For the Seventh Generation Blog

Geneva Institute on Indigenous Peoples

2008-11-24T19:47:00.000-07:00

If you are a law student interested in studying abroad, the University of Tulsa offers a program in Geneva relating to Indigenous people. The 2009 program will run July 4 - August 1, 2009, and the classes offered for the first two weeks are Comparative and International Indigenous Peoples Law (taught by Dr. Julian Burger) and Special Topics in Indian & Indigenous Peoples Law : Lands and Territories (taught by Professor G. William Rice).

For more information, contact Lynn Miller at (918) 631-5038 or lawstudyabroad@utulsa.edu or see the program's website at http://www.law.utulsa.edu/study-abroad

Transcript of Argument in Plains Commerce Bank v. Long Family Land & Cattle

2008-04-14T14:06:00.001-07:00

The transcript of the argument today in Plains Commerce Bank v. Long Family Land & Cattle is available here. Surprisingly, the Court was heavily interested in the idea that a majority Indian-owned corporation might be considered an Indian or member of a tribe for jurisdictional purposes. At one point during the argument the Court was erroneously advised by counsel that such corporations could not be organized under tribal law. If, as the questioning suggests, the corporate form of the respondent plays any significant role in the disposition of the tribal court jurisdictional issue posed in the case, the decision, if adverse to tribal court jurisdiction, could have significant adverse affects not only on tribal court jurisdiction but also on the ability of Indians to adopt corporate forms of organization for economic enterprise.

Given that the case should turn on the basic Montana tests, surprisingly little of the oral argument and the questioning involved any actual analysis of that line of cases.

OK AG values Bank over Battered Women

2008-03-25T20:57:00.003-07:00

This was originally submitted to the Tulsa World as an op-ed piece, but was not published:

update as of 4/10/08: The Tulsa World did indeed publish this an op-ed piece, The Native American Times reprinted it and the Cherokee Phoenix plans to reprint it in the next issue. AG Edmondson responded with an op-ed piece on 4/6/08 and telephoned me to discuss the issue on 4/8/08. I have sent him additional info and will post any further updates in the comments section - mlt

On November 20, 2007, Oklahoma Attorney General Drew Edmondson announced an innovative partnership with Wal-Mart to combat domestic violence. In the press release describing that initiative, Edmondson declared, "It's tragic to lose a mother, daughter, sister or
friend to domestic abuse. . . . We will never know how many of those deaths could have been prevented if these women had only known where to go for help."

In February 2008, Edmondson joined several other state attorneys general (Idaho, Alaska, Florida, North Dakota, South Dakota, Utah, Washington, and Wisconsin) on an amicus brief asking the U.S. Supreme Court for a ruling that has the potential to eviscerate tribal court authority to issue and enforce protection orders - leaving Indian women battered by non-Indians with no legal recourse and no protection.

The case pending before the Supreme Court, called Plains Commerce Bank v. Long Family, is not a case about domestic violence - it is a case involving a loan made by a non-Indian bank to Indians who lived on the Cheyenne River Sioux Reservation. When things went awry, the bank lost the suit in tribal court, then went to federal court to contest the ability of the tribal court to hear the case.

In Plains Commerce Bank, the U.S. Supreme Court is being asked to clarify the ability of tribal courts to hear cases involving non-Indians who come onto a reservation and do business with Indians. If this has been a state, there would be no question the state court could decide the case - state courts have the authority to decide cases involving people and companies who conduct business within the state, even if they are not state residents.

The U.S. Supreme Court, however, has created a separate set of rules for tribal courts, limiting their authority over non-Indians. As part of those rules, the Supreme Court has declared that if a non-Indian engages in consensual relations with a tribal member, the tribal court can hear any case arising out of that transaction. The Bank in the case currently pending before the Court is asking the Court to rule that the consensual relationship test can be satisfied only if the non-Indian clearly and expressly agrees to let the tribal court decide the case. Edmondson and several state attorneys general are urging the Court to do what the Bank asks.

The problem is that such a ruling could potentially have far-reaching consequences. The consensual relationship test is also what allows tribal courts to issue and enforce protection orders to protect victims of domestic violence. Domestic violence is a widespread problem, and it is particularly acute for Indian women. U.S. government statistics show that Indian women are two and one-half times more likely to be the victim of violent crime; one in three American Indian women will be raped in their lifetime; three of four will be physically assaulted, and Indian women are stalked at a rate more than double that of any other population. Well over 75% of the perpetrators of these crimes are non-Indian.

That means when an Indian woman is involved with a non-Indian man in Indian country, the only court that can issue and enforce a protection order is a tribal court. Since it is unlikely that these men will clearly and expressly agree to tribal court authority over them, that leaves Indian women with no legal recourse. Apparently, our Attorney General thinks a bank that has voluntarily used the tribal court got mad because it lost the case is more important than Indian women who are battered and abused. He would rather protect the bank than the woman.

If that is the case, shame on him. If it is not the case, then I urge him to withdraw from the brief asking the Court to protect the bank. It's not too late, and if it saves one woman's life, it is well worth it.

Indians and Equality

2008-02-25T10:26:00.002-07:00

Notwithstanding the fact that section 2 of the Fourteenth Amendment (the very same amendment that is the source of our Equal Protection Clause) contains an express Indian classification, recently some have questioned how Indian law and special treatment of Indians can be reconciled with the western liberal paradigm of equal treatment of citizens within a state.

One answer that has occurred to me is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The United States Constitution and American law recognizes both equality of citizens through its equal protection and due process principles and equality of sovereigns through doctrines like full faith and credit, comity, the Equal Footing Doctrine, and the New Federalism. Both equality principles emerge from the western liberal paradigm. The importance of the historic treaty relationship with many indigenous peoples and of the express constitutional recognition of that relationship in both the Indian Commerce Clause, found in Article I, section 8, clause 3 of the Constitution, and in section 2 of the Fourteenth Amendment, are that they firmly situate the problem Indian affairs in the second, rather than the first, paradigm.

By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!

