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Good afternoon, and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

It's Friday, January 23rd, and I'm Michael Dillon Brennan, ambassador for the America 250 Ohio Commission.

It is my honor to introduce the first forum in the City Club's America 250 Ohio series in partnership with the America 250 Ohio Commission, and presented with Bank of America, ROCK Family of companies and Cleveland Cliffs.

Throughout 2026, the City Club will commemorate the 250th anniversary of the United States by exploring all the ways that Ohio has contributed to U.S.

history.

For over 250 years, all year long and throughout the state, the America 250 Ohio Commission will celebrate and commemorate this semiquincentennial anniversary Ohio style with hundreds of events at the local level.

In January, we recognize the unique contributions of Ohio's firsts and originals.

It is fitting, then, that today we acknowledge and celebrate the contributions of America's First peoples.

And welcome Matthew LM Fletcher, a leading tribal law expert and the Harry Burns Hutchins Collegiate Professor of Law and Professor of American Culture at the University of Michigan.

Since day one and throughout the entirety of our country's formation, Native Americans served as defining threats and participant in U.S.

politics.

Article one, section eight, clause three.

In the U.S.

Constitution, known broadly as the Interstate Commerce Clause, and as it pertains to our discussion today, the Indian Commerce Clause establishes a unique federal tribal relationship, acknowledging tribal sovereignty and self-governance.

Today, it serves as the backbone for federal Indian law, which spans hundreds of years and impacts both tribal and on tribal communities.

Today, we dive into how Native American nations helped shape the legal, cultural, and political fabric of the United States of America and why these stories matter today.

In addition to his position at the Michigan Law School, Fletcher teaches and writes in the area of federal Indian law, American Indian Tribal law, a nation of legal and political philosophy, and constitutional law, to name a few.

He sits as the Chief Justice of the Grand Traverse, Bay of Ottawa and Chippewa Indians.

The Pokagon Band of Potawatomi Indians, and the Porch Band of Creek Indians, as well as an appellate judge for many other tribal nations.

Fletcher coauthored the sixth, seventh, and eighth editions of Cases and Materials on Federal Indian Law and three editions on American Tribal American Indian Tribal Law, the only casebook for law students on tribal law in the nation.

Moderating the conversation is Siti Club's own director of programing, Cynthia Connelly.

For those who do not know, Cynthia is also a citizen of the Little Traverse Bay Band of Odawa Indians, which is located in northern Michigan.

She also taught the Native American Studies course at Kent State University for over a decade, and serves as the chair of the Lake Erie Native American Council here in Cleveland.

Before we begin, a quick reminder for our live stream and radio audience.

If you have a question during the Q&A portion of the forum, you may text it to (330)541-5794, and City Club staff will try to work it into the program now.

Members and friends of the City Club of Cleveland, please join me in welcoming Matthew Fletcher and Cynthia Connolly.

Thank you so much to the America 250 Ohio Commission for, your partnership in this series.

When we sat down to do the kind of brainstorming on the issues and topics and seeing January's, you know, theme for Ohio's first and originals, we knew exactly where we were going with this.

Did we not?

This is a such a great time to talk about, our people's contribution to this country and to the state.

And as you thank you for braving the weather from Michigan to join us.

I don't think it's very often we have two Michigan alumni on a stage at once here in Ohio.

So we're going to lean into this moment.

So I want to kind of take this, you know, starting kind of before the signing of the Declaration of Independence, before kind of our big, you know, the 250 celebration.

And, and talking more about the role of our nations in the formation of our country, because often it's framed in this way of, you know, we had things taken which we did or stolen, which we did or, you know, as kind of the recipients of the policy in the law that, predates the Constitution and our declaration of Independence.

But really, we were active participants in a lot of this law and policy.

Absolutely.

And, you know, first of all, it's great to be here.

I don't get a chance to come to Cleveland very often.

So, delightful town, wonderful community.

And, so, yeah, you know, the decades before the Declaration of Independence were really interesting times for, indigenous peoples in the Great Lakes, obviously.

And, you know, there's some real highlights and interesting points of history that occurred in this region that directly affected why we have the Constitution that we have to this day.

So, most notably, and I should have mentioned this earlier, the, the but the actual, structure and theory of the Constitution, which is what we call a federalism, where there's a national government and state governments that are sort of all working together.

And arguably, at least from some people's perspective, comes from the Haudenosaunee Confederacy, which is, basically a, model for federalism.

You have, a confederacy of Iroquois nations or Haudenosaunee nations.

And then underneath that you have a group of, other actual specific nations coming together as a confederacy with a national government, so to say.

It's the Tuscarora, Cayuga, Oneida, Onondaga, Seneca.

And I'm missing one.

And I'm going to hear from them immediately.

Mohawk.

Yeah, yeah, yeah, it's like the Seven Dwarfs.

You can all like I can only remember six at the time, so.

But that, that sort of influenced the structure of the Constitution that goes all the way back to Benjamin Franklin's Plan of Albany from like 1740.

But in 1763, there was a war that actually took place here, from a from a gentleman who was Odawa or Ottawa, from the region called Pontiac.

And, well, he gets a car named after him, but, he changed everything.

He organized, a war against the British, colonizers and, at at a time when there, before there was an internet, telephones or telegraphs or anything.

He organized, an attack on 11 different forts throughout the western Great Lakes, all in the same day.

