Indigenous Law and Public Policy

Because I do not know what will happen between now and the beginning of next semester, I decided to get a jump on my syllabi for the Spring semester. This is the first time I will teach Indigenous Law and Public Policy as a synchronous online course, and it is the first time I will offer it as a 4, rather than three, credit course. The extra time that gives me each class meeting deprives me of any excuse not to do more to internationalize the course, to expose my students to Indigenous communities in other parts of the world. I have been reading about Australia and Canada, and hope to add more new material in the future. Teaching requires reading, and reading leads to learning, and learning leads to continuously revised syllabi. It is one of the most important and enjoyable parts of the job.

What follows is the syllabus for next semester. The formatting is funky, but I have not had the time to learn how to eliminate that problem. If any of you have suggestions or comments, I would love to hear them. Though it may not look like it, this syllabus is the result of conversations and exchanges I have had with so many scholars in so many fields. You know where to reach me.

History 262    Indigenous Law and Public Policy              Spring 2021  

Professor: Michael Oberg

Meetings:   MW, 10:30-12:10 ZOOM

                  Chat Time on Canvas: Wednesdays, 2:30-3:30

Office Hours:  Wednesday, 12:30-2:00 on Zoom and by appointment.



Twitter: @NativeAmText 

(I will occasionally tweet out news stories or other items related to our class discussions under the hashtag #HIST262MLO)  You need not follow me on Twitter, but you should activate an account if you do not have one and begin following the hashtag listed above.


Roughly every week or so I post to my blog on matters related to the teaching and writing of Native American history.  You are welcome to follow along.

Required Readings:

Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier, (2005)

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

Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America,  (2015)

Luke Lassiter, Clyde Ellis, and Ralph Kotay, The Jesus Road: Kiowas, Christianity, and Indian Hymns, (Lincoln: University of Nebraska Press, 2002)

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

Briana Theobald, Reproduction on the Reservation: Pregnancy, Childbirth, and Colonialism In the Long Twentieth Century, 2019.

Readings online.

News Articles on

Court cases and documents as per syllabus.

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 Geneseo learning outcomes, which I am required to place on the syllabus: 

       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.

A Note on Grading:  Your work this semester will consist of Participation, Journals, and a Final Paper.

Participation is much more than attendance. I view my courses fundamentally as conversations and these conversations can only succeed when each person pulls his or her share of the load.  You should plan to show up for class with the reading not just “done” but understood; you should plan not just to “talk” but to engage critically and constructively with your classmates.  Our conversations will depend on your thoughtful inquiry and respectful exchange.  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. Please have all assigned readings available when we meet. The reading load in this course is quite heavy. It will challenge you to keep up. If you have trouble with the reading, please let me know.  You obviously will be able to participate in classes with the most success when you complete the reading. Always ask for help if you feel yourself overwhelmed.

On two occasions during the semester I will read your journals.  I want you to think about what you are reading and I want you to write about that experience. Twice during the semester, you will submit your journals on Canvas. You should plan on writing 300 words a week. DO NOT SUMMARIZE OUR CLASS DISCUSSIONS.  DO NOT SUMMARIZE THE READINGS. I hope you will take this assignment as an opportunity to reflect upon what you are reading in class and in terms of current events, 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.  Show me that you are keeping up with current events in Indian Country. Use the journals as an opportunity to educate yourself on issues in Native America that matter to you. Read the news on INDIANZ.COM and CBC Indigenous. I will also tweet out stories that I find of interest under the hashtag #HIST262MLO. 

Final Paper: Your paper should be approximately 15 pages in length.  You will take the role of an adviser to a new President.  Your assignment is to advise this President on Indian policy.  In your paper you will do the following:

1). Identify what you see as a major problem or problems in Native America today.

2). Explain briefly the historical origins of this problem and how and why previous solutions have either failed to address it or ignored it entirely.

3. Offer a thoughtful, plausible, and realistic path towards solving this problem, and   justify it legally and constitutionally.

4. Have at least 30 sources in a thorough bibliography that includes the following: news articles, government documents, reports from agencies working with indigenous peoples, and works by scholars who study these issues published in academic journals and books.

5. Format the paper according to the guidelines spelled out in the Turabian Manual.      

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 from you before you complete an assignment.  The (virtual) 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.

I will write extensive comments on your papers.  I will ask you challenging questions, offer what I hope you will view as constructive criticism, and encourage you to push yourself as a writer and a thinker. But I will not give you grades, in the traditional sense, on this work.