Legality of Land into Trust Authorization NOT Before Supreme Court

2008-02-25T09:42:00.002-07:00

The Supreme Court granted cert today in Carcieri v. Kempthorne, No. 07-526. The case involves efforts by the State of Rhode Island to prevent additional lands from being taken in trust by the federal government for the Narragansett Tribe. Materials regarding the background of the case, the petition for certiorari and the lower court opinion can be found here. While first two of the three issues Rhode Island presented in the case involve narrow questions applicable primarily to the Narragansett as a result of the Rhode Island Indian Claims Settlement Act, one of the issues in the cert petition involves a nationwide bombshell -- the legality of Section 5 of the Indian Reorganization Act (IRA). Specifically, the question Rhode Island sought to present in the cert petition is "Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust." Since Section 5 of the IRA provides the only general federal statute authorizing the federal government to take land, an adverse ruling from the Court on this issue could have catastrophic consequences for Indian tribes nationwide. Fortunately, the Supreme Court order limited review to the first two narrow issues and declined review on the broader issue of Section 5 and the nondelagation doctrine. This was at least the second time that the Supreme Court has declined to tackle nondelagation doctrine challenges to Section 5 head on. The first occurred when the Supreme Court vacated the adverse decision in South Dakota v. United States Dep’t of the Interior, 69 F.3d 878 (8th Cir. 1995), resulting in the later decision uphold the authority of the Secretary to take land into trust under Section 5. That decision is available here.

Code of Indian Offenses

2008-02-24T22:41:00.004-07:00

For years scholars have described the Code of Indian Offenses, first adopted by the federal government in 1883, as a reservation criminal code designed to covered lesser misdemeanors. The Code of Indian Offenses helped create the Courts of Indian Offenses, which at their height imposed on perhaps two-thirds of the nation’s Indian reservations a federally dominated western style court composed of tribal members picked by and responsible to the federal Superintendent of the Reservation. The few surviving Courts of Indian Offenses, many of which are Oklahoma, are now known as CFR Codes. The Code also helped establish the Indian Police, also composed of tribal members selected, paid, and supervised by the federal Superintendent of the Reservation. Perhaps the most notorious act of the Indian Police involved their murder of Tatanka Iyotake (Sitting Bull — pictured above) the great Hunkpapa Lakota holy man and leader in 1890 at Standing Rock as a result of federal concerns over his support for the religious revitalization Ghost Dance movement among the Lakota. Clearly, the Courts of Indian Offenses and the Indian Police involved efforts by the federal government to substitute a federally controlled western style colonial government for the traditional governance structures and leadership of the tribes. A good summary of that effort is found in William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966).

Considerably less attention has been paid to the actual content of the Code of Indian Offenses. About a decade and half ago, my efforts to locate the original copy paid off. When I received it, I was startled to discover that very little of the Code of Indian Offenses actually dealt with matters which would be classically regarded as crimes in western societies then or today. In fact, most of the Code of Indian Offenses was directly aimed at outlawing Indian culture. Thus, the practice of medicine men, Indian dances, the giving of gifts to compensate and honor a family for the a daughter given in marriage, potlaches and other traditional reciprocal gift-giving, polygamy and other Indian customary practices were all made punishable offenses by the Code of Indian Offenses. In fact, the reference to other misdemeanors was the last item listed and the one to which the least attention was paid.

Also remarkable were the penalties prescribed in the Code of Indian Offenses. By the time of the Code of Indian Offenses was promulgated most of the nomadic plains tribes had been corralled onto reservations, early examples of internment or concentration camps. Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo (bison) on which they depended. This forced change in tribal economies resulted in the nation’s first welfare state, in which the tribal members became completely dependent on federal rations (the development of Indian frybread being the most obvious and long lasting by-product of this change in subsistence habits). In this context, the penalty prescribed by the Code of Indian Offenses for practicing traditional and customary ways often involved the denial of rations. Thus, the federal government’s message to tribal Indians in the late nineteenth century was crystal clear — abandon your traditional culture and comply with the Code of Indian Offenses or starve. The Code of Indian Offenses therefore was not an early criminal code for Indian Reservations, as it is sometimes portrayed, but, rather, the clearest evidence of a deliberate federal policy of ethnocide — the deliberate extermination of another culture.

The shocking evidence of such federal ethnocide is found in the federal government’s own words in the original Code of Indian Offenses. Because of the difficulty I originally had in locating it, I have chosen to publish it to the internet here.

The Code of Indian Offenses was finally amended when John Collier assumed the role of Commissioner of Indian Affairs in the administration of President Franklin D. Roosevelt in 1933. He eliminated all references to the bans on dances, such as the sacred Lakota Sun Dance, and other customary Indian practices. The modern incarnation of the Code of Indian Offenses is found at 25 C.F.R. Part 11 and it, unlike the original version, does provide a basic criminal code for lesser crimes committed by Indians on reservations covered by these provisions.

Certiorari granted in important case on tribal jurisdiction

2008-01-08T13:28:00.000-07:00

In a scary development for all of us who have been watching the Supreme Court, the Court has granted certiorari to review an Eighth Circuit decision upholding tribal court jurisdiction over a non-member bank. The facts would seem great for upholding jurisdiction: the bank entered into a loan with a family business with 51% tribal member ownership engaged in ranching on the Cheyenne River Sioux Reservation, and the case concerns alleged discrimination by the bank in the terms of the loan, which concerned the mortgage of land owned by the family business on the reservation. If any case would seem to come within the Montana’s regulation of commercial consensual relationships prong, this one would. In addition, the facts were developed in one of the best tribal appellate courts—that of the Cheyenne River Sioux Tribe, whose members include Robert Clinton and Frank Pommersheim—and the trial court record was developed under the supervision of Steven Gunn, who worked on the case with the clinic he founded at Wash U. There are a couple of potential tweaks in the case—the Long corporation was incorporated under South Dakota, not tribal, law, and jurisdiction was sought over a tort-like discrimination claim, rather than directly over a contract claim. The Court of Appeals had strong reasoning in rejecting both these arguments. First, the court found that although Long was incorporated under SD law, it had a “conspicuous tribal character,” and was organized to take advantage of BIA loan guarantees, something the bank knew of and profited from, and the bank entered into personal loan agreements with the two tribal members. Second, the court found that the tort claim for discrimination affecting the contract was appropriate under the consensual relationship exception, stating that “This case is about the power of the tribe to hold nonmembers to a minimum standard of fairness when they voluntarily deal with nonmembers.” The second issue is the one to be reviewed. The strength of the case for tribal jurisdiction might lead one to hope for success in the Court, but the Court’s dismal record on nonmember jurisdiction and the fact that there is not (as far as I know) a split on the circuits or any other decisions on this particular issue make this a very frightening development.

