 So good morning and thank you for joining us today at the 2021 Roger Williams University Law Review Symposium, an uncomfortable truth Indigenous communities and law in New England. My name is Hannah DeVoe and I am the editor in chief of the Roger Williams University Law Review and coordinator of this year's symposium. Along with the RGU American Indian Law Student Association, Professor Diamond and the RGU Law Review Symposium committee, I would like to formally welcome you to today's event. As the day progresses, I will briefly introduce each speaker and their topics. Please keep your microphones muted until the Q&A period at the end of each speaker's time. If you would like to ask a question, please feel free to either put it in the chat directly to me so as not to disturb the speaker or their presentation or during the Q&A period, use the hand raised function and I will call on you. And I would also encourage each of you to view the screen and speaker view. I will put my email in the chat if anyone has questions throughout the day or following this event, please do not hesitate to contact me. At this time, I would like to introduce Raymond Tuhox Watson, a 3L student at Roger Williams University School of Law. He is a member of the Mashapug Nagansett tribe, so sorry if I mispronounced that, and a 3L student with a focus on mediation, wills and trusts and Indigenous law and policy. Ray will be opening this year's symposium, so Ray, feel free to take it away from here. Thank you very much. Thank you very much. Thank you very much. Let's get this quamson. Nuthuiz Nisu Wushuwanak to Mashapug Nagansett. Kuei Kuei ut sohams. Kuei Kuei ut po kanokit. Wuni Kisak. Wuni Meskito ka akuni. Good morning family and friends, how are you doing? I am Raymond Tuhox of the Mashapug Nagansett people. Welcome, welcome to the land of sohams. Welcome, welcome to the land of the po kanokit. Good day, good medicine and peace be unto you. The song I sang was written by Darryl Black Eagle Jamison, council chief of the Pocasset Wampanoag tribe of the po kanokit nation. It is the Pocasset Nakanatuk and we would sing that song traditionally at the beginning of the day to ask creator for blessings and that our path on that day be good. In the words ever such, Wantapun Wuni Kisak Wuniigan. Good morning, good day, Kuei Kuei oh, welcome, welcome. Kunianamukh, Wichinian Manachok, honoring the plans. Kuei Kuei, welcome, welcome. T'abatnein ni mwayin, ni wu chi wam nithampag. Thank you for all of my friends. Kuei Kuei, welcome, welcome. We Kuei wampayu at the beginning of the day. I thought that was a fitting song to begin with, because I am so honored that the symposium this year has chosen to focus on the experience of the indigenous populations of what we now call New England. Where I hail from. Our experience here has been one that is fundamental in my opinion, definitely to the foundation of what we now call American society. But I would argue beyond that the world, because out of these very lands came the concepts of freedom of religion and freedom of speech, which is so held in such high regard by American society. And I just want to say kutapatush for the symposium for honoring our people in this way. I do want to give much respects to the American Indian Law Students Association for the fantastic work they've done over the past two years to advance our agenda of bringing attention to the indigenous experience with law. And I also want to give much respects and honors to all of the speakers who will be sharing remarks today. I want to give a prayer this morning but before I do that I want to give a little context so that you will understand why the prayer is the way that it is. I'm often asked as a New England Indian, given your experience with Christians, how can so many of you still endorse the Christian religion. And indeed, it's a very important question and one that deserves to be answered. And I can best answer it in this way. So many of these came with the Christian religion. For us as indigenous folks here in this region, we did not see many conflicts. They told us that there was a creator that had placed man here on these lands to be caretakers of them had given them instructions on how to deal with each other. And had charged them with living out these instructions to ensure that everyone lived in unity and peace and harmony. We saw no issues with that that tied in very well with our traditional beliefs. The element that they added was the concept of Jesus, which made sense to us as well. And since we were unaware, and since we welcome them with good arms, we assume that what they were sharing with us was truthful. And so many of us endorsed it and still do to this day. The conflict came a large part when we began to understand this religion and to see that they did not follow their religion. In fact, in many ways they were complete hypocrites and the exact opposite of what they enforced upon us. So for us indigenous folks in the New England region, I like to say that we didn't have a problem with the Christian religion. We had a problem with the Christians. And that remains in many ways and has passed on from larger American society. As you will hear today, many of the things that were done to New England Indians were done under the auspices of being good for us, or good for the community as a whole. But of course this simply was not true. And what it really was was a front for land theft and destruction of indigenous ways of life. So with that context shared I offered this prayer today. The prayer will include elements of both traditional indigenous beliefs and those of our Christian beliefs, which many of us hold today. And I respect the ways of all, and in our way we respect each other's ways so I mean no offense by this. I just offer this prayer in honor of my ancestors and the experience that we have had in these lands. As I close out, I want to say to you all, thank you for listening to me. Thank you for being here for this very important discussion. And I do hope that what is shared today will motivate you all to not only be more concerned and more interested in what happened to indigenous populations here in New England, but throughout the US and worldwide. Because in many ways what took place here in New England is kind of the format and the strategy for how colonization was employed in other places as well. So with that said I offer this prayer. And as is traditional if you are a male in our audience wearing a hat that does not have an eagle feather on it. I would ask that you remove it. At this time, I will present this prayer. I will say it in the traditional Nahigansa dialects and then repeat it in English. And once I am done I will turn the microphone back over to our moderator so that we can move forward without that. I will begin. I said thank you Yahweh, great spirit in the sky, our heavenly Father. Thank you for you are good. Thank you for your son Jesus. And thank you for all of our relations. You are the leader for you are wise and great. You are my friend. And that is enough. I thank you Yahweh great spirit in the sky, our heavenly Father. I thank you for listening to me. I thank you for you are good. Oh, many blessings and much honor. Once again to our symposium for this very important topic this year. Thank you for listening. Thank you Ray that was wonderful we really appreciate you sharing your prayer and your thoughts as we open this symposium. So now I would like to ask the Raj Williams University School of Law Dean, Mr Gregory Bowman to say a few opening words. Yes, thank you Hannah and thank you to to rave that that very moving and meaningful start to our to our day. So welcome everyone to our symposium and uncomfortable truths indigenous communities and law in New England. This is really an exciting day of symposium and we have some wonderful scholars and practitioners with us from across the country and the New England region and we're really proud to host this. And let me say a great big thanks to the law review editors at the outset. Law review symposia are essentially important part of what we do at law schools and it is a way that our law students really provide meaning and impact and advance the causes of knowledge and justice through the work and through bringing in leading commentators on important topics. And this is certainly a very important topic. It is one that is years and the centuries overdue, and we're proud to host it. So, at the beginning of this day, I want to read a land and labor acknowledgement. I want to do that before we begin to reflect on the lands in which one which we reside. We are coming here today from many places, physically and remotely and we want to acknowledge the ancestral homelands and traditional territories of indigenous and native peoples who have been here since time immemorial and to recognize that we must continue to vote our solidarity and kinship with native peoples across the Americas and across the globe. The Williams University School of Law is located in Bristol, Rhode Island. And so we acknowledge and honor the Narragansett and Poconoke people and so on, the original name of the land that our campus resides on. We also acknowledge that this country would not exist if it weren't for the free enslaved labor of black people, and we recognize that the town of Bristol, and the very land our campus resides on have benefited significantly from the trade of enslaved people from Africa. The economy of New England, Rhode Island, and more specifically of Bristol was built from wealth generated through the triangle trade of human lives. During this time of national reckoning with our history of slavery in the disparate treatment of black people, we honor the legacy of the African diaspora and the black lives, knowledge and skills stolen due to violence and white supremacy. While the movement for justice and liberation is building, and we are witnessing the power of the people, many are still being met with violence, and even being killed. As upholders of justice, our hope is to become agents of change for members of our society, who have been met with violence, physical, mental, emotional, through our privilege. And as upholders of justice, we believe that our students, who will soon be practitioners of law and our colleagues can be an already are agents of change as well. And for those of you who are not familiar with this practice of reading a land and labor acknowledgement. Why do we do this. I want to share with you a statement from Northwestern University's Native American and indigenous initiatives which explains it much better than I could. And I quote, it is important to understand the longstanding history that has brought you to reside on the land, and to seek to understand your place within that history. Land acknowledgments and labor acknowledgments do not exist in a past tense, or historical context. colonialism is a current ongoing process and we need to build our mindfulness of our present participation. So again, thank you for being here. I look forward to this day. I look forward to learning. I look forward to listening, and I look forward to personally and professionally growing. Thank you again to the law of you thank you to all of our guests who are participating and enjoy the program, and I'll turn it back over to you. Great thank you Dean Bowman. So before we get into our speaker series, I would just like to reiterate a few of the words that Dean Bowman said. This is a very important topic and we titled this symposium on uncomfortable truth for a reason. Some of the conversations and topics that we may discuss today can become quite uncomfortable, but part of a symposium is learning. And so I ask that each of you today take the time to listen and reflect and feel in those uncomfortable feelings and take what you learn today back in your back into your everyday lives and into your scholarship and into your practice. And again, if you're just joining us. My name is Hannah DeVoe and I'm the editor-in-chief of the Roger Williams University Law Review. I will serve as your moderator today. I ask that if you are not speaking, you remain muted with your microphone. If you would like to unmute during the question and answer period, please use the hand raised function so that we are not speaking over each other. And we allow each of our peers the opportunity to speak when it is their turn. If you would prefer to ask a question without unmuting your microphone. I ask that you please send your question in a direct message via zoom to me so as not to disrupt any of the speakers or their presentations. As the day progresses, I will briefly introduce each of the speakers and their topics, but I do ask that you allow each of the speakers a moment to further introduce themselves at the beginning of their topics. As I mentioned earlier, I will put my email in the chat to everyone at this time. If you have any questions during this symposium, any technology issues that I can help with or any concerns or questions after, please feel free to reach out to me and I can get you linked with the right person to answer your question. Okay, so let's get started with our speaker series we are a few minutes early which is always great. And I also would suggest to each of you that you view this symposium in speaker view to get the best experience possible via zoom. So our first speaker today is Dr. Taino Palermo, a third year law student at Roger Williams University School of Law. Dr Palermo is the chief of the barmaia Piana clan a federally non recognized tribal nation indigenous to the area, now known as ponds Puerto Rico. Dr Palermo will be presenting his research paper focused on a legal framework for federally non recognized tribal nations acquiring ancestral lands. I will allow Dr Palermo to further introduce himself, but please warmly welcome Dr Palermo as our first speaker so tell you know if you would like to share your screen and take it away from here. Great, thank you Hannah. Yeah, screen share. Does that work. Okay, so, okay great thank you. So as Hannah said my name is Taino I am a third year law student here at Roger Williams School of Law, and I'm known to my people as a maguatu which is Taino for river of fire or fire river. And I am native to the region, you know today as Ponce Puerto Rico which is the Guania region of boarding pen which is the title name for Puerto Rico. So today I say home, which is to say thank you and good day to you all. It's an honor to be able to speak to you all today I must admit I'm very intimidated by our powerhouse of lineup speakers today and I'm just honored to be given the privilege to kick things off and so. Before I begin I'd like to take a moment to thank the key players responsible for helping this day come to be I just want to emphasize how important today is. And, and what this means for the law school and indigenous peoples legal rights. So I'd like to start with thanking the late Roger Williams, President Don Ferris who four years ago convened a meeting with all of the local chiefs in the area and initiated a dialogue and relationship with the indigenous communities of Rhode Island that laid the foundation for where we are today. I'd like to thank former dean, the former dean of the law school Professor Michael you know ski for taking the time to meet with Ray and I. All those years ago to listen to our wild idea of leaving our careers to come to law school full time and try and establish a Indian law indigenous law initiative at the law school. And, and he without hesitation was supportive of our efforts and continues to be to this day. And I'd like to thank our current President, Janice me all this and our current Dean, we just heard from Dean Greg Bowman, for not only continuing your predecessors efforts and honoring their commitments but taking those commitments and supporting. Indigenous law and legal efforts and Elsa's efforts to a whole new level and, and we're just getting started to say the least and so. Finally, it would, I would be remiss if I didn't acknowledge the final piece of this puzzle. So to speak which is, and I think the creator for bringing him to us as Professor Jim diamond, who came to the law school at the perfect time. And so he has opened my eyes and mind and exposed me to aspects of the law I never knew I needed to know, and, and to incorporate into my fight for my people. Much of what you will hear and see today is doing large part to Professor diamonds influence so. So let's get started. So this this legal research that I conducted is is called returning home and restoring trust and it's a framework I hope to kind of elevate the conversation around what it means to reclaim ancestral lands and exercising indigenous people's rights under federal law and international law. So, let me start with a little context as to why I even engaged in this research. And so we are constantly fighting the narrative that we are extinct and my parents name me tie, you know, and my sisters, Juanina and so Ray tie you know names so that we never forget who we are but also by forcing the world to say our names, the we never forget tie you know still exist. And so I grew up with tie you know language food culture practices, but was always considered Puerto Rican, and never Native American in the eyes of the federal government. I federally recognized however tie you know tribes are recognized in a variety of states across the country, including right here in Rhode Island, you can sign up today at the Department of Health for a covert test or vaccine and when you choose your race and ethnicity and choose American Indian you can choose tie you know Indians as your tribal affiliation. And, you know, we're represented in the you in the United Nations in a variety of capacities. And, in fact, the research director at the Smithsonian National Museum of the American Indian Jose Barrero is tie you know. Nonetheless though without federal recognition tie you know is an American Indian tribes similarly similarly positioned as we are are completely cut off from land rights and protections that flow from federal recognition. And so that means we can access things like NAGPRA the Native American Graves Protection and Repatriation Act to at a minimum protect and preserve our ancestral burial sites. As I mentioned tie you know ties to our land is well documented. So you know it's not it's not a matter of mythical existence. We are prominent and in other traditional forums, institutional forums, governmental forums so you know and even if we were recognized the process to secure ancestral lands are often slow convoluted and without and don't afford full sovereignty over those lands equal to that of a fee simple possessory interest of real property under US law so and I'll talk a little bit more about that but but you know recognize tribes with lands held in trust by the federal government have this possessory interest known as have original title of the right of occupancy, which is different than a free simple ownership so in most cases when substantive development or use of the land. When a tribe wants to do something that in many cases it may have to be approved by the federal government so I wanted to dig into that messiness of the law as it relates to tribal nations like mine and how we could reclaim our ancestral lands and control our lands as a fully independent nation and so and so I dug in and you know one of the first areas I explored was how the trust relationship works between the federal government and land holding tribes and where tie in those fit into that relationship if at all. And so there exists this special trust relationship between the federal government and the American Indian tribes itself and referred to as the trust responsibility. And so one narrow interpretation of that scope of the trust responsibility is that like the actual trust instrument instrument that's created when the federal government takes tribal land into trust that in fee simple own ownership to manage that land for the benefit of the tribe and and and support the tribes sustainability on that on that land and so without federal recognition native communities like tie in those have no access to this trust relationship, let alone the ability to have the federal government take lands into trust. So, you know this this that so as I continue to dig in you know this timeline here we can see how this, how this excising of Tainos out of the scope of recognition and Native American rights as it relates to those who are recognized. You see how this kind of takes place, starting from the United States adopting the narrative that was built by Spain when they colonized that the Caribbean and the Indies. In first contact they historically under under reported Indians the sense the Spanish census used to enumerate slaves and disaggregate slaves by black and Indian. The Spanish, the Spanish Spanish conquistadors would would under report Indians in their senses to Spain to the Spanish crown as a method to justify the importation of more African slave labor and that's a whole, you know, separate day long symposium about that those practices and the census as a tool which I'll explain a little bit later. And, and so, in 1830 we see the Indian removal act signed by President Jackson and this allowed the government to start dividing land west of the Mississippi to give Indian tribes in exchange for the land that was taken from them. And so this, you know, was the precipice for the trail of tears. In 1851 Congress passes the Indian appropriations act which effectively created the Indian reservation system. And at that time Indians couldn't leave reservations. In 1871 Congress passes 25 USC section 71 which is essentially saying no Indian nation after March 3 1871 can enter can be acknowledged or recognized as an independent nation by which the US could enter into treaties with and so it's kind of the federal government's kind of length, first line in the sand, saying you know we're done recognizing and acknowledging tribal nations as independent sovereign for like foreign powers. And the, you know, real nail in the coffin so to speak is the Dawes act or the allotment act in 1887 which, which divided and broke up large tracks of Indian land into these smaller plots for individual Indians and was also intended to convert to a very interest in this in Indian land from that of the aboriginal title or the right of occupancy that I mentioned to that of fee simple under after 25 years the title would convert and the land would be free of all encumbrances and I think it's safe to say that never panned out the way they thought it would. All of this is, you know, among many other court cases and statutory schemes that broke down and decimated, you know, indigenous people's native land on the mainland US by 1899 the US is in this empire building mode, so to speak, it's the, you know, the Monroe Doctrine era and so this is when the Spanish American war comes to an end and they in 1899 the Pete the Paris Treaty is signed, which gives the US control over Puerto Rico. And in 1899 they could they conduct the first census in Puerto Rico, in which they they have an entire section dedicated to Tainos. And so, and I'll show that in a second but you have to understand by the by the time the US takes over control of Puerto Rico, the they are the mainland native Americans are in the thick of land thefts subjugation boarding schools assimilation practices so by the time the US takes over these territories with its own indigenous peoples. You know, they didn't stand a chance trying to advocate and stand up for their rights when the US had already had decades generations of practice, subjugating mainland indigenous peoples and so that's not even to, you know, speak for the faction of Puerto Puerto Rican nationalists who wanted independence from Spain and the US and so. And so you see how it's that it's essentially completely erased as the Tainos were as time goes on through night at 19 in 1900 the Foraker Act implements a territorial government and installs a US form of government. In 1910, they take that for a second census and completely rebrand the term native and then 1907 they naturalize everyone in 1917 they naturalize everyone through the Jones Act. And then in 1924 we see the Indian Indian Citizenship Act here in the mainland where they naturalize all Native Americans. And then you see the Racial Integrity Act and I mentioned that because the Racial Integrity Act or what we know as the one drop rule is the precipice for the whitening of Native Americans and categorizing them from their identity as native to either white, black, colored mulatto. And so, and so it's important to just understand this historical timeline because this is all the precipice for property rights and so. In that first census that I mentioned it there's an entire section of course dedicated to Aborigines, which are the Tainos. Just to drill this point, even further, they say you know there are a few traces of them remaining at least the census has not discovered any. And they go on to say that they quote Generals report from a captain who said that while working. Work was being done on the roads they had the occasion of watching seven crowds of 700 or 800 men gathered above the pay tables like labor gathered about the pay tables like laborers, waiting to get paid and they said the frequency of the census is very noticeable. The type can be seen everywhere in the mountain settlements and they even noticed a woman whose color hair and features were true Indian as seen in the southwest of the United States. And so, you know we're we're we're there but we're not there, according to them and then in the second census that I referenced is when they redefine the term native and, and they do they do away with the with the classification of mestizo so in that first census in 1899 they enumerate mestizos and that was a formal classification for someone who had one parent who was native and so in 1910 they they do away with that classification and the term anyone native to Puerto Rico as someone who was born on the island, and foreign born is someone born off of the island. And so, at that point you're either white black or mulatto and these are the instructions given to the census, the census takers on the island and this is this has been well researched around the actual intentional instructions given to census takers in Puerto Rico around reclassifying indigenous people as as mestizo or mulatto's and then eventually even changing the racing and going back over to change people into a white category, as opposed to anything non white and so this is over. This was an extensive study here conducted over 30 years of census instructions taken in Puerto Rico and see on the graph on the right you see that red line that's 1910. And so you see as how how fast and vastly white Puerto Rico becomes after 1910 as a direct consequence of the intentional census reporting or or misreporting and to just kind of drive this point a little further home. This is my second great and third great grandmother. In the top in 1910 Isabel Palermo and Alejandro Maria. They're both listed as MU for mulatto and the far right you see the racial category. And so 20 years later in the 1930 census, my grandfather Ernesto Palermo seems to be the only person of color in this entire household who is now all white. And so this seems to be a possible erasure and fix from Isabel who was mulatto here and maybe somebody came in after and change that to a B for Bronco but this is an example of how one person can, you know, in this case to family members races can change from one to the from one census to the other. And so all of that history is is why Tainos were effectively carved out of any kind of legal pathway under federal law to receive federal recognition and pursue a trust relationship with the US and so no recognition means no ability to secure lands with the federal government and no trust relationship could be established between Tainos and the federal government which leads me to this proposed legal framework and so a key kind of assumption before we get into the the meats and potatoes of this framework is is the tribal nation that's exercising this framework and so this isn't by any means some a required list of any of anything but this this helps exercise the framework in a more in a in an easier way when a nation tribal nation doing so has, you know, well documented ties to the lands. They are hoping to reclaim, and there is at least a functioning tribal government. Ideally bound by some tribal constitution or code with a functioning tribal court or some sort of dispute resolution system and and under federal law as the coming out of the Supreme Court case Montoya versus United versus the United States. Having at least meet meeting federal common law requirements of continuity leadership territoriality which is, you know, land ties to enjoy the same sovereign immunity from from suit enjoy by enjoy by federally recognized tribes and so assuming that a tribe attempting to exercise this legal framework. So this is is that at least meeting these criteria. We can now, you know, have a foundation by which we can try and wrap our heads around this this framework so this is this is this is it. I mean this is essentially the, the, the, the structure of this framework so in practice it says, you know, the tribe or an agent acting on behalf of the tribe purchase purchases and acquires title to their ancestral land and fee simple as purchase from the free market right and so this is assuming this, the tribal lands are available for purchase and so the, the bona fide purchaser is is then transfers that real property to the tribal nation by forming an inter revos foreign trust and the and the, the distinguishing element here in this framework is this foreign trust instrument by making the so therefore by making the, the, this process makes the bona fide purchaser, the trust settler, the tribal counselor or the functioning equivalent as the trust managers and then obviously the trust, the tribal members would be these the tribal class of beneficiaries and so this foreign trust structure is kind of this distinguishing element from other models which I'll which I'll also talk about in a minute, but any trust can be deemed a foreign trust. So as long as it meets the requirements of a valid, validly executed trust which I just went through. And, and it also fails, either the control test, or what is known as the court test under under federal law. And so the court test is satisfied if a US court has jurisdiction to supervise the trust administration. A foreign trust formed under the proposed framework would fail this test because the tribal nations tribal court would have exclusive and so jurisdictions to supervise the trust administration, not a US federal court or a state court. And the control test requires that one or more US persons have the ability to render substantial control or decision making authority over the trust. A foreign trust formed under the proposed framework would fail in theory under this test as well because the tribal citizens of that of the tribal nation which is a separate sovereign effectively classified as are thought of as dual nationals dual all trust related stakeholders would assert their tribal citizen status that their constitution ideally would, would dictate choice of law in that way in which tribal law is, you know, the primary supreme authority. And so they would, they wouldn't be operating under their US citizenship status so for all decision making authority over the trust matters would be for tribal members in their tribal citizen status not US citizens and so the foreign trust structure is also analogous to the tax exempt status of federally recognized tribes as income generated by the foreign trust from non US sources is exempt from federal taxation so this means any income generating economic development initiatives with non US nation states would be tax isn't effective for the tribes financial autonomy is unaffected by US tax codes and then issuing constructive notice will make clear that the tribe has reclaimed possessory interest over their ancestral lands under both federal and international law. So these are simple title holders in operating under a federal trust but also operate as in as in indigenous tribal nations with inherent rights under international law which I'll get to the legal authorities in a second. So from there the assertion of their dual title holding status is where kind of my research concludes leaving this conversation open for, you know, further analysis and and and scrutiny, because this is a different type of dual. This is a study that that that exists. As opposed to federally recognized tribal citizens and US citizen and being US citizens is more so similar to a situation where you may have citizenship say you are an Irish national as well as a US national you hope you have citizenship and two separate complete citizens. And so the legal authorities kind of supporting this framework really begins with, you know, again, Professor diamond influence, you know, of the feelings Colin belief doctrine that perhaps he says perhaps the most basic principle of all Indian is that those powers lawfully vested in an Indian nation are not delegated powers granted by express acts of Congress but rather inherent powers which have never been distinguished extinguished. And so, in 26 CFR section 301 