Friday, March 30, 2007

Attacks on Native Hawaiian homeownership legislation as race based reports the contested passage of a bill to reauthorize the Hawaiian Homeownership Opportunity Act, first passed in 2000. The law, in fact part of a much older and uncontroversial program to assist Native Hawaiians, has apparently become a target of republican law makers as “race based.” There are a couple of scary things about this.
First, the program actually implements an 87 year old program that’s at the core of the trust relationship between Native Hawaiians and the U.S., the Hawaiian Homes Commission Act of 1920. That act was intended to partially address the devastation caused by the annexation of Hawaii by placing 200,000 acres in trust to provide homes for Native Hawaiian families. The program didn’t work at all (surprise!--remember allotment?). By 1990, most of the land was used for purposes other than homesteading, almost none of it by Native Hawaiians. Hundreds of Native Hawaiians had died waiting for an allotment of homelands. In the first meaningful effort to address this, the Homeownership Opportunity Act guarantees loans and provides funding to help Hawaiian Natives get homes on the land that is supposed to be theirs.
The second scary thing is that this seems to be part of a broader effort to limit some federal Indian legislation, such as funds for urban Indian health care, as race based.
Here are excerpts from the article and a link to the full article: Democrats in the House secured passage of a Native Hawaiian housing bill on Wednesday, defeating a Republican effort to block the measure as unconstitutional.
The 272 to 150 tally broke down along party lines. All 227 Democrats present voted in favor of H.R.835, the Hawaiian Homeownership Opportunity Act, a bill to reauthorize Native Hawaiian housing programs.
In contrast, all the no votes came from Republicans. Only 50 GOP lawmakers joined Democrats in supporting the measure, which was sponsored by Rep. Neil Abercrombie (D-Hawaii).
"Please don't punish people that are trying to own their own homes, to keep their own homes, because of some ideological difference that we might have," Abercrombie said yesterday afternoon.
Abercrombie decried the partisan response to the bill, noting that another Native Hawaiian housing bill was supported by Republicans in the 109th Congress. Even Rep. Spencer Bachus (R-Alabama) signed on as a sponsor of that measure but he came out in opposition to H.R.835.
Bachus argued that the bill violates the U.S. Constitution by singling out Native Hawaiians for benefits based solely on their race. "So this disturbs many of my colleagues on my side of the aisle," he said on Tuesday night.
Bachus and other Republicans were able to raise enough doubts about the bill that it failed to pass when it came up for consideration last week. On March 21, Abercrombie brought the bill up under "suspension" of the rules. ***
"This is not a bill about Native Hawaiian sovereignty," said Rep. Rick Renzi (R-Arizona) yesterday afternoon. "It does not confer any special rights to the Native Hawaiians, nor does the bill suggest that Native Hawaiians should be given a status equal to that of Native Americans."
The bill has not been considered in the Senate, where it faces hurdles from Republicans who successfully blocked a Native Hawaiian sovereignty bill last year by raising the same constitutional issues. Their efforts have been supported by the Department of Justice, whose political appointees have argued against "race-based" legislation.
Native Hawaiians are a target because they are not considered to be in the same legal category as American Indians and Alaska Natives. But the GOP campaign also threatens tribes in the 48 states and Alaska, with debate over reauthorization of the Indian Health Care Improvement Act highlighting attempts to restrict services to urban Indians and certain Alaska Natives.
"Under the Supreme Court's decisions, there is a substantial likelihood that legislation providing special benefits to individuals of Indian or Alaska Native descent based on something other than membership or equivalent affiliation with a federally recognized tribe would be regarded by the courts as a racial classification," Frederick Breckner III, a deputy assistant general at DOJ, told the Senate Indian Affairs Committee at a March 8 hearing.

Thursday, March 29, 2007

Is the Supreme Court getting better because of the Tribal Supreme Court project?