You can find David Selden's summary and links regarding the case for the National Indian Law Library via the below link:

http://www.narf.org/nill/bulletins/sct/2007-2008update.htm

IGRA 20th Anniversary Conference -- Oct. 16-17, 2008

2007-12-19T13:43:00.001-07:00

The Indian Legal Program at the Sandra Day O’Connor College of Law at Arizona State University, American Indian Policy Institute at ASU, American Indian Law Center, Inc., Native Nations Law and Policy Center at University of California, Los Angeles, National Congress of American Indians, National Indian Gaming Association, Arizona Indian Gaming Association, and the New Mexico Indian Gaming Association are pleased to announce a conference to commemorate and celebrate the twentieth anniversary of the enactment of the Indian Gaming Regulatory Act. The Conference entitled Indian Country's Winning Hand: 20 Years of IGRA will be held on October 16-17, 2008 at the Ft McDowell Yavapai Nation's Radisson Fort McDowell Resort & Casino in Scottsdale/Fountain Hills, Arizona.

CONFERENCE AGENDA

Thursday, October 16, 2008

7:00 – 8:00 am Registration

8:00 – 8:45 am Welcome and Introduction

8:45 – 10:20 am A History of the Indian Gaming Regulatory Act

10:20 – 10:45 am Break

10:45 – 12:15 pm Federal Implementation of IGRA: The National Indian Gaming Commission, the Bureau of Indian Affairs and the Department of Justice

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on Tribal-State Relations

3:30 – 3:50 pm Break

3:50 – 5:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on Tribal-State Relations

6:30 – 8:30 pm Pathbreaker’s Banquet (Courtyard Plaza)

Friday, October 17, 2008

7:30 – 8:30 am Check-In

8:30 – 10:00 am The Economic Impacts of Indian Gaming

10:00 – 10:20 am Break

10:20 – 12:15 pm Indian Gaming’s Impact on the Tribes

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:15 pm Indian Gaming and the Federal Tribal Relationship

3:15 – 3:30 pm Break

3:30 – 5:30 pm Where Does Indian Gaming Go From Here?

Confirmed Speakers: (listed alphabetically)

Allison Binney (tentative)
Dr. Eddie Brown
Robert N. Clinton
Philip S. Deloria
Howard Dickstein, Esq.
Franklin Ducheneaux
Eric D. Eberhard
Larry Echohawk
Shawn Ellis
Diane G. Enos
Franklin Ettawageshik
Glenn M. Feldman
Matthew L.M. Fletcher
Thomas F. Gede
Carole E. Goldberg
Kevin Gover
Stephen M. Hart
Jacqueline Johnson
Joseph P. Kalt
Dan Kolkey
Thomas L. LeClaire
Steven Andrew Light
Arlinda Locklear
Michael Lombardi
Deron Marquez
Heidi McNeil Staudenmaier
Kathryn R.L. Rand
G. William Rice
Fawn Sharp
Jim Shore (tentative)
Alexander Tallchief Skibine
George Skibine
Kate Spilde Contreras. Ph. D.
Jonathan Taylor
Rebecca Tsosie
Mark Van Norman
Kevin Washburn
Richard West
Dr. Peterson Zah

Others who have been or are being invited,

not yet confirmed.

Carl J. Artman

Raphael Bear

Melanie Benjamin

Joe A. Garcia

Philip N. Hogen

Mark Macarro

Richard M. Milanovich

Raymond G. Sanchez

Ernest L. Stevens, Jr.

Kimberly Teehee

Study of Prejudice Against American Indians

2007-12-17T21:06:00.000-07:00

In October 2007, The Tulsa World published a story about a study regarding racism toward Native Americans. According to the researchers, who were from the University of Tulsa, “The findings support the idea that although overtly racist ideas toward African-Americans appear to be less prevalent in contemporary America, overt racism towards Native Americans is present."

One thing I found absolutely shocking about the study was its methodology. According to the published reports, the results "were from a written survey of 55 white, middle-class college students in their 20s at TU who had been in college for more than a year."

Excuse me? Fifty-five college students? I will admit that my statistics class is a distant memory, but I seem to recall rules and formulas for calculating sample size. Indeed, five minutes of searching on google not only revealed the basic rules, but turned up a "sample size" calculator. You input the confidence interval (the old standard "plus or minus 4 percentage points") and the confidence level (95% is standard), and it tells you what your sample size needs to be. I selected a confidence interval of 5 and a confidence level of 95%, and the calculator told me I needed a sample size of 384.

If I reduced the confidence interval to 13, I could make do with a sample size of 57. Can you imagine the political pollster reporting that candidate X has a 4 point lead in the polls, with a margin of error of plus or minus 13? What does that really tell us?

And why survey only students at the University of Tulsa? To get a truly representative sample, shouldn't students from other universities, at the very least the University of Oklahoma and Oklahoma State University have been included?

Fifty-five college students sounds like a class project, not a major research study. Fifty-five college students sounds like the initial springboard giving rise to a bigger, more comprehensive study, rather than the actual end of the line.

Given the problems with sample size, I would be curious to know the rest of the survey's methodology. How was the written survey administered? What were the study conditions? What questions, and how many, were asked? How were the answers caculated and analyzed?

The study itself is an intriguing one, and I would be absolutely interested in seeing the results of a properly conducted survey, or in seeing an explanation of why this survey was properly conducted. Perhaps I am wrong, but I am reluctant to jump to conclusions and accept the results as accurate, when for all we know, fifty-five hungry (and maybe hung over) college students were given a "check the box" quiz about product labels while waiting in line for breakfast Sunday morning - which is more offensive, the Land o'Lakes label or the Aunt Jemima label?

Upcoming Tribal Law / Tribal Courts Conference

2007-12-03T11:53:00.000-07:00

American University Washington College of Law (WCL) is hosting a conference, What Do We Know About Tribal Courts? An Examination on the 30^th Anniversary of Oliphant, examining tribal law and tribal courts on March 6, 2008. While Federal Indian Law, the law governing federal-tribal relations, has made its way onto an increasing number of state bar exams and Indian law scholarship periodically even is published in leading law reviews, tribal law in some respects remains Indian law’s younger sibling. Ten years ago, while a professor at WCL, Nell Jessup Newton, now Dean of Hastings, observed that “the work of tribal courts is little known outside the circle of attorneys practicing before tribal courts on a regular basis and scholars of
Indian law.” Nell Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285 (1998). A scholarly focus on tribal courts is also a logical outgrowth of the U.S. Supreme Court’s problematic understanding of tribal courts 30 years ago in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Borrowing from the conclusion of Dean Newton’s exploration of tribal courts, the hope is that this conference will “serve to allow for a critical dialogue” on tribal law.
-- If you are interested in presenting at this conference, please contact Ezra Rosser by Dec. 20, 2008 at 202-274-4064 or erosser@wcl.american.edu.