is the statutory scheme for the formation of foreign trust which dictates the control tests and the court tests that I mentioned. The United Nations declaration on the rights of indigenous people or undripped articles 34102526 all speak, as well as the American declaration on the rights of indigenous peoples a drip article 619 and 25 all speak to inherent property rights of indigenous peoples and the responsibility of nation states to return ancestral lands in their entirety to the indigenous people of their nation. The American declaration on the rights and duties of man affirms many of the same rights as those in the universal declaration of human rights. Article two states all persons are equal before the law and have the rights and duties established without any distinction to race creed sex language or any other factor. Article 23 says every person has a right to own such property as meets the essential needs of this decent living and helps to maintain the dignity of the individual in the home. The organization of American states is a chartered entity that houses the inter American community commission on human rights and their authority is based on the OAS Charters comprised of seven independent experts. They can issue state reports theme reports and adjudicate individual group and interstate complaints, most notably being Mary and Carrie Dan versus the United States. This is a case having to do with the Western Shoshone, whose land and, you know, systemically stripped from them by the federal government over decades and decades and generations the Dan sisters successfully petitions, the American commission on human rights to hear their case and the commission ordered the US government to halt all actions against the Western Shoshone people and it's a mandate that is unfortunately largely gone ignored and so these are the legal authorities supporting this framework. Now, of course, you know, it also raises the issue of whether or not the federal government acknowledges or will be beholden to the provisions and articles and under a drip these international instruments and you know such is the proposed theory behind this framework and so there are models of purchasing ancestral land. You know, especially recently we hear a lot around land back initiatives. And so some of these models walk the line of the proposed framework but not not quite, but they do help us wrap our head around, you know, kind of how this could look in practice. The excellent tribe in California purchased this beautiful track along the little Sir River with a $4.52 million grant from California's natural resources agency. The excellent are not federally recognized, but they are state recognized and so the purchase of the lands were conducted and were acquired under a nonprofit or corporation that they formed. So as you can imagine there, you know, the control of that land is subject to, you know, land holding nonprofit rules and regulations and so it isn't essentially the same kind of approach the framework is proposing but it is an example of a tribe purchasing their land. Similarly, the UROC tribe also in California was made possible with funding from California's Queen Water State Revolving Fund as part of a carbon offset program. And possession of this land is subject to contractual obligations that the tribe must adhere to, such as like submitting a forest management plan to the state and approval and registration of the land sale must had to be approved by the BIA and one of the provisions in that contractual obligations is to waive tribal sovereign immunity from suit should these obligations not be met, which is, you know, they have certain obligations to maintaining the land. And so, again, not an exact model of the framework but again purchasing a model of purchasing land outside of the traditional ways of taking, you know, lands and trust and things like that which I'll get to in a second. Closer to home, the Pasamaquati tribe in Maine purchased Pine Island, which is their ancestral land, they purchased this from the free market, it was for sale. And the tribe had a treaty with Massachusetts when Massachusetts extended all the way up through modern day Northern New England. And when Maine became a state they renamed Pine Island and didn't recognize that treaty and so, and so the Pasamaquati lost their access to it. And so the Nature Conservancy, a global conservation organization, gave the tribe a grant equal to the purchase price of the island providing them the funding to purchase it and so the Pasamaquati are federally recognized they own 143 acres of the 150 plus acre island. And so it's likely those lands were added into their existing trust managed lands with the federal government. But I think what may be the closest to this approach is the Squamish nation in Vancouver. The Squamish have complete control over their land within the city of Vancouver and what you see here are renderings of a massive housing development complex that they are building in the next within the next year or so so it's been approved and all that these are the renderings pre development. And they are not subject to any of Vancouver zoning laws or building codes as they build and develop this land within the city of Vancouver and so this is a real example of an like an independent nation within an independent nation and so think of Vatican City as an independent nation within Italy, a separate independent nation and so this is kind of the closest example in support of this framework and so this framework is different in a couple ways, then existing approaches to taking land, reclaiming land and the models I just went through. Because there are in those models there are still restrictions to a degree with the exception to the Squamish on the possessory interest of the tribes who purchased those land back so either by the nature of the purpose of the purchase or the structure of the title once acquired or both and so you know some of these existing models include section five of the Indian reorganization act of 1934 which is the land into trust process which gives the secretary of the interior discretion as to whether to take tribal and tribal lands into federal trust status, which is also referred to as discretionary takings. This process is convoluted it's very difficult to navigate the huge backlog. Current Interior Secretary Halan has tried to clean up this, this severely backlog process by delegating that discretionary approval now to regional bia officials rather than having to personally have her office review every petition. And there's the land buyback program which is the byproduct of the cobel v. Salazar class action suit that resulted in a settlement for $3.4 billion and the land buyback program is is meant for addressing the fractionalization a fractionation excuse me of these allotments where you have several heirs to one tract of land that you know you oftentimes you need a consensus from those different heirs of this one track of land to do anything with and so it's an attempt to kind of consolidate that process. And again though both ways do not afford tribal nations to maintain this kind of dual title holding status under international law and federal law it's just another way of securing tribal lands with with federal oversight. So this framework by, you know, applying this theory of forces a nation to nation relationship with the US and in in in ways that were, you know, originally, how the federal government approached tribal nations free the Constitution and so it also applies to tribes like myself and Indians like myself who are either not treaty bound by with the federal government because we never entered into a treaty, but are native to US territories, similar to the Chamorros from the Marshall Islands and Guam and, you know, even formally recognized or disenrolled tribes for whatever reason, who, who are no longer bound by a treaty may be able to exercise this this framework and so now there are also key concessions and considerations of course you know the land needs to be available on the free market. That's, that's kind of a biggie. And this is also, you know, you see in the other models financing is obviously a major issue to be independent without economic development support system is hard and so a lot that's why some of those models had to have third party advocacy conservat, conservatives, conservatives, conservatory agencies, supporting them, or had to set up nonprofit structures to house, or be able to take out large loans and finance these purchases. And so, assuming those hurdles are, are, are crossed these, these, they're still, you know, this is new this is different this is could could always be seen as some sort of threat economically or as a sense of national security, you know, this is, I mean, imagine if, if we hit the lotto tomorrow and I buy a track of land in Ponce from the, from the water, ocean front to the mountains. And I enter into a development deal with a German resort company and they build a resort on in Ponce and I had had nothing to do or did nothing to confirm verify validate with the federal government are asked for their approval, because I bought that land I own it in fee simple and so, if that were to be the case, you know, then it becomes a matter of it of exercising the international legal authorities which the federal government would have to, you know, acknowledge, and they very well don't have to. And so, it's about, you know, understanding the, the, the, this could be perceived as a threat in some sort, some way, but it's just something that must be considered. You know, there's always the case of land holdouts which is, you know, folks who may be part of a large track of land purchase who do not want to move or relocate. And, you know, in the housing world in the world of community development world that studies gentrification this is, this is on a smaller scale, you know, in the world of eminent domain you see these kinds of things where this is certainly a case here. That is similar to the threat issue is the conflict of laws issue I mean, you know that a tribal nation has the ability and the inherent right to to self govern. And if they can do that irrespective of asking the federal government for help. Then, and are exercising their, their sovereignty. Then you have this conflict of laws issue between who's who's law Trump's who's. And then, again, this concept of dual citizenship, separate and apart from how we understand tribal citizens and their relationship to the, to the federal government as you as us citizens. And so it's a, it's a different type of classification and a different way to think about tribal citizens and tribal nations as separate sovereigns. And so, you know, where do we go from here is is, I think, probably one of the broadest sweeping ways to support this framework is codifying. Anyone or all of these articles from undripped or a drip through congressional action. And this all of this isn't also to say that Tainos or any other similarly situated tribes couldn't be federally recognized and exercise the landed to trust process. And, you know, whether it's an act of Congress or presidential recognition. But that's, that's, that's not to say that that couldn't happen as well this isn't to say, you know, this framework is is not an either or but rather a both and. And so, that's also a possibility as well as well as enforcing the Mary Mary and Carrie Dan decision. And, and signaling to the, the OAS and the Inter American Commission on Human Rights that the United States takes their authority seriously. So, that is, I believe, where I will end it and so I want to say hi home which is to say thank you, open it up for questions. And please feel free to reach out to me and ask me any questions. And I would be remiss if I didn't make a plug for Elsa, please check us out follow us on Instagram and Twitter, and I will stop there. Great, that was wonderful. Thank you. You know, so if anybody has questions, please feel free to use the hand raised function or type them in the chat to me and ask away. All right, well wow people. Oh, Ray, it looks like has a question right if you want to unmute. Yeah, so not so much a question but just fantastic work chief. I've had the opportunity to work with the chief for a number of years he's a reason why I was able to make my way into the law school at Roger Williams. So I just wanted to honor, say great work on that research he did. And I also want to just give a little context to his do citizenship. And this is primarily through eight USC 1401 be which is the Indian citizenship act codification, and in particular the, what we're calling tribal property clause it says in summation us citizenship is extended to all Indians born within the US. So long as it doesn't interfere with their rights to tribal property or other properties so it's primarily through interpretation of that that we're looking at the acknowledgement of the do citizenship status of American Indians and the US law. And the good doctor has just taken that to a whole new level so I just wanted to say much respect to you chief. It's a pleasure and an honor to be working with you. And this symposium is definitely starting off on a great foot. Thank you. Thank you Ray. So I do have a couple of questions in the chat that I'll read. So the first is, how do you believe the potential admission to statehood for Puerto Rico would affect the rights of the indigenous there. That's a good question. I am very cautious of not conflating Puerto Rican independence with the rights of Tainos, because you know they are separate, just like we see the, the, the dual fight around independence in Hawaii from and their indigenous people as well. And so I don't necessarily think one impacts the other. I mean, even if Puerto Rico become where to become a state, it would the fight for the Tainos would still be directed at the federal government. You know at the end of the day, Congress has plenary power over Indian affairs and so. And so I don't necessarily think statehood would impact the fight either way. However, if Puerto Rico were to become independent, then the conversation is directed towards the Puerto Rican national government, which you know because now the US is out of the equation. So, so yeah, good question. Great. So I think the next question is along the same lines. It's, what's the intersection of the independence movement in Puerto Rico with the indigenous movement. Yeah, I mean, it's, it's, it's similar. You know, you see a lot of, and it's, it's really the byproduct of colonization. You see a lot of independent Puerto Rico flags with Taino symbols on them. You know, you can go to the Puerto Rican day parade in New York City and it's heavily, you know, symbolic with Taino symbolism. And so, you know, there's, there's very clear people who in communities that are Taino first in Puerto Rican second. I would put us in that category, but, you know, it's, it's, it's kind of, it's, it's, it's messy. It's, it's the byproduct of colonization. So I can't even say, you know, how much independence and, and would impact or influence the Taino fight. I mean, it's still, they're still fighting for the land regardless of a Puerto Rican government or a US government controlling you. Right. Thank you. The next one is more of a question about your personal research here. So the question is, did you learn anything in your research creating this paper that either shifted or more narrowed your mindset about the research that you were doing. And was there any information that you wish you had known before starting your research that may have changed your research question? That's a great question, but I don't, I don't think so. And the reason is, is because I, before going into this research, I was well aware of my, my history, my personal family history. And so that's actually kind of what initiated the, the, the research because my grandmother, about 10, 15 years ago, created an oral history as far back as she could remember. And this is preancestry.com and created an oral history of, of as her great grandfather and she died at last year at 98 sharp as attack. And so she has a very clear history of our, of our family lineage. And so I went on a pilgrimage about three years ago to Puerto Rico to trace all of these things, quote, triangulated with ancestry.com documentation, which, which I found that actually a lot. I found microfilms from Spanish census of our family names being categorized under slave enumerations as indios, which is Spanish for Indian. And then the, the, the US census that I showed you of my family and so, and all of my historical documentation and oral histories all sent go back to Ponce, Puerto Rico in particular so I had a very sound understanding of my history. And I was interested in learning how the law was associated with that history. And, and then it just kind of confirmed a lot of things it made a lot of things make sense, I think, if I was surprised at anything it was really about how, how, how clear I was able to fill in the gaps through, you know, law and history of how and why we were, you know, passed administratively through documentation. I mean I have books by anthropologists, you know, we're all renowned scholars that that are that say Tainos don't exist. And so, you know, it just kind of confirmed a lot of what I knew to be true. I think that's great so we have a couple of more questions. If you don't mind. So the first here is, what truly would success look like if the Taino peoples were recognized by the US federal government, and how would such recognition change the lives of the Taino people. And I think first and foremost, it is restoring our land. You know, we have the first, the best kind of, I think, easiest place to think about for, you know, non Tainos, non Puerto Ricans is, but you've been to Puerto Rico maybe is El Junque the rainforest, the big rainforest is a national park. And so it's protected in that sense as a national park but parts of El Junque right now are up for private sale. And so, when you're up for private sale, you know, you and not protected by the federal government is anything can happen to your land anybody they could forest agency could come into the forest that you know and so I think federal recognition provides a sense of security it shows that the federal government has skin in the game, so to speak to ensure the you know economic viability of Tainos. I think it signals that they are recognizing the oppression and attempted erasure of Tainos as I showed you through census tools and things like that and so I think it, it has profound impacts to be federally recognized by protecting our lands and allowing us to restore our cultural practices protect our ancestral burial sites, but it also signals to the world I think that the federal government is is has again like some skin in the game and has interest in in acknowledging and protecting the indigenous especially of their territories, which are, you know, it's not even like we are a state, you know, we are a territory so we're in this funky place between having the rights of citizens but, you know, the Jones Act in 1917 to this day still taxes on imports from the mainland and so you know, we see the effects of Hurricane Maria things like that. And so, you know, if, even without the Puerto Rico becoming a state but federally recognizing Tainos and protecting land in on the island, and restoring land to Tainos on the island puts more US skin in the game for broader protections for all Puerto Ricans and so I think there are major implications there. I don't know how close that is to becoming a thing but yeah. Thank you. The next one is, what would you say are the rights of unenrolled individual indigenous people for vis a vis the US as opposed to their rights through federally recognized tribes. Well, you know, unenrolled federally non recognized Indians, not part of a tribe are are for all intents and purposes like any other US citizen like you and I and so. And so that there is the distinction. The federal federally recognized enrolled tribal members have a federally recognized tribe by which they can seek supports and have, you know, a separate nation to exercise their cultural practices and their religious practices and, you know, this is a lot of it's, it's almost the equivalent of, you know, being excommunicated from the church in medieval times of you know if you're not part of the church and not part of your nomad your roaming society tribal wise, you know, in terms of federal recognition the disenrollment essentially put you in this non tribal category as any other US citizen so you know that means you don't have access to a lot of the benefits and privileges of being recognized so. Right, thank you. We have a couple more questions. I would just say that if anybody who asks these questions has follow ups. Please feel free to send those as well or hand raised and unmute so we can make sure that your questions are answered to the fullest extent. So the next is what do you believe we who are listening and participating can do to move this conversation forward, expand it to a larger audience and join others who are fully engaged in recognition of indigenous peoples and their inherent rights. Well, I mean I think, you know, there are, you know, we are trying to expand that visibility for indigenous peoples here at Roger and on the East Coast but there are major institutions like Michigan State University and University of Arizona. I mean these these law schools and institutions are actively, you know, supporting advocating for similar and then not similar but broader indigenous peoples issues and so. So it's it's those are things that are easy to plug into I think on this side of the of the Mississippi so to speak you know we we are looking to continuously expand our presence in New England as a law school and as a as a law community engaging in indigenous peoples rights and I think things like this things like Elsa. Helping you know so eventually we want to create a lobbying effort around Congress codifying undripped a drip articles that could help non recognized tribes and shift that dialogue so I would say you know there are institutions doing this work. And we are looking to expand that work so I would say stay connected to Elsa stay connected to the law school in that way because, as I mentioned you know we are. This is this is really the beginning of the work we hope to do in this area I mean, as we will hear from you know Professor diamond and others you know this. The interest in Indian law and tribal courts courses is is overflowing and there's a there there and people are interested in this and we need to feed that hunger. And there are tribal communities that want that help and so I would just say stay connected and we will be sure to you know. Last far and wide through our socials to our networks opportunities for engagement and so just be on the lookout for those calls to action. That's great. Love that answer. So the next one is a little bit similar in terms of involvement. I would love to know if others are involved in researching the tie knows, or are you the only one at this point. Also is Cabinet Secretary Deb Haland supportive of your efforts. And to the first question know I'm, I'm the most recent to the party, but there are scholars like Dr lingui tar, who is now retired but does a lot of research of the Spanish under reporting of tie knows, specifically in Kiskeia, which we know is the Dominican Republic in Haiti. And so her focus is that that is where the first time you know treaty with the Spanish crown was signed in in the Dominican Republic with Cassie gay chief and review which is, which was the first in spoo Spanish colonization. And so, and so, like I mentioned, the research director at the National Museum of the American Indian and DC, the Smithsonian is, is Taino Jose Barrero. Roberto Barrero Roberto Mucarro Barrero is the, the chief of the United Confederation of Taino peoples. He is the United Nations liaison, and is a speaker for the United Nations and leads a lot of indigenous peoples efforts globally on behalf of Tainos and there is a faction of Tainos in in Massachusetts that just held a massive indigenous peoples day in in in newton. They were the ones who forced the Boston Athletic Association to acknowledge the indigenous peoples day when they rerouted the Boston marathon through newton and forced the indigenous peoples day event to relocate because of the rerouting of the marathon they didn't acknowledge them that that inconvenience or disruption at all. Just be, you know, as you would imagine because who cares indigenous peoples day, their lobbying efforts and advocacy efforts forced to be a to acknowledge them and and and also be more intentional about the race being ran on that day and so. So, to answer the first question I'm, you know, I'm just joining the fight, and I'm happy to bring my, my legal expertise to that to that fight, because this has predominantly been from an academic anthropological historical context, and has been falling short at the, you know, pursuing legal actionable advocacy so, so I'm, I'm joining the fight in that regard and the second question I think was Deb Halan, Secretary Halan, and that is I think kind of where feet, you know, to go off of the first knots is is what I think I hope to bring to this advocacy effort for Tainos through our efforts at the law school, having a law degree, being able to navigate indigenous peoples rights in the national law in that way and tribal law, so that we can start lobbying with the Secretary, the Department of Interior and and getting legislation on the floor and and seeing how we can move the federal government in that way you know they're not going to move on their own and so that's what I hope to be able to kind of push that dialogue. Great. So the next is who qualifies as Taino in this day and age given the mestizo racial qualification. Yeah, so I mean, first, let me answer that question by saying race in and of itself is a colonizer created concept and so Tainos even Taino scholars know, you know, there are, there's well recorded history and artifacts and evidence around Tainos communities in and around the Caribbean, having my in Aztec influences. There was a lot of trade happening through the, through the that region in the Caribbean. And so, you know, the Tainos were not exclusive to themselves and you know this kind of isolated world they were part of a regional economy and trade and so there are remnants of Tainos in in in parts of South America, Southern Florida, as well as indigenous peoples from those regions in Taino territory so let me just start by saying, you know, there isn't a blood quantum to reach to there isn't an authority saying you are Taino you are not. I describe it as, you know, this is who I've always known me and my family to be. I have the oral history of my family. I've substantiated that history with documentation. I know our legal rights I've created the kind of structure through a constitution and I took the initiative to join a confederation of other tribes that are not recognized or our bands of recognized tribes that were disenrolled the Federation of Aboriginal nations of the Americas Fauna. So, we've taken these efforts we've advocated at the United Nations for for our rights and so we have established who we are. We have, you know, through things that I mentioned in my presentation established our legal authority to assert our legal authority and and and barring a dispute between another tribe. No one can tell me who I am and where I'm from and so because I know it and I can prove it and so I would say you know you can identify or or deem yourself Taino is to is to is to say that you have always or or at least, you know, have a an understanding of our of our culture and our practices and have, you know, what I refer to as those kind of that key assumption those elements of that key assumption in my framework of having, you know, a documented history to the land. You know the federal common law requirements are are a kind of a good basis to think of as they're always been continued leadership are you held out as an Indian and a tribe recognized by other Indians and tribes. You know, as ethnicity is so like not and no, not any time Dick and Harry can just say I'm going to buy this land and then exercise these laws because you know that's that there isn't a blood quantum but there is blood ties to land that substantiate your ethnicity and so, you know, I couldn't do this. I personally my people couldn't do this here in Rhode Island, which is Narragansett land or in Bristol which is poking no good land, you know, so. I think it's a it's a it's a combination of your ancestral familial practices and culture and identity, and, and how much, you know, of a tribal structure and tribal nation you operate under if at all. Great, and there's a follow up question. So if you either don't have access or maybe the historical record doesn't exist anymore. What would you say about an individual who just doesn't have that that record. Yeah, I would say that's that's tough. And, you know, I happen to be fortunate in that I was able to find a lot of documentation. You know, but I also had oral history. And so I had something to go off of, you know, and an international arena. Oral history is just as valid as documented history. I mean, oral elders in tribal communities maintain the history of the tribe through oral tradition. So, you know, at some point oral history is is a valid form of documentation but I've been able to substantiate it through other documentation and, you know, birth records and things like that land deeds and so, you know, it's about what you can substantiate to make that claim and, and, and that's hard, you know, I mean, it was a practice of burning churches and which house family records and marriage documents it was a practice to, you know, to completely disregard any Spanish census and documentation to implement a new US census and change racial classifications so it's, you know, it was an intentional erasure so it's it's hard to unerase that. And there are two more questions and then we're going to have to wrap it up. But this one is what is the relationship between the Taíno people and the, I'm sorry, I don't know how to pronounce this but the El Yunke National Forest. Well, El Yunke is a Taíno word, it's the rainforest in Puerto Rico that is responsible for a lot of the ecological terrain and ecosystem in Puerto Rico and, and it is also a very sacred place for Taíno's and so, you know, El Yunke but voting again in its entirety is, is important to Taíno so I think, as I mentioned, part of the property part of El Yunke is up for private sale right now so I mean, you know, it is, it is important what happens whose hands that transfers into and right now Taíno's aren't in a position to petition the federal government to try and take that land into trust all because of, you know, recognition so short of, of a Taíno tribe buying that land themselves off the free market exercising this framework, you know, it's, it's, we have to stand by and watch it and so but I mean it's, you know, it's, it's critically important just as the entire island is. All right, and our final question. If the Taíno regained their ancestral lands would all of Puerto Rico become a Taíno nation. No, not necessarily I mean it depends on how and what parts of the island are reclaimed you know similar to the Pine Island model example I gave in Maine that that entire island I believe spans 150 plus acres and they were able to secure 143 and so it's, it's not all Paso Macquoddy land, although it is, but it's, it's not all their land under, you know, property law because the another trust actually can maintains the other, you know, 10 acres or so so that reclaiming land in Puerto Rico does not necessarily translate to the entirety of the island. So. Okay, great thank you so those are all the questions that we have in the chat and pretty much have time for today but Taíno is there any way that some of our guests could potentially reach out and ask more questions or follow up on your research do you have places to keep in contact. Yeah I'll put my email in the chat as well so I'm happy to share my slides with whoever or answer any follow up questions. Okay, great well thank you so much. This was absolutely wonderful. Okay, so, again, thank you Dr Palermo for speaking today. Our next featured speaker is Professor Bethany Berger, a well known scholar and professor at the University of Connecticut School of Law. She is a widely read scholar of property law and legal history and one of the leading federal Indian law scholars in the country. Along with teaching American Indian law tribal law and conflicts of law. Professor Berger has also served as a judge for the Southwest Intertribal Court of Appeals. Today Professor Berger will be presenting on Mohegan women, missionary women and the survival of the Mohegan nation, but I will allow Professor Berger to further introduce herself. Please welcome Professor Berger as our next speaker, and you can take it away and share screen. Okay, thank you. So, I'm so happy to be here today. And let me share my presentation. Hello. The beginning. And I, I really want to thank the Roger Williams Law Review for putting on this symposium on this. I have worked in New England Indian country for a couple of decades now, given my