Thursday, July 05, 2007

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. :)


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