MSU 4th Annual Indian Law Conference

2007-10-30T17:33:00.000-07:00

A bit tardy, but I wanted to congratulate Matthew Fletcher, Wenona Singel, and the rest of the Michigan State Indigenous Law and Policy Center on a fabulous and informative conference. The theme of the conference was Indian Law and Literature and they put together a wonderful mix of speakers. From linguists to English professors and law professors, the conference was two days of different perspectives into the relationships between law, language, and culture. Those perspectives provided a great deal of food for thought.

As the adage states, "if you have a hammer, everything begins to look like a nail." It is easy for law professors (including myself) to become locked into tunnel vision and view everything as solvable with the right statute and/or the right court decision. But law, or more specifically the legal system, does not always hold the answer or the key to solving a problem.

I teach a course called Protection of Minority and Indigenous Cultures, and the theme of the course centers around examining the ways law can be used to solve cultural disputes. Such disputes are often intractable because of the conflict of values and the issues at stake. The class explores topics such as mascots, access to sacred sites, and cultural property.

Although the legal system can and often does reach a "conclusion," that conclusion is not always efficient or the best use of resources or even accepted by the litigants as the "end" of the matter. The fact that the monetary compensation awarded in Sioux v. United States for the wrongful taking of the Black Hills is sitting untouched in the US treasury decades after that decision was handed down illustrates the latter proposition. (Kirsten Matoy Carlson's presentation at the conference on the role of narrative in litigation addressed the social dynamics driving that chain of events).

And sometimes education and community action is more effective than litigation, as illustrated by the controversy over the use of Indians and Indian symbols as sports mascots.

And sometimes bringing everyone to the table to talk it out, as was done with the Final Climbing Management Clan for Devil's Tower.

The broad range of speakers at MSU's conference furthered this trend of incorporating different perspectives and different approaches to problem solving. Congratulations and thanks to MSU for bringing us all together.

Results of the Long Conference

2007-09-25T08:45:00.000-07:00

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.

Supreme Court Oct 2007 Term

2007-09-24T08:53:00.000-07:00

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.

UN adopts Declaration on the Rights of Indigenous Peoples

2007-09-16T19:41:00.000-07:00

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.

Indians & Juries in New Mexico Federal Courts

2007-09-10T13:14:00.000-07:00

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

2007-09-10T06:38:00.000-07:00

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.

Tribal Economic Development Mumblings

2007-09-07T09:34:00.000-07:00

[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.

New York Times Article on Tribal Economic Development & Challenges

2007-09-01T23:13:00.000-07:00

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.

-E.R.

Gripe #1 about CWAG Deskbook

2007-08-31T07:18:00.000-07:00

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....

U.S. v. Washington Culverts Case

2007-08-24T10:39:00.000-07:00

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.

Quick Empirical Study of Cert Grants & Denials

2007-08-22T10:39:00.000-07:00

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.

5th Circuit Strikes Down Seminole "Fix"

2007-08-20T05:58:00.000-07:00

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.

AG Alberto Gonzales in Michigan Indian Country

2007-08-15T04:29:00.000-07:00

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.

Minor Correction to Ward Churchill Report

2007-08-09T13:38:00.000-07:00

The following correction has just been posted on the Inside Higher Education website. The original can be viewed at http://www.insidehighered.com/news/2007/08/09/qt:

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:
http://www.colorado.edu/news/reports/churchill/download/WardChurchillReport.pdf

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

Updated Cohen Legacy Panel Information

2007-08-07T06:11:00.000-07:00

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.

Updated Speakers List for MSU Law & Lit Conference

2007-07-31T06:02:00.000-07:00

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"

2007-07-30T10:01:00.000-07:00

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

2007-07-30T09:57:00.000-07:00

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

2007-07-28T08:16:00.000-07:00

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

2007-07-27T06:21:00.000-07:00

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

2007-07-26T06:59:00.000-07:00

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

2007-07-13T07:13:00.000-07:00

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

2007-07-09T06:06:00.000-07:00

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?

2007-07-05T05:11:00.000-07:00

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. :)

American Indian Law Review Planning to Go Peer-Reviewed

2007-06-28T10:05:00.000-07:00

I just learned today that the American Indian Law Review is planning to re-make itself into a peer-reviewed journal for its Spring 2008 issue. They are still working on how exactly to do that and are asking for advice, comments, etc. from the field. Email their EIC, Stephanie E. Moser Goins.

I think this is a great chance for the field to revitalize itself by supporting a flagship peer-review journal. The chances for AILR to be successful in its transition increase the more Indian law scholars participate in the process.

Smith reelected Cherokee Principal Chief; BIA refuses to accept constitutional amendment resulting in disenfranchisement of Cherokees

2007-06-25T10:58:00.000-07:00

Indianz.com has the following useful posts reporting the results in the Cherokee election for Principal Chief and including links to BIA correspondence and judicial documents relating to recent constitutional amendments. Chief Chad Smith was reelected with about 59% of the vote over 41% for incumbent (and Cherokee Justice and University of Kansas law professor) Stacy Leeds. The 2007 constitutional amendment requiring Cherokee blood for membership was apparently an important issue in the race; although both candidates supported the Cherokee voters right to define their membership, Justice Leeds authored the decision declaring disenfranchisement illegal under an earlier version of the Cherokee constitution. Under a temporary restraining order issued by the federal district court, Cherokee freedmen were to be allowed to vote in the election.

Equally interesting are the recent decisions of the BIA regarding whether to approve the constitutional amendments. After the Cherokee people voted to remove the secretarial approval requirement from its constitution, the BIA originally refused to accept the amendments because the freedmen citizens had not been permitted to vote. According to the district court in Vann v. Kempthorne, however, then Assistant Secretary for Indian Affairs Neal McCaleb wrote to Chief Smith that, "I did not sign the March 15 letter and did not authorize the use of the autopen to engross my signature on the letter. The letter is of no validity or effect and should be disregarded." Id. The letter went on to say that the BIA had "no objection to the referendum as proposed" and that McCaleb was "prepared to approve the amendment deleting the requirement for Federal approval of future amendments." Id. at 2. The district court took this correspondence as evidence of final agency action approving the amendment, authorizing the Nation to amend its constitutional citizenship requirements without BIA approval.