time at Yukon Law School, but I've never actually written anything or published anything about the tribes of this area. My background is in working in Indian country is on the Navajo and Hopi reservations, and during law school on the Shineover Sioux reservation. So I'm grateful for this opportunity. And I want to acknowledge also grateful this opportunity to publish this work. This began as a project for my race and property in US history course that I encouraged my student Chloe Sherpa graduated in 2021 to complete and encourage her to try to get it published. And she being a law student didn't have time to do that. So I'm going to transform it and I already have somewhat to publish this with her. And so I think in addition to Taino's wonderful work that we've already heard. I think this hopefully will encourage the law students out there to think about how they can play an important role in these conversations. And so I am speaking from near Roger Williams in Connecticut in Hartford, Connecticut, which is about here. And Connecticut is named after the Algonquian word for the Connecticut River. And all the peoples of this area organize themselves in part about the rivers of this area. But some of the ones that were particularly close to me are the Podunks, the Tongsis, the Wangunks, the Quinnipiacs. But my talk today is going to focus primarily on the Mohegins. And in the spirit of the land and labor acknowledgement that the Dean very thoughtfully gave us, it will incorporate part of the relationship between treatment of Native peoples and African American slavery in this area. So the kind of small story of this talk is how did this, a little congregational church built on less than half an acre of land in 1831 lead to this, lead to the modern federal recognition of the Mohegan Nation with and most visibly at Mohegan Sun Casino. But more important for the Mohegan people, the full recognition of them as an indigenous people entitled to recognition of their sovereignty and their land. And to get to that story, I think we see the ways that the tribes of New England have gone through many of the things and tried many of the strategies that indigenous peoples across the United States have tried. And just like indigenous peoples across the United States have come up with the hard hand of law and politics that the governments that they were dealing with both distorted their own statements and documents. And even when they made promises to the Mohegan people, they broke it broke them or failed to enforce them. And so, in a nice parallel with what you know talked about, the Mohegins tried many strategies to preserve their land. They tried military alliance. They actually tried an early form with some people called the first form of trust status. They petitioned the local government, the colonial government. They petitioned the central government as today tribes petitioned the federal government, but then it was the British government. They used missionary societies. They petitioned them and worked with them in order to get their own goals met. But even when they won, non-Indians ignored the results. And by the 1970s, when the Mohegan nation submitted formal petitions for federal recognition, the land that the Mohegan Congressional Church was on was the only land that was owned by the tribe itself. And some of the relatively little land that was in tribal hands. I mean, little land that was in the hands of any Mohegins in the area. It remained in Mohegan hands by using the appearance of assimilation, but really appropriating non-Indian tools for Mohegan ends. And I think when we look at tribal peoples and particularly tribal peoples of New England, there's often an argument that they are assimilated. They are no longer Indian because they act too much like non-Indians, or they look too much like non-Indians racially. As Taino said, they look either to non-Indians like they're white or black and therefore cannot be Indian anymore. But I think one thing that we get from the Mohegan Congressional Church story is the way that tribes are using those tools for their own ends, for appropriation rather than assimilation. And just to give you an early background, and one of the first strategies tried by the Mohegan people, the first strategy was military alliance. So the groups that we know today as the Mohegins and the Pequots came from the same Algonquian group. They split with them over political disagreements, in part just about political power and land, but also about whether the strategy of allying with the English was one that was useful. And because of that, and the Pequots at the time were the most powerful tribe in this area, and in particular they had somewhat of a monopoly on Wampum trade from Long Island, which was a key currency used by the English because it gave them access to the fur trade. And so when the English began a war against the Pequots, the Mohegins and the Narragansets allied with them in part for their own reasons. But even then the Mohegins and the tribal allies were uncomfortable about the brutality of the English activities. They told them that their way of fighting was too pure, it killed too many men, but it continued. And the war ended with what I've shown in this picture here that the English and their Indian allies surrounded the Pequot fort at Mystic and burnt it and killed those trying to flee. And between 300 and 700 Pequots were killed then. Those that survived often the English simply killed the men. Other men, they sold into slavery far away, perhaps in the Caribbean. In fact, and this gets to the labor part of the acknowledgement, they sold the Pequot men far away because they didn't want them to be there to fight with the English. And they traded them for black slaves who didn't have those kinship ties and so couldn't as easily run away or form alliances. Pequot women who they saw as less dangerous, they sold into slavery or indentured servitude around New England. So this is an early tradition of slavery in this area. As a result of that military alliance, Uncus, the sachim of the Pequot, of the Mohegins, was granted a great degree of land. But immediately there was encroachment on that land and immediately and later the English would twist even the meaning of that military alliance to say that because the Mohegins and the Pequots had once been one people, in defeating the Pequots, the English had conquered the Mohegins as well. So this is just an example of how the words can be twisted. And over the next century, the Mohegan leaders tried everything to hold on to their lands. A lot of these early deeds, well a lot of these early deeds look like the Mohegan leaders, Uncus, later Oneko, are simply giving away all those lands to the English. But even the English didn't treat those land claims as lost to the Mohegins. And I think what historians generally believe was that this was an early attempt to create a trust. To say, if we give you certain rights in these lands, then you have to acknowledge our Mohegan right to the land and protect it on our behalf. And this becomes particularly clear when Major John Mason, long time ally of the Mohegins, the year before his death, donates back or entails back 20,000 acres of land to the Mohegins that the Mohegins had previously created deed to him. And so I've shown here one, I mean, hold off. But so after John Mason dies, and after Uncus dies, the encroachment on Mohegan land gets even worse. Formerly there was at least the pretense of deeds, but now the Connecticut government just starts granting Mohegan to different Connecticut towns like New London, Norwich, without even getting Mohegan consent. And so the Mohegins are going to plant their lands because as we know, the New England Indian peoples were accomplished farmers, another form of currency used by the English in the New World was Indian corn. And English are coming and breaking down their fences and driving them off the land. And so what I've shown here is a 1703 petition to the colonial government that is complaining about this saying, Hey, this is our land that has been promised to us that you promise we would always have a sufficiency of land and we are being beaten off of it. And when we protest, the English tell us that if we come back again, they will kill us and scalp us and make money by selling our scouts. Another thing I want to point out about this document, which is true of all the documents that I'm going to show you. Instead, if you look at the signature line for the Mohegan signatures in the middle, and you probably can't see this from here, you will see like small drawings, marks. And these were the marks that the Mohegan people use to refer to themselves, rather than signing their name because they could not write. So any deed that you see here, as complicated as it is for us to read through this script, it would have been impossible for the Mohegan signers to read, which leads to a lot of what one tribal leader does not in New York called pen and ink with craft. We think we are signing one thing and instead the English transform it into something completely different. So after these repeated appeals to the colonial leaders. Oh, and Niko, the Mohegan Sachin who replaced uncus and assisted by Samuel Mason. Appeals to the centralized government. Just as today, and just as in the 1830s in the Cherokee cases. At tribal nations appeal to the federal government to say protect us from these violations of law by your people by your state governments today. And so the advocate for on a go goes to London to file an appeal with the British Privy Council. He publishes a letter from a one a go regarding their situation. And if you can read any of this, you will see that on a go is presenting this as a statement of a sovereign speaking to another sovereign with whom he is an alliance. Referring to their soil and royalties of our dominion long before the English came to this country. And raising the broken promises. The Queen Anne agrees to send a Royal Commission. The Royal Commission investigates the issue and rules unanimously in favor of the Mohegan's. And say that promises that have been made promises have been broken. They are a considerable tribe of people and they've been wrongfully dispossessed. Connecticut didn't even bother to show up for the commission. They said, the tribes within these borders are just our fair. And so those of you that are familiar with 20th century and 19th century Indian law, this is a claim that states continually make that almost led to the collapse of the government after the Cherokee cases in 1830s. But so here in this Mohegan case, Connecticut is making it very early. When the cases aside against them, they appeal. The Royal Commission agrees that they can appeal and have a new Royal Commission, but then nothing happens. And although they've initially said that the Mohegan's cost should be paid for this appeal, they take that back. So the Mohegan's impoverished from the loss of their land are trying to press this case. And Connecticut's not interested in pressing this case. And England's not giving them much help. Finally, Oh, and they go. So don't want to go. No, not a moment goes to England to seek the appeal in the 1730s. He succeeds, but he dies of smallpox there. A new commission is appointed, dominated by Rhode Islanders, I may say, who I think everybody believes was kind of biased in favor of Connecticut. They rule in favor of Connecticut this time. But then that judgment is reversed because it's found set aside as very irregular. Yet another commission. This is much more divided. And this commission to says that the Mohegan's are a people whose claims can be heard by the centralized government. But they find for the Connecticut based on those same kind of confusing deeds that I spoke to you about. And the Mohegan's are still pressing the appeal until it's finally, finally dismissed in 1773. This is the time that England is starting to lose its control over the colonies. So, shortly after that, we've got a new nation and a new set of law violations. But this time, we don't have that government fully outside of the colonies to try to be a neutral arbiter. So, in its early days, the United States said, try the same thing that Connecticut been trying. Okay, all you indigenous peoples, you are a conquered nation, so you don't have any rights anymore. And quickly that real, they realize that that was a really bad thing for them and took it back. They even said, you know, we were wrong. Sorry about that. We're going to recognize tribes. But they didn't recognize the tribes of New England, except for those that were large enough still to be able to be a significant military force against them. Early days, in the first Congress, they enact the 1790 Trade and Intercourse Act, and one provision of the Intercourse Act is what I've got up here, which prohibits any sale of land by the Indians or any nation or tribe of Indians within the United States to any persons to any state. Without a public treaty held under the authority of the United States. So that would suggest that no more lands can come from tribes like the Mohicans. It's not practiced that way. They leave most of the New England tribes subject solely to state guardianship. And even for tribes like the Iroquois tribes of New York who have treaties, who are of a substantial size, the states are violating that law. They're going and claiming bunches of Iroquois land, treaty lands. And when the government in Washington says, hey, that violates the law, states like New York are saying, come and make me. So even for the Iroquois, this law is essentially a dead letter. For the Mohicans, it's even more so. And so by this point, the 20,000 acres plus more that had been guaranteed into the Mohicans is much, much less. Probably a few thousand. At some point of 1700s, it was 4,000 and it kept going down. And so what's happening with the people at the time? What's happening in particular with men and women? And one of the realities of the life of New England tribes was that the men very often were not on tribal lands. Many had been killed in early wars, had been sold into slavery as those Pequots had. They'd also been conscripted to fight in the American Revolution. And even when they survived, they often had to leave tribal lands for work. So in a government society, men and women worked in different places. The women were responsible for the planting, for the growing primarily, while the men tended to be responsible for hunting. But in this period, men like the Mohegan men whose 1703 petition I showed you began to be told, if we catch you in your hunting grounds, we're going to think you're an enemy and we're going to stop you. They say, just stay on your planting grounds if you don't want to get killed. And so that role of hunting and that way to make money for your family, to support your family by hunting, that was often taken away from men. So they had to leave the lands in order to support themselves and their families. One of the significant ways that Native Peoples in New England support themselves was by joining whaling ships. Between the whaling was a very significant industry in New England. And it was a place where Indigenous people could really play a significant role. So this is Amos, I believe his name is Hoskins, who was in the 1830s, I believe became the first Indigenous captain of a whaling ship. This is Samuel Mingo's a bit later, the 1860s, with his wife. And if you look at the pictures particularly of Samuel Mingo, you'll see something that refers to what Tayuno said, which is that often Indigenous peoples at this time in New England were marrying with and incorporating free blacks and also runaway blacks. In part because many men had been killed, in part because the remaining tribal lands were a place of relative freedom and relative equality for free blacks in New England society. And so if you look at early records of this time, they often refer to Indians and mulattos or just mulattos. And if you look into the histories of the people that they are referring to, by mulatto they don't mean as we often imagine today white and black, they mean Indigenous and black. And so these are Indigenous communities strengthened by African American members that blend together. So what about the women? I've told you that women played a key role here, but you don't see it very much in the records. And this is because the records were drafted by English, who did not look at women as having political power or property rights. So I've told you women were responsible for farming, land passed matrilineally. And I see that Amy DeNudin, who has done wonderful ethno history on the Wohiggins and New England Indians is on this call. So she knows more about this than I do. So I'd love to hear her talks. And so a lot of this is drawn from her book, Beyond Dispossession, on the Indians of Connecticut. But the English thought that only men mattered. So when they counted tribal populations, so Taino would refer to those censuses. So these censuses, this counting, how many Indians are there is starting very early on. And in those censuses, they often only count men. They might say, oh, there's a bunch more women. There's 33 men and there's a lot more women, but they don't even bother to count. Because men is who they thought of as having political power and particularly military power. And if there were too few men, they said the tribe no longer existed. There are a number of women leaders among the indigenous New England people. But they're often referred to only as squash HM, which the English understood as simply being somebody's wife, not having political power or authority in themselves. And some of these people referred to as squash HM, turns out actually weren't even married to the leader they're talking about. That they had independent authority. Maybe they were a daughter with connections to a related tribe or so on. And this may be one example of it. So this is a document that I have not managed to decipher this crazy script yet. But it was signed by Angus or Pocan, the important Mohegan leader of the 17th century. And by his squash HM. And again, you're seeing these, they're not just X marks. They are a mark through which these people are defining themselves specifically. And they are differently different. So why would just a wife be signing at this deed under English law? Wives didn't have rights in their husband's property. In fact, even in their own property, once they got married, husbands got full property rights, could control it and sign it away without the wife's consent. And so this dual signing to me suggests that this is the Mohegan's recognizing the authority of women over the land, even when the English are going to dismiss it as he's just bringing his wife along. And so women are staying on the land. They're often keeping the records of the land. They're often participating in petitions for the land. And this brings us to another group of women, missionary women. So if you studied Indian law, you know the importance of Christianization efforts. And New England was a center of this effort to train missionaries to go to indigenous peoples and make them be Christian. So Connecticut, where I am, was the center of the American Board of Missionaries. Schools like Harvard and Dartmouth originally founded to train missionaries to the Indians. And in fact, there's a very famous indigenous missionary, Mohegan missionary, Samson Occam of the 18th century, that worked to promote recognition of indigenous rights as well, but mostly off the reservation, off of tribal lands along this pattern that I'm talking about. For American women at this time, women didn't have much authority. They weren't middle class, upper middle class women did not work. And missionary work became a way to play a significant role to have power in this kind of constricted world that they're in. And I think that this, that Sarah Huntington, who is a significant person in the building of the Congressional Church, is part of that. She lives in Connecticut, goes to work with the Mohegans, sees herself as providing an important role in enhancing the government of these untutored, untamed beings. How much we might do by devoting an hour every day to some employment for them. We have not money, but we have time and strengths and the talent which God has seen fit to bestow upon us for which we must account. So she's seeing the Mohegan people as wholly in need of help, as not powerful in themselves, somebody that even a woman could help. And so she's teaching them and she starts raising funds and petitioning to build the Congregational Church. Soon after the church was built, she marries another missionary and on the way to a mission trip in Syria dies in a shipwreck. But so that's her perspective on what's going on. This is all part of the assimilation and Christianization mission. But, and we don't have as good records of what is going on from the Mohegan perspective. What we do have though is this deed for the church. And this was a deed that my student Chloe Sherpa originally got. So you can go out, you students to land records that are public records and get these amazing things. And so it's Lucy Tacombas and Cynthia Hascott, her daughter in exchange for just $1 are releasing their title to the small piece of land. It's less than half an acre to build a church. But the key thing is this legal strategy. They assign it to the Mohegan tribe forever. So they're not trying to give it to some missionary, some non Indian group anymore. And placing this restriction on sale of it so that neither we the setting of grant grantors nor airs nor any other persons have claimed challenge or demand any estate. Right title interest of or into the presence premises of any part they're off so they can't be sold. Whether this is a is legal. It was a matter of undue restraints on alienation. I don't know, but it was respected. And so this land didn't get sold. And again, we're seeing that they're signing with X marks. So they're not able to write these words, but here they're using words that become powerful for them. The church in the next century and a half becomes a center for Mohegan traditional and political life, but it's undercover of assimilation. It's undercover of this women's work, which the Connecticuters don't look as threatening. So in 1860. This becomes a place where what they're calling the with one festival or the welcome festival starts again. It starts by the Mohegan sewing society. Sounds like the most innocent sweet lady thing. But in fact, this is a resurgence of the green corn festival, a key festival for the Mohegan and other people in the area. And so the Mohegan sewing society or the ladies so in church women's sewing society becomes a place of leadership for these women. Emma Fielding Baker who resurrected the wigwam festival and preserve tribal records. Gladys Tantkujen, who was vice president of the sewing society who in the 1900s became an anthropologist founded a museum built near the church in 1930. Preserved tribal records genealogies. And so this becomes key. Once the tribe is beginning to petition for recognition. So, in the. So, in 1978, the federal government creates a formal recognition process for groups that didn't have treaties that been treated as if they didn't have sovereign status. They can petition to the Bureau of Indian Affairs to seek formal recognition of their status. And to do this though they have to show they've existed as a distinct community from historical times of the presence and they maintain political influence or authority over its members from historical times of the present. Now it's a B and C are only from 1934. But you can see how incredibly difficult this would be in the face of those records that are written by non Indians. And I'm going to skip you because I think I'm getting short on time, but the petition was initially denied in 1989. But was on reconsideration was knowledge in 1994 and the work of women. The informal female leadership and the community activity on the grounds of the Mohegan Congressional Church was central to that final recognition finding. And that led immediately that year. The Mohegan tribe was able to enter into a settlement recognizing their land. It's still a bit of a sad story from that 20,000 acres or even that 5000 acres that the tribe had in the 1700s. The current reservation trust lands I believe is less than 500 acres. And the tribe had to give up all other claims, but at least they finally have some land that is permanently theirs. And with that, I'm just going to turn it over to questions. Thank you so much that presentation was, I mean, just beyond. So, if anybody has questions again please feel free to use the hand raised feature if you'd like to unmute and ask, or feel free to just pop them in the chat and I can read them out loud. I did receive a question during so I guess I'll start there. This question was pretty general. But as we as an audience continue our research and continue to educate ourselves on this topic. Do you have tips or suggestions on how to ensure that our research does not continue to ignore or overlook the works of women in various tribes. Yeah. And so, fortunately there are a lot of scholars that are going to enable you to take a second look at these documents and seeing what see what's going on. I mean, for me, I was turned on to this topic because I take my Indian law class to Gladys, which is museum and her descendants will give us this great intensive tour of both the museum and the church. And so I learned about this from, you know, talking to tribal people. And I think, you know, just as Taino mentioned talking, you know, his grandmother's learning from his grandmother's family work. The role of women is preserved in the oral tradition of indigenous peoples here. So the more you can be led in your work by the indigenous peoples of New England, I think the more you will see where you have to poke harder to not just take the written record and assume that that's accurate. Okay, great. Thank you. Let's, I'm sorry my chat just disappeared. Okay, here's another one. So I think you might have just answered this question in your answer to the first question about your class that you teach but this question refers to how did you personally get involved in federal Indian law and was it what you anticipated when you started your legal career. And I love this question, because it, I think it's helpful for law students to think about the wonderful accidents that can happen in law school. So I started law school, thinking that I would do international even rights law. And I actually was committed to women's issues from the beginning I spent my first summer in Thailand working on sex work and human rights. But I felt frustrated by that part because when you're in law school. You know I fell in love with case law, you get these great stories, and then the use of case lock you know how to use it you can put it together and say hey this is the law so do what I say. And international law often doesn't have that feeling like I can use this to get a clear result. In addition, I felt that some of the work I was doing with groups far away the cultural difference was significant enough that I worried about doing more harm about not understanding what the needs were. And so my second summer I went to work for the Attorney General's Office of the Shina Versu tribe. And fell in love with both with the questions of overlapping sovereignty that Indian law and international law have, but also with the importance of history help. And I came back and I wrote my big student paper on Indian women in legal history between 1830 and 1934 so this is kind of all back to this paper is a bit back to my origins for me. And yeah then went out to Navajo and Hopi when I graduate. So happy accidents in law school. No that's great I think, I think anyone who is a legal scholar might understand those happy accidents so thank you. We just have one more question in the chat so if anybody has questions that they want to raise their hand we do have some time set aside but this question goes back to the role or the I guess, in respecting women and their role in property and I guess, do you know or just does anyone have information on whether that respect for women and their ownership of property has continued, or had been in the past and that was like unsurprising. Or was that something that was completely new and and more of a more of a stand up for those women. So, I don't know. I think that they're, you know, what scars like Amy then you have done great work there's been. I've seen less work on the weekends in the late 1700s and 1800s. And so I really like to see more kind of anthropological work on that. My sense, though, from talking to people now, like, Melissa 10th which is so well or so well 10th question. I is that that's been a continuing but hidden process. I mean, so I would love to know and I hope before, you know, and doing this paper I can find more answer. How did Lucy and her daughter Cynthia come to be the owners of this land that had the ability to grant it in perpetuity to the Mohegan tribe. I was, did people like us even have authority to grant these deeds without the agreement of Mohegan women. So these are somewhat open questions for me but my sense is that it's, it's been a continuing current. Great. Thank you. And so this question, how does the Eastern. Pecoy tribal nation gain full access to furthering this conversation as it speaks to the land claims and established dialogue between all non federal recognized tribes in the state of Connecticut. Yeah. So I think maybe the questioner may have some ideas about that. So the in Connecticut, the only federally recognized tribes are the Mohegan's and the Mashantucket Pequots. And the Eastern Pequots and the Scott Cook suffered from a really terrible history that had actually gained a proposed finding of federal acknowledgement through this BIA process. And then administrations changed from I believe the Clinton to the Bush administration and the, there was a lot of political pressure from Connecticut politicians both Democratic and non and Republican against their recognition and that finding was reversed. And since that initial reversal, there has been a, the regs have changed to make the process somewhat easier only require you show continuity since 1934, but tribes that had already petitioned were prohibited from restarting that process. So, I don't have ideas that I think that would work for federal recognition. You know, maybe go into Congress but that's a real uphill battle there as you can see. One of the things of the story is the creativity of tribal peoples and trying different methods. And I think the questioner suggested possibility in building more political connections across non recognized tribes in developing land ownership finding creative legal means to get some kind of authority outside the federal recognition process so I don't have an easy answer to that. It doesn't seem like there should be an easy answer but we do have two more questions and that's just about what we have time for. And so this next one. What was the most difficult aspect you found of researching the paper genocides against New England's native communities. And so, and I'm relatively at the beginning of this but one difficulty is just reading that handwriting. So for, you know, I could read the deed basically but to transcribe it I asked my secretary to and I don't usually ask her to very much and she came back and said, Here it is. This was hard. And it's really hard. But another thing is how little the written record actually shows how live how inaccurate it really is. I mean so as I said I think that historians pretty much agree that those deeds from the 1600s do not mean and did not mean to the Mohegan's what we what they look like they mean they were written by non Indians for non Indian purposes. And I think folks are developing better anthropological techniques to look at the land, you know how the land is used what remains to get behind that. But I'm not anthropologist so I'm blowing a lot and other people's work. That's great thank you. And so the last question here. Is there any hope that a change is possible in the federal recognition process would allow historic tribes to be recognized where there was a break in continuity in one place at one time. Yeah, I mean I think that the Mohegan story actually is one of overcoming a break in continuity. So, part of the reason for that initial that proposed initial finding of non recognition was that the they said there was a break between 1941 and 66. And then they went back and develop the records particularly the records of the women's sewing society and also said, you know why we didn't have a lot of male leadership at this time. What time was it in the 1940s it was World War two. And so there are ways to fill in those breaks and explain them. Sadly, how that political reasons rather than anthropological or historical reasons. Okay, great. So, we're about at time but is there a way that our audience could reach you if they have follow up questions or possibly stay in touch after the symposium or and I welcome emails after this and like I will put my email in the chat. Okay, great. Thank you so much. Thank you so much. Okay, so now it's about 1115. We're going to take a quick break. Our next speaker will be Professor Diamond. That will start promptly at 1130 