And, eight of those attacks are successful.

Pontiac attacked, Detroit, which was a mistake.

And for him anyway, but what that did was it scared the bejesus out of the British crown.

And the reason for the attack was that there are too many, you know, basically the intervention of settlers and governmental entities, traders within this area was what was causing problems with indigenous peoples.

And so the British Crown reaction to that was called the proclamation of 1763, which they prohibited anybody who was a crown subject from, from engaging or in any kind of trade or, land transactions or anything with indigenous peoples and routed all of that power into the Crown.

That led to a lot of anger amongst, American colony colonists and the that directly led to language in the Declaration of Independence complaining that, quote, merciless Indian savages were causing problems out on the frontier.

Really, what that argument was about was the Americans wanted land speculators, particularly wanted to acquire land from Indian people and the British.

And then later the Americans refused to let them do it and create a lot of conflict.

But it settled the structure of our Constitution and a national government in a lot of respects.

After the revolution, the United States was broke, had no real army to speak of.

It had, it was an incredibly vulnerable position.

The federal government had no money and had no ability to wrangle in the 13 states.

And so what was really the biggest potential economic opportunity for the United States at the at the inception, at the founding was what we call the Western lands.

So you might see the old maps where Virginia, for example, claims in a straight line all of the land directly to the Pacific Ocean.

North Carolina did the same thing.

Massachusetts.

And those are the Western lands.

Nobody, nobody in the United States even really knew what was there, other than indigenous peoples and a lot of trees.

So the that the goal was to whoever had control of the Western lands would basically have control of the United States.

And ultimately, because of the way the structure of the Constitution was, if you're going to have a union with 13 different states, and eventually that would become 50, you needed a strong national government.

The cost for that was the western lands had to go to the federal government.

And that's why tribes to the state, tribal nations, the 575 federally recognized tribes, deal with the United States in a direct, sovereign to sovereign government, to government relationship, and the early days that would have been through treaties.

Yeah.

And you mentioned a little bit about Pontiac.

And I know, you know, the the proclamation line that kind of drew this line down the, the top of the Appalachian Mountains and within the span of 19 years, sort of marched west, into Ohio.

And what we now know is, the Western Reserve and, past, Ohio in particularly, you know, I would say western New York, western Pennsylvania really was kind of this frontier for the revolution in, in terms of like, you know, settlers and cars going where they shouldn't be and, really getting some people mad.

And I know you talked about a it was a little turtle and kind of his, his efforts.

And that was a pretty fascinating story if you wanted to share that here.

Yeah.

So the the first real war post, the United, the American Revolution that the United States engaged in is often called the Northwest War or the Little Turtle's War, and it really involved the Ohio River Valley or what the the indigenous people around here called Eagle River.

And the that was the first basically frontier.

And, the theory of the United States, Indian affairs policy at the time was to send in settlers, traders to engage with the tribal nations.

And if things went badly as they pretty often would do, see the, you know, Pontiac's War, that's when you send in the military to take over.

And they happened pretty quickly, starting in 1785 or so, the United States sent raised an army again, no money, no real resources.

A small army sent it to, Shawnee territory and here in Ohio and it did not go well for them.

And they did this for, for years, and for about 7 or 8 years, every single army that the United States sent in and within anticipation of forcing compliance from the collective tribal nations, beginning with the Shawnees, but also the, Anishinaabe Confederacy, the Three Fires Confederacy, the Miami Confederacy, the Illinois Confederacy, even some Haudenosaunee nations were involved.

Huge giant group of groups of disparate peoples.

Again, year after year, the United States sending an army always, coming back, if at all, completely defeated until the United States started, a plan, basically a guerilla warfare against guerilla warriors.

And they started kidnaping Indian kids and their moms and grandmothers, and holding them in concentration camps, sending letters there.

That's, all of this is documented in the American state Papers, 1793 1794, with a list of all the people they had kidnaped, saying, if you want to see your kids again, this is it's time to negotiate a peace treaty.

And that led to the end of that war in 1795 and the first real significant treaty between the US, and Indian tribes, which is the 1795 Treaty of Greenville.

And that kind of set the stage for the Northwest Ordinance, all that those policies, the original trade, of course.

That Congress passed starting in 1790, funneling a lot of power into the federal government, treating Indian tribes as foreign nations.

And that's why we have in the Commerce Clause, this Congress has the power to regulate commerce with the states.

That's the interstate commerce clause with foreign nations.

That's foreign nations.

And with Indian tribes.

So Indian tribes are mentioned in this particular text of the Constitution, because those are that's basically a list of all the sovereignties that do things within the territory and with the United States.

And it's up right at the top.

Article one, section eight, the Commerce Clause.

And it says Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.

That's right.

And, you know, for tribal nations, that's an acknowledgment directly of our sovereignty.

Absolutely.

And, you know, the British actually are the ones who figured this out in 1763, that the way to deal with, these wild bands of indigenous peoples is through a government to government relationship.

And so, that part of that is dealing with so-called commerce, with the various different sovereignties that are in play.

But also through the treaty power, which is in article two, that's or article two is the president sort of area the executive branch?

So there are upwards of 400 treaties with the United States and, and various Indian tribes.

And, you know, this is what, you know, a lot of experts refer to as the treaty making era.