In a May 2007 letter, however, the BIA rejected that finding, holding that the constitutional amendment was not approved, and refusing to approve the amendment because the Cherokee Freedmen were not permitted to vote in the referendum. On June 22, the BIA clarified that despite this decision, it would not withhold funding from the Nation until directed to do so by legislation or court order. Representative Maxine Waters has proposed legislation to do just that. The fact that Representative Eni Faleomavaega of American Samoa, and a consistent supporter of tribal sovereignty, has joined her in the legislation shows how this issue is dividing supporters of tribal sovereignty.

http://indianz.com/News/2007/003593.asp

http://indianz.com/News/2007/003029.asp

Entry Level Indian Law Faculty Position

2007-06-14T05:55:00.000-07:00

This has been emailed around but it is also posted to the classifieds on Indian Country Today so it seems okay and worthwhile to post this job posting here:

THE UNIVERSITY OF IDAHO COLLEGE OF LAW seeks to fill an entry-level, tenure-track faculty position beginning in the Fall of 2008 in the area of Indian Law. The teaching package for the position will also include Civil Procedure. Teaching assignments could also include other courses in the area of Indian Law or courses relevant to the successful applicant's Indian Law expertise and the needs of the College of Law. Applicants should have a JD from an accredited college and possess a distinguished academic record and post J.D. practice, clerking and/or teaching experience. We seek applicants who show promise as excellent teachers and productive scholars. Applications from individuals with a demonstrated commitment to Indian Law including scholarship in the area and/or significant experience working with tribes or with Indian people are encouraged. Situated in the beautiful Pacific Northwest, the University of Idaho is located in close physical proximity to the Coeur d'Alene and Nez Perce Indian Reservations and has working relationships with both tribes. The University is a comprehensive research institution that is enriched by its proximity to Washington State University. Interested persons should either apply online at www.hr.uidaho.edu or send a letter of application and resume listing three references by regular mail to Committee Chair, Faculty Appointments Committee, University of Idaho, College of Law, PO Box 442321, Moscow, Idaho 83844-2321. We will begin reviewing applications on September 15, 2007 and will consider applications until the until the position is filled. The University of Idaho is an affirmative action, equal opportunity employer. Applications from those who would increase faculty diversity at the College of Law, or with significant experience working with diverse populations, are encouraged. More information about the College of Law is available at www.law.uidaho.edu.

New Book on Native Vote

2007-06-13T15:40:00.000-07:00

As if timed to coincide with Matthew's last post, the Cambridge University Press has released a new book on the importance of the native vote, and all of the cases challenging efforts to block it. As Matthew says, not enough Indian law scholars follow this issue, although it is an increasingly important one in Indian country and national politics. The press release below gives some more information on the book:

While American Indians are not the most influential minority group in the United States, a new book written by a team of University of Utah researchers says their growing influence in national and local politics could make them a deciding factor in future elections.

The book Native Vote. American Indians, The Voting Rights Act and the Right to Vote (Cambridge University Press, 2007) co-authored by Dan McCool, director of the University of Utah's American West Center, points to specific elections in which the American Indian vote has helped carry the Democratic candidate to office. The book argues that the power of the American Indian vote has relied on their voting as a Democratic block, originating back to the presidency of Franklin D. Roosevelt. Today, this voting behavior makes them particularly important, especially in state races.

"For such a small population, they can be pivotal in future closely contested elections," McCool said.

See:
http://media.www.dailyutahchronicle.com/media/storage/paper244/news/2007/06/11/News/Future.Elections.May.Hinge.On.Indian.Vote.Book.Says-2913668.shtml

The book is the first to comprehensively chronicle more than 70 voting rights cases brought in the courts by American Indians since the Voting Rights Act was passed in 1965.

Publisher’s link: http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780521548717

US Attorneys and Indian Country Voting Rights

2007-06-01T08:13:00.000-07:00

I've previously written about the connection between the US Attorney firing scandals and Indian Country, focusing on former USA for the W.D. Mich., Margaret Chiara. Four of the eight fired USAs were located in districts featuring extensive Indian Country territories. One or more USAs were targeted for allegedly spending too much time prosecuting cases in Indian Country or working on tribal issues.

Indianz.com has been expanding the scope of the connection by reporting the possibility that former D. Minn. USA Tom Heffelfinger was listed for termination because he apparently questioned a state law that forbade the use of tribal IDs at voting places.

This adds a new wrinkle to the connection to Indian Country -- voting. Jack Balkin blogged that perhaps the biggest issue for the Bush II administration's decision to replace several USAs was voting rights. I think few people know how many counties in Indian Country are still in violation of the Voting Rights Act. See here and here and here.

Ninth Circuit affirms scope of specific Yakama treaty provision

2007-05-30T08:45:00.000-07:00

On May 18, the Ninth Circuit released its opinion in U.S. v. Smiskin affirming the dismissal of a prosecution of two Yakama individuals under the federal Contraband Cigarette Trafficking Act. The federal statute permits prosecution of individuals who traffic cigarettes in violation of state law, in this case Washington's law requiring notice to state officials before transporting unstamped cigarettes within the state. The defendants argued that enforcing this requirement would violate the “right, in common with all other citizens, to travel on state highways,” secured by the Yakama in their 1855 Treaty. The district court, and this month the Ninth Circuit, have upheld this argument. This is a nice example of the importance of looking at a tribe's specific treaty rights in Indian law cases.

You can read the opinion here:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/EDB288C254B386D6882572DF00003A7A/$file/0530590.pdf?openelement

Native Hawaiian Self-Governance Bill Makes it out of Indian Affairs Committee

2007-05-11T10:20:00.000-07:00

The current version of the the Native Hawaiian Government Reorganization Act, S.310, was approved by the Senate Indian Affairs Committee this week. A similar bill was also approved by the committee in 2006, only to be defeated by a 56-41 vote by the full senate. The Bush Administration Attorney General's office, while acknowledging that the current version of the bill addresses most of the practical concerns it had raised in response to the prior bill, still expressed objections to the bill as ancestry and race based legislation. Thoughtful op-eds and writings by Indian law profs on this subject might be timely now.

