Friday, August 31, 2007

Gripe #1 about CWAG Deskbook

The American Indian Law Deskbook, published by the Conference of Western Attorneys General, put out its 2006 supplement recently (following its 2005 supplement) to the Third Edition. There is a citation to a case near and dear to my heart, Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney, 369 F.d 960 (6th Cir. 2004) (aka the Turtle Creek Casino litigation), in both the 2005 and 2006 supps.

And, frankly, the text and description of this case by CWAG is troubling, if not offensive.

Both supplements read:

"On circuit court of appeals has held, moreover, that the Executive Branch possessed the power to terminate the trust relationship with a tribe. [citation to the case] (where Department of the Interior terminated the government-to-government relationship in 1872, the requisite "empirical indicia of recognition" essential to federally-acknowledge tribal status was absent)."

This is not at all what that case was about. The westlaw headnote states, "The Court of Appeals, Clay, Circuit Judge, held that Indian tribe was restored tribe, for purposes of Indian Gaming Regulatory Act." That was the only question raised at the appeals stage. The lower court held in addition that the land upon which the Turtle Creek Casino stood was restored lands for purposes of the gaming act. 198 F.Supp.2d 920 (W.D. Mich. 2002).

The CWAG reference is troubling for at least two reasons: (1) there is no reference in the supp. or the 3rd edition to the fact the GTB v. US Atty made significant new law about the meaning of the restored tribes/restored lands exception to the gaming act; (2) the CWAG version of the 6th Circuit opinion takes a minor point about the legal history of the Grand Traverse Band and misconstrues that as the holding of the case.

On the first point, the Turtle Creek litigation was the first instance where the National Indian Gaming Commission opined that an Indian tribe that had been administratively recognized was eligible for the restored tribe exception to the gaming act [a truly excellent piece of legal and probably political work from Kevin Washburn, then NIGC general counsel; at that point, the US accepted that determination and dropped out of the litigation, leaving the intervenor State of Michigan as the sole defendant]. The federal courts agreed with that determination, as have other courts in other contexts. To characterize the case as holding anything other than this holding is simply incorrect. To say that the holding is that the Executive Branch may legally terminate an Indian tribes is absolutely wrong. Moreover, the Deskbook never even mentions the real holding of the case in its gaming section.

Which leads to the second point, which is trickier, but very important. Yes, the Secretary of Interior "administratively terminated" the Grand Traverse Band and several other Michigan tribes in 1872 or thereabouts. As a matter of political fact, the Band was terminated as of 1872, a fact with which all the parties and the courts agreed. For 108 years, the Department refused to recognize the Band as being eligible for reorganization, or entitled to assert land claims and treaty rights, or, most importantly, eligible for fee to trust acquisitions. Both the lower court and, implicitly (because the question wasn't raised there) the court of appeals, recognized that the 1872 decision was illegal. So, as a matter of law, the Secretary's decision was invalid. As a matter of politics, this invalid decision was the end of the story until 1980, when the Band was restored to federally recognized status.

Interestingly, if my recollection is accurate, the State of Michigan did argue in the 1970s that the administratively terminated Michigan tribes had lost their status as tribes in U.S. v. Michigan, an argument resoundingly rejected in 1979. 471 F. Supp. 192, 264-65 (W.D. Mich. 1979).

Finally, the plain text of the 6th Circuit opinion contradicts the CWAG interpretation of the case: "In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe. This occurred because the Secretary had misread the 1855 Treaty of Detroit, [11 Stat. 621]." (emphasis added).

Hopefully, the next supplement or edition of the Deskbook will correct this error. Maybe if they read this blog....

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Friday, August 24, 2007

U.S. v. Washington Culverts Case

It's a short opinion and doesn't highlight the incredible importance of this case for future generations, but Judge Martinez granted partial summary judgment to the Stevens Treaty Tribes in the culverts case subproceeding of U.S. v. Washington.

Trial starts in September? Ought to be amazing.

Wednesday, August 22, 2007

Quick Empirical Study of Cert Grants & Denials

We all know that since Cabazon Band in 1987, as Alex Skibine wrote, tribal interests have lost 33 out of 44 cases (not including this Term's cases, if they could even be counted as Indian law cases). But the numbers get much worse if we add in cert. petition grants and denials.

US Law Week lists all the cert. petition grants and denials online dating back to the October 1996 Term. Here's my empirical research for the day. Remember, the chances that any petition for cert. will be granted (I believe) is about 2 percent, maybe a little less now.

Since the October 1996 Term, a party opposing tribal interests who loses at the lower court level but files a petition for certiorari with the Supreme Court has a 19.0% chance of having that petition granted (20 cases out of 105 total tribal wins). Once the case is granted cert., that party opposing tribal interests wins 85 percent of those cases (17 our of 20). Overall, a party that loses to a tribal party has a 16.2% chance of having that decision reversed by the Supreme Court (17 out of 105).

A party representing tribal interests that loses at the lower court level and files a cert. petition has a 4.1% chance that the Court will grant the petition (5 out of 121). Once that petition is granted 4 out of the 5 cases have been reversed, an 80% win rate for tribal interests. Overall, a tribal party has a 3.3% of convincing the Court to reverse the lower court's adverse judgments (4 out of 121).

