Tribal Disruption and Indian Claims
Matthew L. M. Fletcher
Michigan State University College of Law
Kathryn E Fort
Indigenous Law & Policy Center, Michigan State University College of Law
Nicholas J. Reo
University of Michigan at Ann Arbor - School of Natural Resources & Environment ; Native American and Environmental Studies, Dartmouth College
January 30, 2014
Michigan Law Review First Impressions, Vol. 112, 2014
MSU Legal Studies Research Paper No. 11-26
Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive - that is, impossible to enforce or implement in a fair and equitable manner - that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims. The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York, because it considered the claims so disruptive.
We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York, the Saginaw Chippewa Indian Tribe, and five Michigan Anishinaabe tribes demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.
Number of Pages in PDF File: 9
Keywords: tribal disruption theory, Onondaga Nation v. New York, Saginaw Chippewa Indian Tribe v. Granholm, United States v. Michigan, Indian treaty rights, equitable defenses, new lachesAccepted Paper Series
Date posted: February 1, 2014
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