A link to the bill, as well as statements and video made at the May 3, 2007 hearing in the Committee can be found on the committee website here:

http://indian.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=70

Federal Indian Bar Debriefing

2007-04-22T06:09:00.000-07:00

The FBA's Annual Indian Law Conference is done. For those of you who attended, any comments on what you liked or disliked are welcome.

One question we wrestled with briefly during the planning stages: How to address what could be a disconnect between Indian law scholarship and Indian law practice, with an emphasis on the needs of Indian leaders. I am also interested in what readers think about the new push toward more empirical scholarship in Indian law and how the Fed Bar conference might or might not be a useful place to address these questions.

Of course, one could argue there is no disconnect (very plausible). But FBA is about practitioners more than it is about law professors. That might not have always been the case, but it is now.

I think it's worth discussing whether Indian law scholarship should be more driven by the needs of tribal leaders and advocates. I'm on the fence. I like academic freedom. But I want our work to have practical value as well.

Finally, any comments or ideas about next year's conference would be much appreciated.

Baamaa,

Matthew

Zuni Public School Dist. No 89

2007-04-18T07:01:00.000-07:00

The Court ruled against the school district here 5-4 -- and against tribal interests -- and over a incredibly wild dissent from Justice Scalia. His opinion perhaps is a classic reminder why he spends some much time dissenting instead of persuading.

Paraphrasing the issue (apparently there's a lot of math involved and I don't like math): the school district wanted more federal education money; the federal formula adopted by the Secretary of Education appeared to differ from the relevant Act of Congress; the Secretary's formula prejudiced the school district; the school district wanted the formula struck down.

The Court found ambiguity in the statute (it seems because it was just plain complicated) and applied Chevron, sort of. Actually, as Justice Kennedy's short concurrence stated, the Court first applied the legislative history supporting its conclusion and then looked to the plain meaning, which is the backwards way of applying Chevron.

Justice Scalia wasn't buying it and found the statute unambiguous, rejecting what he called the "cadre of number-crunching amici." The Secretary's formula, Scalia argued, simply conflicted with the statute and was therefore invalid.

What I want to know is -- where was Justice Scalia in Chickasaw Nation v. United States in 2001 ("Indeed, in ordinary life, we would understand an analogous instruction -- say, 'Test drive some cars, including Plymouth, Nissan, Chevrolet, Ford, and Kitchenaid' -- not as creating ambiguity, but as reflecting a mistake.")? I guess it's not really the same thing.

Updated List of Speakers for the MSU Law & Lit Conference

2007-04-09T10:35:00.000-07:00

We've had a great initial response to our call for panelists. Here's a quick update of speakers. Please let us know if you're interested in participating in this first-of-its-kind symposium. matthew.fletcher@law.msu.edu

Larry Cata Backer (Penn State Law)
David Carlson (CSU San Bernadino Literature)
Kirsten Matoy Carlson (Michigan PhD)
Kristen Carpenter (Denver Law)
Jo Carrillo (Hastings Law)
Richard Delgado (Pitt Law)
Bruce Duthu (Vermont Law)
Gordon Henry (MSU Literature)
Amelia Katanski (Kalamazoo College Literature)
Stuart Rieke (Univ. of North Dakota Literature)
Jean Stefancic (Pitt Law)
Melissa Tatum (Tulsa Law)
Monique Vondall-Rieke (Univ. of North Dakota Law)
Christine Zuni (New Mexico Law)

MSU4th Annual Indigenous Law Conference -- Call for Panels

2007-04-04T11:50:00.000-07:00

Friends:

Michigan State University College of Law's Indigenous Law and Policy Center is planning its 4th Annual Indigenous Law Conference. The conference will be held here in lovely East Lansing on October 19-20, 2007, in the midst of the wonderful Michigan autumn.

Our conference topic is American Indian Law and Literature. We believe this will be the very first conference of its kind, for while there are many Indian Law conferences and many Indian Literature conferences, they have yet to be joined. Given the importance of storytelling and oral histories to winning the big treaty cases, the development of tribal customary law, and so on, this is surprising.

But American Indian Law and Literature as a field of serious study has always been here -- it just hasn't been identified as such yet. Witness Gordon Henry's series of stories beginning with "Requiem for a Leg" in his The Light People, perhaps the first and only fictional trial between Indians and anthros over the property rights to the frozen leg of a dead Anishinaabe elder.

Representative and recent samples of American Indian Law and Literature include without limitation:

Kristen Carpenter's "Contextualizing the Losses of Allotment through Literature" available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962525
Kirsten Matoy Carlson, "Unresolved Disputes: Narratives in the Transformation and Processing of Persistent Claims," abstract available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916513
David Carlson [no relation to Kirsten], Sovereign Selves, http://www.press.uillinois.edu/f05/carlson.html
Amelia Katansky, Learning to Write "Indian": The Boarding School Experience and American Indian Literature, http://www.oupress.com/bookdetail.asp?isbn=978-0-8061-3852-7
Matthew L.M. Fletcher, "Looking to the East: The Stories of Modern Indian People and the Development of Tribal Law," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=900213

We have already lined up a stellar cast of speakers, including Richard Delgado (Pitt Law), our keynote. Others include Larry Cata Backer (Penn State Law), Jo Carrillo (Hastings Law), Kristen Carpenter (Denver Law), Kirsten Carlson (Mich. PhD), David Carlson (CSU-San Bernadino Literature), Gordon Henry (MSU Literature), Amelia Katanski (Kalamazoo College Literature), and Jean Stefancic (Pitt Law), not to mention us at the Center (Matthew Fletcher, Wenona Singel, and Kate Fort).

We have a skeletal list of panelists so far. If you're interested, please send us a short (I mean, short!) proposal for either a single talk or a panel. We'd be delighted to hear from a wide variety of scholars. Please email me at matthew.fletcher@law.msu.edu

We'd like to hear from you as soon as possible, but no later than June 30, 2007 (of course that deadline is especially arbitrary since I just made it up, but we do need some time to plan!).

Baamaa,

Matthew Fletcher, Wenona Singel, and Kate Fort

The S. Ct.'s New Indian Law Agenda?

2007-04-04T10:52:00.000-07:00

A few months ago, I offered the possibility that the Supreme Court's willingness to accept Indian law cases may decline now that two of the three "westerners" have left the Court. Rehnquist, C.J. and O'Connor, J. are out, leaving just Kennedy, J.

