The following was contributed to Tribal Law list and recirculated by permission
of the author..thanks Eric!

Oki all,

When Professor Delphine Red Shirt's piece from the Op-Ed pages of the
Hartford Current was posted to MumBle-L, I read it and dismissed it.
Uninteresting and uninformed writing on an issue of local, and marginal
interest. It was reposted here in TribalLaw. Urk.


Without getting bogged down in details that are not essential to this
note, there is a site on Cape Cod in which the remains of a group of
women and children are situated within a shell midden. They were beaten
to death.

The interpretation question is why were women and children killed at an
aquacultural gathering and processing site. The group in question was
matrilineal and matrilocal, like all settled New England groups, and
aquacultural and agricultural resources were controlled by women within
this group.

It is difficult to find a theory that is as likely as the killings
being consequent to an expropriation of an aquacultural resource, and
of necessity, that the killers were women and children, in prior
possession of the shellfish beds.

So, if Professor Red Shirt "goes missing" at some point, and is later
found neatly interred in a shell midden, having been quieted by a blow
to the skull, it is clear that a defense to a charge brought by the
United States under 18 U.S.C.A sec 1153 (ex parte Crow Dog) is that a
dispute over control of a resource has been resolved by traditional
means, under the traditional jurisdiction.

I think most of us who contribute to TribalLaw are clear that ex parte
Crow Dog is in the line of cases we'd like to see, but don't expect to
live to see, reversed.



I would expect that Ms. Red Shirt would offer a claim that she is not
subject to any jurisdiction other than that of the United States, and
immune by the doctrine of the supremacy of that jurisdiction from any
claim brought under inferior, tribal jurisdiction.

Russell Means recently sought jurisdictional defenses to charges of
battery of a woman and her father, and to fact issues unlikely to
further a claim for custody of a dependent minor child, making such a
claim.

The Stroh, Hornell and Ferolito, Vultaggio & Sons brewing companies
("Crazy Horse Malt Liquor") sought jurisdictional defenses to claims for
damages by the Estate of T'sunk Witko ("Crazy Horse"), and to customary
intellectual property rights claims, making such a claim.

I mention these two cases in particular due to the underlying similarity
of fact patterns, domestic violence and abuse of children, and theft of
property.

Ms. Red Shirt argues that she has a superior right to interpose upon
the formation of some particular families, and to conduct some form
of termination of lineal right. She has the innate ability to
retroactively sterilize some women, or change some aspect of their
wombs, specifically their ability to create "Indians". She may reach
into the laps of several lineages and conduct eugenic improvements,
snipping out, tying off, and aborting, illicit bits of Indian-ness.
To her credit, unlike the medical profession acting under the specific
instruction of the Government of Vermont until a very recent date, Ms.
Red Shirt uses only a pen, not a knife, to prevent the births of
unwanted Indians.

She also argues that she has a superior right to the customary
intellectual property of "Pequot", "Mohegan", "Mashpee","Nipmunk",
etc. The claimants to the customary intellectual property associated
with each label, the Band history, Band knowledge, and especially the Band
treaties, err in making their claims to be the successors in interest to these
Bands, or to the supra-Band (Tribal and Confederacy)
formations, and engaging in the autonomous exercise of these Band
histories, knowledges, and treaties.

These are rights reserved to distant parties, and whether the parties
are in South Dakota or in Nevada and New Jersey is immaterial.

Ms. Red Shirt cuts to the umbilicus cord of lineal descent, severing
off individual status, and grabs the filing cabinets of clerks,
seizing away collective status, by innate right. A Water Sprinkler with
a twist, sprinkling subtle persistent abortifacients on unsuspecting
impure maidens, and overthrowing entire minor states.


Gaming did reconstitute the Pequots. It may have had a similar effect
on some other groups. We can not mistake the casino for the cause,
the Chair person for the citizenship. Professor Red Shirt writes from
a very troubled mileu, where the passions of trailer court justices
run fast and deep.

If all she wanted to do was edit the IGRA so that it didn't apply,
at least not to Connecticut Tribes, that would be a box of band aides,
but not fatal. Unfortunately, she has joined ranks with Chief Justice
Rehnquist, and seeks to reclassify Eastern Indians as social clubs.
That's an injury beyond a small bit of sticking plaster.

It is unfortunate.

Being an Indian that passes at Yale must be very, very difficult.
And lonely.

Now if she could have pointed to the specific events in some Southern
New England Indian histories, say the Harlem colony, and argued that
these specific experiences deracinated some group or sub-group, if she
added to the knowledge of the Eastern Indian experiences, then her work
would be interesting, even if her conclusions were undesired.

Eric

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