And, you know, throughout the period of, of our history since the landing of Columbus to today, there's, you know, these, these eras of, tribal federal policy.

And they often contradict each other, like, you know, the one thing is what they're going for.

And then a completely opposite the next, like, you know, 5000 years, and then it switches again.

So treaty Meiji era is kind of where we're talking about right now.

How come there were so many treaties and then how come they just ended?

Almost by and large, by, you know, the turn of the century?

Yeah, that's a great question.

You know, the first treaty between the United States and an Indian tribe was actually a treaty of Fort Pitt, and that was with a Delaware or a Lenape nation.

And the reason for that treaty was, like I said during the revolutionary War, as the Americans, their military needed to be able to move through Delaware Territory in western Pennsylvania if they had tried to send an Army group through that area without the permission of the Delaware, that they would never have seen those soldiers again.

So it was a treaty of military alliance.

And you don't have treaties of military alliance between the United States and a colony or a state or territory, or even like Microsoft, only with sovereign entities.

And that sets the stage going forward, for the treaty era and the first 60, 70 years of the United States, when the United States entered into a treaty with a tribal nation, mostly again in the East.

That was a very much an arms length, relatively even, even kind of even strength kind of bargaining situation.

So, the treaty era really set the stage for establishing the federal tribal relationship, as sort of excluding state governments from participating in Indian affairs, which led to a lot of litigation and actually almost started the Civil War in 1832.

There was a US Supreme Court case involving the Cherokee Nation of Georgia called Worcester versus Georgia.

And at the conclusion of that case, which the tribe effectively won that case, actually, the federal government won that case.

The the Carolina states were sending artillery to Fort Sumter.

And you guys have heard Fort Sumter.

That's where the Civil War started in 1861.

It almost started in 1832, at least in part because of this case.

Yeah.

And, you know, having that, that, that, nation and nation relationship still is established today.

And we're going to talk about that just a little bit later.

And I know we want to get to, another era of federal policy, that we think, you know, collective, I agree, is one of the most impactful, areas of policy that impacted the nation today.

Removal.

You want to explain what that means and the outcome of of removal?

Well, you know, a large part of these areas of federal Indian law and policy, they wax and wane.

You know, tribal interests sometimes are, on the ascendancy and but usually not so much.

So, so those early decades, federal tribal relationships and treaty relationship, especially in the East, there's an enormous amount of pressure from Americans to push out Indian people.

They wanted access to, lands and resources that tribal nations had possession of.

And, part of the reason there is the United States is that the federal government sort of, slyly promised to the various states, especially in the South, we will help you remove your Indians if you join the United States.

But that didn't happen right away.

Not so really.

Andrew Jackson was elected in 1828, and he was a southern Southerner.

He was an Indian fighter.

He was a slave owner.

He promised to eradicate all of the Indian, presence in this part of the country, basically east of the Mississippi.

And that in 1838, the Congress passed the Indian Removal Act, which granted and ordered the president to seek treaties with all the tribal nations east of the Mississippi, in which they would agree to leave and go to places like Oklahoma, what is now Oklahoma or Iowa or Kansas far west of the Mississippi River.

And that removal era was a particularly brutal period of time for tribal nations, most famously, infamously, the Cherokees, went through the Trail of Tears in 1838, thousands, hundreds of Cherokee people died.

And that and that forced march, in southwest Michigan, northern Indiana, you had the Potawatomi Trail of Death, where hundreds of Potawatomi Indians on their way to Kansas and Iowa, where, basically walked to death.

And the tribe here, a part of Pontiac's Ottawa tribe, you know, here in Ohio, it is Ohio now, was forcibly eventually removed and is now, a small remnant of what it once was in the state of Oklahoma.

And that removal era, set the stage, at least for the East for, basically making it look like there are no tribal nations really left.

There are no federally acknowledged tribes in Ohio or Pennsylvania at this point.

And that's all a function of this stuff, the sort of history and policy.

And you asked earlier, and I didn't answer the question about why a treaty stopped being, a thing.

And, in 1871, the House of Representatives and the Senate had a fight over Indian affairs policy.

And you might know from how treaties are negotiated and ratified in the United States.

The Senate has the right to ratify.

The House has no say whatsoever in treaty making.

They wanted to say in Indian affairs.

And so they just stop doing treaties.

There's no real legal issue there.

And we still negotiate basically, even to this day, we kind of negotiate treaties with United States every single year.

We call them annual funding agreements with the Bureau of Indian Affairs and Indian Health Service, again, sovereign to sovereign government, to government relationship.

That's.

Yeah.

When we talk about kind of the the progress of federal Indian law and today I want to spend some time here, you know, we and actually, I should have prepped you a little bit on this one thing that I thought was absolutely fascinating was one of your pieces on the dark matter of federal Indian law.

And kind of which is a perfect title about how vast this topic is.

And I actually I had a friend who was talking with, Supreme Court justice and, had openly said that when it comes to federal Indian law, we're just sort of making it up as we go because it's just so complex.

Which is not what you want to hear from a Supreme Court justice.

But I think it gets to your point of like how how untouched and unknown it is.

We wanted to talk a little bit about the dark matter of federal Indian law.

You got to be really grateful to Justice Scalia for speaking his mind.

And I wasn't going to name names, but, you know, he is.

It was really it's really helpful to hear that.

But, yeah, the the dark matter idea comes from this.