Do you think the Supreme Court is getting better because of tribal advocacy? After Atkinson Trading Post v. Shirley and Nevada v. Hicks, the NCAI and NARF helped to create the tribal supreme court project to co-ordinate litigation there. Since then, by my count, the tribal win-loss rate has been more balanced than the 77% loss rate that David Getches wrote about. I count it as either as about 60% loss/40% win, if you count Inyo County as a loss, or 50/50 if you count it as a punt. (In other words, there were wins in United States v. Lara (2004), United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), and Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005), losses in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005); United States v. Navajo Nation, 537 U.S. 488 (2003), Wagnon v. Prairie Band Pottawatomie Nation, 546 U.S. 95 (2006), and a nominal loss that was more of a punt in Inyo County v. Paiute-Shoshone Indians of the Bishop Community, 538 U.S. 701 (2003).) It looks a little worse when you take into account the significance of these cases and the extent to which they altered the legal landscape. I would say that Sherrill was extremely significant, and Wagnon, another loss, was to a lesser extent, and that only Lara is as significant on the win side. Do other people read the record the same way? If so, what explains this? Is it effective advocacy by the Supreme Court project? Is it success in keeping cases out of the Supreme Court? (Although Hicks and Atkinson were both cases that the tribal interests won below, so perhaps couldn't have been kept out of the Court.) Is it that Justice Rehnquist was ill, and so was not exercising as much force on the Court? Or is it just that having lost so much in the last 20 years in the Court, tribes don't have much significant left to lose?

Monday, March 26, 2007

North Dakota Teaching Indian Law Symposium Articles

The Indian Law Pedagogy issue of the North Dakota Law Review has come out on Lexis and includes an assortment of articles that may be of interest both to those who did and those who did not attend. These papers are available in their final form on Lexis, not yet on Hein Online, though two papers are on SSRN in some form, see links below.
  • James M. Grijalva, Compared When? Teaching Indian Law in the Standard Curriculum, 82 N. Dak. L. Rev. 697 (2006).
  • Carole Goldberg, Critique by Comparison in Federal Indian Law, 82 N. Dak. L. Rev. 719 (2006).
  • Gloria Valencia-Weber and Sherri Nicole Thomas, When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations, 82 N. Dak. L. Rev. 741 (2006).
  • Alex Tallchief Skibine, Teaching Indian Law in an Anti-Tribal Era, 82 N. Dak. L. Rev. 777 (2006).
  • Robert Laurence, Teaching Treaties: Treaty Abrogation and the Rule Against Perpetuities: Seventeen Quotations and Two Graphs to Get Students Talking, 82 N. Dak. L. Rev. 795 (2006).
  • G. William Rice, Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box—An Essay, 82 N. Dak. L. Rev. 811 (2006).
  • Aliza G. Organick, Creating a Tribal Law Practice Clinic in Kansas: Carving the Peg to Fit the Hole, 82 N. Dak. L. Rev. 849 (2006).
  • Christine Zuni Cruz, Toward a Pedagogy and Ethic of Law/Lawyering for Indigenous Peoples, 82 N. Dak. L. Rev. 863 (2006).
  • David E. Wilkins, The “Actual State of Things”: Teaching About Law in Political and Historical Context, 82 N. Dak. L. Rev. 903 (2006).
  • Duane Champagne, Justice, Culture, and Law in Indian Country: Teaching Law Students, 82 N. Dak. L. Rev. 915 (2006).
  • Angela R. Riley, Tribal Sovereignty in a Post-9/11 World, 82 N. Dak. L. Rev. 953 (2006).

Friday, March 23, 2007

More on the Cherokee Freedmen Issue

For those who may not have seen it, in separate litigation the United States District Court for the District of Columbia held that the Cherokee Nation of Oklahoma had no sovereign immunity on the issue in question and could be joined in a suit originally brought against federal officials contesting recognition of Cherokee governmental actions that excluded the Cherokee freedmen. The district court effectively held that the 13th Amendment and the 1866 Treaty as well as other federal action combined to waive any tribal sovereign immunity on the freedmen issue. Thus, the court, refused to dismiss the action for failure to join the tribe as a necessary and indispensable party under Rule 19 of the Federal Rules of Civil Procedure. The case is Vann v. Kempthorne, No. 03-01711(HHK) (D.C. Dist. Ct., decided Dec, 19, 2006). Interestingly, the case contains almost no discussion of the Martinez jurisdictional issue since the complaint cleverly was postured primarily as an Administrative Procedure Act case despite the fact that it implicates tribal membership.