I want you to benefit from this course. On the date of our first class meeting, we will discuss the standards for the class.  You and I will work together to arrive at a set of expectations for the sort of work that will earn a specific grade.   In your final journal, and in individual meetings scheduled during Finals Week, we will discuss how well you think you did in meeting the agreed upon standards, and what your grade for the course ought to be. 

A Note on COVID-19: We will be working together during a continuing global pandemic that, at the time I wrote this, has shown no signs of slowing down.  That you may feel stressed and anxious over the course of the semester is not surprising at all.  Your health is important.  The health of the people who matter to you is important. If the coronavirus pandemic is posing a challenge to you doing the assigned work, please feel free to let me know.  I encourage you to ask for help if you need it. Stay in touch.

Discussion and Reading Schedule

1 February       Introduction to the Course

                        The United Nations Declaration of the Rights of Indigenous Peoples

Pevar, Rights, Ch. 1-2; Banner, How, Introduction, Chapter 1; The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).    

3 February       Native Nations in the United States

                        How to Read a Supreme Court Case

                        Reading: Articles of Confederation, Article IX; United States Constitution; Northwest Ordinance 1787); Federal Trade and Intercourse Act (1790); Treaty of Canandaigua (1794); Banner, How, Chapters 1-3

8 February       The Marshall Court and the Definition of Native Nations

                        Reading: Johnson v. McIntosh (1823); Banner, How, Chapters 4 and 5

10 February     The Expulsion Era

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

 15 February    The Reservation System

Reading: Ex Parte Crow Dog; Major Crimes Act (1885) and US v. Kagama  (1886); Banner, How, Chapter 7.

17 February     The Policy of Allotment

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

22 February     The Indian New Deal

Reading: Reading: Pevar, Rights, Chapter 12; Cobb, Nations, pp. 54-93; Banner,  How, (finish book) and the Indian Reorganization Act,  1934.

24 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).

1 March          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.      

3 March          The Era of Self-Determination

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

 8 March         Red Power

                        Reading: Cobb, Nations, 124-188

 10 March       The Supreme Court’s 1978 Term, Congress and Tribal Sovereignty

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

                        At 2:30 PM, during the College Hour, we will meet with Shannon Keller O’Loughlin, the Executive Director of the Association on American Indian Affairs.  According to her official biography, she “is a citizen of the Choctaw Nation of Oklahoma. Shannon is a former Chief of Staff to the National Indian Gaming Commission, where she assisted in the development and implementation of  national policy throughout the agency, and oversaw the agency’s public affairs, technology, compliance and finance divisions.  Shannon has also served Indian  Country in the private sector​ as an attorney​, leading a large national firm’s Indian            law practice group ​and ​bringing more than 18 years of Indian Country legal and policy work to strengthen, maintain and protect Indian nation sovereignty, self-determination and culture. Shannon was appointed by Secretary​ of the Department of the Interior, Sally Jewell to the Native American Graves Protection and Repatriation Act Review Committee in 2013, and was appointed by President Barack Obama as the first Native American to the Cultural Property Advisory Committee within the State Department in 2015; she was fired by President Trump in 2019. ​Shannon received a B.A.​ in American Indian Studies​ from California State University, Long Beach and joint M.A. and J.D. degrees from the University of Arizona​ in Indigenous Peoples Law and Policy​.” I hope you all will make every effort to attend this Zoom Meeting with a leading figure in American Indian Policy  today.

15 March        The Power of Tribal Governments

                        Reading: Pevar, Rights, Chapters 3-10; Merrion v. Jicarilla Apache Tribe (1982); Duro v. Reina, (1990); Atkinson Trading Company v. Shirley (2001); US v. Lara (2004)

17 March        Pregnancy, Childbirth, and Colonialism

                        Reading: Theobald, Reproduction on the Reservation (entire book).

22 March        The War on Native American Children and Families

Reading:  Adoptive Couple v Baby Girl (2013) (this was a messy case, with two concurring and two dissenting opinions); this news story on the 2018 case, Brackeen v. Zinke;  and 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 (Canvas). Please take a look as well at Gabby Deutsch, “A Court Battle over a Texas Toddler Could Decide the Future of a Native American Law,” The Atlantic, 21 February 2019.  This is the most recent update on the case, provided by the Native American Rights Fund.

24 March        Rejuvenation Day: No Class Meeting

29 March        Sexual Violence in Indian Country

Reading: Deer, Rape.  We will discuss the book in its entirety.  You will want to begin reading this book in advance, so that you will have it finished for our class discussion.

