly Clark, one of our "deadliest enemies,"4 was an IHS employee and had cleaned my teeth. The housing department employee knew Kelly Clark because she had kids who went to the dental clinic. She pointedly informed me that Kelly Clark the Indian Fighter and Kelly Clark the Indian Health Service dental hygienist were one and the same. She wouldn't let this Kelly Clark even look at her kids, let alone clean their teeth. Kelly Clark probably wouldn't have ajob but for the recognition of the Puget Sound Tribes in United States v. Washington5 and yet, she found the time and resources to help finance a lawsuit to overturn many of its core principles. 2. 3. 4. 5. 384 F. Supp. 312 (W.D. Wash. 1974), affd, 520 F.2d 675 (9th Cir. 1975). 670 F. Supp. 306 (W.D. Wash. 1986), aff'd, 887 F.2d 190 (9th Cir. 1989). United States v. Kagama, 118 U.S. 375, 384 (1886). 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 675 (9th Cir. 1989). https://digitalcommons.law.ou.edu/ailr/vol28/iss1/2 No. 1] "INDIAN PROBLEM" & THE LOST ART OF SURVIVAL 37 That is a backdrop of Federal Indian Law.6 Federal Indian Law is a complex body of law growing more multifarious each day.7 Title 25 of the United States Code already encompasses four volumes in the United States Code Annotated and Congress could easily add a few more volumes by the end of the first decade of the twenty-first century.8 The three levels of sovereignty in the United States - federal, state, and tribal9 practically guarantee work for lawyers involved in tribal issues for the foreseeable future. With the additional complexity and expansion of federal statutes and regulations comprising Federal Indian Law comes increasing exposure of Indians and Indian tribes to federal and state courtrooms and administrative adjudicatory forums, federal and state legislatures and legislative committees, and administrative rulemaking. This state of affairs is no different for any of the other subjects covered in the remaining forty-nine titles in the U.S. Code, but unlike most other subjects comprising (...truncated)