So if you look at the treaties, almost every treaty starts with this notion that we call the duty of protection.

That's the tribe agrees in article one of every treaty to come under the protection of the United States.

Now that protection is a legal term of art from customary international law.

It's the same kind of arrangement that, say, the Vatican has with Italy or with Monaco and France.

It's a smaller, sovereign nation that comes under the sort of protection, I guess you could say, of a larger nation.

And that's the framework that the founders of the United States during the constitutional period, framing the constitutional period, decided to go through, decided to do so the the dark matter is kind of like this, you know, we the reason I kind of write that, and call it that is because we don't really know what the full scope of the duty of protection is.

If you read an Indian treaty, it's like five, ten pages long, and it doesn't deal with all of the things the United States promises to do in terms of its duty of protection.

It doesn't deal with all the things in it that the tribal nations are reserving for themselves within these, these treaty negotiations.

So to this day, we have, I don't know, in a given year, Congress probably spends 3 to $5 billion on Indian Affairs type activities, to health care.

It's housing, law enforcement, public safety, all that stuff.

Everything that a government does is at least partially funded by the federal government.

And you might wonder, that's the duty of protection is why Congress does this work.

It's always promised to do this work.

It doesn't fund at all as far as much as it possibly should.

And it doesn't do the things that it probably should to fulfill its duty of protection.

But if you want to know what sort of the value the duty of protection is, think of, I'll use the state of Michigan, because that's my place.

The Ottawa tribes in Michigan signed a treaty in 1836 of the United States in which they agreed, basically to sell their traditional homelands in exchange for smaller reservations.

The Treaty of Washington.

The Treaty of Washington, negotiated by Andrew Jackson's people, Louis Cass, Henry Schoolcraft, and then on the tribal Escanaba, Austin Hamlin from Little Traverse.

The that we came under the protection of the United States, but we the transaction was we get small reservations, maybe Grand Traverse Band is 20,000 acres.

I think Little Traverse is 50 or 60,000 acres.

We didn't actually get those reservations, by the way, to set that aside.

Yeah.

But, and we got it.

We got a, a couple few million dollars.

I think ultimately it ended up being like $15 million.

Now, I don't care what you think about the state of Michigan.

We sold one half of the Lower Peninsula, or one third of the Lower Peninsula for $15 million.

That's not actually what the value of the Lower Peninsula is.

If you just count the old growth pine and the located in the land of which relocate, that's probably I'm going to pick a number $1 trillion that the United States will never be able to actually fulfill the duty of protection until it spends down all that money that it owes tribal nations.

That's just one treaty and one state, the big mortgage it is.

But the problem is that nobody really knows what the full scope of it is.

So we kind of I called it the dark matter.

Like in physics, there's matter that exists in the universe that scientists can't actually discover.

They can't locate it.

So exists we know it.

It's probably black holes, I don't know, but for that it's.

Yeah, that's actually, a perfect way to describe it.

And you're talking about kind of some of the assets that were, were turned over.

It wasn't just land.

Right.

We're talking like timber and water and mining.

I know the Upper Peninsula has like one of the largest or did it one of the largest, copper resources in the region.

So it's really impossible to calculate the value of, of what was given.

So when we talk about Indian law today and we use the word Indian law in part because that's just kind of the the legal term that is used at this point.

You know, also for the census, American Indian, you what are what cases are we seeing come out right now?

Like what are the the big ones we should be paying attention to are just they're just, you know, were announced that really helped shape kind of both the federal Indian law the nation kind of changed the the tenor of of of the policy.

Well, I mean, you know, the, the era that we're in now kind of started in the 70s.

So I was born in 1972.

So right around that time, my lifetime, the Congress turned to, policy of self-determination.

Prior to that era, it was assimilation.

It was boarding schools.

It was forced adoption of Indian kids.

It was stripping tribes of their land and resources termination.

It was.

Yeah.

It was terminating the relationship between Congress and the tribes.

Hundreds of tribes were terminated in Michigan.

We had administrative termination, which is where the Department of Interior just stopped returning our phone calls illegally for 100 years.

It was awful.

Left us unread.

So the with self-determination, though, Congress completely flipped the lid, at least theoretically and policy oriented.

Flip, flip the paradigm completely.

And now tribes govern themselves.

They're restoring their land base.

That's why we have a land back movement.

Tribes can acquire land and put it and give it reservation status by entering, putting it into trust with the department of the interior.

So there's a lot of really interesting things going on in Indian country.

And there's a big problem, which is that this United States Supreme Court, thinks about Indian affairs and really all of its cases in terms of precedents and all of its precedents prior to 1970 are ratifying assimilation and dispossession of indigenous resources.

So when the tribes are suddenly doing things that they're not supposed to be doing, which is like governing themselves and developing their economies, the Supreme Court lags behind that horribly.

And but the nice thing is Congress, to the extent that it does attempt to fulfill its duty of protection, does things like pass an Indian Child Welfare Act of 1978, where, cases where Indian kids are taken from the reservation and adjudicated in state courts, those cases should be routed back into tribal court justice systems.

So we had a case that's been around since 1978, and it took a few years, actually a few decades, for the Supreme Court to figure out, like, maybe we should determine whether or not this is constitutional.

I mean, is Indian children without child welfare or any child welfare considered, quote, commerce?