31 March        #MMIW #MMIWG

Reading:  Read as much of the following as you can: Missing and Murdered Indigenous Women & Girls, (Seattle: Urban Indian Health Institute, 2017); 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 summary of the 2019 Final Report. Search on Twitter using the hashtags #MMIW and #MMIWG

5 April             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.

7 April             Issues in American Indian Religion: Christianity in Indian Country

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

12 April           Issues in American Indian Education: Boarding Schools and their Legacy

Reading:  Gord Downie, “The Secret Path.”  Watch the video, and watch the panel discussion in its entirety. I would also like you to go to the Carlisle Indian Industrial School online project, and spend at least one hour reading material on the website, including a sampling of student files.  You can find the website here.

14 April           Mascots and Other Forms of Appropriation

                        Reading: Materials on the Andrea Smith case; Russell Cobb, “Why Do So Many People Pretend to be Native American,” This Land Press, (August 2014), available here.

19 April           Economic Development and Poverty in Indian Country

                        Reading: California v. Cabazon Band of Mission Indians (1987);    Pevar, Rights, Ch. 16.

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

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

26 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.

28 April           Health and Well-Being in Native America

Reading: Indian Health Service, “Disparities,” Updated October 2019; Linda Poon, “How ‘Indian Relocation’ Created a Public Health Crisis,” Citylab, 2 December 2019; Mohan B. Kumar and Michael Tjepkema, “Suicide Among First Nations people, Métis and Inuit, 2011-2016),” Statistics Canada, 28 June 2019.

3 May              What Is To Be Done?

Reading: Read the Preface, Introduction, and Calls to Action in the Truth and Reconciliation Commission Report from Canada, 2015, entitled Honouring the Past, Reconciling for the Future and “Calls to Action and Accountability: A Status Update on Reconciliation” by Eva Jewell and Ian Mosby of the Yellowhead Institute, (2019). 

Final Paper Due

5 May           What is to be Done? (Continued)

                        Reading: Harold Napoleon, Yuuyarq: The Way of the Human Being, (Fairbanks: Alaska Native Knowledge Network, 1996).

                    Final Journal Due

11 May            Final Class Meeting

Grading Agreement.  We will discuss the following during our first class meeting.  If you think this document is fair, no changes need be made.  If you have suggestions, please feel free to share them with the class.  We will discuss them as a group.  (This document is adapted from the work of historian Cate Denial, whose writings on teaching are worth your time if you want to work someday in an education-related field.

Grading Standards, Spring Semester 2021

Grade of C:  You can earn a grade of C in this class by doing the following:

  • You complete your assignments on time
  • You prepare for and participate in all class discussions
  • You take critical responses to your work seriously, and use this information to improve your subsequent assignments.
  • You attend our online meetings diligently

Grade of B: You can earn a grade of B in this class by doing the following:

  • You put forth sufficient effort to significantly exceed the standards for a C grade.
  • You contribute to a challenging and stimulating online class environment through your thoughts and questions.
  • You develop listening as a distinct skill and demonstrate this through your careful attention to the words of others.  A careful listener will offer specific, focused response to the ideas presented by others. (Remember: When your camera is not on, I have no idea how actively engaged you are in our class discussions).
  • Your written work demonstrates a willingness to explore beneath the surface of an idea and makes connections between the readings and the world around you.

Grade of A: You can earn a grade of A in this class by doing the following:

  • You significantly exceed the standards described above for a grade of B.
  • You demonstrate a willingness and an ability to consistently probe beneath obvious levels of analysis, to question assumptions and perceptions, to explore new intellectual territory, and to make discoveries about yourself and the world in which you live.
  • You demonstrate curiosity about new subjects and perspectives, and are willing to exert time and energy to learn more about them.
  • You are willing and able to reflect upon your own work and thinking with an eye to the consistent and substantial improvement of the same.
  • You demonstrate leadership abilities in class discussions but balance that with an awareness that the quality (rather than quantity) of speaking in a semester is the true hallmark of excellence.

Grade of D: You can earn a D in this class by doing the following:

  • Your performance fails to meet the requirements listed for a C in one or more significant areas.
  • You were often late for class or absent, or fail to submit the required work on time.
  • Your analysis of topics was superficial, resting on unsupported claims, weak organization, and description and summary rather than argument.
  • You were not prepared for class
  • You did not ask for help when faced with difficulties.
  • You made little effort to improve your written work.

Grade of E: You can earn an E in this class by doing the following:

  • You performed significantly below the D level.
  • You failed to attend class regularly.
  • You rarely spoke in class and made no effort to compensate for silence by devoting additional time to written work or by visiting office hours.
  • You appear to have waited until the last moment to begin your writing assignments.
  • You showed no progress throughout the term, and demonstrated no concern or interest as a writer, a reader, a listener, and a speaker.
  • Your arguments were confusing, unclear, and unsupported by credible evidence and sound reasoning.

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