am Eastern Standard Time. So if you could either log out and log back in or just stay on the line, which is going to take a very quick break. Thank you. Okay, as we are getting close to 1130. I just want to welcome everyone back. If you stayed. Thank you. If you have just joined us. I'm just going to go over a couple of things that I know I've said a few times already but if you could just remain muted please. So, I'm going to show you how we have our speakers doing their presentations just so that they're the one in speaker view that would be great. During our question and answer period at the end of every speaker. I'll give you the option of using the hand raised function or direct messaging me your questions. I'm not loud but you're more than welcome to use the hand raised function and ask the questions yourself. Just so that everyone is aware our previous two speakers Taino Palermo and Bethany Berger have shared their email addresses in the chat so if you come up with follow up questions or would like to stay in touch with them and their research. I'm more than welcome to email them directly. I mean if you do have any questions or thoughts about the symposium during or after my email is also in the chat and you're more than welcome to reach out to me. And finally I do recommend that as you're watching the symposium, you view this in speaker view. So the speaker is the largest one on your screen. Okay, so it is now 1130. Welcome back. Our next speaker will be Professor diamond. Professor diamond is a professor at the Roger Williams University School of Law. He currently teaches federal Indian law tribal courts and law and government, among other courses periodically. Professor diamond is certified by the National Board of trial advocacy as a criminal trial specialist with extensive criminal trial experience. He has a profound background in indigenous peoples law and education of the topic. Professor diamond has been instrumental in assisting the Roger Williams University law review and myself in hosting this symposium, and I am pleased to introduce him as our third speaker. While he presents an uncomfortable truth law as a weapon of oppression of indigenous people of southern New England. And I like Professor diamond to further introduce himself. So take it away and feel free to shares. Everybody hear me now. Okay, that's better the old. Sorry, I muted thing. Let me just share my screen. I'm so honored to be here pleased to be here. Thank you all for for coming. And, you know, it's so far. This has been amazing. Thank you, Hannah for that introduction. And Hannah, thank you for everything that you've done to bring this symposium to to light and to and to become a reality. And it's what's so interesting about this is that this symposium in fact everything. All indigenous studies going on at at Roger Williams University Law School, the activities, the studies, the scholarship have all been originated from the students. I'm so proud to see that I'm so proud to have my students participating. It makes me so proud to see one of my students presenting groundbreaking scholarship here and to take learning from from law school classes, and take it another step further and then, you know, use a creative process. To try to solve this problem of intractable problem of erasure and and and, you know, and dehumanization subjugation and try to try to try to solve that in a creative, thoughtful legal way. The speakers here today so far to you know, and Professor Berger at Yukon just inspiring and and fantastic research and presentation and and so it's all honored for me to share this state virtual stage with them. Along with speakers you'll be hearing from a little later, like Professor Matthew Fletcher, who has been an inspiration to me. When he visited at University of Arizona Law School, he taught tribal courts class that I teach now at at Roger Williams and he's been an inspiration and a friend, so thrilled to be to share the stage with him, along with Bethany Sullivan, who was a colleague of mine at Arizona as well will be both taught clinics and her and Jen Turner will be talking about car cherry versus Salazar, and so happy to share the stage with them, and also my student to Hawks, who gave us a an Algonquin welcome and and prayer and prayer. So, my topic today is in fact the uncomfortable truth of law as a weapon of oppression of the indigenous peoples of Southern New England. And my inspiration for my talk came from what's going on in in Providence, where Mayor Jorge Alorza commissioned a study, a matter of truth struggle for African heritage and indigenous people, people's equal rights. In Providence, Rhode Island. And so my article talks about indigenous peoples and and law and across the United States, people's across the United States, with more of a focus on the Northeast, and the greatest focus of my article being on here right here in Southern New England, as you heard from Professor Berger, Connecticut, but also Rhode Island, and Massachusetts as well. Much of what I have to say focuses on on the rest of the country as as well. What I'm going to talk about this morning is mostly about, you know, one at one. I wrote about which we talked which we heard from Professor Berger a little bit about, but the history of the philosophical basis for Indian law. I'm going to talk about mostly this morning where's my article for the journal that's that's that we're publishing will also talk about the modern era and how law continues to be used to oppress indigenous peoples of New England, like tribal process and use of quote unquote blood quantum. And along with the recognition process but also my article talks about how states continue to states in New England continue to battle indigenous people and every at every step, whether it's recognition, or the efforts to that land was taken away from them illegally in the early era of non intervention statutes, etc, but continues continues on and so it's the it's the premise of my talk and article that law in fact is is a weapon of oppression. And that it all started in what sounds like very very old history, but it continues to influence the law in fact be the law today. So in fact when the, when the settlers did land in in Plymouth in what's now Massachusetts in 1620. They, they were engaged in a period of military battles and wars which Professor Berger referred to also for about a 50 year period. But following in southern New England, about 1675. The southern New England colonies changed strategies and implemented the primary new weapon which was not warfare and that was law. That was law. The law used to maintain control to oppress and to subjugate them. And what the, what the, the uncomfortable truth is that not only is it uncomfortable that that is law and legal processes, legislation, a judicial decisions, treaties, violation, not only is it that it's law itself that is implemented to subjugate the indigenous peoples of New England, but that it is done and was done and has been done from a position of racial superiority belief of racial superiority. And this, this, this is this is uncomfortable it's uncomfortable for lawyers to talk about to learn about to recognize. And this oppression of legal processes to oppress and continue to oppress has never been acknowledged by states, never been acknowledged by courts by state state legislatures, never recognized by the organized bar. Nor has it ever been an attempt in New England to remedy it. And so it's my position in the article that what we've created is a New England exception to any law that progress is is being made slight progress elsewhere, but not in southern New England. This belief that the indigenous people were racially inferior, right, is at the heart of conquest of the conquest. And that they considered themselves that the, that the settler the Puritan settlers of New England considered themselves superior. You know, so did the, the other Christian European settlers from Spain and Portugal, Holland and Great Britain. My position that the colonization of New England and North America can only be properly viewed and understood as a continuation of the Catholic Church sponsored crusades to the Holy lands and the Middle East from the 11th through 13th centuries. The crusades were a broad based campaign by the Catholic Church and Christian European military leaders to implement the papacy's theoretical universal authority over non Christian people beyond Europe. And it was the crusades that generated legal doctrine that justified to them legal conquest of non Christians. And so, I know this may seem like, you know, we're, we're dwelling on ancient history, but it's not ancient history, and it influenced the law of Indian law of today, and continues to be the law of the land. So let's talk about where this church based doctrine of superiority and a racial inferiority of indigenous people came from among the leading church scholars who developed. The canon doctrine was Pope Innocent the fourth and innocent was before he took on that papal name. He was a canon lawyer, he was a lawyer. Okay. He was a lawyer named Cinebaldo Fieschi. And as a as a lawyer and philosopher legal philosopher. It was one of the most influential figures in development of Christian infidel relations as it was, it was called, maybe comes pope. 1243. And as Pope Innocent wrote that the that Pope's had the authority to conquer infidels. In fact, they had the duty to conquer and punish infidels, wherever they found them. And, and so he asks the question here. He asks the question. Is it listed, is it permissible to invade a land that infidels possess that belongs to them. He says, yes, you know, Pope has jurisdiction overall men. And he says that the Pope has the power. And he to lawfully punish the infidel he says and he quotes, you know, Old Testament Bible quotes and compares it to to God punishing inhabitants of Sodom who sinned against the laws of nature. And as God's judgment is an example to us, I don't see why the Pope, who is the vicar of Christ can't do the same. In fact, he ought to punish the infidels, as long as he has the ability to. So innocent, you know, influences the crusades, which then continue and not after not many years after the medieval crusades, which were brutal right in killing non Christians, right. There are others like Columbus and John Cabot and the Verrazano of Italy and and block of of Holland and and Hudson of Great Britain. So they embark on lengthy and difficult missions of exploration short, but they do so with royal charters from European Kings and Queens. And so what we get is a coordinated campaign, a coordinated campaign between the church, European governments, their military leaders, and the explorers. Well, now the, the Kings also viewed the indigenous people as inferior. And here's their observations, this is one, Duarte King of Portugal, who was giving his view of the inhabitants of the Canary Islands in 1436 he says look, they're not unified by a common religion they don't follow law. They, they, they live in the country, like animals, he says, no contact with each other, no writings, they don't have money, they're not, they're not so they're insophisticated unsophisticated. No houses, no clothing except palm leaves. They run through the woods barefoot and naked hidden in the caves and this was, you know, continuing this view of the indigenous peoples as as inferior. So the church gives the, the explorers papal direction to conquer non Christians, and then sees their villages. Okay, you find non Christians sees their villages. And here is another example of this papal directive to find the infidels in your exploration and and sees their villages so says Pope Alexander in 1493, moving along a little and in history by the authority of God conferred upon us and the vicar ship of Jesus Christ. I tell you when you, your envoys your captains. I assigned to you the lands you find, you know, all of the millions in their cities their camps their villages sees them. And so that's where this this this church campaign of conquest comes from so that you know the explorers then take it a step further, and we get to the colonial era. The belief of India inferiority was directed by the church and followed by the military leaders into the European colonies here in New England and then and then beyond. Well, in the first few years. It was relative peace, but it didn't last for long. I say there were in southern New England, approximately about 50 years of warfare. The, the Pequot war that Professor burger talked about from 1637 to 1638, and the King Phillips war from 1665 to 1676 with brutal massacres like Professor burger talked about it mystic, but also the great swamp massacre here in Rhode Island in 1675. Well, those wars did really decimate the indigenous peoples of New England. And many of the survivors were in fact enslaved warfare continues in in the northern part of New England, further into the next century, like the wars with the Wabanaki Confederacy, now well into the 18th century. And it's important to note that the warfare was not the only significant cause of death in in New England, but in fact it was also epidemic of infectious diseases which is interesting from a historical point of view and what we're going through today. But the, the seamless transition from military weaponry to erase and dehumanize the American Indian to a reliance on law and legal processes is summed up by none other than General George Washington. And Washington in 1783 recognizes that, you know, in questions. Why should we continue to be fighting these wars with the Indians it's expensive when we could purchase their land, much more inexpensively. And here's what he writes, and what is what is so troubling is that, and revealing is that this colonial era of political belief from Washington the preeminent colonial military leader of the Indians he compares them to the wolves. You know he says, look, we could keep chasing them, you know into the forest. It's like driving the wild beasts into the forest but they're just going to come back. When the gradual extension of our settlements will certainly cause the savage as the wolf to retire. Here's the, here's the offensive, most offensive language, both being beasts of prey, though they differ in in in shape. He says, and so, whereas the military warfare, you know, ends in southern New England. And in about 1680 or so, the shift is then to legal institutions and colonial, and then subsequently us law continued this philosophy of the European theocracy, and the church continued from the from the popes, the church to the, to the monarchs, to the explorers to the to the to the colonists, and to the settlers, as, as, as, as an inferior people. Now, the policy of law in southern New England had many common attributes, well inconsistent. It was in fact a policy to diminish them to feed them but assimilate when that couldn't be done, but to make them invisible. It's been as I talked about separate them in New England into what was called praying towns in Massachusetts plantations in Rhode Island, or reservations. Well, the policies were in fact implemented to either eliminate them to deny their existence, or make them invisible. And this was wholly consistent with the theme I I believe that colonization is just a continuous continuation of church sponsored subjugation, and to either eliminate them, or to convert them to Christianity. But we see in colonial legislation. Many examples of continuing to treat the Indians as inferior. Let me just stop my slide for just a second. Yeah, the, the laws in southern New England treated them as as wholly inferior and now it's, it's overly simplistic for me to describe these without going into a much more complicated explanation of the relationship between the indigenous people and the settlers and what was going on and law, but let me just give you some examples of legislation that was enacted laws that were passed in the colonies, dealing with the indigenous people here in southern New England Well here in Rhode Island. The law was used to make it difficult for them to survive, because it restricted their ability to hunt, banning them from taking deer native culture was banned in Rhode Island. In 1729 native dance was banned referred to as disorderly dances, the position of tribal station was banned in 1729 in Rhode Island. Rhode Island made it illegal for for Indians to be out in public at night. It made it one statute, ordered all the resident the Indians of Portsmouth to leave Portsmouth and live in the woods. The lands of the Narragansett by statute were ordered to be seized. One Rhode Island statute declared the Indians a menace to Providence. In Massachusetts, statutes restricted the sale of boats or horses to Indians making it difficult for them to to exist. Native culture in Massachusetts also banned powwows ban in Massachusetts in 1633 1675 Indians walking around freely could be captured or killed bounty on their head. In Massachusetts, Indians couldn't move about freely in 1675 Indians weren't permitted in Boston. And non Indians were not allowed to socialize with them in Connecticut, the policies of separation and domination took a slightly different approach. In 1550 the general court enacted legislation that prohibited Indians from living with non Indians. What the court did was appoint what was called overseers of the Indians in Connecticut, which was euphemistically said would counsel and advise them, but it turned out to be a little different. The role of the overseer expanded and overseer was appointed to each tribe in in Connecticut to mandate that the affairs of Connecticut Indians were managed properly. I think I do have a slide with some of these overseers. Let's see. No, hold on, let's go back here we go. Yeah. The overseers were overseers like, like attorney, Connecticut lawyer William Williams, who was a signer of the Declaration of Independence, but most of the overseers showed very little interest in tribal matters. Others of them were corrupt and profiteer made profit from their overseeing like one William Morgan. That's a fire Morgan claiming he wasn't suitable to manage their affairs. The legislature then passed a statute state statute called the act for the preservation of Indians. Also, a misnomer, because that legislation made it possible for the elimination of much of the machine talk at Piqua reservation. Other overseers divided up Piqua lands, reserving just 180 acres for the Piquas. Let's turn our attentions to how the courts have used law as a weapon of oppression but also how what I was talking about earlier as the church based imposed notion of Indian inferiority continues into US law and in fact is the basis for for US law. So in fact, I maintain that there's a direct line of a philosophical belief and an underpinning of from the popes to the kings to the to the explorers to the to the college to the US Supreme Court to the US Supreme Court, and that the US Supreme Court was explicit about its belief that the Indians were inferior and of European superiority as the European as the as the legal justification for diminishment of Indian rights and so the next case the case I'm going to talk about is very famous. But we get the, let me just give this a full, full slide share here hold on. I'm sorry, struggling with the slides a little bit. Okay, it's okay. In 1823 Justice Marshall, the Chief Justice of the United States Supreme Court invents something called the doctrine of discovery which is, which is very well known. And he says, you know that due to the precedents of established by the explorers and quote unquote discovery of North America, and then conquest that that property title belongs to the nation which quote unquote discovers the new land. And as a result of this principle is the diminishment of natives ability to dispose of the lands subject to the natives could live on it but could not transfer it, but the language of the decision makes it clear that we're still operating on a basis of racial inferiority. And a superiority of the colonizer on the discovery of this immense continent, the great nations of Europe so eager to appropriate to themselves as much as they could acquire. And, but look, look at the next sentences, which are sometimes glossed over the character and the religion of the inhabitants, indigenous people afford an apology for considering is that a people, the superior genius of Europe can claim ascendancy claim superiority. Look, he's referring to the character and religion of the inhabitants. He's there for they are referred to as in fact as inferior doctrine of discovery is then imported to Canada and Australia, New Zealand continue this this case continues to be cited by the US Supreme Court all of the time it's the basis for federal in the law with several other cases the charity versus Georgia, Worcester versus Georgia those martial model in the law. The doctrine of discovery and the immense power of Johnson versus Macintosh. Let's go away again into a court case of Beecher versus whether be in the by the Supreme Court. And here again, they talk about, you know, it's presumed that the United States would be governed by such considerations of justice as would control a Christian people. The treatment of an ignorant and dependent race. This is how the United States is talking about the United States Supreme Court in 1877 50 years later, after Johnson versus Macintosh as a ignorant and dependent race. Clearly, again, continuing the notion and Johnson of European superiority and of the church doctrine as as the duty to to to conquer those who are inferior. And that's 1870 1877. And the doctrine of discovery heavily influences the law in in New England. It is. I did here in Rhode Island in in 1898. In a case called in Ray Narragansett's where the Rhode Island Supreme Court is called upon to answer the question of whether or not the Narragansett tribe still exists or have they been terminated by law. And in a what I think is centuries old tradition here in Rhode Island of trying to say the Narragansett's don't exist. Associate Justice Horatio Rogers of the Rhode Island Supreme Court says, you know, they're not they're not even really Narragansett's they're just a decayed remnant decayed remnant how insulting is this to a sovereign people decayed remnant of the Supreme Court. And we think tribal relations can be and we're in fact terminated by by Rhode Island law, he says, well, in moving back to US Supreme Court. Years later, the Supreme Court says that it is. It's never been questioned that the United States can break treaties with the Indians, never been doubted that we can break treaties with them why. You know, we entered treaties in them. It's because they're Indians right that's why it was never doubted that Congress had the power to break the treaties with the Indians and that's what the law of the land is. Congress has the right to abrogate treaties to break treaties to go back on its word, they said in lone wolf versus Hitchcock and that in fact that too is still the law of the land and after, after that. They went on to abrogate treaties, which were obstacles to continued seizure of land. Well, the, the Supreme Court then continues to, you know, look at indigenous justice. And in 1886, they are extremely dissatisfied with indigenous justice and passed the major crimes act. And then in, in a case called United States versus Kagama, when that when deciding whether US law can supplant indigenous dispute resolution in criminal court. In a case called US versus Kagama, they again refer to the Indians as weak and helpless. And the Supreme Court says in Kagama from their very weakness and helplessness. Due to the course of dealing with the federal government, there arises a duty of protection refers to them again as weak and helpless. So let's let's see where we've been here already this morning. We've got, you know, a church originated notion of superiority view of Indians as inferior. We've talked about the US Supreme Court, saying, you know that there they are in fact inferior to the European genius. We've got conquest we've got military conquest, they're decimated, they are dispersing in Southern New England and New England, going elsewhere that there's very few of them remain, which brings us to the into the. The modern era. And in the modern era, things sometimes change and are changing in other parts of the country, but I maintain that there is this still there's an exception to Indian law in in New England so the national legal policy in the 20th century goes through many swings of the pendulum from periods of well intentioned New Deal era reforms like the Indian reorganization act. Only to see bitter retrenchment in the 1950s with a policy of Indian termination language like you saw from the Rhode Island Supreme Court. The pendulum swings back again. More recent times with a period of what was is referred to as self determination, but but again, the tribes of Southern New England are, for the most part, and the peoples of Southern England, largely unaffected by national trends, unable to break out of the centuries of discrimination, implemented under the color of law, and Professor Berger talked about the recognition process, a little bit. And indeed, it is a steep mountain to climb in New England based on the on the history, the history of erasure of elimination of conquest and and and 400 years of law. Well, those five tribes that have been recognized indeed in in Southern New England, are the Mohegan's and the peak much master talk at Pequots, the Mashby Wampanoag and arrogance it's and the Aquinas Wampanoag in Massachusetts and obviously there are the Wabanaki several tribes of the Wabanaki Confederacy further north. So how are the tribes and indigenous peoples of New England being treated today. Well, gone is the overt racism of in the court language that that you saw in the legislation and in judicial decisions. But the campaign to erase and eliminate them continues in a much more subtle way. And I'll just briefly touch on this, but indeed the recognition process. This fact makes it nearly impossible for indigenous peoples, if there has been a break in continuity. The recognition process does not allow tribes that historically existed to to to come back together. And I think they have not continually existed in one place and one time, one people one place since before since European contact, which is extremely hard to do. Membership law which defines who is an Indian, and this notion of measuring Indian blood, which is demeaning insulting and really designed to negate and divide indigenous people also makes it exceptionally difficult to be so you have to be, you have to be a member and defined as a member of a recognized tribe makes it difficult. I also think that the states of Southern New England, like many states have continued to litigate against the indigenous people. And, and for example, when the native nations in New England sued to say that, you know, the, the seizure of their lands was a violation in the colonial era of the non intervention act. And it's all fought them, rather than to enter into a thoughtful process and dialogue about Aboriginal land they just fought to defeat them in court. What ended up happening was in the Northeast and in New England was this the enactment of the settlement acts, which brought state jurisdiction and state power into Indian country, rather than limiting it like it does in the rest of the country and invited it in it gave judicial jurisdiction to courts to state courts in Indian country, which is the exception, not the rule in the rest of the country, continuing states continuing to go to court to fight the tribes, when they seek to expand economic development. And, but here's the, here's the problem. Here's the problem. So rests on this bedrock of these decisions, like Johnson versus McIntosh, and the other charity cases that are based on notion of racial superiority of the colonizer and inferiority of the indigenous people and that and almost them being not human. This is the bedrock of law. And those cases have not only have never been reversed. They've never been repudiated. They've never been acknowledged as racist. And they are the law and they are cited today as the law. And, you know, I think that that's, that's, that's, you know, so part of this, this problem is in fact, you know, recognizing this uncomfortable truth. Rather than continuing to fight the indigenous people every time they propose economic development or taking back some land, land back as Taino talked about, they continue to, to wage a battle of subtle continued. But what Professor Robert Williams calls, you know, playing to savaging Williams esteemed professor who wrote this book Savage anxieties, you know, so when the Indians sue to, to say their lands were seized illegally in violation of the not immigration act, you know, attorneys general go to court and what they're saying is, you know, these Indians are coming for your land. You're you know, and, and these are scare tactics employed to scare people that you know that the Indians are coming for your land rather than try to find land that could be given back to the tribal nations. You know, try to scare people and impose these, you know, settlement acts that could continue to diminish and the settlement acts did in fact, you know, open up tiny tiny reservations in New England very small land, then they fought again. And you'll see in a great, great talk later this afternoon from from Bethany Sullivan and Jen Turner, we're going to talk about how Rhode Island states fought fought the tribes, you know, from being able to take land into the West, which is, which is the national process for tribes getting land back. It's the New England tribes fighting. Karci Harry, Karci Harry, you know, was the governor of Rhode Island, and fighting the tribes being obstacles to a, you know, reversing reversal of history. Well, we have seen, you know, some positive signs around the country in in the last few years, like for example, when Gus Justice Gorsuch a few years ago decided McGirt versus Oklahoma, Supreme Court said, in fact, a large swath of Oklahoma is in fact Indian that was a big win. And recently, they mills versus Michigan, as Professor Fletcher knows a great deal about recognizing the strength and tribal sovereign immunity, but much more legal doctrine, and the abuses of law as a weapon of legislation needs to be reversed, acknowledged, and apologized for apologized for it. Well, I think that, you know, in, in Maine, they are at least, you know, starting it started a process of truth and reconciliation with how law has been used to indigenous peoples in Maine, and especially children. And that's happening in Rhode Island as well, at least it's begun to happen. I give great credit to Mayor Rosa, and this is a reconciliation, at least a discussion. And that's what we're doing here. That's what we're doing here all day. We, you know, need a process of, of unveiling, recognizing, you know, the hidden truths, and how law has been used to oppress, before we can reverse it, we have to recognize it, and acknowledge it, maybe, maybe apologize for it. But in fact, despite all of this, the indigenous peoples in New England, you know, have persisted, are still here, they have survived, they are not disappearing, you are still here. I mean, we recognize, acknowledge and honor you, and, and, you know, and native culture exists here, and there's, you know, we can only move forward. But the place to, and here's just a picture of some of my friends in, on Martha's Vineyard, who celebrate the indigenous ritual cranberry day on Martha's Vineyard, and the, the Lompinogs on Martha's Vineyard are true survivors, true survivors and but in fact, it's really, it is important for us to, to recognize what the role has been of law. It's important for us to lawyers at every level, federal, state, municipal lawyers. The organized bar, law professors, state legislatures, state attorneys general, town and village lawyers and the courts to acknowledge what has been the role of law to subjugate dehumanize and oppress a people. The first thing we can do is to expose what has been hidden, to talk about it, to reveal it, and maybe, maybe start to make reparations. Only then can we start to heal the deep wounds that have been inflicted by the law. Thank you. Great. Thank you so much, Professor Diamond. We do have a couple of questions. And then we do have some time for some questions. So, the first one, I think really ties into what you were, you were just talking about about reparations and, and that, and that sort of thing. This one says, what do you think can be done to remedy all the harm that the courts and federal government have done to indigenous people. Like what does justice look like to address the oppression. Well, there is no limit to what can be done in law and what has been done by law and the courts to remedy some of these harms. I'll just give you a couple of examples. In the 1970s, the United States Supreme Court said that Indian tribes cannot assert criminal power criminal jurisdiction in their tribal courts. Non-Indians commit crimes in Indian country. No power. Go on to a sovereign nation's land. They have a tribal court. And, and you can't police it. You can't impose regulation over it. You have no jurisdiction over it. And this is, this has, this is harmful and destructive. Native nations always had all nations have