diated. They've never been acknowledged as racist. And they are the law and they are cited today as the law.  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.  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.  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.  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.  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.  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.  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.  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.  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 rea