I did some "empirical" research -- a search on USLW (using USLW's subject areas) -- and found that since the 1996 Term (that's as far as the USLW online search engines go), the Court has decided or vacated a lower court opinion 27 times in approx. 245 cases, just over 10 percent. Given that the going rate on cert. grants is around four percent, still a disproportionate number.

However, since the Court's grant of cert. in the Wagnon v. Prairie Band cases on Feb. 28, 2005, petitioners in Indian law cases are zero for 48. The USLW's subject area ("Native Americans") excluded the Zuni school case, the UDV case, and the BP case, rightfully so, I suspect.

Those cert. denials included what could have been "Lara II," challenges to Section 5 of the IRA, more than a few Cobell appeals, New York land claims, tax/treaty cases, gaming cases, and ICRA cases. This may be the first Term since the 1960s where the Court does not accept any Indian law cases.

Zero for 48. Interesting.

Attacks on Native Hawaiian homeownership legislation as race based

2007-03-30T11:12:00.000-07:00

Indianz.com 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:

http://www.indianz.com/News/2007/002124.asp 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.
****

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

2007-03-29T15:57:00.000-07:00

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?

North Dakota Teaching Indian Law Symposium Articles

2007-03-26T12:53:00.000-07:00

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.

Kristen A. Carpenter, Contextualizing the Losses of Allotment Through Literature, 82 N. Dak. L. Rev. 605 (2006).

Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N. Dak. L. Rev. 627 (2006).

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).

More on the Cherokee Freedmen Issue

2007-03-23T09:32:00.000-07:00

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

2007-03-23T08:49:00.000-07:00

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.

Race, Citizenship, and the Cherokee Nation

2007-03-21T14:45:00.000-07:00

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.

Navajo Supreme Court to Sit at Arizona State University

2007-03-20T17:33:00.001-07:00

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

2007-03-20T16:20:00.001-07:00

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

2007-03-20T14:46:00.000-07:00

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:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/64C37FB597BF2F848825729C0058BFE8/$file/0615371.pdf?openelement

Navajo Nation Supreme Court to Sit at American University

2007-03-20T14:20:00.000-07:00

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

Grand Traverse Band Tribal Court Chief Judge

2007-02-23T11:54:00.000-07:00

GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS

CHIEF TRIBAL JUDGE

Constitutional Basis

The Grand Traverse Band Tribal Constitution specifically establishes a Tribal Judiciary with a court of “general jurisdiction” and an Appellate Court. The Tribal Court is grounded in the Grand Traverse Band constitutional text to exercise “[t]he judicial power [extending] to all cases arising under [the GTB] Constitution, ordinances, regulations, and/or judicial decisions of the Grand Traverse Band and shall be exercised to the fullest extent consistent with self-determination and the sovereign powers of the Tribe.” GTB Const. Art. V, § 2. The Grand Traverse Band Tribal Judiciary and the Tribal Court are established as fully “independent from the legislative and executive functions of the tribal government and no person exercising powers of the legislative or executive functions of government shall exercise powers properly belonging to the judicial branch of government.” GTB Const. Art. V, § 6.

Duties and Responsibilities:

Uphold the Grand Traverse Band Constitution.
Since the Grand Traverse Band Tribal Court is a court of general jurisdiction authorized to exercise its judicial authority to the fullest extend possible, the subject matter of the Court filings consists of a broad array of complex civil and criminal matters.
The Chief Judge is expected and required to be fully conversant in the complexities of criminal and civil law in general and in particular, the complexities, both statutory and case law, of federal Indian law.
The Chief Judge is expected to have a commitment to the development of Tribal common law in general and the Grand Traverse Band common law in particular.
The duties are for caseload will be shared with the Associate Judge and include a broad caseload typical of a Tribal Court.
Assist Court administrator in managing administrative matters.
Provide full range of judicial services, including hearing cases in the trial court concerning such issues as criminal, civil, and family matters.
Assign cases to associate judge as appropriately/necessary.
Prepares and issues timely written orders, judgments, search and arrest warrants.
Develop and implements appropriate policies and procedures that are consistent with the Tribe’s needs and Tribal Law.
Communicates needs of Court to Tribal Council.
Assist the Court Administrator in setting and amending budgets, management of grants, reporting for grants, finances and setting the docket of Tribal Court.

Required Qualifications:

A member of the Grand Traverse Band over 18 year of age and/or is an attorney licensed to practice before the state courts of any state in the United States.

Preferred Qualifications:

Graduate of an accredited law school with a license to practice law in any state, preferably Michigan.
At least 10 years post J.D. experience in the practice of law.
Detailed knowledge of Federal Indian Law and ability to understand and implement Tribal Law as written.
Tribal court management experience preferred.

Special Qualifications:

Take/Pass pre-employment drug screening test and Criminal Background Check.
Tribal/Native Americans preference applies.

Compensation:

Depends on Experience/Qualification and comparable to rates of other Tribal Judges.

Please send cover letter, resume, references, and salary preference to:

GTB Legal Department, 2605 N. West Bayshore Drive, Peshawbestown, MI 49682

OPEN UNTIL FILLED

Strange Words from Justice Scalia

2006-10-22T19:04:00.000-07:00

Indianz.com reported about Justice Scalia's debate with the ACLU (Nadine Strossen). One of the issues raised was Employment Division v. Smith (1990).

I'm sure this is taken out of context, but it's a scary thing to hear from a sitting Justice (quoting from Indianz.com):

Scalia himself warned that shifts in the court could result in significant changes in the law. "Someday, you're going to get a very conservative Supreme Court and you're going to regret what you've done," he told the ACLU president during the debate.

What exactly will "we" regret? And isn't the Court already pretty conservative?

Strange.

No Lara II This Term

2006-10-22T09:09:00.000-07:00

The Court denied cert. in both the Means v. Navajo and Morris v. Tanner cases.

Given that two of the seven members of the Lara majority are no longer on the Court (Rehnquist, C.J. & O'Connonor, J.) -- and that two others wrote concurrences practically begging for a case where the petitioner was appealing a tribal court conviction (Kennedy, J., and Thomas, J.) -- the Lara majority looked shaky. The cert. denial is a great victory.

See my commentary in ICT.

Harvard Indian Law Alumni Conference

2006-10-19T16:09:00.000-07:00

October 28-29, 2006 at Harvard, of course!