The district court's approach to tribal sovereign immunity seems quite questionable. To use a far-fetched hypothetical, if some foreign delegation to the United States or the United Nations brought slaves with them to their embassy or legation, it is highly doubtful that the breadth of the language of the 13th Amendment would be considered to abrogate their foreign sovereign and diplomatic immunity despite the fact they were in the United States. The question of whether the slavery was illegal generally would be considered an entirely separate question from the issue of whether the foreign legation had sovereign or diplomatic immunity. Unfortunately, the district court conflated those two issues in the Vann and thereby produced an arguably just result that was totally at odds with most traditional notions of sovereign immunity. This case constitutes a perfect example of how Indian tribes and the federal government often end up making truly bad law by pushing a legal position too far in cases which would require a court to accept an unjust result if it accepts the tribe's sovereign immunity position.

State Sex Offender Registrations Laws Enforcable Againsts Indians on Minnesota PL 280 Reservations

A sharply divided Minnesota Supreme Court has ruled that the Minnesota sexual offender registry statute is criminal rather than prohibitory since it derives from the commission of a prohibitory crime. The Court therefore held that the Minnesota statute could be enforced against Indians living in Indian country on Public Law 280 reservations within the state. The full opinion can be found here. News coverage of the case can be found here. The case raises a fascinating question as to whether the criminal act one should be measuring involves the commission of the original sex offense that triggers application of the act or the legally required act of registration. Obviously, which view of the act one takes affects whether one views the legislation as prohibitory or regulatory.

Wednesday, March 21, 2007

Race, Citizenship, and the Cherokee Nation

American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.

Prior to their removal from their ancestral aboriginal homelands in Georgia, North Carolina and Tennessee on the horrendous Trail of Tears, the Cherokees both influenced southern plantation culture in significant ways and were also significantly influenced by it. One of the most troubling aspects of that cross-cultural influence involved adoption by some Cherokees of plantation farming culture together with slavery. While history suggests that the Cherokee experience with slave holding was nowhere near as brutal as that suffered by slaves held by their white neighbors, the experience nevertheless was dehumanizing. That history gives lie to the notion that slavery uniquely constituted a white imposition on colored peoples and that “people of color” were incapable of such discrimination. Many of the Cherokees’ slaves suffered the same indignities as their “masters” when they were forcibly removed with the Cherokees on the Trail of Tears to the Indian Territory. The fact that some members of the Cherokee Nation continued slavery in the Indian Territory led portions of the Nation to side and fight with the Confederacy during the Civil War. In fact the last Confederate battalion to surrender during the Civil War was the batallion of Cherokees, Seminoles and Osages led by Brigadier General Stand Watie (Degata or Stand Firm), a noted and controversial Cherokee leader, who surrendered months after Lee had capitulated at Appomattox.

Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.

White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”

While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v. Ferguson (1896).

This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.

Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.

Earlier this month, the Cherokee Nation voted in a referendum to limit citizenship in the Cherokee Nation to persons of Cherokee blood. Most of the descendants of the Cherokee freedmen had not yet been enrolled and therefore could no participate in the referendum. The vote indicated that 76% of the voters favored moving from a race neutral to a racial definition of Cherokee citizenship in great part to exclude the descendants of the Cherokee freedmen who, of course, are of African-American descent. Since over 2,000 Cherokee freedmen descents had enrolled, the practical effect of the vote was to revoke the Cherokee citizenship of over 2,000 people and to deny future enrollment to others who could prove Cherokee freedmen descent. Answering a question asked by Chief Justice Stacy Leeds in the Allen litigation as to whether the Cherokee Nation was a political tribe or a race, the people of the Cherokee Nation voted overwhelmingly in favor of race. Since the Cherokee Nation did not begin as a people who culturally drew racial classifications as part of the determining tribal identity, the fact that three-fourths of the tribe now calculates its identity in purely racial terms speaks volumes about the ability of long-standing American racism to virally infect, contaminate and alter the sense of identity of others, including the victims of racial discrimination.

