Updated Speakers List for MSU Law & Lit Conference

Here's an updated speaker's list for the American Indian Law and Literature Conference at MSU (October 19-20, 2007) -- updated as of August 5, 2007:

• Larry Cata Backer (Penn State Law)
• Jennifer Camden (University of Indianapolis Literature)
  
• David Carlson (CSU San Bernadino Literature)
• Kirsten Matoy Carlson (University of Michigan PhD)
• Kristen Carpenter (Denver Law)
• Jo Carrillo (Hastings Law)
• Richard Delgado (Pitt Law)
• Bruce Duthu (Vermont Law)
• Matthew Fletcher (MSU Law)
• Kate Fort (MSU Law)
• Gordon Henry (MSU Literature)
• Amelia Katanski (Kalamazoo College Literature)
• Sonia Katyal (Fordham Law)
• Raymond Kiogima (Little Traverse Bay Bands of Odawa Indians)
  
• Renee Knake (MSU Law)
• Kevin Noble Maillard (Syracuse Law)
• Margaret Montoya (New Mexico Law)
• Margaret Noori (University of Michigan Ojibwe Language)
• Frank Pommersheim (University of South Dakota School of Law)
  
• Carla Pratt (Penn State Law)
  
• Stuart Rieke (Univ. of North Dakota Literature)
• Wenona Singel (MSU)
• Jean Stefancic (Pitt Law)
• Melissa Tatum (Tulsa Law)
• Monique Vondall-Rieke (Univ. of North Dakota Law)
• Christine Zuni Cruz (New Mexico Law)

And we're having a reception on Thursday, October 18 at the Nokomis Learning Center celebrating the artwork of Zoey Wood Salomon from the Wikwemikong Unceded Indian Reserve.

Felix Cohen's "On the Drafting of Tribal Constitutions"

The University of Oklahoma Press just published Felix Cohen's "On the Drafting of Tribal Constitutions," edited by David Wilkins.

The book blurb from the Press website:

A newly discovered document sheds light on Indian self-governance

Felix Cohen (1907–1953) was a leading architect of the Indian New Deal and steadfast champion of American Indian rights. Appointed to the Department of the Interior in 1933, he helped draft the Indian Reorganization Act (1934) and chaired a committee charged with assisting tribes in organizing their governments. His “Basic Memorandum on Drafting of Tribal Constitutions,” submitted in November 1934, provided practical guidelines for that effort.

Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.

On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.

The State of Native Nations - Harvard Project

The Harvard Project has just published "The State of Native Nations: Conditions under U.S. Policies of Self-Determination." A cursory review indicates that this volume will be one of the most useful reference books for anyone writing in Indian law and politics. Very impressive.

MSU Cohen Legacy Panel

MSU's Indigenous Law and Policy Center will be hosting a panel (or two) as part of its book series on the continuing legacy of Felix Cohen and his impact on Indian law and policy. Three recent books will be discussed. The panel will probably take place on March 28, 2008 here in East Lansing.

First, of course, the panel will feature discussion of the 2005 edition of Cohen's Handbook of Federal Indian Law. Sam Deloria and EIC Nell Newton, dean and chancellor of Hastings law school, are scheduled to appear.

Second, Dalia Tsuk Mitchell of George Washington law school and author of "Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism" (Cornell) will appear.

Third, and by no means last, Christian McMillen of the University of Virginia and author of "Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory" (Yale) will appear as well.

Ward Churchill

Ward Churchill was fired from the University of Colorado yesterday and since most of the commentary and news coverage has been fairly superficial, I thought it worthwhile to provide links to items of interest that shed light on the decision of Colorado's Bd. of Regents.

• Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill (May 16, 2006) [ASU Law's Robert N. Clinton was on the Committee].
  
• Ward Churchill Solidarity Network
• Brian Leiter on Ward Churchill (with a link to UofAZ Law's Robert A. Williams' recent statement on the firing)
• Richard Delgado, Shooting the Messenger (book review), 30 Am. Ind. L. Rev. 477 (2006).
• N.Y. Times Article on the Firing (July 25, 2007).
• Denver Post Article on Donors liking the decision (July 26, 2007).
  
• Info from the University of Colorado (with timeline and other info).
  

-E.R.

Carcieri v. Norton

The First Circuit finally decided Carcieri v. Norton sitting en banc. Significantly, all six circuit judges agreed that Section 5 of the Indian Reorganization Act was constitutional as applied, with two circuit judges dissenting on the grounds that the majority misinterpreted the Rhode Island Indian Claims Settlement Act.

A big win for Indian Country, especially for tribes that have had their federal recognition restored or reaffirmed since 1934. The State of Rhode Island had argued that the Narragansett Tribe could not take advantage of Section 5 because the IRA only applied to tribes that had been recognized in 1934.