power to, to impose their nationhood in, in, in jurisprudence over those who came onto their land, and, and we're a impediment to public safety, public health and safety. Decision all upon person to comish should be reversed. And, and should be reversed. And Indian should be getting Indian tribe should be given jurisdiction over over non Indian offenders. We've seen a little bit of progress a pilot program, which recognizes that Indian tribes are victims of crime and, and largely indigenous women are, are victims of crime by non non Indian men, domestic and sexual violence, and, and, and yet there's there's a, there's a difficulty in prosecuting those cases for lots of reasons that I can go into. And so this we're beginning to give Indian tribes a little bit of authority back to prosecuting those cases to fill a void in, in, in prosecution and some justice for victims that's in, you know, that could occur. I'm reversing. Making it easier for indigenous people to get recognition. You know, and to, and a lot of what you're seeing throughout southern New England is indigenous people saying we're still here, and, and whether we can gain can meet can mount the the obstacles of federal recognition now. You know, we're still here. And so, for example, allowing historic tribes to reconstitute themselves. You know, I think is would be a an important change. Their policies say that they can't reconstitute themselves even if they're historic tribe who can show that they existed at contact. But look at what happened to them through war, through conquest, through, through erasure, disease, etc. Through, you know, legislation dehumanization. You know, and so it's nearly impossible for somebody to get recognition that make the make that make that you know make those make those changes. The state should stop fighting them should look for ways to solve the problems, rather than fight them. I look for parcels of land that may exist that are contiguous with reservations that are held maybe in parkland and assist them in buying the land back, rather than being an obstacle to do that. Can work with non recognized people in in lots of ways in health and welfare and Indian child welfare as well recognize the realities in in New England, and elsewhere. And, and, and, and perhaps recognize the policies of, you know, of erasure as well, erasure as well of not counting them based on blood quantum, etc. That's a couple of ideas. Great, thank you. And the next one is, whether you think that these studies and your research only have a place within the concentration of indigenous law, or to what extent you think it could be integrated into doctrinal curricula, especially in property law. Well, um, that's a, that's a great question I think that discrimination on the basis of race that exists in in jurisprudence. You know, wherever it exists, and whatever people it has been used to subjugate should be exposed and discussed and taught, rather than glossed over and say, you know, rather than glossed over and deny it. It should be, it should be acknowledged and and taught everywhere. You know, and it much of what my research shows in the legislation is that you know many of the statutes that we find in the colonial era referred to to to blacks. And, you know, former slaves, the same in the same sentences and treat the indigenous people and the descendants of slaves in the same way, same exact way and that should be revealed and exposed as well. And taught in in property law and criminal law and family law as well, because it will continue to be denied or not recognized as a problem, unless it's taught to the next generation of lawyers I have great hope in the next generation of lawyers you guys look like like we you know the like Taino and and and Ray and so many other of my students who are here in the room. You, you, you guys, you know, asked for this learning. We have signing up in big numbers for the classes. I'll just give you an example. This week at Roger Williams University Law School. We had registration for next semester. Tribal courts tribal law tribal governments class has never existed here before last year when I taught it class that Professor Fletcher teaches at Michigan State University. The class opened up registration on Monday and filled on Monday with third year students not giving any seats to second year students, it filled up. And so we opened we've opened it up for more students but students are showing up students are are saying they want to learn this they want to talk about it. You know they want it they want to learn and and you know and are organizing not only classes and schools but programs like this and the law review. Hannah and your law review students on law review saying you want to do a symposium on this this has never happened before so I have great faith in the next generation. That learning will occur pedagogy will occur that we can expose the hidden truth in in not just Indian law cases, but in Wilson trusts in family law in an internet in cases of in classes of international law criminal law and beyond. Great thank you. So we do have a couple more questions if you don't mind I know we're a couple minutes over 1230. But this next one says, since Christianity is so entrenched in US society. How can we get a national and meaningful acknowledgement of the Christian responsibility for the destruction of Indian nations and culture. Well, I'm not a Catholic. But you know I think that it's not you know it's not and it's not just the Catholic church. It's not just the Catholic church but I think that there needs to be, you know, recognition. And you know I think I have explored in my research. The power of restorative justice, the power of reconciliation the power of atonement, and, you know, a dialogue, and, and, and, you know, asking for forgiveness, but not just asking for forgiveness, not just making a land acknowledgement, which is all which is all important, which is all important, but a commitment to change a commitment to recognizing the role that you've so the church, you know, you know, sought colonization as a way to defeat the infidel acknowledged that acknowledged that the role that that had in causing death, enslavement, pain, suffering and take responsibility for accountability and responsibility. And so, if we, you know, if, if we have a dialogue, and we can engage with the pope has never apologized for those people bulls and papal doctrines that were used as a campaign of warfare and oppression, the pope has never apologized for it. And, and sought the very atonement that the, that the Bible talks about and forgiveness, and at least it's a place to start. Great. Thank you. So we do have one more question. If the law is a weapon of oppression. How do law professors approach their curriculum approach to their curriculum perpetrate this perpetuate this this discourse. Does that make sense. Yeah, okay. Yeah. Well, I don't know. Look, I think that a lot of lawyers and law professors don't know that this is the history of where law comes from. And, and, you know, because it's been hidden, buried. And so you might study some of the cases. But when it comes to that paragraph about, you know, European superiority and a weekend dependent Indian nation, maybe it gets glossed over, or maybe, maybe not a great deal of attention is paid to it. And, and, you know, I think the other problem is that it's a really difficult problem about what do you do now. You know, and so, you know, judges wrestle with it, what do you want me to do now. You know, there's there. What do now. But, you know, it should be taught. And so we don't have a chance of recognizing it. If we don't, you know, we don't teach it. Right. We don't have a chance of reversing it. Look, I, you know, I don't know how you can't write a brief on Indian law without citing Johnson's versus Macintosh. So, you know, at least acknowledge it, acknowledge it, and teach the full implications of what, what the doctrine is, you know, is all about. And, you know, and the Supreme Court and federal courts can acknowledge it as well. Can acknowledge it is well that it sits on a bedrock of unsound, unsound philosophy. Great. Thank you. So that basically wraps up your time today. So thank you so much for your wonderful presentation. And like I've asked the other speakers, is there a way for the audience today to get in contact with you either with follow up questions or to stay in contact about your work. I'm going to put my email address up here on the screen. You see it. Do you mind zooming in just slightly potentially. I'm not sure how to do that. Yeah, I don't know how to do that either. Because I've got my whole screen open. Okay. Let's see. Yeah, I make it bigger. How about that? That would be great. Is it little is a tiny. There we go. Okay. Thank you so much. Wonderful. Thank you. So to the audience, we are now going to take a quick lunch break, or if you're on the West Coast, I guess, coffee break. And we will start with our next speakers, Bethany Sullivan and Jennifer Turner promptly at 115. So either stay on, or please log back in. We have three more wonderful speakers this afternoon. So thank you. And I will see everyone at 115. Okay, everyone as we round out to about 115 p.m. I just want to welcome anyone who has just joined us this afternoon and welcome back those of you who are with us this morning and thank you for attending this symposium. I'm going to take a quick minute to reiterate some of the sort of policies, I guess, about the question and answer period. So, as I've mentioned before, I will act as your moderator for the rest of this symposium. My name is Hannah, if anybody has any questions, but for the q amp a period that will happen at the end of every speaker's opportunity to share and present. Please still stay muted. And if you would like to ask a question, use the hand raised function and I will call your name to unmute and ask your question. If you would prefer to not unmute you can send me your message as a direct message so as not to disrupt the presentation or the speaker, who is presenting. Along with that, please do not message during the presentation, it'll pop up on everybody's screen, and it'll sort of disrupt so please refrain from using the chat function in that way. But if you do have any concerns or questions, please feel free to direct message me. And then finally I do encourage all of you to view this presentation in speaker view on zoom so that the speaker and their presentation are consistently the largest on your screen. All right, now that it is 115. Again, welcome back to our afternoon session of this symposium. Our next featured speakers who I believe have both joined us are a duo speaking on the car Sierra decision. Bethany Sullivan is a senior associate attorney with Meyer Pfeiffer, Kim, Geary and Cohen LLP. She advises broadly on tribal governance, economic development, free to trust land acquisitions, gaming and business transactions and other matters involving a tribal, federal and state law. She was the founding director of the natural resource use and management clinic at the University of Arizona College of Law, and has since worked with a variety of clients including tribal governments and taught courses on natural resource and administrative law. Jennifer Turner is the assistant city attorney in Albuquerque, New Mexico. Prior to this role Miss Turner was an associate at Fry and Kelly PC, and served as an assistant solicitor at the US Department of the interior division of Indian business. Miss Sullivan and Miss Turner will be providing an update on the car Sierra decision, following the 2019 publication of their article enough is enough 10 years of car Sierra versus Salazar. Please help me welcome Miss Turner and Miss Sullivan as our first afternoon speakers, and I will let them for their introduction shelves and share screen as desired. Hi everyone it's great to be here we're really excited to have been invited. Jim it's good to see you in the corner there my screen. Yeah so Jennifer is going to be the tech expert in our presentation, she'll be the one running our PowerPoint. So I maybe we can give you a moment Jennifer to take it that up on the screen. One minute. See, should be sharing my screen any minute now and I'm going to hit from the beginning. Zoom never works when you want it to it only works when there are small children and dogs making inappropriate appearances on your work meetings. So, I'm hoping there we go. Okay, can everyone see our presentation. Okay, so thank you so much Hannah for the introduction. I just wanted to add that Jennifer and I both have worked on the car cherry issue very closely during our time at interior we were involved in sort of the development of the two part framework and its implementation. We played a hand at drafting some of the departmental criteria determinations and certainly we're very involved in litigation defending many of these decisions so it's an issue that's very close to both of us and we're both very passionate about. So, with that being said, I will hand it over to Jennifer who is actually my boss at interior and just so you know, we're going to handle this so that each of us is kind of addressing various slides, but we have a tendency to interrupt each other. And hopefully that'll make for a more robust discussion here so just people warned. Thanks Bethany and thanks to Hannah and to everyone for inviting us to speak today. Just the sort of standard disclaimer is the views that will be expressing this afternoon our own views and do not reflect the views of our employers or of our clients or of the department of the interior. So with that said today we'll be speaking about the continued impact of car cherry on the restoration of tribal lands in New England and beyond. And just an overview of our presentation. First we'll be talking about land into trust and why it matters. Before moving into a discussion of the car cherry the Salazar decision and then we'll be talking about its aftermath, including the department of the interiors response to the decision through the Obama, Trump and Biden administrations. And then we'll be discussing how car cherry has impacted New England tribes before ending with our recommendations on where we go from here. So, what is the feed a trust process and why does it matter to tribes. To answer that question we really need to look at the allotment area era in federal Indian policy, which really started in 1887, when Congress enacted the General Allotment Act to break up tribal lands and divide them into 80 and 160 acre parcels for individual tribal farmers. And the policy of the federal government at that time was to break up tribal land holdings and open those tribal lands to settlement. And also really there was a policy of assimilation, whereby tribes and individual Indians were trying to be held to the Western ideals of the independent farmer and rancher. The allotment policy was a catastrophic failure and resulted in huge losses of tribal lands. Over two thirds in fact from roughly 138 million acres to 48 million acres reservations were left checkerboarded as a result as well. To address the failures of allotment Congress in 1934 enacted the Indian Reorganization Act, also known as the Indian New Deal. Its purpose was very broad and it was to establish machinery whereby Indian tribes would be able to assume a greater degree of self government politically and economically. And one of the things that the Indian Reorganization tried to do was to start the restoration of tribal homelands in the tribal land base. And so key to that was section five of the IRA, often described as its cornerstone. And section five authorized the secretary to acquire lands and trust within or without existing reservations for the purpose of providing land for Indians, and the land would be held in trust as I mentioned for the benefit of the tribe or individual Indian. What does that mean? What does trust land mean? Many things, but critically those tribal trust lands are under tribal and federal jurisdiction and largely removed from state and local jurisdiction and taxation. So as we mentioned, the policy of the United States was to open these Indian lands to settlement. So we have here to advertisements trying to sort of convince white settlers to settle on those Indian lands. And then here I have a map of tribal lands in the United States. Currently, this is prepared by the Bureau of Indian Affairs in 2018. And so there are currently 574 federally recognized tribes. And 229 of those are in Alaska. The remainder are in 35 of the lower 48 states. And you can see they're mostly in the west. There's not too many reservations or trust lands in New England. And there are actually many tribes that don't have any land at all. And currently the department holds about 56 million acres of land in trust for tribes and individual Indians. So this is feed a trust process, which is relevant to the car sharing decision. So it's set forth in regulations at 25 CFR part 151. And there's a handbook as well available online. It's a detailed 16 step process for trust acquisition. And if you make it all the way through to the end, which many don't. But if you do those challenges may be challenged pursuant to the administrative procedures act. And in making a feed a trust decision that there's a long list of factors that interior has to consider. And one of those things is the impacts on state and local governments resulting from removal of the track from tax rolls, and also jurisdictional problems and potential conflicts of land views. And I mentioned earlier that that what trust land largely removes it from state and local jurisdiction and so state and local governments have the opportunity to comment. But they don't have veto power they wish they did sometimes over trust land acquisition but they don't. Some tribes, but not all enter into intergovernmental agreements to resolve jurisdictional conflicts with local governments. And in making these decisions interiors got to comply with NEPA, which adds a whole other level of review and time and resources to feed a trust decisions. My share of the sounds are a Supreme Court decision in 2009 and it involved the narrow gas at Indian tribe of Rhode Island. The tribe just a little history about it occupied much of present day Rhode Island since time immemorial Rhode Island's policy of detribalization cause the massive loss of tribal land base. And the tribes lands were sold to the state in violation of a statute called the Indian non intercourse act. And that act is relevant to all the New England tribes because it prohibited the sale or conveyance of tribal lands without federal approval. And so that act led the and this illegal sales led the tribe to file a land claim lawsuit against the state alleging statutory violations, leading to Congress enacting the Rhode Island Indian Claims Settlement Act of 1978 settling those land claims. In fact, the department formally acknowledged the tribe in 1983, and then interior acquired an 1800 acre act with reservation in Charlestown in trust in 1988 for for the tribe and that was pursuant to the act, but only 225 of those acres that it acquired were suitable for development. I want to note something the act did which kind of distinguished the lands acquired from how lands are held in the rest of the country is that the act provided that the reservation shall be subject to the civil and criminal laws and jurisdiction of the state of Rhode Island. So, turning to the decision, it started off as a dispute between the tribe, the state of Rhode Island, and the town of Charleston over land use regulation, and it involves 31 acres of land acquired to provide low income housing to tribal members. And so the state and the town of Charleston actually sought an injunction against the tribe to prevent the tribe from constructing the housing without obtaining permits and approvals under state and local law. So, so why does that matter, you might ask why would the tribe oppose having to get permits from the state and local government. It's because the tribe wanted to build 50 units of housing and local regulation limited it to 15. And so trust acquisition would free development from local regulatory constraints and the opposition of the state and the town. So the tribe requested and be I agreed to acquire the land and trust pursuant to section five of the IRA. This governor state and town challenge that acquisition all the way up to the United States Supreme Court, and they argued that there was no statutory authority because the tribe was neither recognized nor under federal jurisdiction in 1934. Where does that language come from well it goes back to section five of the IRA, which authorizes trust acquisition for quote unquote Indians, and then section 19 of IRA defines Indians to include members of any recognized Indian tribe now under federal jurisdiction. So the state said look, the tribe can't meet either of those requirements and so there was no authority for interior to act. And so it's kind of important to note that 21 states filed a brief in support of the state of Rhode Island, and complain that the trust power has the capacity to change the character of an entire state. So in car chair it was about statutory authority but really it was about the land and trust process, generally, and there was a lot of opposition by state and local governments to it. So turning to the Supreme Court, it agreed with the state that the term now in the definition was unambiguous and referred to the IRA's enactment in 1934. I call this the now means then holding. And what that meant was that the secretary's authority to acquire land and trust under the first definition was limited to tribes under federal jurisdiction in 34. And the court held that the parties had effectively conceded that the tribe was not under federal jurisdiction in 1934. And therefore the secretary was not did not have authority to take the parcel and the trust for the tribe. And so that rested on sort of obscure rule of Supreme Court practice, which is rule 15.2, which says that a brief in opposition to assert petition should address any perceived misstatement of factor law in the petition. And so the court said, look, Department of the Interior, you did not address the state statements that the tribe wasn't under federal jurisdiction in 1934 so you've effectively conceded it. The court also noted that the evidence in the record was to the contrary of the tribe being under federal jurisdiction and cited the notice of federal acknowledgement of the tribe from 1983. And that matters is because the tribe was the court was sort of suggesting that because the tribe was recognized in 1983 will obviously it couldn't have been recognized or under federal jurisdiction in 1934. So that was interesting things to know about the decision. There was a concurring opinion by Justice Breyer which becomes very relevant to later actions by Interior, but importantly he noted that a tribe may have been under federal jurisdiction in 1934, even though the federal government didn't believe so at the time. So we wanted to provide a little bit of context in the real world impact of the Cartier decision on the Narangatza tribe. There are a lot of conspiracy theories that well of course the tribe just wants this land so they can open up a casino because that's all that tribes want is casinos. What he is is that it was the purpose of this was for low income housing and this is from the town's property records and it shows a picture of one of the houses. Again it's low income housing. And it shows a pretty pretty nice house not a casino, but turning to the next slide. So, this is a picture from a couple of weeks ago of the housing development. And it shows obviously it's in disrepair it's not being used and this really goes back to what the Supreme Court's decision meant for the tribe. Just to interject I wanted to give a shout out to Lindsay Kosso who is on the law review and she was also a law clerk for my firm this past summer. And Lindsay it's awesome and agreed to take time from her busy law school schedule and run out and take these pictures for us, which we were really appreciative of because I think this makes it a lot more clear that this isn't just sort of academic discussion but these are really major issues that have practical implications on the ground. So thank you Lindsay. Thanks Lindsay. So the aftermath of the Supreme Court's decision. I think across India country, it was viewed as as devastating and there was a lot of concerns. Professor, Professor Matthew Fletcher who'll be speaking to you this afternoon. And he noted rightfully so that lawsuits related to Parchieri would force some tribes to undergo the strange and humiliating process of earning a kind of federal recognition all over again. And why he said that is because a tribe would basically be forced to prove up its history and its existence to make the showing that it was under federal jurisdiction in 1934. There was a, as I said, it was a lot of concern about the decision it upended decades of Interior Department practice and yeah it was, it was very difficult so Congress tried to act sort of. And since Parchieri was decided there have been 17 clean Parchieri fixes introduced in the Senate and House and what's a clean Parchieri fix you might ask. That would be a change to the Indian Reorganization Act to eliminate the under federal jurisdiction in 1934 language and clarify that all tribes, all federally recognized tribes were eligible for land into trust. 17 fixes introduced. It passed the House twice in 2010 and 2019, but never passed the Senate. There have been countless committee and subcommittee hearings on the matter. And there's been so much opposition from state attorney generals, as well as the Rhode Island congressional delegation, because really what's happened is the debate about Parchieri has turned into a debate about land into trust generally and also gaming acquisitions and so a lot of parties have crawled out of the woodwork to use Parchieri to challenge trust acquisitions generally. And that includes state and local governments, gaming opponents, as well as citizens groups. So again, it still hasn't passed in this Congress, despite having Democratic leadership in the House and the Senate, a part Parchieri fix has not even yet been introduced. So Interior's response, as I mentioned, it upended decades of interior practice. Interior said, rightfully so that it created haves and have nots tribes that were eligible and tribes that potentially weren't able to show that because of their history. Interior under Obama and Biden have strongly supported a clean legislative fix. And Interior also held tribal consultations on how to respond to the decision when it first came out. So Congress is consistently pressured Interior to come up with lists of tribes who are under federal jurisdiction and were not the haves and have nots, but Interior has consistently said no, there's no lists, because Parchieri impacts all tribes. And how it does that is by complicating and slowing down the already cumbersome fee to trust process and requiring tribes in Interior to spend scant resources to establish statutory authority. So doing a Parchieri decision takes hundreds and hundreds of pages often of research and work and some of the decisions are dozens and dozens of pages and so it really requires a tremendous amount of effort by everyone involved. I just tack on to that a little bit because I think this is like such a critical point. This has imposed an incredible burden on tribes who have already gone through so much to get to the point where they could even at land and trust and by imposing this under federal jurisdiction 1934 requirement. They have to hire historians who go into the federal archives to gather federal records on in order to submit them back to the federal government proving that these tribes are under federal jurisdiction so you have, you know, these can take years to put together and you're hiring historians, lawyers, etc. It's massively expensive. It's extremely frustrating. So it truly creates a major obstacle for most tribes. Thank you Bethany. So Cartieri has been weaponized by states, local governments, citizens groups, individuals, corporations and even other tribes to challenge the exercise of tribal sovereignty through the acquisition of tribal lands. And some of these challenges have actually suggested that the tribes that issue aren't really tribes at all. And that's just it's beyond disheartening to see that for obvious reasons. So as part of its response, Interior developed a two-part Cartieri framework for addressing the first definition of Indian under the IRA. And it did that initially in the context of a feed-a-trust application by the Cowlitz Indian tribe in Washington for a gaming decision. Like Cowlitz were formally acknowledged in 2002 and they at the time of their application had no land base whatsoever. And so in examining their application, Interior considered, exhaustively considered the text of the Cartieri decision, the IRA's text, legislative history and implementation, as well as fundamental principles of federal Indian law. And so in concluded there was no plain meaning of under federal jurisdiction and that it would apply a two-part framework to decide whether a tribe qualified. So that framework that was set out in the Cowlitz decision was then incorporated into a solicitor's office M opinion 37029 and what's an M opinion. Well, it is an opinion of the solicitor that is the formal legal interpretation of the department on a particular issue. And it is not quite like a regulation. It doesn't go through notice and comment rulemaking, but it does carry the weight of the department on legal questions. And so solicitor Hillary Tompkins issued M 37029 with this two-part framework, which has the first question is whether there is a sufficient showing in the tribe's history that the tribe was under federal jurisdiction in or prior to 1934. And the question is, had the United States in 1934 or earlier taken an action or series of actions through a course of dealing or other relevant acts for or on behalf of the tribe, or in some instances tribal members that are sufficient to establish or generally reflect federal obligations duties or responsibility for or authority over the tribe by the federal government. And then if the answer is yes, then you move to the second part, which is whether the tribes jurisdictional status remained intact in 1934, and the absence of federal actions did not necessarily reflect the loss of federal jurisdiction. So the types of evidence that are relevant as determined by Interior is the negotiation of or entering into treaties, approval of contracts, enforcement of the trade and intercourse acts, and then education of Indian school, Indian children at BIA schools. So we wanted to point this out because there's a lot of attention right now being paid to the, the, the troubled legacy of federal boarding schools policies. So Secretary Holland recently enacted a federal Indian boarding school initiative to look at some of these issues, and we wanted to note that there's really no more extraordinarily assertion of power over tribes, then to take away their children from them and their families and ship them off across the country to a boarding school, really an RV that really demonstrates the assertion of jurisdiction over over a tribe and its members and so kind of we hope going forward that Interior in looking at these eligibility determinations considers gives particularly close attention to the boarding school issue. And then one more piece of evidence that Interior is found particularly relevant is a vote under section 18 of the IRA on whether to opt out of the IRA. Interior is held that that is dispositive and why that's so important is that there's a list the hauls list from the 1930s that has over 200 tribes on it that voted whether or not to accept the top doubt of IRA so if you're on that list Interior has held that you were under federal jurisdiction in 1934. And also evidence of federal officials disavowing responsibility does not terminate federal jurisdiction and so if Interior said no we don't know who you are we're not acknowledging you in a letter for example that's not that's not dispositive of a tribe status. And then lastly recognition in 1934 is not required. Now only modifies under federal jurisdiction. And then others that story authority so there are some statutes that authorized Peter trust acquisition for specific tribes and that would eliminate the need to determine whether a tribe was under federal jurisdiction in 34. So litigation aftermath of Cartieri. It's been epic. So, interior has issued under the Obama administration approximately 80 eligibility determinations since Cartieri was decided, and there have been dozens of federal and administrative appeal cases addressing those challenges. So the DC circuit and the ninth circuit have upheld the two part framework and the Supreme Court denied cert from those holdings so so so far federal courts have upheld interiors two part framework and actually no court has rejected an interior determination that a tribe was under federal jurisdiction in 1934. And then there have been other lawsuits challenging decades old trust acquisitions on the basis of Cartieri so citizens groups and states come along and said, we know interior you took this land and trust 50 