American Indian Law and Public Policy.

The semester begins for me tomorrow morning, and I will be teaching, among other things, my course in American Indian Law and Public Policy. The course is cross-listed in both the departments of history and American studies, and is the one required course in the college’s tiny Native American studies minor. I apologize in advance for the crazy formatting–I am still learning this whole WordPress thing, but I hope this is enough to give you the gist of what I do in class. If you would like a copy of the syllabus, drop me a line and I will make sure you get one.


History 262   American Indian Law and Public Policy           Spring 2018 

Instructor: Michael Oberg

Meetings:   TTh, 1:00-2:15, Sturges 105

Office Hours:  TTh, 9:00-10:00


Twitter: @NativeAmText  (I will occasionally tweet out news stories or other items that are related to our class discussions under the hashtag #HIST262MLO


Required Readings:

Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2007)

Daniel Cobb, ed., Say We Are Nations: Documents of Politics and Protest in Indigenous America Since 1887 (2015)

Luke Lassiter, Clyde Ellis, Ralph Kotay, The Jesus Road: Kiowas, Christianity and Indian Hymns, (2002)

Steven Pevar, The Rights of Indians and Tribes, 4th edition, (2012).

Readings on Canvas

Additional Readings, for Current Events discussions and assignments:


Course Description:   This course will provide you with an overview of the concept of American Indian tribal sovereignty, nationhood, and the many ways in which discussions of sovereignty and right influence the status of American Indian nations.  We will look at the historical development and evolution of the concept of sovereignty, the understandings of sovereignty held by native peoples, and how non-Indians have confronted assertions of sovereignty from native peoples.  We will also examine current conditions in Native America, and look at the historical development of the challenges facing native peoples and native nations in the 21st century.  This course is required for the Native American Studies Minor, and counts for both the S/core and M/core general education headings.  As a result, it is intended to meet the following learning outcomes:


Students Will Demonstrate:

  • an understanding of knowledge held outside the Western tradition;
  • an understanding of history, ideas, and critical issues pertaining to Non-western societies;
  • an understanding of significant social and economic issues pertaining to Non-western societies;
  • an understanding of the symbolic world coded by and manifest in Non-western societies;
  • an understanding of traditional and/or contemporary cultures of Latin America, Africa, and/or Asia and the relationship of these to the modern world system;
  • an ability to think globally.




  • understanding of social scientific methods of hypothesis development;
  • understanding of social scientific methods of document analysis, observation, or experiment;
  • understanding of social scientific methods of measurement and data collection;
  • understanding of social scientific methods of statistical or interpretive analysis;
  • knowledge of some major social science concepts;
  • knowledge of some major social science models;
  • knowledge of some major social science concerns;
  • knowledge of some social issues of concern to social scientists;
  • knowledge of some political issues of concern to social scientists;
  • knowledge of some economic issues of concern to social scientists;
  • knowledge of some moral issues of concern to social scientists.


Your grade will be based on a number of components.  Participation, an important part of your grade, is much more than attendance. I view my courses fundamentally as extended conversations and these conversations can only succeed when each person pulls his or her share of the load. We are all here to learn, and I encourage you to join in the discussion with this in mind.  Obviously, you must be present to participate. Phones should be stored before you enter the classroom with the ringer off.  When assigned readings are drawn from one of the required texts, please bring that book with you to class.


I discuss the individual assignments below.  The grading scale is as follows:


Participation:                                       100 points


3 Journals at 50 points each       150 points

Current Events Papers

2 papers at 50 points each       100 points

Final Project                                        150 points



A         500-470                       A-  469-450

B+       449-440                       B    439-410

B-        409-400                       C+  399-390

C         389-360                       C-   359-350

D         349-300                       E    300 and below.


With any of these assignments, I encourage you to visit with me during office hours if you have any questions.  You should be clear on what I expect of you before you complete an assignment.  The door is open.  If you cannot make it to my office hours, please feel free to contact me by email and we will find another time. The assignments are described in detail, below.


Discussion and Reading Schedule


16 January       Introduction to the Course

The United Nations Declaration of the Rights of Indigenous Peoples

Reading: Banner, How, Introduction; Pevar, Rights, Ch. 1-2; UNDRIP  (


18 January       Native Nations in the United States

Reading: Banner, How, Introduction, Chapter 1; Articles of Confederation, Article IX; United States Constitution; Northwest Ordinance (1787); Federal Trade and Intercourse Act (1790); Treaty of Canandaigua (1794).

23 January       The Marshall Court and the Definition of Native Nations

Reading:  Banner, How, Chapters 2-5; Johnson v. McIntosh (1823).