The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.

When the white government of South Africa disenfranchised and relegated to second class citizenship its black citizens under the guise of apartheid, the international community and, more particularly, the United States government took action to assure that equal political rights were given to all. Economic and cultural embargoes and the refusal to recognize or deal with the white apartheid government ultimately ended human rights abuses in South Africa and returned political control to a democratic state in which all South Africans had the right to participate equally. While Indian tribes no doubt have the same sovereign right to determine their own citizenship that South Africa does, their sovereign authority to do so does not and should not insulate them from either criticism or adverse political action by the federal government when they make decisions that disenfranchise or expel portions of their tribe, particularly when they do so strictly on the basis of race. The United States is a party to the 1866 Treaty and, just like any Indian tribe, has a right to insist that its treaty rights be honored. Cutting off federal assistance or refusing to recognize or deal with any government of the Cherokee Nation of Oklahoma elected under the citizenship rules just adopted by Cherokee voters might be major steps the federal government could take to demonstrate that racism is no more acceptable when undertaken by Cherokee voters than when adopted by Southern legislatures a half-century ago in de jure segregation statutes. Only time will tell whether the federal government has the same will and patience to end abuses of basic human political rights by Indian tribes in the same way it did in South Africa. The response of the United States government to this challenge will speak volumes about whether it really has developed a mature government-to-government relationship with the Indian tribes, as it frequently claims.

Tuesday, March 20, 2007

Navajo Supreme Court to Sit at Arizona State University

The Navajo Supreme Court will hear arguments on Tuesday, March 27th in the Great Hall of the Sandra Day O'Connor College of Law at Arizona State University. Arguments will commence at 10:30 AM.

This visit by the Navajo Supreme Court culminates a month in which arguments have held at the Sandra Day O'Connor College of Law by the United States Court of Appeals for the Ninth Circuit, the Arizona Supreme Court and the Navajo Supreme Court. The law school therefore has hosted federal, state and tribal courts all in the span of a month.

South Carolina Supreme Court Rules Against Video Poker

As part of its land settlement, the Catawba Tribe of South Carolina apparently agreed to be excluded from the coverage of Indian Gaming Regulatory Act of 1988. Given that limitation, the Tribe has sought to push the envelop on gaming as far as it could within the lawful bounds of the settlement in order to facilitate its tribal economic development and support. It already maintains two bingo halls. Today the Tribe was handed a setback when the South Carolina Supreme Court ruled that video poker and other electronic gaming were not permitted under the terms of the settlement and that the state legal prohibition on video poker applied to the Tribe, a position hotly disputed by the leadership of the Tribe. The Court's opinion can be found here.
A news story about the case, including reactions by tribal leaders can be found here.

Tribes Win San Francisco Peaks Appeal

The Ninth Circuit, in a decision authored by Judge Willie Fletcher, held that the proposed use of recycled water to make artificial snow on the San Francisco Peaks violates the Religious Freedom Restoration Act. The decision is available at:$file/0615371.pdf?openelement

Navajo Nation Supreme Court to Sit at American University

Oral Arguments of The Navajo Nation Supreme Court
to be held at
American University Washington College Of Law
4801 Massachusetts Avenue, NW, Room 603, Washington, DC
on April 5, 2007

9:30 am Introduction to the Navajo Nation and to the Navajo Nation Court
Ezra Rosser, Assistant Professor, WCL, and Javier Ramos, Government and Political Affairs Associate, Navajo Nation Washington DC Office
Chief Justice Herb Yazzie and Justice Lorene B. Ferguson
10:30 am Break
10:45 am Panel Discussion on Tribal Courts and Federal Indian Law
11:45 am Break

12:00 pm Joe v. Black Oral Argument
1:00 pm Reception following Oral Argument
1:30 pm Lunch for Justices and Invited Guests