years ago but we still think we should be challenging it now. Under the Cartieri decision and courts have rejected those as well. So, we can't understate the impact sorry I can't overstate the impact of Cartieri but interiors approach has been consistently upheld so that that sounds great, except recently under the Trump administration they have ignored the old maximum if it ain't broke. Don't fix it, and taken a new approach to Cartieri which Bethany will talk about. You can keep clicking through the slide there a couple bullets. Yeah, but you can stop there for now. Okay, so as Jennifer mentioned, Cartieri was a massive blow to Indian country. There was a lot of confusion afterwards about how it would be implemented and how it would affect tribes. But interior was able to kind of carve a path forward, and the federal courts were supporting interiors interpretation of the statute and application to individual tribes so things were looking really good at this point. And then things shifted. As we all know there was a change of administration. So the original framework was created and implemented during the Obama administration. President Trump comes into office and you know towards the end of his administration. There's a major shift. So, in March of 2020, the solicitor at the time, Dan Giorgiani issues M37055, which withdrew this two part framework and M37029. It was accompanied by a lengthy deputy solicitor memo that provided the underlying legal analysis, looked at all of the same things that had been carefully examined in the original two part and opinion. And that came to a different conclusion about what they meant. So at this point the department said, we interpret the entire phrase recognized Indian tribe now under federal jurisdiction to include tribes recognized in or before 1934 remained under federal authority at the time of the IRAs enactment. So what that means is that tribal recognition in 1934, before became part of the car cherry analysis, which then begs the question. Okay, so what does that mean in practice, and you know something that has been sort of a struggle throughout this process is not only figuring out what is under federal jurisdiction mean, but also what does recognition mean because it can mean a lot of different things in sort of like an anthropological sense, political sense, etc. So, it wasn't entirely clear from the legal analysis what the practical impacts were going to be. Oh if you want to click, maybe one or two more times stand the slide though. So it wasn't totally clear from legal analysis. However, it was accompanied by a document called the solicitor procedures. And so that's really where sort of the practical processes laid out. And then you can be the final slide. I just want to reiterate that the shift occurred basically in the dead of night. Nobody knew it was coming there was zero tribal consultation. There was no notice in advance, and everyone was very confused as to what was even prompting this given the success and deference to the department's original two part framework. Okay, so next slide perfect. So the four step solicitor procedures really laid out what this new interpretation was going to mean, and it created this four step process. So, in order to satisfy the new sort of construction of car cherry tribes would have to go through each step if they could satisfy an agreement that they wouldn't have to proceed to later ones. So step one asked, is there post 1934 legislation, making the IRA applicable to that tribe. And as you might recall, that was a similar part of the inquiry under the original two part really anything new. And if a tribe had this type of close 1934 legislation, they're good to go, no need to proceed. If they did not, you would proceed to step two, because the tribe would then need to make a showing that they satisfied the definition of Indian in the IRA in order to access the IRA section five made acquisition authority. Okay, so step two asks, is there presumptive evidence that the tribe was under federal jurisdiction in 1934. The procedures refer to this evidence as presumptive, but also as dispositive and in actuality, the evidence listed was treated as dispositive so if you could show this, you were good to go, you were under federal jurisdiction 1934 and implicitly also recognized. This included some of the same types of evidence that had been considered in the two part framework such as the IRA section 18 election and IRA section 16 election, which is where tribes voted to organize under the IRA and enact tribal constitution pursuant to that statute, as well as inclusion on the 1934 Indian population report by the Commissioner of Indian Affairs. However, if a tribe didn't have any of the types of evidence specifically listed under step two, they had to proceed to step three, which asked was the tribe recognized in or before 1934. And did it remain under federal jurisdiction in 1934. And again the procedures provided sort of a list of evidence that would presumptively show both of these things. However, you know it was a specific list and if a tribe didn't have any of the evidence on that list, then they had to go all the way to step four, which provided that if none of the evidence listed for step three is available. And the Commissioner's office had to consider the totality of all non dispositive evidence so it's really a case by case determination. So, as I've said, there are definitely similarities to the two part framework is kind of unclear how this was meant to differ. You know, there were comments from the department that it was intended to streamline the process and I guess in some ways I could see how it did that but mostly it just created a whole lot of confusion. And it also seemed like there was a de emphasis on evidence showing federal actions towards individual tribal members. Instead this new approach favored only federal actions dealing directly with the tribe as opposed to services and dealings with individual tribal members. But we'll never really know what this was meant to do, at least not fully because it was only in place for a year. And so just one note. So the procedures originally said, well, if we've already if the Obama administration issued a favorable decision for the tribe were not going to revisit those and redo that work. And then about three days later, they said never mind, and started to re issue and re examine the history of multiple tribes so apparently hundreds of pages of decisions weren't enough. They launched into hundreds of more pages of decisions for tribes whose status had already been determined by the department. So, there was a lot of extra work done in addition to the confusion that Bethany mentioned. That is exactly right. So, as we all know there was, again, a change of administration, President Biden comes into office and early in his administration, interior, you know, changes course and issues and opinion 37070, which withdrew and 37055 which was withdrawn and 37029. So, the impact of this was reinstating and 37029, which was the two part framework from the department took this action saying you know and 3055 had been issued without tribal consultation. And so it was re iterated its commitment to meaningful and robust consultation with tribes regarding the department's interpretation of the term Indian. And so those consultations are actually occurring now. But for the, you know, currently what is in place is back at the two part framework that had originally been developed 80 plus decisions issued under it and it's been deferred to by the federal courts so that's where we are at this point. Next slide. So at this point we are going to kind of walk through the unique situations of the different New England tribes and so we have a map here from the EPA kind of showing roughly where these tribes are located in New England. If you want to go to the next slide Jennifer. So we're going to start our discussion with the mash you want the no tribe and spend a bit of time on this because they've really had sort of the most action in the last several years. So there's a lot to sort of unearth here but a little bit of background, the mash P are located in South Eastern Massachusetts, including the town of mash P. So as you can see the town is named after the tribe and there's a reason for that. And it's been there since time immemorial, certainly it is present there has been documented since the time of contact. It's been referred to throughout history as like a self governing Indian town, or Indian district. So it's certainly, you know, the tribe in the town are just kind of one in the same. Similar to other New England tribes were subject to colonial government rule, which after the United States was founded was more or less assumed by the Commonwealth of Massachusetts. So we see a history developing here where the states were sort of asserting primacy over Indian affairs, even though under the law the federal government holds that authority. And the federal government essentially let the states do so without much interference. So, this brings us to the 1970s, and the tribe tried to bring in an intercourse act claim for its lands in Massachusetts. However, its litigation was not successful as a jury found that the tribe did not continuously constitute an Indian tribe for purposes of the act so the tribe lost. As a result there was really no leverage for to obtain a congressional settlement act like other tribes. And so it was many years since that litigation until the tribe achieved formal federal recognition through the part 83 acknowledgement process. That same year, the tribe submitted a fee to trust application for 170 acres in the town of Mashpee and 151 acres in the city of Taunton. The Mashpee parcel was to be used for governmental services, cultural preservation and housing, whereas the Taunton parcel was to be developed into a casino resort called the First Life Project. And in 2015, so took the department quite some time to process this application, but it finally issued a decision to acquire both parcels into trust. This 2015 decision was really unusual because unlike the vast majority of other land acquisitions under the IRA, the department relied on a different definition of Indian, which we referred to as second definition. And I just want to point out this picture here, signifying that you're entering the town of Mashpee but really kind of demonstrating the close ties between the tribe, the town. So if you want to go to the next slide. So, a little bit of a reminder of sort of some of the things we've done over already but in the IRA, the term Indian is defined in several ways and so the first definition is all persons of Indian descent were members of any recognized Indian tribe now under federal jurisdiction. So this is the definition that was at issue in the criteria litigation and the, this is the definition that most tribes when submitting a fee to trust application, rely on in order to show that it qualifies for section type of the IRA. However, the definition is immediately followed by another definition, which states and all persons who are descendants of such members who were on June 1, 1934, residing within the present boundaries of any Indian reservation. And we refer to this as the second definition. There had been sort of sparse references to it in departmental history but there really hadn't been a clear reliance on it for trust acquisition and it was untested at the time that the 2015 Mashpee decision was issued, but it was a good definition. Well, Mashpee was a good test case for this definition, given their incredibly long history at the town of Mashpee and its identification internally and externally as sort of this, this Indian community, and there had been land restrictions land was held in common. It couldn't be freely alienated so it really sort of looked felt smelled like a reservation. Okay, next slide. So in issuing its decision for Mashpee on the basis of the second definition, interior had to grapple with a number of statutory ambiguities, the primary one being how to interpret the phrase such members. So one way of interpreting this phrase would be to incorporate the entire first definition, which would include that under federal jurisdiction language. The interior declined to interpret it in that way, finding that it would render the second definition superfluous, where, if that were the case, anyone who qualified under the second definition would have already qualified under the first definition. So it was very redundant because the second definition provides that, you know, they must be Indians living on a reservation. That is inherently a sign of being under federal jurisdiction, there would be no need to further state that they were under federal jurisdiction. So this member issued this interpretation and found that rather than incorporating the entire first definition, such members should be interpreted to only incorporate members of any recognized tribe so not the now under federal jurisdiction language. Following the 2015 decision, it was litigated by a citizen group comprised of citizens from the city of cotton in the United States just support for District of Massachusetts. And the court issued its decision in 2016, disagreeing with interior and the court found that such members incorporates all of the first definition. It applied no Chevron deference to the agency despite, you know, the ambiguity in the language and the agency's clear expertise in this field. And so the result was that Mashpee must be under federal jurisdiction in 1934, in order to qualify for a trust acquisition under the IRA, whether it's pursuant to the first or second definition of Indian. And this decision was affirmed by the first circuit in 2020. Next slide. So what this meant was the issue went back to the Department on remand, and they had to consider whether the mashpee were under federal jurisdiction in 1934, which they didn't have to do the first go round. This included extensive briefing on on that question and it also raised related issues that I think impact New England tribes in general, as to the import of the state exercise of jurisdiction and what that means. Does that mean that federal jurisdiction is precluded. Is it possible to interpret state jurisdiction as a surrogate for federal jurisdiction. These are some of the questions that were explored. And the plaintiffs from the first case participated in the agency remand proceedings as did the Aquina tribe. So in 2018, the department finally issues its decision and finds that the mashpee were not under federal jurisdiction in 1934. And it reviewed each piece of evidence basically found it irrelevant or insufficient to the sense of federal jurisdiction over the tribe. Interestingly, the department, even though it was specifically asked by the little field plaintiffs to overturn the two part framework, the decline to do so yet. But as we already know two years later that that let's overturn it. So, at this point the tribe sued the department over this decision filing in the United States District Court the district of Columbia. So at issue in the litigation was whether the department fairly considered the tribes evidence in light of the two part framework and the, you know, pretty substantial departmental precedent for other tribes in their criteria determinations. So the parties fully briefed the matter. By the end of 2019, there's a little bit of a lag because the new judge was appointed to the case we kind of had to get up to speed. In March, the department revokes the two part framework and replaces it with the new four step procedures as we discussed before. However, it did not notify the court that it had chosen to do so. And then shortly thereafter, the department informs the tribe that it will be removing the reservation from trust status so just sort of as an aside back in its original 2015 decision. It wasn't really affirmative that it had authority to take lands and trust for the tribe it actually did so so those lands were transferred into trust status and they remain interest status throughout the litigation, because there had been no sort of final determination made. But in March, 27 2020 the department tells the tribe, you know what we're going to go ahead and remove the reservation from trust status. So this prompted a flurry of activity as the tribe moved to enjoy the United States. The court in D.C. was pretty displeased with the federal government's lack of transparency with everything and issued a scathing order which was kind of entertaining to read if you have the time, but I just took this little excerpt from it. So, the court said that it is frankly shocked that the government did not bring this change to the court's attention, and discuss its relevance or lack thereof to the pending motions for summary judgment and preliminary injunction. The court was left to discover this change on its own less than one week before oral argument on the very question of whether the agency's application of the end opinion to the framework was arbitrary capricious and abusive discretion or contrary to law. So I just thought, you know, pictures say a lot more than, you know, sort of dry statutory language or court order language, the department's notification that it was going to remove the land from trust status really mobilized Indian country, not just Mashpee members but native people across the country, allies for tribes and native issues, and they came to Washington and they made their voices heard and so I just wanted to show sort of what that looked like and it was, you know, it was an existential threat to the tribe, it can't be overstated and so there was a lot of fear and uncertainty about what was going to happen. Next slide. Um, so the court order supplemental briefing at this time as to why it should even defer to the department's reliance on the two part framework, given that the government itself has determined that the two part framework is contrary to law. Um, interestingly and highly unusual members of Congress filed an amicus brief and support of the tribe, and this included Deb Holland who at the time was a representative. And she is now a secretary of interior so she joined in this amicus brief, and the members of Congress argued that the Congress only gave the department authority to acquire lands into trust. And the member is not explicit authority in the statute to remove these lands from trust. The Congress also said that the secretary has ignored Congress Congress is clear recognition that the tribe was under federal jurisdiction, and by doing so has usurped Congress and it's well established plenary power to define the federal relationship with tribes. So it's really speaking strongly on the issue and making some compelling separation of powers arguments. So, in June of 2020, the DC district court was in favor of the tribe, finding that the department misapplied the two part framework. It failed to view the evidence in concert. It failed to treat relevant evidence as probative things like the inclusion of mash P on federal reports that considered their removal West in the 1800s. The inclusion of mash P on federal censuses and the attendance of mash P children at the boarding schools in the early 1900s, which is very close in time to the IRA in 1934. So, the decision is now back with interior on remand. Yet again, it's going to be really interesting to see how this shakes out, given the change of decision makers and the fact that Deb Holland participated in this amicus brief. And now she is the sort of overarching decision maker at interior, you know, the decision doesn't come from her directly and it comes from the Assistant Secretary of Indian Affairs. But I do think it would be difficult for this administration to find that the mash few were not under federal jurisdiction, just given sort of everything. But it'll also be difficult to issue a yes decision because it will most certainly be litigated and litigants would be smart to file in the first circuit as opposed to the DC circuit. And just given that the first circuit has been more challenging for tribal interests in terms of the IRA and car cherry, whereas the DC circuit has deferred to the department's interpretation of car cherry and application to tribes. So, that's where we are now with mash P. And then the next slide, I'm going to go through how we on time. Okay, so the other New England tribes. So the Wampanoag tribe of gay head, which is known, usually as the Aquina tribe, they're located on the island of Martha's Vineyard in Massachusetts. They are, they have a settlement act. That was the result of their non intercourse act claims. However, it doesn't contain any language expressly or implicitly extending the IRA to the Aquina tribe. So it doesn't appear that they have sort of that mechanism of accessing the IRA section five authority. So what are their options then for acquiring additional lands and to trust. It seems like it would have to undergo this full analysis of whether they were under federal jurisdiction in 1934. They are similarly situated to mash P, you know, they're all people similar history in terms of the relationship with the colonial government and the Commonwealth of Massachusetts. So there's just fewer examples of federal exercise of jurisdiction directly over the tribe. However, a positive decision for mash P on the agency remand would vote quite well for a minute. Next slide. All right, so the matching type that people at tribal nation is located in southeastern Connecticut. There's a settlement act that was a result of their non intercourse act claims. Their settlement act includes some very helpful language. The first provision stating that all laws and regulations of the United States of general application to Indians or Indian nations tribes or bands and Indians, which are not inconsistent with any specific provision of this act shall be applicable to the tribe. It also contains language, stating that the tribe and its members are eligible for all federal services and benefits furnished to federally recognized Indian tribes as of the date of enactment of this act. So, we know that the, the matching type of people that have successfully acquired trust land since the criteria decision was issued in 2009. Whatever criteria determination was made doesn't seem to be available in the public sphere, but we assume that it was made on the basis of this later legislation extending the IRA to the tribe so it appears that they are in a good position moving forward to acquire additional trust lands pursuant to the IRA. Next. Let's talk about the Mohegan tribe. They're located in southeastern Connecticut. They were federally recognized in 1994 through the party three process and they also have a land claim settlement act. Their settlement act provided mandatory trust acquisition authority for lands that were specifically identified in the act and those lands became the tribes initial Indian reservation. However, the act doesn't contain any language that would be similar to like the matching type of people. But there's no mention or prohibition of trust land acquisition pursuant to section five of the IRA. There also doesn't seem to be any sort of like general extension of federal laws of general applicability to tribes and Indians to the Mohegan tribe so you know there really isn't that sort of post 1934 congressional extension here. And as far as we can tell there hasn't been any land acquired and trust for the Mohegan tribe since the car cherry decision in 2009. So it seems unlikely that the department has issued a car cherry decision for the tribe. So it may be that they are facing some difficulties with proceeding to acquire land under the IRA section five given the car cherry landscape. So then main we'll talk about all the main tribes together because they're similarly situated in the 1970s the United States filed suit against the state of Maine on behalf of the Pasama potty tribe and the Penobscot nation. The non intercourse act claim. And it resulted in the main Indian clean settlement act, which extinguish the land claims and ratified the main implementing act which was a state statute that address the relationship between the state and the tribes. It also provided for a $27 million settlement fund and a $54.5 million land acquisition fund. It barred land acquisition for tribes or Indians in Maine pursuant to other statutory authority, which essentially means that the main tribes cannot access the IRA section five land acquisition authority. And this interpretation of the settlement act has been to confirmed by the second circuit so it would be very hard to get around that slide. The settlement act also limited applicability of federal Indian law in Maine. And then a separate settlement act afforded the air suit band of Mac max the same settlement and sorry got to mention this before but the Fulton band was included in mix the sort of process and so then air suit got the same settlement provisions as that band. And then things are continuing to develop though and there seems to be an interest in Maine in revisiting its implementation act which really provided that tribes would be treated as municipalities and not as, you know, true and there's been a task force established by the state legislature that recently remand recommended that the main implementation act be amended to permit Maine tribes to acquire trust land pursuant to the IRA. So, here's to hoping that that gains traction. Alright, so now we're going to get into our sort of recommendation solutions hopes for the future section of our presentation, and we'll start with narrow Gansett. So, as Jennifer explained, the narrow Gansett under federal jurisdiction issue wasn't really briefed or argued in the car cherry litigation and just was more or less just assumed by the court because of what it deemed a concession by the federal government that the narrow Gansett was not under federal jurisdiction in 1934, but the department never made that determination they never looked at the evidence with that sort of inquiry in mind. So, it's possible that they could now decide to do that analysis and issue a positive criteria opinion for the narrow Gansett. This would be definitely an uphill battle, considering the precedent that by the criteria litigation and not, you know, nothing entirely clear sort of what those Supreme Court rules about sort of concessions means for factual findings in the future. Sorry, I had something pop up on my screen. Okay. And, you know, it also may be that the Department of Interior and Department of Justice may be unwilling to go this route because it is a difficult argument to make. But if they were to make it seems like now would be the time to do it because of Secretary Deb Haaland. And we know that a positive car cherry decision for narrow Gansett was it's virtually certain to be litigated and that these plaintiffs would likely file in the district of Rhode Island. We know that the first circuit appears to be less friendly to agreeing that New England tribes were under federal jurisdiction in 1934, they've, you know, made kind of off handed comments and litigation that doesn't directly involve that issue but just sort Oh yeah well but that tribe was an under federal jurisdiction or they they were recognized later and so there doesn't seem to be sort of a full some understanding in the first circuit of what that means. We also know that the first circuit has declined to defer to interior on its interpretation of the IRA second definition of Indian. So a positive criteria finding for narrow Gansett could lead to litigation which leads to potentially a circuit split on the deference to the two part framework. Alternatively, we could find that near Gansett is able to lot before a sort of tribe specific legislative fix where Congress enact sort of limited legislation regarding the narrow Gansett tribes ability to use the IRA section five land and trust this is it's always difficult to get legislation enacted and in this particular case, Rhode Island delegation may oppose they've certainly oppose this type of thing in the past. So sort of the last option for narrow Gansett would be a global legislative fix. Next slide. So, as Jennifer mentioned, there have been many many efforts to get sort of this universal clean criteria fixed the Congress, and we're just, you know, sort of waving that flag again saying now is the time, the time to really push for it, just given the political dynamics, and it would just be such clean easy language to enact it's really just the deletion of the now under federal jurisdiction language in the IRA. But it should also make a Congress should make this type of amendment retroactive so that it protects all prior acquisitions. I think I'm handing it over to Jennifer. Yeah, thanks, Bethany. And just assuming Congress does not act, although we'd like to be glass half full assuming they don't. The next option that we think would help would be to for interior to enact a regulatory fix so to promulgate formal decisions under the administrative procedures act to institutionalize the two part framework and so why this would help well first obviously as we've discussed administration to administration has flip flopped from frameworks to procedures to frameworks to more regulations and it's, everyone has with flash, especially the courts, which raises the question of what deference a court will give any interior decision on Cartier at this point, and the DC circuit and mash DC and federal district court actually was just fed up with interior for doing this middle of the night switch and so by putting it in regulations first it would make it harder to reverse without notice and comment rulemaking, but also hopefully it would increase the likelihood of getting a magical Chevron deference, which would really help support future fee to trust decisions based on the framework so we recommend that the legislative history and text analysis of the M opinion two part framework be incorporated into the federal register notice for the rulemaking, and then that the test be set forth in text of regulations and types of evidence to be considered and their weight would be addressed in those regulations and also some explanation as to why evidence is particularly relevant to an under federal jurisdiction determination. So to do this would require tribal consultation which interior is doing tribal consultation on fee to trust right now. And then it would require a notice of proposed rulemaking followed by a final rule and so it would take some time but we think, given congressional inaction, it could be worth the effort. And as part of considering changes to the fee to trust regulations. Bethany and I actually would recommend that other changes be made as well to streamline the 16 step process, which really takes an incredible toll on on tribes and their resources which should be better spent on providing services and not paying their lawyers. So, the other changes that we would recommend would be to enact timelines so giving interior a certain amount of time to issue a decision on a fee to trust application. If interior did not meet that up that deadline, there would be a process for appeals from that inaction where you basically go up the chain of command to say look, this decision has been pending for years or however long interior take action on that you have to take action on this request. And then just some other things are the regulations currently have some paternalistic criteria at the department considers evaluating requests so for example the interior considers the tribes need for land and and that's not for interior to decide that's for tribes to decide that's the whole idea behind tribal self determination. And so we'd recommend that things like need would be eliminated from the regulations. And then finally, the right now there's a different criteria for on and off reservations and for example if it's off reservation you have to submit a quote unquote business plan. Again, I think that tribes are better than interior at coming up with their own business plans and deciding whether an acquisition is warranted and so eliminating those requirements would reduce the hurdles that tribes have to go through and would also be more consistent with tribal self determination and would also get rid of the there's a lot of debate right now and litigation over whether acquisitions are on or off reservation and by getting rid of that criteria, it would hopefully reduce those challenges. So those are just some ideas and recommendations, but primarily we'd urge a regulatory Cartier ethics. And then now it's time for questions. Thank you. Great. Thank you so much. Both Jennifer and Bethany that was wonderful. So as I said before, they're great presentation. If you'd like to ask a question yourself, please use the hand raised function, or just put it in the chat and I'll read it out loud. But just to start we actually had some questions come in. Thank you for your presentation so I will ask those first. The first one says any thoughts on the comments offered at the FTT slash tribal homelands consultations thus far. So, I, I will be attending one of those sessions I think it's early next week but I haven't attended any of the sessions yet. We would just reiterate the suggestions that Jennifer made in terms of changes that could be made generally to the few to trust regulations. I would also add that assuming that