25 January       The Removal Era

Reading: Banner, How, Ch. 6 ; Cherokee Nation v. Georgia (1831); Samuel A. Worcester v. State of Georgia, (1832).


30 January       The Reservation System

Reading: Ex Parte Crow Dog; Annual Report of the Commissioner of Indian Affairs, 27 November 1851; Major Crimes Act (1885) and US v. Kagama  (1886).


1 February       The Policy of Allotment

Reading: Cobb, Nations, pp. 19-49; Banner, How, Ch. 8; Talton v. Mayes (1896); Lone Wolf v. Hitchcock (1903); United States v. Celestine (1909)


First Current Event Due

6 February       Water Rights in the Arid West; The Meriam Commission Report

Reading: Pevar, Rights, Chapter 12; Winters v. United States (1908); The Problem of Indian Administration, Chapter 1 and any one chapter from Chapter 8-14.


8 February       The Indian New Deal

Reading: Reading: Banner, How, Epilogue; Cobb, Nations, pp. 54-93; and the Indian Reorganization Act,  1934.


13 February     The Termination Era

Reading: Cobb, Nations, pp. 97-106, 115-123; HCR 108; Pevar, Rights, 333-337; Tee-Hit-Ton Indians v. United States (1955).


15 February     Williams v. Lee and the Modern Era of American Indian Tribal Sovereignty

Reading: Williams v. Lee (1959); Native American Church v. Navajo Tribal Council (1959); Pevar, Rights, Chapter 14 and pp. 329-332  First Journal Due.


20 February     The Era of Self-Determination

Reading: McClanahan v. Arizona Tax Commission, (1973); Morton v. Mancari (1974).


22 February     Red Power

Reading: Cobb, Nations, 124-188


27 February     The Supreme Court’s 1978 Term and Tribal Sovereignty

Reading: US. v. Wheeler (1978); Santa Clara Pueblo v. Martinez (1978);  Oliphant v. Suquamish Indian Tribe (1978).


1 March          Congress, the Executive, and the Legislative Revolution of 1978

Reading: Margaret Jacobs, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” American Indian Quarterly 37 (Winter/Spring 2013), 136-159; Legislation File on Canvas.


6 March          The Power of Tribal Governments

Reading: Pevar, Rights, Chapters 3-10; Merrion v. Jicarilla Apache Tribe (1982);Duro v. Reina, (1990).


8 March          The Power of Tribal Governments, continued

Reading: Atkinson Trading Company v. Shirley (2001); US v. Lara (2004)


20 March        #MMIW #MMIWG

Reading:  Melissa Farley, et. al., Garden of Truth: The Prostitution and Trafficking of Native Women In Minnesota, (Minneapolis: Minnesota Indian Women’s Sexual Assault Coalition, 2011) (read through this report); Royal Canadian Mounted Police site devoted to issue of Missing and Murdered Aboriginal Women (Read the Executive Summary and Conclusion in this Report)

National Inquiry into Missing and Murdered Indigenous Women and Girls.  (Explore the website, read the interim report, and, if you like, begin watching videos of the hearings which you can get here. Finally, have a look at Katherine A. Morton, “Hitchhiking and Missing and Murdered Indigenous Women: A Critical Discourse Analysis of Billboards On the Highway of Tears,” Canadian Journal of Sociology, 41 (3) 2016: 299-326. You can find a link to the pdf. here.

Search on Twitter using the hashtags #MMIW and #MMIWG


22 March        Issues in American Indian Education: Boarding Schools and their Legacy

Reading: Gord Downie, “The Secret Path.”  Watch the video and listen to the album, and watch the panel discussion in its entirety. Motivated students might consult the Canadian Commission for Truth and Reconciliation website, and leaf through some of the resources located there.


27 March         Issues in American Indian Religion

Reading: Pevar, Rights, Chapters 11, 13; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Lyng v. Northwest Cemetery Protective Association (1988).  If you have half an hour, I would encourage you to watch “The Silence,” a PBS documentary on one small Catholic Church in Alaska.


29 March        Issues in American Indian Religion:

Reading: Lassiter, Ellis, and Kotay, The Jesus Road, (entire book).

Second Journal Due


3 April             Health in Indian Country; Issues in American Indian Identity: The Mascot Issue and Acknowledgment

Reading: 1. Community Health Assessment, Blackfeet Indian Nation, 2017; 2).Do a Google News Search, and read about the Mascot Issue in the news; 3) Den Ouden and O’Brien, on Canvas; 4). Cobb, Nations, 107-114


5 April             Issues in American Indian Identity: Cultural Appropriation and Playing Indian

Reading: Circe Sturm, “Race, Sovereignty and Civil Rights: Understanding the Cherokee Freedmen Controversy,” Cultural Anthropology, 29 (August 2014), 575-598; and Blood Politics, chapter on Canvas.