MSU Book Series: Voting Rights Act Panel

Michigan State University's Indigenous Law and Policy Center will be hosting a panel to discuss the new book "Native Vote: American Indians, the Voting Rights Act, and the Right to Vote," by Daniel M. McCool, Susan M. Olson, and Jennifer L. Robinson. The panel will be held in the Spring 2008 semester.

The panel will consist of Professors McCool and Olson of the University of Utah, Laughlin McDonald of the ACLU voting rights project, and Professor Ellen Katz of the University of Michigan Law School.

Good (Native) Governance

Angela Riley's new paper "Good (Native) Governance" is out in the Columbia Law Review. Great stuff. Here's the abstract:

American Indian nations are largely unconstrained by the U.S. Constitution, and are only bound to follow provisions similar to those contained in the Bill of Rights by statute. Even then, the Supreme Court has affirmed that tribes are not required to apply or interpret civil rights protections directly in line with state and federal governments. Accordingly, they may, in a sense, utilize their tribal sovereignty to preserve their differentness—even when tribal laws are seemingly inapposite to American civil rights norms. Building on arguments presented in a companion piece, (Tribal) Sovereignty and Illiberalism, this Article undertakes a critical examination of tribal governance in light of changing international norms regarding good governance, which increasingly define the parameters of the obligations governments owe to their citizens. Even in light of the emergence of good governance and a rapidly evolving human rights landscape, this Article posits that Indian nations ought to reject conventional notions of good governance. It proposes, instead, good (Native) governance, which does not require that Indian nations either fully depart from or emulate the West. Rather, this piece contends that good Native governance mandates that tribal nations utilize Native principles of government—drawn from tribal culture and tradition—that allow for the evolution of tribal government in ways that restore and maintain fairness, balance, and inclusion in tribal communities. It concludes that good Native governance is the best way for tribes to facilitate self-governance, protect tribal sovereignty, and ensure their continued cultural and political existence.

Cohen Handbook as Law?

The D.C. Circuit just decided yet another case in favor of tribal gaming interests in Michigan, Citzens Exposing Truth About Casinos v. Kempthorne. [The various suits brought by Taxpayers of Michigan Against Casinos (TOMAC), Michigan Gaming Opposition (MichGO), and CETAC against the Little Traverse Odawa, Little River Ottawa, Pokagon Band Potawatomi, Gun Lake Pottawatomi, and Huron Nottawaseppi Band Potawatomi are a combined oh-for-the 21st century.]

The opinion itself is unremarkable given that these carbon-copy lawsuits against the tribes are very similar, but CETAC raised an interesting argument. In the 1982 edition, the Cohen Handbook stated on page 34 that in the 1850s "the modern meaning of Indian reservation emerged, referring to land set aside under federal protection for the residence of tribal Indians." CETAC asserted that the Handbook, having the force of law because it was once commissioned by the Department of Interior, foreclosed the possibility that the 21st century Secretary declare an Indian reservation for the Huron Nottawaseppi Band could declare an initial reservation for gaming purposes in accordance with IGRA because no Indians would use the land as a "residence."

Of course, the sentence in the Handbook was taken out of context. Moreover, the U.S.'s response to the notion that the 1982 Handbook constituted the official position of the government included an acknowledgment that the 1958 edition was no good, from the modern government's perspective. Here's the quote from the government's brief, quoting from Sam Deloria's intro to the 1982 edition:

CETAC's argument is also based on selective citation and mis-characterization of Felix S. Cohen's Handbook of Federal Indian Law (1982 ed.). CETAC claims that the Handbook is “ ‘the official government treatise’ on American Indian law,” that it “was ‘published under the auspices of the Department of the Interior,’ ” and thus should be controlling. Br. at 26 ( quoting Handbook Introduction). But, CETAC quotes those phrases out of context -- they are referring to the original 1942 Handbook, not the 1982 edition. As the Introduction explains, the original 1942 Handbook was prepared by Felix S. Cohen as Special Assistant to the Attorney General and was published under the auspices of the Department of the Interior, Handbook of Federal Indian Law (1982 ed.), at vii-viii. Cohen then left the government in 1948 and died in 1953. Id. at vii. In 1958, Interior published a revised Handbook that “did not reflect Felix Cohen's work.” Id. at ix. In 1968, Congress directed Interior to publish a new revised version. Id. Interior ultimately contracted the function to the University of New Mexico School of Law which used faculty from several schools with private funding and federal grants. Id. at ix-x, xiii. The resulting work is privately copyrighted and does not reflect the official positions of the United States or the Department of the Interior.

Answering Brief of Defendants-Appellees at 39-40, CETAC v. Kempthorne (No. 06-5354).

If nothing else, future litigants should be ready to cite to this brief when someone starts throwing around the 1958 edition. However, I guess we should be ready to disabuse ourselves of the notion that the Cohen Handbook is law. That last part is a little joke. :)