we continue in this sort of cartiary world indefinitely without a congressional fix. I think it makes a lot of sense and it would be in satisfaction of the federal government's trust responsibility ability to provide grant money to tribes to do this historical research. Or the onus could be on interior to gather these documents I mean like I said before it's just incredibly burdensome to ask tribes to hire historians and lawyers to find all of these historical documents and piece them together and make the argument that they're under federal jurisdiction. And then those submissions go to interior and they do their own analysis but really the burden evidentiary burden has been on tribes. And so I think either shift that burden or provide tribes with the resources to do that research. I don't know anything else Jennifer. No, I think that's well well stated. Thank you. Okay, great. Thank you. And the next question says an individual can prove blood relationship with current and formal tribal members but is refused enrollment. What is the venue for relief. So this strikes me as a sort of internal tribal government issue, you know the venue for relief would be with the tribal government itself, the federal government does not really play a role in in defining membership I mean that's an inherent attribute of tribal sovereignty. I don't know Jennifer if you want to add to that. Yeah, I think that's exactly right. And one of the things that came up in the litigation involving the Cowlitz Indian tribe and that's come up with the whole Indian village in California are issues related to enrollment and interiors position and it waivers from administration to administration but it's really that these are enrollment are internal tribal affairs and should be separate and apart from the feet of trust process. Thank you. This question says apologies if this is an off point question but you talked a lot about two definitions of Indian. Could there be considered a third definition and if so what do you think that would be. Yeah, so there is a third definition and I don't remember the language up hand but it has to do with Indians who are half blood. Jennifer do you remember specifically. I don't have it in front of me, but it does refer to half bloods and that definition of Indian was used for many years actually by the Department of the Interior in terms of organizing tribes such as the Hamul Indian village in California. There is precedent for applying that definition of Indian in the IRA, but I am aware of one application that was submitted to the department in my tenure there, urging reliance by interior on that half blood definition, but as far as I know, no that definition has been made I think there's a reluctance at interior to handle to address that question. And then, finally, there is a definition of Indian, it's been called the fourth definition of Indian which refers to Alaska natives. Alaska is so complicated and outside the scope of our presentation today, but there is an interior determination that that definition of Alaska natives as a definition of Indian supports trust acquisitions for Alaska natives in Alaska. So, so there are other definitions there was just outside the scope of our presentation today. I don't know if the question was aimed more so at like what could be an alternative definition of Indian as opposed to what's actually in the statutory language. I mean I'm just thinking off the cuff but like the IRA could simply just refer to federally recognized Indian tribes and their members and that's the definition of Indian and Indian tribes I mean to me that's pretty simple. As I said previously, tribes are, you know, they determine their own membership and so that definition would really stem from tribal law, but it's extremely clear who federally recognized tribes are the federal government publishes a list every year that is the federal level of the 574 recognized Indian tribes. So the IRA definition of Indian could, you know, be amended to simply refer back to that federal register list. Great, thank you. And so those were all of our pre submitted questions, but does anybody else as a participant have a question. We have a couple more minutes to answer. You know, I apologize because we didn't put our contact information at the end it was at the beginning of the slides and I assume the presentations. I think they'll be shared I'm not sure I should check with the law review but feel free to reach out to Jennifer and I after the presentation at some point if additional questions do come up. Yeah, so it looks like there aren't any more coming in but thank you so much and thank you for sharing your contact information and we will be sharing the slides and your information for anybody who comes up with follow up questions or would like to follow your research so thank you very much. Thank you all so much for having us here. And so before we get into our final speaker, I am just going to take a quick break let everybody stretch their legs a bit. And so our next speaker, Professor Fletcher will be speaking promptly at 240pm. So that's in about 10 minutes so if you could all just hang on the line or stretch your legs for about 10 minutes. And as I've said before feel free if you have come up with questions and some of our speakers are still logged in or I can send you those emails that are in the chat so you can always add questions to the chat as the day goes on but I will see everybody back here in about 10 minutes. Okay everyone welcome back, it is 240pm and we're going to jump into our final speaker of the day. So before we jump into that, I would like to welcome anybody who has just joined us and welcome back everyone who has been with us for the day. I'm just a final reminder to please keep your microphones muted until I call on you using the hand raised function during our last question and answer period. If you could please refrain from putting anything in the chat, as it disrupts the speaker and the presentation. But if you do want to send a question during the presentation please send it in a direct message to me through the chat function. And also feel free during our question and answer period to put anything in the chat on that I will read out loud, or use the hand raised function to ask the question for yourself. So with that being said. Oh, one more thing, please view this presentation in speaker view so that you can see everything that Mr Fletcher has to present. At this time. I would like to introduce our final speaker today, Mr Matthew Fletcher, Professor Fletcher is a professor at Michigan State University College of Law, and they director of the Indigenous Law and Policy Center. As the chief justice of the park band of Creek Indian Supreme Court, and as an appellate judge for the Colorado River Indian tribes the Hoopa Valley tribe, the Mashpee Wampanoag tribe and many others. As a member of the grand traverse band of Ottawa and Chippewa Indians, Professor Fletcher is a highly regarded author of multiple law review articles, appearing in the California Law Review, Michigan Law Review and Stanford Law Review Online, as well as case looks such as federal Indian law and principles of federal Indian law. Professor Fletcher is a highly regarded scholar in the field of the federal Indian law, and will be speaking on uncomfortable truths about sovereignty and wealth. So please welcome Professor Fletcher onto the mic, who will further introduce himself and jump into his presentation. Thank you. Are we back on the clock. Yes, we are. No, you're good. Nobody came in and interrupted me. So we're getting started. Did you already introduce me. I didn't even hear it. I'm sorry. No, I did. That's okay. I just briefly introduce you. So if you want to give a further introduction of yourself, your, your role here and then just jump into your presentation and we'll do questions at the end. Thank you very much. I'm sorry about that. I, like I said, I got called into a meeting. All right. Hi, I'm Matthew Fletcher. I'm a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, and that's in Michigan. The Ottawa and Potawatomi tribes in the lower peninsula of Michigan were administrative terminated. So we had treaties, federal government declined to acknowledge us for well over a century starting in the 19th century. There are a lot of commonalities with the tribes in the Northeast. And there are a lot of differences, of course, there are a lot of cultural similarities as well. The Habanaki communities, for example, that is a word from an Algonquian word that we use as well to mean Don Land, Land of East sunrises. So there are some interesting commonalities. I'm going to try to bring some of that into this discussion today. I hope you can see the comic book I'm sharing. It is, if you're interested in looking at it at your leisure, I'll put a link to it in the chat. I'm also going to be talking a little bit in a second about my framing of today's talk. And I'm sort of putting this together a little bit, and I apologize at the last minute. This is an incredibly important event and I wanted to do do right by Roger Williams and also Jim Diamond is a good friend of mine. So I applaud everybody for all the hard work you put into this and I'll get going. So let's start with the framing that I want to do today. What I'm going to talk about is something that was inspired by a talk I gave earlier this week. Alongside April, you can go to a friend of mine works out in Los Angeles. It's on systemic racism and wealth gap, and the Federal Reserve is in some process that's not relevant for relevant for us today, discussing how racism makes people of color poor. And, and why there is a wealth gap and there's very little discussion of why there is a wealth gap between indigenous peoples and non indigenous peoples in the US. Obviously, it's it's almost as if it's too obvious. So I'm going to articulate some very broad case studies of how over history, indigenous wealth have been attacked and dispossessed and how I'm definitely using the passive voice. I know that it's been done primarily by non Indian people, exclusively pretty much by non Indian people, at least until the last few decades. My theory is that, and I won't talk too much about it today, but my overarching theory is that many, but not all indigenous peoples. I think it's fair to say the indigenous peoples of Michigan, and the indigenous peoples of New England have a certain commonality in terms of their political philosophies, their cultural philosophies and their views of those philosophies those understandings of property and wealth are, they definitely exist, they are real things. But they were, and many ways antithetical to the political philosophies and wealth and property that came from across the sea came from Western political theory. John Locke, Thomas Hobbs, all that good stuff, the Declaration of Independence, also rooted in Protestant and Catholic political thinking as well, religious thinking. So I'm going to start by doing a shout out to Joe Singer, somebody that is obviously very influential in the field of Indian law. It occurred to me as I was putting together the materials for this talk that I think the first law review article I read and actually understood anything as a law student about Indian law was by Joe Singer, and I'm pretty sure it's this article called Well-Settled the Increasing Weight of History in American Indian Land Claims, and the article is about a Vermont Supreme Court decision from 1992 called State of Vermont versus Elliott. And the case is about the Vermont Abenaki Nation and Tribal members, citizens of that nation, who decided to go fishing, go hunting in violation of state hunting and fishing regulations and licensing, arguing that they had an aboriginal right to bring that claim as their tribes rights have never been extinguished by the United States government. They won at the trial level, but on review, the Vermont Supreme Court reversed. And Joe Singer's article goes into great detail about how that decision was rooted not in law whatsoever, but in the notion of a well settled understanding of American history. That by virtue of quote the include increasing weight of history, Indian people in Indian tribes can lose their property interests, their sovereign rights, and so forth. This is not unique to the Vermont Supreme Court. Those of you also in the Northeast, who pay attention to the US Supreme Court might look at that case and say, that's very similar to city of Cheryl versus Oneida Indian Nation 2005 in the US Supreme Court about the Haudenosaunee Nations tax communities arising out of their land claims. It's also familiar in some respects to archery versus Salazar and I'll talk about that one shortly. Here is from the glorious website, Wikipedia, a very cool map of what looks to be loosely the traditional territory of the Abenaki Nation. And basically it's Vermont and New Hampshire and parts of Maine a little bit into Quebec, I suppose. So the discussion basically and Stavey Elliott state versus Elliott is effectively one of Aboriginal title Aboriginal title Aboriginal rights are rooted in or the discussion. Excuse me that legal framework for those rights is rooted in Johnson versus Macintosh is rooted also in the Doctrine of Discovery which was effectively brought into American law by the US Supreme Court and Johnson versus Macintosh. The theory there of course is that Indian people indigenous people and indigenous indigenous nations have certain property rights that are that are subservient to an inferior to those of non indigenous peoples, people who came from the Middle East tend to have lighter skin tend to be Christian Protestant Catholic would have you and tend to be a little bit more imperial and colonial and mindset and the people who live here already. The thinking of course in Johnson you Macintosh is still relevant to this day, unfortunately, the thinking is that because Indian people have inferior property rights, it's relatively easy to strip those property rights away from those people, remove them from their homelands, remove them from their assets and resources. Very easy. All you have to do is purchase them at a very under under fair market value or kick them out through conquest. And most of the time these purchases these this extinguishment of what we call Indian title or original Indian title or original title or Aboriginal title whatever you want to call it. It was relatively the most efficient way to go about it so the US and other European nations purchased the lands from Indian people. They created situations through settler settler colonialism that made it virtually guaranteed that it would be an easier purchase, a cheaper purchase than if things were all things were equal. And you can see, I got some newspaper articles indicating sort of the discussed I think even in Vermont for the Vermont Supreme Court, after the 1992 decision. Long time and coming there were a lot of tribes in the Northeast in the 1980s that had either pending or ongoing land claims brought against the states in which they're located, as well as potentially the United States, many of those were reached settlement through acts of Congress we've talked about some of those today. Some of those things are good and bad. But the point being that if you look at this through systemic racism, a lens of systemic racism lens of the wealth gap what you see is very clear indication and intention to deprive indigenous peoples, in this case Apanaki, of a right to their own subsistence. And subsistence is not exactly wealth. Subsistence is the literal bare minimum. And even that was too much for the Vermont Supreme Court. Let's move on to the Narragansett tribe. We've talked about them again already today. I want to thank Jennifer and Bethany for their incredible work on the aftermath of car cherry work they've done for tribes directly and indirectly on making clear what the issues are in car cherry. I worked on car cherry very tangentially. In house I worked for Grand Travis Band many years ago when car cherry was sitting at the first circuit. I'm actually draft a little bit of an amicus brief on the 10th Amendment anti commandeering principles and things like that that never really became an issue in the Supreme Court. That's why they gave it to a junior attorney because it wasn't a big deal. So let's talk a little bit about Narragansett. And before this case really got to the Supreme Court, Narragansett Nation was really struggling. And I saw those photographs of the housing that they were trying to put up. Narragansett, here's loosely speaking where their lands again, this is a map from Wikipedia, which is no authority on anything but it looks cool. So we're going to use that you can see Rhode Island and Narragansett are very close to each other, closely approximating. So way back in the day Narragansett didn't have federal acknowledgement from the United States like most tribes in the Northeast and in Michigan as well. And so they brought a land claim, and they brought a claim under the non intercourse act. As many of you know is a federal statute 25 USC section 177 that goes all the way back to 1790 one of the very first acts passed by Congress. Basically, the act says thou shall not buy land from Indian tribes without permission to Congress. Naturally, much land was bought by from Indian tribes without permission Congress. All of those transaction are void, and in the Latin void ab initio meaning from their very inception as if they never happened, even if the tribe was paid, even if the tribe vacated the land and never went back. Now, when you have a situation where the tribe has been paid, the tribe has vacated the land, at least partially, and maybe the tribe is just more or less gone underground, and they're not really very open, available for for public view, so to speak. That's where wealth transfers happen in an incredibly broad way. Again, because of the doctor and discovery, because of the way Aboriginal title is disvalued devalued or undervalued or not valued at all. It's easy and cheap to purchase that land. And then to forget that it's all an illegal transaction, then to later come back and maybe perhaps ask Congress to ratify the transaction, or to just say we're a state government. We're Rhode Island, we're New York, we're Maine, when we buy stuff, it's totally legal notwithstanding what Congress says. Probably the tribes a centuries later may bring a claim saying the land, the transactions were void, and you can at least litigate that question. And if you survive a motion for summary judgment, perhaps maybe you can get some bargaining power, get Congress involved. Justice will never help you, but Native American Rights Fund will, maybe other tribes, maybe your congressional delegation. Even the state and local governments will want to make the case go away and talk Congress into distributing, appropriating some funds to settle the case, maybe some lands. And that's exactly what happened with Narragansett and the Rhode Island Indian Land Settlement Act. You see on the bottom a news article from 1979, which I find ironic. Now in 2021 was ironic when I started practicing law in 1996, 1997 land claim settlement satisfies Indian tribe. No, no, no, no. There's never going to be satisfaction. And I don't mean that in a bad way. I mean that the value of that land and over the time of history, no act of Congress no judgment from court will be enough to satisfy that. Just making tribes go away temporarily because you give them an influx of cash and some some acres is not is not recompense for all these these these centuries of colonial. So fast forward to the you know that the era after the Narragansett land claim settlement that settlement forbade the tribe from engaging in gaming operations that settlement effectively was a settlement that turned much of the relationship between the trust relationship between the federal government and tribes over to the state. State of Rhode Island to this day is highly, highly hostile to tribal interests. I sat in a meeting just just a couple of months ago before the pandemic I guess so years now before the Senate Committee on Indian Affairs I was there to testify about an unrelated thing public respect act. But the Congress was also considering possibility of a clean car cherry fix and Rhode Island's attorney showed up and admitted in open test open court so to speak open congressional hearing that the real reason that Rhode Island objected to the car cherry fix was because Rhode Island owns a casino and it doesn't want to compete with anybody that's the only reason they have they give no shits at all about Narragansett tribe and never really have. So they're interested in their own revenue they're interested in their own silence. So back in 2003, I think it was the tribe, which had little to no trust land had some land, but no economic development activity, and just was in a position that a lot of tribes in the state of Michigan were in the 80s 90s with just nothing decided to open a the governor of Rhode Island at that time is guy named car cherry. He sent out the dogs the state police he made a big showing of it like he was some sort of Texas southern sheriff. Stogie and a great big big big big belly. And he sent the state troopers and they wiped the Narragansett smoke shop from the face of the earth. They beat everybody up real bad broken bones and cushions. Many of these people were elderly. There may have been heart attacks. It was absolutely the worst form of state sponsored police violence that I've seen in Indian country a long time it's happened elsewhere at times. It's been threatened elsewhere, but I don't think anybody's actually ever videotaped the whole thing and created it on TV so that there's plenty of documentation about all of this. The Narragansetts litigated over the legality of their tax immunities at the smoke shop and they lost because first circuit for other reasons as well. The settlement act, the individual tribal citizens who were beaten by police lost most of their claims for police brutality and violations of civil rights as well, because it's something called qualified immunity. And this is just what Rhode Island is. There have been no apologies as far as I understand Rhode Island is not again this is a question of wealth and the dispossession of indigenous rights. It is very literally a question of wealth, there is no wealth that Narragansett and the every effort to organize the tribal community to generate wealth is washed in a very violent way. Then of course there is the car chair case. This case went on for probably 15 years. It was the mid to late 90s when Interior decided to acquire land and trust for housing and that picture of the house. The housing you saw before from just a few days ago. This picture is from a newspaper article several years back. And it's it's it's work shape now obviously but it's the same place really quite depressing. The tribe here is not interested in gaming I'm sure they would do gaming if they could get the option but it's not available at this moment so they were doing everything they could to develop self governance capacity self determination capacity the ability to actually provide basic housing for their tribal citizens. Rhode Island is against even that. And their objections are really quite noxious. So there's been enough said about car cherry. Thanks to Jennifer and let's talk about Mashby Wampanoag. So I sit on the Mashby Wampanoag Court of Appeals. I'm not going to say a lot about Mashby and I only certainly say so in my individual capacity not as a tribal judge there. But I've learned a lot about about Mashby and my opportunities to visit out there. And here's sort of where they are they're Cape Cod so we'll move on that's very easy and the picture from glorious Wikipedia. I got another picture from Wikipedia coming up where all the captions are in German for some reason that's quite hilarious. I learned about Mashby when I was in law school as well. Gerald Torres wrote an article and find a lawyer wrote a chapter in one of his books about the about the efforts of Mashby back in the 1970s to bring one of those non course act planes. And they were denied standing to do so because the court was unpersuaded that they actually were an Indian tribe for a long enough period of time. They were sufficiently consistent period of time to be an Indian tribe. The whole lawsuit was was absolute farce and sham, not the suit as brought by the tribe but just the way federal neon law works and the way they traveled for the federal court judge decided to proceed with the case was tried before a jury of non Indians none of whom knew anything about Indian people or Indian tribes or Indian law the judge probably was in the same boat. And they asked questions like, you know, was this person in Indian in 1930 was this person in Indian in 1940. And then because of census because of intermarriage, you had stories where, you know, one person in 1930 was listed as quote mulatto I don't like to use that word. The next time around in 1940, the person was listed as Indian and then next time around decade later the question was listed the person was listed as black, same exact person, three different racial racial categories. The court says we don't even know if these people are Indian and ultimately against the tribes ability to bring. So, this tribe is in such terrible position that, unlike the near gants that didn't even have the legal standing to bring a plan. And so, again, these are all claims rooted in illegal land transactions from a long time ago. Cape Cod is as is famous for its incredible wealth, and all the wealth of Cape Cod went to non Indian people from the people at Mashpee, which is again right there in Cape Cod. And similarly the tribe did acquire federal acknowledgement through the administrative process, I believe in the 1980s, and it's still desperate to quite land into trust. And you've heard earlier today about how Mashpee is struggling to to push back and to survive in this era, this post car cherry era. I've also seen, again, I'm not taking a position one way or the other but I've also seen pretty virulent attacks on the tribe in its efforts to do gaming within its traditional territories that are a little bit closer from to Boston. And you know you can only imagine what the opposition that the tribe would get if it decided to put a casino up in Cape Cod. Oh yes, you can absolutely imagine it because the tribe on Martha's Vineyard, related tribe the other Wampanoag tribe that's regularly acknowledged, trying to put a casino up on Martha's Vineyard. You know the people object to them are the people who vote in Congress are the people who donate millions to members of Congress and you know America effectively, it is an incredibly difficult position for a tribe with no wealth to try to reclaim the wealth that was denied them Finally, not finally, but before I get to the end, I want to talk about the Passamaquoddy and Penobscot nations in Maine. They also signed in it where are the ostensible beneficiary of another land claim settlement act in Maine, which is probably despite the fact that it allowed for the acknowledgement of the tribes, and also for the now recognition of the tribes. Some some semblance of their sovereignty is really the is really the imposition of state jurisdiction over those tribes. A few years back, I was able to participate in one of those task force meetings one of the very first ones where the task force asked me as a professor of sort of an Indian law one to one, how does Maine fit into the rest of the United States in terms of this the settlement act and assertion of state jurisdiction except there's nothing like it in the US this is this is in many ways a directive position on even the tribes internal affairs that a statute like public law 280 doesn't doesn't do. And I, you know, I think hopefully there is a movement that may reach some sort of conclusion and relatively short period of time that will be supportive of modifying the state's position on that settlement act. Perhaps even allowing for the tribes to commence gaming operations. Again, these tribes are they had these are their traditional territories they had trees they had resources access to water they had land. They had the ability to move around seasonally to have an economy. All of that was destroyed. They lost the land through the illegal and transactions. They lost the trees because most of North America has been deforested especially in the Northeast. It was a great show that my friend magazine worked on as a writer of bark skins that actually details some of the original the early days of the deforestation of North America. All of that was happening. Eventually, of course, passing McCarty and Penobscot's brought land claims against the United States government the US refute or against me, excuse me. Importantly, the US refused to participate in these cases. I mentioned before that the Department of Justice, the United States is not a friend, generally speaking to Indian tribes. The Department of Justice treats Indian tribes like the military treats Indian tribes were the enemy. There's a reason why when Osama bin Laden was killed. They, they refer to him as drama. The Department of Justice isn't militarized so to speak but they treat Indian tribes as an adversary and have been if you ever want to see where the strongest objections to things like the Indian Child Welfare Act, the Indian Gaming Regulatory Act, all of these land claim settlement acts in the Northeast Department of Justice led the way they did everything they could to try to block all of them. And they were not supportive and in many ways continue not to be supportive even in the best administrations. For example, insist that every federal agency issue and an exact secretarial order detailing how they're going to enforce the trust responsibility, except for the Department of Justice which refused to do so. And, you know, what are you going to do. Okay, so these land claims ultimately ended up in the Maine Indian Lengthen Settlement Act. And we talk a little bit about how that those settlement acts are not to the benefit of tribes they are to the benefit of those who have been sued by the tribes to make the cases go away the cheapest most efficient ways possible. But at least these times this time the acts were ratified by Congress so they didn't violate the nine percent. Like I said, these are just an ongoing dispute in Maine. And these cases, these issues wholly relate to the dispossession of indigenous peoples of their wealth and the attempt to preserve the the illegality the benefits of that illegality centuries or decades Last thing I want to talk about is children, because the dispossession of wealth also attacks children directly. This picture of this baby eating this book, I think is one of the best things I've ever seen in my life. And it's not a child from the Northeast you can see on the bottom it's a Ojibwe child, but it's I just I just love that picture. All right, so I won't spend a lot of time talking about it, but, you know, Maine several years ago had a Truth and Reconciliation Commission related to Indian child welfare and the dispossession in this case of Indian people of their children that went on throughout the middle part of the 20th century. And we all know that that the dispossession of those children, the removal of children from their homes goes back a century and a century and a half or more throughout the United States, and the Northeast was not excluded from that. These tribes that ostensibly were not under federal jurisdiction still had under federal order still had their children removed. And so there's no more twisted irony than that. But this possession of wealth from indigenous peoples the undercutting of tribal sovereignty and tribal nationhood was intentional. And they went for our children. And from day one, even before that really before the declaration of independence when the United States declared itself and insisted that it wanted to preserve slavery and to destroy the merciless Indian savages. And so there was the sense that the way to get effectively get the indigenous lands and to destroy indigenous nations was to go after the children. So, you know, in the Northeast you have you have the Dartmouth University for example is has wonderful indigenous studies programs now some of my best friends are profs there. It's really hard to educate native children from around the country. But the origins of Dartmouth are very brutal. That there is the very first act of Congress that sent money to educate Indian children was sent to Dartmouth. So at the very during the Revolutionary War at the request of Eleazar Weedlock. The request was send us money that way. You know the British are coming, and we can hold these Indian children as hostages so that they won't attack us them and their Indian allies. The use of Indian children as hostages is the first in the beginning of the use of Indian removal, the removal of Indian children from their homes continues nonstop to this day, but it's taken different forms. So, in conclusion, I don't have a lot more to say. Good to be giving a talk at the University of Maine actually so virtual but in a few weeks then looking forward to some of these issues I'm sure I'll cover in that same context but I want to say it's been a great honor to learn about these things to talk about these things. I'm