So that's a constitutional issue that's been kicking around.

It didn't come to the forefront until just a couple of years ago.

And I think the reason for that, just as an aside, most states didn't comply with the Indian Child Welfare Act, so there was nothing to fight over.

But anyway, now there is.

And, the awesome thing about the Supreme Court is that they're it's a conservative court.

They're textualist they look at the original public understanding of the Constitution, and they looked at what the Commerce Clause meant in the context of the treaty power and the duty of protection.

And they said, yeah, maybe child welfare is not commerce, but it's definitely within the scope of Congress's power and its obligation to tribal nations to to do something about child welfare situations and why we call it Equa as an acronym.

Why was it was such a big deal?

Why is it still a big deal?

Because kids are taken from their homes, and they have been since the very beginning, all the way back to the American Revolution.

Frankly, it taken from their homes and put into institutions like boarding schools.

Some of them, like I said, held hostage way back in the day.

And then the middle part of the 20th century, they were taken by state governments and adopted out.

So we had urban relocation, where Cleveland was a place as a location, a target for the Bureau of Indian Affairs to take people from reservations and plop them here.

Ostensibly to in the 50s to generate economic activity.

Didn't work in the Supreme Court case you're talking about is Brecken v Holland correct?

You know, that was ruled on recently.

And another underlying fact of that case is it really reinforced our tribal sovereignty and ability to govern and that way that we weren't just a racial entity.

I think that was one of the underlying complaints of it was that it treated us, racially special.

But it really reinforced that sovereign, that political relationship we have with the government.

And some may argue that was kind of the kind of underlying reason that they were attacking.

It was because if they could attack the political relationship we have, the government make us just a, racial entity that would just undermine all of federal Indian law.

There's definitely a risk.

I mean, you have, organizations, entities that are interested in destroying civil rights legislation or, limiting those considerably.

And that's an issue.

But, you know, you look back at the Constitution, there's only one ethnicity mentioned, a constitution, at least explicitly, and that's Indians.

There's the Indian tribes and the Indian commerce clause.

There's also a provision in the 14th Amendment, weirdly enough, where the equal protection notion or the anti-discrimination notion comes from referencing something called Indians not taxed.

And that's that's related to citizenship, and it's actually subject to the birthright citizenship, cases, brought by the current administration.

But all that is to say is that Congress actually does have the authority to legislate vis-a-vis Indian tribes in a way that is not affected or should not be affected by, normal notions of equal protection or anti-discrimination principles.

We're in a government to government relationship.

We're going to move to audience Q&A here briefly.

But I do want to get one more question.

And for you.

And this was this is a little heavy one.

We actually have that Black Hawk here, back in September of 2024 as part of our field of book award series.

Also a National Book Award winner, he kicks off his book, The Rediscovery of America with this quote.

He says, how can a nation founded on the homelands of dispossessed indigenous peoples be the world' And it was I mean, it really teed up his whole book, and it was it's a pretty if you haven't read it, ten out of ten recommend.

We also you can watch it at cityclub.org/archives.

What are your thoughts on that?

Is there a way that we can reconcile, atone, for for what was done and for Native Americans in America needs to be part of this American democracy?

Well, my my glib answer is there's no nobody's illegal on stolen land.

But my real answer, my substantive answer is that, you know, that that one of the key principles of American democracy, constitutionally, politically, for at least the last century.

And I point to Justice Louis Brandeis for this, this notion that every state is a laboratory of democracy.

So, you know, a century ago, we're coming into the Great Depression.

And there's there's a lot of creativity, a lot of engagement between the states.

You know, California might try something in one area and Arkansas might do something totally different.

And it's sort of like, a marketplace of ideas where the best ideas rise to the surface and the worst ones.

Let's just move on.

I don't know that that's really the case with the States anymore.

I mean, you have a lot of national control.

I mean, if the current administration doesn't want California to do something, it doesn't take that much to stop California from doing anything.

And the states are really becoming sort of uniform.

But, you know, where the real laboratories of democracy are in the 21st century, the 575 federally recognized tribes, and some of them are, you know, some of them are like Navajo Nation that have a land base the size of Ireland, larger than ten states, 400,000 citizens.

Cherokee Nation, Oklahoma has four, 400,000 citizens.

And some tribes are super tiny.

Our tribes are about, you know, small land bases, a few thousand acres, a few thousand tribal members.

But we're governing in a way that is incredibly creative.

We have to be creative.

We don't really have, I guess theorists would say, a monopoly on violence.

We can't coerce people who are doing our work by sending out soldiers or police officers, and we have to govern by persuasion, which, incidentally, is our basically our foundational political philosophy.

And so we're doing a lot of different things with our justice systems of police forces, health care, housing, all the social services that we provide.

And, you know, a lot of the real innovative ideas that are coming out of modern governance in the 21st century are coming from Indian country and the real question is, how much of America is going to listen a traditional form of, of justice to in governance that we're seeing absolutely right.

We are about to begin our audience Q&A for those just joining via our live stream and radio audience, I'm Cynthia Connelly, director of programing here at the City Club and moderator for today's conversation.

We are kicking off our America 250 series where we will celebrate the Semiquincentennial or the 250th birthday of our country.

This month, we are recognizing Ohio's first in originals, and joining me on stage is Matthew Fletcher, a leading tribal law expert and the Harry Burns Hutchins Collegiate Professor of Law and Professor of American Culture at the University of Michigan.