10 April           Economic Development and Poverty in Indian Country

Reading: California v. Cabazon Band of Mission Indians (1987); Randal K. Q. Akee, Katherine A. Spilde and Jonathan B. Taylor, “The Indian Gaming Regulatory Act and its Effect on American Indian Economic Development”  Journal of Economic Perspectives, 29 (Summer 2015), 185—208 (Canvas); Pevar, Rights, Ch. 16.


12 April           The Land and its Loss: The Consequences of Dispossession

Reading: Keith Basso, Wisdom Sits in Places, (excerpts, on Canvas)


17 April           GREAT Day: No Class Meeting

Second Current Event Due


19 April           Colonialism is Alive and Well

Reading: City of Sherrill v. Oneida Indian Nation (2005).


24 April           Resistance: IDLA to Red Lives Matter, Idle No More

Reading: Watch Film: “You Are On Indian Land;” Cobb, Nations, 203-250; Lakota Law Project, Native Lives Matter, (On Canvas)


26 April           Resistance: The Legacies of #NoDAPL

Readings:  Read a selection of the sources from Oceti Sakowin Oyate (Sioux Nation), Standing Rock Reserve, and Standoff by clicking on the Standing Rock Syllabus here.


1 May              What Is To Be Done?

Reading: Harold Napoleon, Yuuyaraq: The Way of the Human Being (1996) on Canvas.

Final Journal Due


9 May              Final Exam Period

Research Project Due, 12:00 NOON.


The Assignments, Described in Detail:


Current Events Reports:  To do this assignment you will need to keep in mind the following.

1). First, set up a Google News Alert for a federally recognized Indian tribe, and follow the news affecting that community.  A list of federally-recognized tribes is available here and, though it is somewhat out of date, in Pevar. A quick glance at the large number of news articles at and on the web should make it clear to you that there are developments affecting the lives of native peoples and their neighbors across the United States and Canada.  You should also be able to see something of the force of history that still shapes these communities and their relationships to the United States and individual state and local governments. I expect you to try to keep up with the news feed from one Native Nation, and to follow similar developments on similar issues in other communities, to keep yourselves informed about what is going on in Native America.

2). To that end, I expect you on two occasions during the semester to write a current event report of no more than 1200 words based on no fewer than 8 related news articles that you found of interest.

3). You must provide full, accurate citations to those newspaper articles. (If you use, do not read only the website’s summary of the news, but the actual story itself. Your citation should include author, newspaper article title, the newspaper, and the date it appeared, along with a hyperlink to that article).

4). In your brief paper you should describe the basic issues concisely and accurately, and describe the significance of the events or developments you describe in terms of what you have read and what we have discussed in class. The articles need not be closely connected in time, nor do they need to all come from the same paper, in that you may feel free to follow a story that has developed over an extended period of time.

5). For your paper, you should use 11 or 12 point type, double spaced, with one-inch margins all around. You should cite accurately at the top of the paper the articles you looked at, along with a link so that I can read them easily as well. The best papers will develop an argument supported by evidence in the form of quotes from the articles you read. The first Current Event report is due on 1 February, the second on 17 April. Instead of a hard copy, please send me your paper in the form of a Word Document attached to an email.  Your paper should have a file name that is set up as follows: YourLastName-CurrentEvent1.


Journals:  I want you to think about what you are reading and I want you to write about that experience. Three times during the semester, I will collect your journals. You should plan on writing 300 words a week, approximately 1500 words each time I collect them. The journals should take the form of a Word file that you print out and hand in on the specified due date. I hope you will take this assignment as an opportunity to reflect upon what you are reading, to discuss the things you wish that we had a chance to discuss in class, or to say what you wanted to say during one of our class meetings.  Show me that you are thinking about the material we cover in our readings and in the classroom. See the syllabus.  I will collect hard copies of each journal submission.


Research Project:  You will complete a final project that consists of a paper of 10 to 15 pages in length, endnotes and bibliography not counted, formatted according to the guidelines spelled out in the Turabian Manual. You will play the role of an adviser to a new president (Republican or Democrat—your choice) on American Indian policy.  Your paper should answer three questions: 1). What are the principal problems facing Native American communities today?  2).What are the sources of those problems?  In other words, why do these problems still exist? And 3).  What can and should be done about these problems within the confines of the American constitutional system?


You should have at least 20 sources for your paper, and you must have a selection of secondary and primary sources, print and online.  I expect you to meet with me regularly during office hours to discuss research project and the sources that you are reading.   Do Not Procrastinate on this project.



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