happy that for Roger Williams University Law School and it's been a great experience, had a great time paying attention following along to with these the talks today. And I wish we could all be there in person because it's a lot more fun. And, but you know, I already know that so appreciate the opportunity and hoping for questions. That's where I really shine. So thank you. Great thank you so much Professor Fletcher. So as I mentioned before please please please send questions in the chat use the hand raised function to ask questions. I'm part of the discourse here so feel free at this time. So there is one question that came through earlier in the chat. So this one says, do you think that there's a model in the United States that other states should be using in terms of treatment of federally or non federally recognized indigenous people and if so what would that be. Well, let's start let's start with non recognized by non recognized you mean non federally recognized I'm sure I don't think there's a very good there are good models. You know some states do acknowledge tribes for specific purposes, but there's no one size fit all it's all there are tribes in Michigan that are not federally acknowledged that are treaty tribes that are state recognized. They call themselves state recognized the state says their state recognized but they're only recognized for one very specific purpose, which is to receive federal grant money, and the state won't object to it or try to tax it. And that's about as minimal as you can possibly get. And then there are other states, you know Virginia was acknowledging the tribes for some limited extent. And those tribes that are now federally acknowledged under statutes that are not unlike. You know what you have in the Northeast with Maine and Rhode Island Massachusetts medical. No gaming allowed a lot of state opportunity to intervene and tribal activities and tribal progressives and sovereignty so that's not a particularly good model I don't know of any good models frankly between state recognition of tribes maybe California there's some tribes in standing to make environmental environmental case or opposition and protection of sacred sites but it's still very limited. As for the best models between states and Indian tribes, you know, I'll have to. There's no model, but there are bits and pieces that you can draw from from some states Michigan has really good tribal state court cooperation judicial cooperation led to some tax agreements. It's led to some pretty decent gaming compacts as well. That's a decent model but you know the state could drop anything at any time it wants. We're in a good position right now say with buying five a pipeline that runs in the streets of Mackinac, at least from vis-a-vis the state of Michigan they were there aggressively supporting the tribe's interest. The same of the state's interest but a new administration that flipped could be flipped on its head and there's no model to maintain those sorts of positions so look to the best places the best states. Washington State of Washington is really good relations with tribes except when it doesn't. The Cal Spell tribe will tell you in northeastern Washington that the state of Washington has explicitly authorized the huge toxic waste dump right next to their reservation and they chose that tribe because it's a tribe without much resources it's sort of out of the way. And the state has chosen to sacrifice them so even the best states will do things that are really unconscionable. I wouldn't say there are better models but you'd have to pick and choose certain things. Some states have great models have domesticated the Indian child welfare for example at least eight or nine states and there's a lot to be learned from statutes like that. Great thank you. And so another question is this person said I just read the case of adoptive couple versus baby girl and it seemed like a huge missed opportunity for the court to repair some of the damage done to native families. What do you think the government can do or what is the Supreme Court's role in restoring the indigenous families after its efforts to separate native kids from their parents. Well the Supreme Court's role is to enforce the Indian child welfare act and what the court did overtly five to four was refused to do so for incredibly serious reasons. And that's that's a concern that the Supreme Court is very much interested the majority of that court was very much interested in attacking the Indian child welfare act as some sort of racial giveaway. And I'm using that phrase particularly because before the Chief Justice of the Supreme Court was a judge. He used to write memorandums he worked in the Reagan administration's office of legal counsel in the White House. And that's how he described statutes bills that were being that he was asked to review that come from Congress to settle land claims. Not unlike the ones we've talked about before. And he said this is a joke. We shouldn't this is America we should not be giving Indian people anything. And I'm not saying that's his thought now. Maybe he wasn't even his thought then because he was a young attorney working for a guy like Reagan. But that's an attitude that permeates political and legal elites. It is an attitude that you see in Supreme Court opinions like Olifant versus Supamish where the court says we can't find any laws that say tribes can't do certain things. But the reason that there's no laws is that there was always a quote unspoken assumption that the tribe couldn't possess that power. So we don't even need to find those laws. And that kind of attitude is around and it's it's not law. There's no law that backs backs it up. It's not part of the structure of the Constitution there's no unspoken assumption. It's systemic racism. And the courts role in the Indian Child Welfare Act is to apply the Indian Child Welfare Act. And we're going to have a case coming up called Bracken versus Holland and the Supreme Court very likely probably argued this term next in the winter. And the court won't just be asked to apply the Indian Child Welfare Act. They'll actually be asked to dismantle it. And we'll see if they do that. When it comes to rights like that the rights of tribes and the rights of Indian parents and the rights of Indian families including children. It's really up to the tribes in the first instance to step forward tribes have a lot of jurisdiction over their own children children are domiciled within their own reservations they have exclusive jurisdiction over them. That's where a lot of this has to start. The children who don't live on the reservation the families that don't live on the reservation. Those that's a harder question. And there's a lot of families maybe a majority of families live off the reservation and Indian Child Welfare Act is there to support. But the tribes need to be leaders in asserting that asserting jurisdiction asserting the right way to raise children and protect children and I think they are really to be frank. So they're you know like I said eight states have already joined tribes in adopting it on their own and most other states are really supportive. So the Brack King case I mentioned which is an attack on the constitutionality of it was brought by the state of Texas. It's really not brought by the state of Texas. It's brought by the Attorney General of the state of Texas. The state of Texas is Department of Child Services. That's not the name of it but whatever it's called. Well a letter a few years back supporting Iqwa full support of Iqwa and suggest me suggestions to the Interior Department of ways to improve it to be more protective of Indian families. Texas is actually strongly in support of Iqwa it's basically just the upper level political elites who are using it as political theory for other reasons. And that's that speaks to the people on the Supreme Court more so than the actual practice of law the actual business of doing child welfare in Texas and elsewhere. Great thank you to this question says in an effort to under undue erasure. Are there any resources we could access to learn tribal languages in Maine or the Northeast. That's a good question. I don't know much about languages but I was very happy to hear at Mashpee when I went out there several years ago that they have a language program. And you know they have no active speakers or at least they didn't back then. So there's there's two things that you can do that they were doing. I'm sure there's more not a linguist but they hired a language specialist someone who is not even from the Northeast somebody who I believe was Lakota. Somebody who's an expert PhD in ancient languages indigenous languages and the development of teaching methods to restore languages so they have recordings they've got written materials. That's one thing you can do. The next is you have to start your your kiddos very young learning language. There's this huge gap it's my generation it's my mother's generation. It's the generation of kids who are right out the families out of boarding school the families that were removed. The children are removed from their before Equop even after Equop. But it's the elders. Many elders know the language if you are lucky to have those elders. And they're I love going to meetings where the elders they always ask an elder to stand up and and bless the same proceedings. Maybe give a prayer but in more recent years I've been seeing children doing it's the children who are learning the language fluently speak it fluently and that's really really heartening to me. So I can't speak specifically about that but it's definitely very doable. You got to think those crazy colonial colonizing anthropologists from the early 20th century go write everything down and record everything they could. All within I of course is saying see these ridiculous languages and cultures are dying out rightfully so. So I'm going to record them because I'll be the guy who owns it for the rest of time. I'm glad they did that I use that material as a lawyer to try to help develop understanding of cultural stories and philosophies as articulated by people a century ago from my communities. We're thinking about law and public policy. They even they even talk they have stories about membership criteria and how to deal with property rights disputes it's really quite amazing you can dig into some of that material so got to be grateful for those guys. That's really wonderful advice. So the next question says, can you talk about how indigenous knowledge is and particularly indigenous diplomacy work to dismantle systemic racism, including its embeddedness in the Euro American legal system. You know, I think a great way great place to start are the fish ends of the 60s and 70s. So, in the 60s and 70s you had states had complete control over who was hunting and fishing in the waters. They complete control over who could pollute the waters who got the waters. There were no environmental statutes until the 1970s from the federal government. It was all the states. And what you had around the country was dirty air dirty water, the extermination of species, destruction of habitats. You know who came in and just completely disrupted that system where American Indian Treaty fishers and they came to it with an eye towards protecting property interests interests that their ancestors had negotiated for in treaties. They came to it with an eye of protecting their own sacred interests and in the fish in the land and the water. Those interests are cultural, they're religious. They're antithetical in a lot of ways to the way that the people in power in state federal government thought of property rights thought of basically just, you know, public lands and public waters and air. There are, in part, environmental statutes because of Indian Treaty fishers. There are environmental statutes for lots of reasons. I mean, the country was disgusting, but in a lot of places still is. But they came hand in hand and the tribes were able to make their views known really for the first time in any meaningful way and in a broad way because of the Native American Rights Fund and other organizations that had incredible lawyers who were willing to stand up often at the threat of life and limb to articulate those interests. The 70s, 80s, 90s are the first times that the tribes were able, Indian people are able to persuade judges in court, open court, of their views, how they were right about things. They used property rights articulated in treaties and preserved in treaties to advance those causes in law. But then, when they had a place at the table to negotiate with state, local and federal governments about land use, water use, hunting and fishing, habitat protection, that's where they brought in the heavy stuff. The indigenous political philosophies, the religious and cultural understandings of the humanities place in the universe. How much, basically to negotiate how many fish and animals and when human people can take, can harvest from nature and contribute to an ethic of sustainability that did not exist prior to the 60s and 70s. And that's still an ongoing process. There are wins and losses here and there. You still have ridiculous wolf hunts in Michigan and Wisconsin and Minnesota. But you also have the restoration of bison. You also have the removal of dams in the Pacific Northwest. They're just amazing bears ears. You have amazing things going on. It's just going to be an ongoing fight. And I think those impacts are really good examples. That's probably the sharp cutting edge, the vanguard of a lot of that. But you're also seeing that kind of thing in Indian child welfare. Tribes have developed all sorts of ways to protect Indian families in a way that it's completely different under state law. State and federal law will remove children from dirty homes with an eye towards getting them eligible for adoption to outside parties as soon as possible. They're really just, they're really enable and encouraged to financially and through law to do so. And tribes don't have that. They're pushing back. They're trying to come up with alternate ways to reunify families and they're really showing up the states in a lot of ways. States are adopting things that tribes have been doing for centuries. Similarly, when it comes to criminal justice, I had a colleague a few years ago ask me how often do tribal judges grant motions to treat a juvenile as an adult for purposes of criminal prosecution. And I stopped step back to roughly I couldn't believe it. No, no tribal judge would do that, at least not in Michigan. And it happens all the time for political purposes primarily when you have these awful crimes. You know, the 12 year old who, you know, killed somebody because of slender man years ago in Wisconsin. Tribes wouldn't prosecute treat that person as an adult or 12, no matter what horrible thing they might have done. And it tribes really don't have jurisdiction over cases like that, but that sense of humanity that often is lost in the criminal justice system in state courts in particular. You can find that in tribal courts and little by little, some of that that those think that those teachings, those philosophies are entering state courts and even trouble courts, although that's a much harder nutcrack. Great, thank you. So this question says, you mentioned that historically the Department of Justice has been adversarial in these issues. Is that cultural to the department or something else? You know, I don't know what it is. I think it's not law. The Department of Justice is the attorney for, say, the Department of Interior. Let's say Interior says, we did bad. We violated the trust responsibility. We breached the trust. We spoiled tribal assets. Let's settle this case. The Department of Justice, not because of law, I don't think, won't take the instruction from its client, the Department of Interior, it will make its own independent choices. So there's a case a few years ago where interiors wrote a big long memo to Justice saying, make this case go away. We're totally wrong. I don't know who leaked that memo to the tribe at issue. And the tribe said, hey, we just got the smoking gun that we're right under the merits. Let's win this case. Justice successfully forced the suppression of that evidence and forced the tribe to reach from the memo as an attorney-client privilege doctrine because they wanted to win. And that's a problem. When the United States government serves as trustee as a duty of protection to Indian tribes, a fiduciary duty, is a duty to avoid conflicts of interest. And the Department of Justice position is, no, there isn't. There's no such thing as a trust duty. I've heard attorneys from DOJ high-level ones from the OSG say the trust responsibility is a voluntary choice. If we feel like it in any given moment, we will enforce the trust responsibility. Otherwise, we will not. Come sue us and we will defend. When I talked earlier about federal statutes that Congress is passing, Justice will show up at hearings often uninvited and draft lengthy memorandum saying, here are all the reasons why this act of Congress is either unconstitutional or bad public policy. Again, the Department of Justice is the attorney for the United States. It's not the attorney for Congress. Congress made an independent choice, for example, in the Indian Child Welfare Act that they had the authority to pass the statute. The Department of Justice wrote a memo that is included in part in the legislative history that says, here are all the reasons that the Indian Child Welfare Act is unconstitutional. Every single one of those reasons was false. One reason was that the federal government was that Child Welfare was the exclusive province of the states. That's false. Did I not tell you at the beginning of this earlier in this talk that from the very beginning, the United States government was involved in intervening in the lives of Indian children versus hostages. Then when they took them as hostages, they had to educate them so they started schools. And then when they fought wars with Indian tribes and killed many Indian adults, they had a lot of Indian orphans to take care of. They took a trust responsibility to those orphans to create orphanages throughout the 19th century after the Revolutionary War, after the War of 1812, and especially after the Civil War. And then those orphans got allotments during the allotment era. And then those orphans went off to boarding school. So my point is, is that there is no exclusive state right to Indian children. There were then also, as an aside, not Indian law related, but states didn't even have Child Welfare Systems until the Great Depression. And the only reason they started those Child Welfare Systems was because the federal government gave them money to start the Child Welfare System. So Justice just assumed because they didn't see the word Child Welfare in the Constitution that the United States couldn't engage in Child Welfare. But that's just false as a matter of law. That's just an example of Department of Justice failing primarily because of whatever bias it possesses, failing to acknowledge the powers of Congress and to defend and assert the duty of protection that the U.S. owes to tribes. I could go on. Justice showed up and objected to the Indian Gaming Regulatory Act every single year that it was debated, saying with bad public policy that fat Tony from Organized Crime is going to take it all over. Tribes are just shills for international criminal conglomerates. All of this stuff they had no factual basis for whatsoever. And we now know after 40 years of vigra is patently untrue. So it's like that all the time. All you got to do is ask somebody who doesn't need affairs for the Department of Interior, ask them what they think of the Department of Justice. I think your commentators from the prior panel might have something to say about it. Yeah, it sounds like it. So the next question says, with such incremental changes and political uncertainties looking forward, are you optimistic about institutional and cultural, not to mention political change that will bring justice to Indigenous people? Well, I'm a big, I'm a big fan of what I referred to a couple of friends of mine came up with my friend Nick Rio at Dartmouth and mentioned I know friends at Dartmouth. My friend Nick Rio at Dartmouth is a forestry specialist. He, there was a Supreme Court case I mentioned before called City of Cheryl from 2005. And Supreme Court said, you know, the tribe wins this case. It's going to upset settled expectations of the state and local governments of the non Indian property owners. It's just going to be have too much regulatory disruption. And that word disruption is used in a negative connotation and disruption, but disruption has positive consequences. And he told me then in a forest fire, maybe this isn't a good example anymore, but in a forest fire if controlled is actually one of the greatest things ever. Yes, you burn a bunch of stuff down, but what comes up is much fresher. You have new growth, you have Indian Indian people always did burns and then what came after that was 10 years of incredibly strong berry production. The bears love forest fires. So do Indians. So, there are things that come out of disruption. Yes, there's destruction but there is incredible growth and potential for a lot of really great innovation. The best innovators in terms of governance in the United States are Indian tribes when you have nothing you're surrounded on all sides by those who are in opposition to you. You've got to be creative. And that's one of the great things that comes out of tribal governance one of my favorite things that I observed and participated to some extent with as an attorney for Indian tribes in house was to see tribal leaders and their advisors. Create ways to get around some of these problems. I spent a lot of time in my federal Indian law class, saying look, this case is terrible that goes to the Supreme Court tribes should win they lose, but they didn't really lose. When you lose the case in the Supreme Court that's when the real work starts. That's when you figure out a way to get around it. Your prior panelists mentioned a case called patch act. The first time patch act went to the Supreme Court for the gun lake tribe. They lost horribly it was it was a shocking loss one that I didn't I didn't foresee coming. And it had it does to this day have a huge impact on tribes. But the tribe that was the subject of patch act is the gun lake tribe it's Potawatomi tribe in Michigan represented by my own brother Zeke Fletcher. And so, at the end of the case. You know, we didn't we he lives like a mile from me we catch up all the time, and he never mentioned what was going on in that case. And I said what's going on with this case. He said I can't tell you. And he didn't for years until an act of Congress was passed that reversed the patch act decision. And that was all him. He wrote it. He got the Senate committee to look into it he got the Michigan congressional delegation to back him up. He received a bunch of threats from established tribal lobbyists and CAI was very quiet about it didn't want to help the tribe. Ultimately, he got this law passed. Many had to go back to the Supreme Court again and defend it and narrowly was able to defend it so you lose a case that doesn't mean at the end of the world. All of that goes to say that this is a time of incredible disruption. There are states that are failing right now. Oklahoma is a failed state. This is a government an entire state that is run by oil and gas and interests. So there's no pollution control and there's no regulation of oil and gas and interests. They don't have much tax revenue because it's a red state and conservatives don't like to tax things. So they don't have a lot of money. And the tribes in Oklahoma Creek Chickasaw Cherokee Choctaw in particular Osage to some extent some other tribes to citizen Potawatomi have resources. They're actually stepping up where Oklahoma is falling down. And you see this around the country. Now, yes, these are tribes that have lots of money. They have a lot of resources, but they're showing how to other tribes how it could be done. They're also showing really the state of Oklahoma and other states how to govern land in a fair and just way. So I think that when there is disruption like this, it's terrifying. I'm not going to say that it's not stressful and that you don't spend nights thinking about what the horrible things that can happen. But it's a great opportunity for someone like tribes to step in and do some really good work. Thank you. Okay, the next one says, until such time as the federal government wholly moves towards indigenous justice, should we who support such issues work at state levels since you mentioned much of the work has been done there. Yeah, you know, you pick and choose where you want to work. I think it would be great for people to work it for state governments for two reasons. One is I've worked with two reasons are one is when there are bad lawyers and state government doesn't help me. The other is is that Indian people really should work for the state. My lovely wife went on a single spent two years working in the governor's office here in Michigan. And I think just showing up to work every day. She does great stuff. I mean, she's a law professor, Harvard educated. She's an absolute genius. She's brilliant. Of course, in nature, she could have just been somebody to show up. And it would have, it was a sea change in the governor's office and really for the entire state of Michigan in terms of tribal relations, but also just being there for a year persuaded the governor to do something about line pie in Lake Michigan. I don't know. She wouldn't say that it was her, but it totally was. On the first point, let me give you an anecdote, one of my very favorites of all time, why we should have people in state government who actually know something about Indian law. It involves the pocagan band of Potawatomi and the state of Indiana. Several years ago, pocagan band got some trust land in South Bend, Indiana. They wanted to start a casino. They knew the governor of Indiana was a guy named Mike Pence. This was several years ago. They knew it was unlikely that Mike Pence was interested in entering into one of those big casino compacts, class three gaming compact that you can get under the Indian Gaming Regulatory Act, but they thought that they would go and negotiate anyway. So they called a meeting of the governor and the meeting was short. The governor said, look, we saw your proposal and this is told from the perspective of what I hear from the perspective of the then tribal chairman again, John. John said, Mike Pence did something like this. He's like, I hereby exercise my gubernatorial veto over your gaming facility. And, you know, John is a very played back guy, very cultural guy. And he said, well, Mr. Governor, we thought you would say that. And thanks for your time. We've already started construction on a class two facility. We wanted to do business with you, but if you don't want to do business with us, we're going to move forward without you. And Mike Pence says, what's class two? And John said, ask your attorney. And so Mike Pence turned to his lawyer who advised him he had a gubernatorial veto and his lawyer went like this. This is why we need people in state government who know something about Indian law. So I strongly encourage people to go into state government if they still choose. That's great. So before we get to others, just one more question, but one of our participants, Rina, put into the chat. So I'd like to just direct everybody's attention to their a dictionary it looks like to answer that first question about language, maybe some extra research on there. It doesn't necessarily mean that you'll be fluent or anything like that, but it's a good start. I think to look at a dictionary like that. So thank you, Rina, for adding that to the chat for everyone. So the final question that I have here says, do you know if the National Museum of the American Indian benefits the indigenous people of North America? I would say on the whole it absolutely does. It's a beautiful museum. You know, it's very respectful of indigenous people in a way that the Smithsonian has never been before. It's primarily run by indigenous people. You just have to know that it's still a museum. And you know, it's it's it's doing its best, but it's with exhibits are passive things that don't really move very much. It gives the impression that these things are in the past. Indian people are gone. Indian tribes are gone. There's never they're never really going to be able to get away from that completely. But I think it's really a wonderful institution for what it is. And I think it'd be incredibly valuable. I would also say that it's a gift shop is one of the greatest places to art markets for indigenous indigenous art and certainly on the East Coast. And I, you know, I generally speaking, I think it's great. But I there are you know my favorite thing about museums that I've noticed over the years is that when Indian people go into a museum. They go in looking for their relatives and friends they know it's really quite hilarious. That's what I find myself saying, Hey, I know that guy. And so it's, you know, it's just sort of like a running joke, but it's, I love NMA. It's great. On the whole. Okay, great. Well, unless anybody has any further questions, which I'm not seeing at this time. Professor Fletcher, thank you so much for all of your insight. But just real quick, is there a way for our participants to contact you or stay in touch with your work? Or a best way to keep up with what you're doing and potentially other scholars that you connect with as well. Well, I mean, you know, people mostly know me because of turtle talk. So if you want to know what I'm doing. I usually I'm doing something. If I'm doing anything, I'm putting a turtle talk. And we update it on every week, weekday with news and primary source documents from legal and legislative arenas as much as we can. And then putting stuff about today's event on there as well. So that's where you find me. It's just just Google my name. I'm a law professor. We always have to have our emails on public website somewhere. Okay, great. Well, thank you very much for all of your insight and your wonderful presentation and answering all of our questions. So for our participants today, we are ending a bit early. But I think that, you know, that's better than going over time. I think we can all agree. And so at this time, I would just really encourage all of our participants to use the emails and the connections that we've made in the chat today to ask any and all further questions and stay up to date on all of our speakers and what they're doing in the research. Additionally, as many of you know, the Roger Williams University Law Review does publish a symposium edition of our law review that will feature the speakers here today. And so that'll be out sometime in the spring this year. So please keep an eye out for that. And you can find that just by Googling Roger Williams University Law Review symposium edition. So additionally, as this program comes to a close, I would like to sincerely thank each of our speakers for their time and all their effort in making this program happen. Conversations about Indigenous law in New England and across the country are few and far between. And although there are some amazing speaking engagements happening almost every year now. It's still an important conversation to have, especially as I mentioned earlier today. And as our title suggests that these conversations can be fairly uncomfortable. These important and thought provoking symposium would not have been such a success without these incredible speakers, their insight and their education, as well as their willingness to answer all of our questions into the world of law and Indigenous people. I would also like to thank Ray Watson and the members of the RWU American Indian Law Student Association for their time and assistance with this symposium. And also for just bringing so much passion into our school and for for bringing in some really important classes and so for the Roger Williams students who are here on the zoom I very much encourage you to seek out some of the classes that Professor Diamond and other professors will be teaching on this topic. And then additionally, RWU law events, thank you so much for all your help for your constant support with this symposium, and also to Professor Diamond and the members of the RWU Law Review, many of whom are on the zoom today for piecing together our vision for this symposium. I sincerely hope that everyone here has learned something new and can take bits of this symposium into their everyday lives, and to be lifelong learners and to sincerely encourage all of you to continue your education on the law and Indigenous people and to make sure that we're bringing to light all of these important topics and standing up for for some of the things that we talked about today. So please do not hesitate to reach out to me. My email is in the chat with any questions. And if you need me to connect you to any of the speakers today. I'm happy to do so. So we're ending a bit early, but thank you so much for coming. And I hope everyone enjoyed and have a wonderful rest of your day.