We welcome questions from everyone city club members, guests, students and those joining via a live stream at cityclub.org or live radio broadcast at eight, nine, seven weeks.

You idea stream public media.

If you'd like to text a question, please text it to (330)541-5794.

Again, that's (330)541-5794, and city club staff will try to work it into the program.

We have our first question.

So, coming off the I have a bunch of questions for you, but I'm going to do the one, and directly talking about these, the black holes that you're talking about, these, you know, dark areas of law and talking more specifically about, movements with land back and re navigating our, you know, native people's, legal existences.

What do you think of the kind of recent developments, in specific for land back movements of the doctrine of discoveries removal?

So for those in the room who don't know, doctrine of discovery was initially, a concept, from the 1400s, from the papacy, saying that Christian monarchs and their representatives, if they came across land that was not ruled over or administered by Christians, they could see as it and that, led to Portuguese and, Spanish colonization and the United States used it.

What Johnson v McIntosh.

And most recently, city of Sheryl versus Oneida Nation in 2005.

So the United States has actively used the doctrine of discovery as their foundation for why native people are never allowed our land back.

However, the papacy in what March 2023, rescinded the doctrine of Discovery entirely.

So what does that say for native people now that that bedrock that the U.S.

has been using is no longer supported by, you know, the international community that initially framed its existence?

V McIntosh.

That was 1800s, 1823 or something like that.

Yeah.

Sorry.

Okay.

Well, well, a couple of things.

You're asking, a cynical lawyer, about a doctrine of discovery that there's no basis in law for the doctrine of discovery.

And that's absolutely right.

And I think actually, there's a Supreme Court justice who wrote exactly that.

Just a few months ago, Neil Gorsuch wrote something in a case that's, not terribly relevant.

But, the thing about the doctrine discovery is, is that.

Yeah, it's gone.

I mean, it's it's been a dead letter for so long that it doesn't really matter anymore.

It's sitting, you know, sort of on the books of the, you know, the United States reporter.

You know, it's kind of like, you know, doggy doo doo on the lawn, but it's not going to hurt anybody.

That said, the real response to any kind of pushback to tribal governance is tribal sovereignty is really more governance and more sovereignty.

And I really have to emphasize, tribes are doing really amazing things.

If you are forced to govern with a limited amount of power, limited resources, limited land resources, limited lands, excuse me.

You're going to come up with unbelievably impressive things.

We mentioned the Indian child welfare case, how these cases have to be routed from state courts into tribal courts.

So in 1978, there aren't very many tribal courts, the United States.

So you know what we did?

We made up tribal courts.

We started child welfare proceedings.

We developed our tribal welfare codes in light of our, customs and traditions.

So you know, in Michigan, we would, you know, most of the child welfare codes reference a principle in the language called melba bondsmen, which means living your life in a good way.

And that's the core principle for most of our governance, even if we don't say it out loud.

And that's where all the really interesting, exciting things are coming from.

So, yeah, you brought up city of Cheryl.

That is an ugly, ugly case, right?

It's a case where a tribe in New York tried to assert its sovereignty.

And the Supreme Court said, you know, when you bring a lawsuit, it's really disruptive to your neighbors, the non-Indian communities that around you.

And so we don't think you should be able to do that.

So your case has gone up, gone away.

If that case actually had more meaning than that, it would mean that all of Indian law goes away.

And the person who wrote it was Ruth Bader Ginsburg.

And right before she died, to her credit, she said that was one of her biggest regrets was writing that opinion.

It is virulently racist in every conceivable way.

Luckily, the court hasn't done much with Cheryl at that point, so we'll leave it off to the side.

One of those doggy doo doo things.

And it's all true.

That said, tribes get around a lot of this by just doing a better job.

My my friend at UCLA, Angela Riley, whose Citizen Potawatomi Nation wrote a paper called Good Native Governance.

And that's the answer to everything.

Kind of like the response to restrictions of free speech is more speech.

The same thing is true with governance.

I guess there's a lot of confusion on Indian lands.

If nonmembers are subject to tribal law.

And you wrote in a you wrote an article where it you compared it to U.S.

immigration policy, if you come immigrate here, you are bound by tribal law.

Was that what you were trying to say in a brief sentence?

Sure.

You're asking, it's hard enough to ask a lawyer for a specific question, and you're asking a law professor for a specific answer.

Good luck to you.

You know, generally speaking, yes.

You know, we lost a lot of our land.

It's been taken from us and a lot of Indian reservations, are, you know, 60, 70% of the people living on them are not tribal citizens.

Most of the land is not owned by the tribe, but the reservation boundaries remain extant.

They're real things.

And that matters a great deal, especially for criminal jurisdiction.

And tribes are sort of governing with, almost in competition with state and county governments and sometimes even with the federal government.

Ostensibly our protector.

And that creates a lot of litigation, a lot of conflict.

There are a lot of tribal nations.

Almost all tribal nations have membership criteria in order to become a citizen or a member of the tribe, you probably have to have some, ancestry with a tribal nation.

And that's not that's kind of an icky thing for in the United States, at least since the 14th amendment, birthright citizenship.

So the reason we have that, of course, is because our colonizers demanded that we have blood quantum rules.

So set that aside for a moment.