These numbers include judgments that are vacated (counted as S. Ct. wins or losses), but condense the Kiowa Tribe's three sovereign immunity cases from 1998 into one. Also, intertribal conflicts are excluded.

Additional information from this study indicates that tribal interests have filed petitions seeking review of adverse judgments 121 times, while parties opposing tribal interests have filed 105 petitions. Does this mean tribes are losing that much more at the lower court level? More research needed and it's been a long day.

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Monday, August 20, 2007

5th Circuit Strikes Down Seminole "Fix"

In Texas v. United States, the Fifth Circuit struck down the Class III regulations (25 CFR Part 291) designed by the Secretary to allow tribes to complete the Class III compacting process where a state (such as Texas) raises its Eleventh Amendment immunity.

While not a particular surprise given the conservative reputation of the 5th Circuit and its Chief Judge (Edith Jones, once on the short list for the O'Connor/Rehnquist vacancies), not to mention the fact that IGRA didn't explicitly authorize the regs, it is a sad reminder of the state of federal Indian law created by a passive/inert Congress and an aggressive, hostile federal judiciary.

Wednesday, August 15, 2007

AG Alberto Gonzales in Michigan Indian Country

Yesterday afternoon, Alberto Gonzales participated in a round table discussion with leaders of the 12 federally recognized Michigan Indian tribes at the offices of the Little Traverse Bay Bands of Odawa Indians. The event was hosted by the Bands and the US Attorney's Office for the Western District of Michigan, which has shown enormous leadership in developing relationships with Indian tribes within its jurisdiction.

The focus of the meeting, of course, was law enforcement. AG Gonzales announced several DOJ grants to Michigan tribes. Several tribes asked DOJ to improve information sharing with and training for tribal law enforcement. The question of the extremely high rates of domestic violence and sexual assaults against women in Indian Country came up repeatedly. Some tribes floated the notion of an Oliphant-style fix for domestic violence - and were not immediately shot down. One tribe suggested authorizing tribal prosecutors to bring misdemeanor DV cases against non-Indians in federal court, but that appeared to have little chance of happening.

Other questions included requests for information about the investigation into Jack Abramoff and the firing of the eight US Attorneys. Mr. Gonzales stated that he was personally upset by the implications that some of the USAs were fired due to their work in Indian Country, arguing that he was surprised that there seemed to be a connection. He did not offer alternative explanations, however.

In all, the event offered relatively little substance and also little controversy. Given that the Bush Administration has so little time to complete any new initiatives and given the AG's newfound interest in Indian Country, this may be a chance for some legislation like an Oliphant-fix for domestic violence or something related to homeland security.

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Thursday, August 09, 2007

Minor Correction to Ward Churchill Report

The following correction has just been posted on the Inside Higher Education website. The original can be viewed at

The members of the investigative committee that explored allegations of research misconduct against Ward Churchill have unanimously adopted a statement that identifies one misstatement in their report, offers additional language to fix that mistake, and clarifies that the changes in no way relate to their conclusions about Churchill, who has since been fired by the University of Colorado. While the members all agreed on the statement, only three of them agreed to its release to Inside Higher Ed. Their names appear at the end of the statement.

The statement reads:

The undersigned were members of the Investigative Committee appointed by the University of Colorado at Boulder in December, 2005 to consider allegations of research misconduct against Professor Ward Churchill. The full text of our lengthy report can be found at:

Although our tenure as members of that committee ended when we submitted our report in May, 2006, we feel an obligation as scholars to correct one sentence in that report. On page 34, an incomplete sentence resulted in an inaccurate statement. The relevant sentence reads, "The pages referenced by Professor Churchill in the Salisbury book do not contain the words 'Wampanoags' and have no discussion of any disease or epidemic (including smallpox)."

That sentence should have read, "The pages referenced by Professor Churchill in the Salisbury book do not contain the words 'Wampanoags' and have no discussion of any disease or epidemic (including smallpox) spread by John Smith or attributed by Salisbury to Smith's 1614 visit to the area." We were obviously aware of Salisbury’s discussion of the epidemic(s) that struck in 1616-18: subsequent pages of our report refer to his account of those outbreaks of disease.

When the error in the sentence on p. 34 was pointed out to us in spring, 2007, Professor Wesson announced the correction in a letter to the University of Colorado’s official paper, Silver and Gold Record, published on 12 April 2007; she asked also that it be communicated to the university officials considering Professor Churchill’s case. Now that the university has completed its deliberations, we want to ensure that the correction is drawn to the attention of the wider scholarly community.

Although our report’s description of these pages in Salisbury's work was inaccurate, we took into account during our deliberations the actual contents of the pages in question and those surrounding them. This correction therefore does not change any of our findings about research misconduct with respect to the specific allegation it concerned or any of the other allegations.

Thank you for allowing us to correct the record.

Robert N. Clinton, Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

José E. Limón, Director, Center for Mexican-American Studies and Mody C. Boatright Regents Professor of American and English Literature, University of Texas at Austin

Michael L. Radelet, Professor and Chair, Department of Sociology, University of Colorado at Boulder


Tuesday, August 07, 2007

Updated Cohen Legacy Panel Information

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 is 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, 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.

Finally, Sam Hirsch of Jenner and Block, an expert on Cohen's work, will also appear.

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