Tuesday, September 25, 2007

Results of the Long Conference

As I guessed yesterday, the Supreme Court did not grant cert. in an Indian law cases. But it didn't deny cert. in any Indian law cases, either.

However, the Court granted cert. in an important federal sentencing guideline case originating on the Navajo reservation, but there are no Indian law issues of concern.

Monday, September 24, 2007

Supreme Court Oct 2007 Term

The new Supreme Court Term begins today as the Court holds its "long conference."

SCOTUSBlog keeps a list of "petitions to watch," a list of cert. petitions its authors/editors think have a reasonable chance of being granted.

Two Indian law cases are on this list. The Gros Ventre and Catawba cases. Gros Ventre is a trust case in which the main question is whether there is a waiver of federal sovereign immunity under the APA. The 9th Circuit acknowledged an intra-circuit split and it appears there may be a split with other circuits, but refused to settle it by granting a petition for en banc review. The Tribe lost this case and given that there is a strong likelihood that the 9th Circuit didn't and the SCT won't see this as an important case (perhaps because the US won?), I doubt this will be granted. If the tribe had won....

The Catawba case regards the question of how the South Carolina legislature apparently amended the South Carolina Land Claims Settlement Act (banning video poker) without the Catawba tribe's consent. The S. Carolina supreme court held in favor of the State on this one. My guess is that this one won't be granted either because of the lack of importance to the Court and the lack of a national impact (e.g., no circuit split). This case is too small and implicates only S. Carolina. However, if the tribe proceeds on a theory in federal court that the entire Settlement Act is thereby void, opening the door to the restoration of Indian land claims (even though they lost the bulk of those claims in the 1980s), then maybe this case will be more important to the Court in the future. This one may be too early.

Keep in mind that the notion of "importance" to the Roberts Court, in my view, is that the legal right and duties of non-Indians and non-tribal governments have been implicated in some meaningful way by a lower court decision. Now that there is only one "Westerner" on the Court (Kennedy), it would appear that eight of the Justices would have no special interest in Indian law cases absent a state or federal interest.

There is one other Indian law case that was not selected by SCOTUSBlog as being a "petition to watch." The Yakama v. Colville case is probably not listed because it is an intertribal conflict missing any significant federal or state interests or individual rights interests.

The Teck Cominco lawsuit, which is not really an Indian law suit, involving transboundary pollution issues, is awaiting a Solicitor General Office's brief and Reber v. Utah 's file isn't complete yet.

Sunday, September 16, 2007

UN adopts Declaration on the Rights of Indigenous Peoples

Though most people that read this blog have probably already seen this... The United Nations adopted the draft Declaration on the Rights of Indigenous Peoples, making it the Declaration on the Rights of Indigenous Peoples on Sep. 13, 2007.

Commentary and coverage of the UN's adoption of the Declaration on the Rights of Indigenous Peoples has been published by a number of outlets:
In addition, the International Work Group for Indigenous Affairs' website has links to official statements regarding the UN adoptation and background to the Sep. 13th vote.

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Monday, September 10, 2007

Indians & Juries in New Mexico Federal Courts

A newspaper article on the difficulties faced in increasing the number of American Indians in jury pools in New Mexico tracks Kevin Washburn's recent article on the subject.

More T.E.D. Mumblings

Here's a classic argument in favor of eliminating Indian trust, written up in todays Indianz.com:

Talk to Terry Anderson of the Property and Environment Research Center in Bozeman, Mont., and you get to a fundamental truth. Friends from out of the country wanted to visit a reservation. He warned them they would encounter poverty, but instead they encountered an Indian rancher who was prosperous and distinct from many in his tribe. He owned his property. While some land on reservations is privately held, most is held in either individual or tribal trust by the BIA with the rationale that Indians need protection from outsiders. As Anderson discovered, the privately held land is far more productive than the trust land. When I asked him why, he had a short answer: "Incentives matter." Indians, he said, have traditions of private property, as in color-coding arrows to show who had rights to a slain buffalo."

I've seen something like this before: (1) Indians are poor; (2) But Indians own tons of valuable land; (3) why is this?; (4) the Indians don't really own the land -- the United States or an Indian tribes does; and (5) if Indians owned the land or had complete control of the land, they'd be rich like the rancher described above.

It's a simple and compelling argument, but I don't think it applies in very many circumstances. Maybe in some of the ranching/grazing communities. And it seems way too simple and easy -- like Termination seemed simple and easy.

Friday, September 07, 2007

Tribal Economic Development Mumblings

[I call these mumblings because these ideas are far from developed in my own mind.]

I'm curious about the strange dichotomies that seem to have sprung up in academia (but likely not in practice) about tribal economies.

For one, you have the socialism vs. capitalism dichotomy, an oversimplification if there ever was one, but it's there.

For another, you have the question of federal control vs. tribal control. Here, there are what I'll call (not intending to treat it as an epithet) the "libertarian" tribal self-determination theorists who believe that federal trust is a control mechanism, with the corollary that tribal economic development is impossible because individual Indians with trust/restricted lands do not own their own lands. Contrast that with the people who believe the federal government has a real trust responsibility to make as much money as possible on behalf of Indians/tribes -- and to manage it well. In the "libertarian" camp (or "individual property rights" camp), I guess you could say Terry Anderson is the leading light and he appears to argue for the complete dismantling of the trust relationship (at least in terms of land/property management). It looks a lot like a new termination era to me, but I'm just going on visceral reaction.

My own experience is much more nuanced that the whole "one or the other" dichotomy. Tribes need money and their leaders make decisions to maximize their chances to make money, even at the expense of neighboring tribes, if necessary. But at the same time they keep open unprofitable or marginally profitable enterprises because they're sources of jobs and income for reservation residents. My sense is the academic debate is divorced from reality, actually (as if you couldn't tell from my characterization of it - haha).

I just peered through the new collection co-edited by Terry Anderson ("Self-Determination": The Other Path for Native Americans") and I see essays with angles all over the place. I just don't see gaming as a "tragedy of the commons" any more than the fact that sugar grows better in warm weather and corn grows GREAT in Michigan. And as a member of a tribe with a minimal land base, I'm not concerned about the "forced collective land tenure system."

I guess I worry that this dichotomy focusing on "property rights" is taking over the academic debate over economic development systems in Indian Country.

Saturday, September 01, 2007

New York Times Article on Tribal Economic Development & Challenges

The New York Times, in Jesse McKinley's article on tribal logging proceeds entitled "For Struggling Tribe, Windfall Has a Dark Side" (Sept. 2, 2007), covers the challenges and divisions that can be felt by tribes attempting to figure out what to do with tribal money, especially if the money comes in sudden spurts. The New York Times also has a very good slide show entitled "Fishing with the Yurok" that is worth checking out.


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