My my position on tribal nations is if they want to govern people, they need to figure out a way to to reach a consent of the governed type scenario that we have here in the United States, at least in theory.

And some that might mean tribal nations have a naturalization process where people come to live on the reservation.

They can become sort of a citizen in some respects without having to worry about the blood quantum thing.

And they can participate in tribal governments to some extent.

But actually, since I wrote that and this is almost 20 years now, the lower court, the courts, especially out West, have been pretty receptive to tribes asserting jurisdiction, especially jurisdiction for, you know, land use type things, pollution dumping.

And the reason is that tribes are actually governing very, very well.

And so that that to me, again, is another response, that tribes have different avenues in order to fully govern their reservations.

And the real reason, the real thing is, and this is what Indian lawyers do on the ground, is we reach, cooperative agreements with our neighbors.

We don't fight with them nearly as much as we they that than we used to.

And that, to me, is a huge step forward.

Thank you, professor, for coming to, Cleveland, from Michigan.

And I'm sorry about your football team.

But I'm sorry.

My question.

My.

Touché.

The my question is about the very concept of property ownership and in particular, during the treaty era.

I think it's fair.

I mean, I presume that, the white settlers certainly believed in the concept of individual property ownership during the treaty era.

Was that shared by, Native Americans who were negotiating on the other side?

Did they have a concept generally or specifically of individual ownership of property?

Absolutely.

And it obviously was different.

So, you know, think of the, tribes in the, in the Great Lakes, lived in a sort of a seasonal way.

We didn't stay in the same place every single time, you know, think of the Grand Traverse Bay and, the my ancestors, our ancestors in that area would have spent the summers on the beach.

I mean, that's where we should be spending our summers anyway.

That's where all the agriculture activities, a lot of the fishing generating, you know, stuff that you need to live through the winter and the wintertime.

We would move inland, into to where the tree cover is.

It's.

And we would break up into smaller groups.

That's where a lot of the teachings occurred.

And you kind of hunkered down for the winter.

Spring would go into sugarbush territory, which is where the swamps are, and generate our sugar and sirup, things that we would need for the rest of the year.

And all of these things were, generated, assets for trading, economic activity at the same time, indigenous people.

I think this is true for basically every tribal nation, and at least the North America had a much broader, expansive understanding of what property meant.

And, you know, we would have we would have acknowledged, property rights, not that we had rights over these entities or places, but property rights that existed in the land itself.

The trees, the, the rocks, all sorts.

The fish, all the animals were themselves, independent entities that possessed their own version of property rights.

Probably another way of putting it is if you think of where humans sit.

I grew up in a pretty conservative Christian household.

I learned a lot about.

And in college I learned.

In high school, I learned a lot about John Locke.

You can't own land unless you improve it.

And that means cutting down the trees and putting down rows of corn or something like that.

That assumes that humans are here to exercise dominion over the world around us, that we are the most important things around us.

It's right there in the Bible, for a lot of indigenous people, definitely Anishinaabe people in this area, it's the exact opposite.

Humans are critically important.

But we were we were created last, so to speak, because we were at least actually not that important.

And, you know, as a friend of mine, Eric Hemingway, likes to say, trees need don't need us at all.

We need trees desperately.

And, I think that's a that kind of philosophy shifts around understandings of property.

That is, you know, that sort of makes it look like, you know, to outsiders that we didn't have property.

We didn't believe in property rights.

And the exact opposite is true.

It's just a different idea of property.

Right.

So since you're on tribal courts and my question is specific to that, how have, tribal courts been able to imbue white law with their interpretations or their view of, Native American culture?

And how does that impact sovereignty and, the ability to, be more expressive and utilizing the law to promote native sovereignty?

So glad you asked that.

I love my work with tribal justice systems.

I'm an appellate judge, so I don't have to be on the reservation every single day.

I get the privilege of just sitting around reading and listening to people talk.

You know, there are probably about 400 tribal justice systems, tribal court systems, out of the tribes that have them, and every tribe in Michigan has a robust court system.

Some of the things we do, at least things that I do, not everybody goes down this road.

But some of the tribes have been going down this road of trying to interpret things like the Due Process clause.

Right.

The US Constitution has it in two different places.

Most state constitutions have a version of what due process clause means.

You learn about it in constitutional law in your first year in law school.

I to me due process means this the bare minimum the government has to do before they take your life, liberty and property bare minimum.

It doesn't.

That's not exactly what the due process clause says.

It just means.

That's how it's been interpreted by the US Supreme Court and by policymakers.

Tribes don't have to do it that way.

We can look at due process through the lens of something like No Win or Navajo nations.

Justice system would refer to the principle of care, which I'm pronouncing horribly, even though it's a simple thing to pronounce.

These are principles that allow for individual people to have sort of some, some way to push back on the government.

Another good example is a principle that is not even in the US Constitution that I'm, I really was angry that the Hamilton play did not mention anything about Federalist Paper 81, which is where the notion of sovereign immunity comes from.

You cannot see your government unless your government allows you to sue it.

And even if the government passes the law saying you can sue us for this thing, the courts will interpret that that language as narrowly as possible to the benefit of the government.

And, that doesn't come from the US Constitution.

There's nothing in the Constitution that references say, for example, federal sovereign immunity.

And so why do we do this?

Tribal nations don't they have sovereign immunity to, but and they pass laws waiving immunity.

We don't have to construe them all that narrowly.

We can.

If you pass a law saying you should sue us, we could actually construe that very broadly to allow for a lot different, a lot more lawsuits.

And if you follow anything about police, you will see, in the event that something really bad happens with a police officer and you try to sue that person, that other officer, you're going to lose, it doesn't necessarily have to be the case.

And with tribal communities.

So that's this are just examples.

You spoke during your remarks about the, Bureau of Indian Affairs and the annual funding agreements.

Some of the things that those that funding supports, for tribal communities and, the fact that there's never enough, but could you talk about, how that funding, works practically, are there negotiations every year?

The the funding change every year?

Does a change every four years with new administrations.

And what's the circumstance today under this administration?

Well, the the these annual funding agreements come from the 1970s, statutes that established self-determination as the founding sort of the parent paradigm.

Now, so every year, Congress establishes an A, not a number.

And I mentioned like 3 to $5 billion that I just made that up.

But it's something like that.

And then out of that number comes all of the money that's going to go through self-determination contracts to tribal nations.

Every tribe gets a piece of that.

And within that piece are a bunch of basically line items.

Every kind of governmental service that tribe provides or historically has provided, gets get some aspect of that.

And the tribes and the Bureau of Indian Affairs and Indian Health Service and a couple other federal agencies can negotiate which amount of money that is available goes into each sort of slot.

And then that money goes is the BIA.

The Bureau of Indian Affairs is a pass-through entity.

And if the tribe doesn't want to do that, actually the BIA will be on the hook and have to do the governance on the reservation.

Most tribes don't like that, but it is what it is.

That that's never enough.

And so what tribes do is they and Congress has acknowledged this in lots of different statutes over the past hundred years.

They have to have business entities to generate governmental revenue, to support revenue, to supplement what it is that Congress does pay for.

So my tribe, we had a, we had to figure this out 20 years ago on a piece of litigation.

85% of our governmental budget comes from our casino or casinos.

15% comes from the federal government.

So that gives you a and we don't feel like we're fully funding our government even with the gaming revenue.

But that gives you a sense of how much Congress is actually paying for.

I think that that percentage is pretty pretty, is pretty consistent across the process across the country.

But if you have a if you're in South Dakota or in Alaska, you don't have much gaming revenue.

You're just stuck with what Congress provides you.

That puts those tribes in incredibly desperate straits.

And that's kind of how this thing, these things work right now.

I am, Kathy.

I'm one of the, commissioners for America, 250 Ohio.

Thank you both for being here.

One, my position on the commission is one of the co-chairs of the Under Told Stories committee.

And what we are trying to do is seek to amplify the stories of people whose stories have been not in the history books.

So my question is this, given the fact that you that Native Americans are not a monolith, obviously, as our know how groups.

What in what way, what ways do you personally think that is the best way to have a story be told for people who know just enough but and want to know more and really should know more about how to native and how Native Americans help build our country.

And of course, Ohio to me, I that's a great question.

I, I, I'm privileged to, have friendships with people who are creative artists to this day.

So for example, Angeline Boulley is a Sioux Sainte Marie Tribe of Chippewa Indian citizen who has written a series of young adult fiction, young adult novels in the last few years.

Most recent one is her Firekeepers Daughter is the first, the most recent one is called Sisters in the Wind, and it's, it's a narrative about an Indian child welfare case, basically, or a series of cases.

And, it gives you a sense of how tribes operate in the modern era and the contemporary area given with this long, lengthy history of trauma and dispossession that infuses all of us, whether we like it or not.

I mean, there's, I don't know, a single native person I've ever met who has does not know somebody in their family who has been removed, been state even in the 21st century.

So, those sort of stories I think are really good start.

And they're fictional.

So there's reservation dogs on television.

Rutherford Falls, those shows are written largely, if not exclusively, by native people.

So that's where I think you should start.

And you mentioned, that Blackhawks work.

So we're starting to get historians who are looking at the old histories from an indigenous perspective.

And as a lawyer, I can tell you, that the justices on the Supreme Court, they didn't take any native studies classes.

They did not take federal Indian law.

So they learned from reading, just like most people do.

And, you know, what they read tends to be the worst of the worst kinds of analyzes.

And so it's nice that I think if you focus on what Indian indigenous people are doing now, writing fiction, writing TV shows, and also the histories and sort of stories about how tribal nations are governing.

I can tell you right now, those are not the most scintillating stories, but that's where you go to learn what's going on.

And you can see how tribes have been adapting.

Sometimes for centuries, with in this environment.

Rebecca Nagel's podcast, This Land, It's Two Seasons is probably one of the, well, most well done podcasts I've listened to that covers just not only tribal lore, but also kind of culture and everything it was is really well done.

All right.

Well, we are at time.

Thank you so much, Matthew Fletcher, for joining us at the City Club.

We watch.

For more information about the yearlong celebration across the state of Ohio, please visit america250.org/ohio.

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The City Club would like to welcome students joining us from MC squared Stem High School.

So sorry.

No snow day for you guys.

We would also like to welcome guests at the tables hosted by the America 250 Ohio Commission, Bank of America, Cleveland Cliffs and the Lake Erie Native American Council, and ROCK family of companies.

Thank you all for being here today.

I'm Cynthia Connolly.

This forum is now adjourned.

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