Schedule

Friday, October 27, 2006
8:30 a.m. - 6:30 p.m.	Registration Pound Hall, 2nd Floor, Room 210 Lobby, 1563 Massachusetts Avenue, Cambridge
12:15 –1:45 p.m. Pound Hall, 2nd Floor, Ropes-Gray Room	Luncheon with Reunion Classes
1:45–2:00 p.m. Pound Hall 101	Welcome to the Celebration & Introduction of Opening Address NAAC Chair Kristen Carpenter '98, bio Prayer/Song Steven Emery '89, Cheyenne River Sioux Tribe
2:00–3:15 p.m. Pound Hall 101	Indian Law in Tribal Communities: Views from Indian Country Steven Emery '89, In-House Counsel, Standing Rock Sioux Tribe Lance Morgan '93, CEO, Ho–Chunk, Inc., bio Henry Sockbeson '76, Office of Tribal Counsel, Mashantucket Pequot Tribal Nation Heather Thompson '00, Director of Governmental Affairs, National Congress of American Indians Moderator: Josh (JD) Anders '07, Past President, HLS NALSA
3:30–4:00 p.m. Pound Hall 101	Keynote Address Susan Williams '81, Partner, Williams & Works, bio
4:15–5:30 p.m. Pound Hall 101	Emerging Scholars in Indian Law: Paper Presentations Kristen Carpenter '98, Asst. Professor, University of Denver Sturm College of Law, bio Gavin Clarkson '02, Asst. Professor, University of Michigan Law School & School of Information, bio Angela Riley '98, Assoc. Professor, Southwestern University Law School, bio Wenona Singel '99, Asst. Professor, Michigan State University Law School, bio1, bio2 Commentator, Lorie Graham LLM '95, Assoc. Professor, Suffolk University Law School, bio
5:30 –6:30 p.m. Hauser Hall 101, Borenstein Room	Native American Alumni Committee Meeting
6:30 p.m. Pound Hall, 2nd Floor, Ropes-Gray Room	Cocktail and Light Supper with Reunion Classes
Saturday, October 28, 2006
8:30 a.m. – 6:30 p.m.	Registration Pound Hall, 2nd Floor, Room 210 Lobby, 1563 Massachusetts Avenue, Cambridge
8:15–8:45 a.m. Langdell North	Continental Breakfast
8:45–9:15 a.m. Langdell North, Vorenberg Classroom	Welcome & Introduction CNAA Co–Chair Jennifer Weddle '00, bio
9:15–10:30 a.m. Langdell North, Vorenberg Classroom	Keynote Address Robert Odawi Porter '89, Syracuse University Law School, Professor of Law; Dean's Research Scholar of Indigenous Nations Law; Director, The Center for Indigenous Law, Governance & Citizenship; and Senior Associate Dean for Research, bio
10:45 a.m.–11:45 a.m. Austin Hall, 2nd Floor, James Barr Ames Courtroom	A Conversation with Dean Elena Kagan, bio
12–1:30 p.m. Harkness Commons, 2nd Floor, North Dining Room	Native American Alumni Luncheon *Introduction* Carmen Lopez, Ed.M '00, Director, Harvard University Native American Program, bio Diversity and Indians at HLS Lawrence Baca '76, Deputy Director, Office of Tribal Justice, U.S. Department of Justice, bio Special Recognition of Early Native American Graduates Woodrow Sneed '64, Martin Seneca '71, Jerry Muskrat '72 ( invited)
1:45–2:45 p.m. Pound Hall 101	Panel: Hot Topics in Indian Country Joseph William Singer '81, Bussey Professor of Law, Harvard Law School, bio Gloria Valencia–Weber '86, Professor of Law, University of New Mexico School of Law, bio Gerald Torres, Bryant Smith Chair in Law, University of Texas School of Law (Oneida Indian Nation Visiting Professor '06), bio Moderator : Steven McSloy '88, Co-Chair, Native American Practice, Hughes, Hubbard & Reed, bio
3:00–5:00 p.m. Pound Hall 101	Panel: HLS and Career Paths of Native American Alumni: How We Impact Indian Country Greg Bigler '81, Justice, Mashantucket Pequot Court of Appeals Mark Van Norman '86, Executive Director, National Indian Gaming Association, bio Jennifer Weddle '00, Associate, Holland & Hart LLP, bio Heather WhitemanRunsHim '02, Public Defender, New Mexico Moderator : Ethel Branch '08, President, HLS NALSA
7:30–8:00 p.m. Charles Hotel, Harvard Square	Reception
8:00–10:00 p.m.	Native American Gala Dinner *Greetings and Introduction* Robert C. Clark '72, Harvard Law School Harvard University Distinguished Service Professor and Austin Wakeman Scott Professor of Law, bio *Keynote Address & Presentation of Oneida Gift* Ray Halbritter '90, Nation Representative, Oneida Indian Nation, bio "The Oneida Indian Nation Chair in Federal Indian Law" *Acceptance* Elena Kagan '86 Dean of the Faculty of Law and Charles Hamilton Houston Professor of Law, Harvard Law School, bio *NAAC Honoring Presentation*
Sunday, October 29, 2006
9:00 - 11:00 a.m. Pound Hall, 2nd Floor, Ropes-Gray Room	Farewell Brunch with Reunion Classes

Updated MSU Call for Papers

2006-09-28T05:49:00.000-07:00

Updated Call for Papers

The Indian Child Welfare Act at 30: Facing the Future

An Edited Collection of Essays

Under Contract to Michigan State University Press

Papers to be presented at:

Michigan State University College of Law

Indigenous Law and Policy Center

March 16-17, 2007

The MSU Indigenous Law and Policy Center will be hosting an interdisciplinary symposium on the Indian Child Welfare Act in anticipation of its 30th anniversary in 2008. Michigan State University Press has agreed to publish the proceedings.

We are seeking paper proposals in the following areas:

· Work by the front-line tribal advocates for Indian children and families – the attorneys who make motions to transfer adoption and custody cases into tribal courts and the non-lawyers who provide the expertise to compel the state courts to grant the motions

· The difficulties faced by tribal advocates seeking compliance with ICWA by state courts. State courts have developed common law precedents that circumvent ICWA in direct contravention of Congressional intent.

· Whether ICWA is a valid exercise of Congressional authority under the Indian Commerce Clause or other provisions of the Constitution

· Responses to Randall Kennedy’s attack on ICWA in his book Interracial Intimacies

Please email proposals to Matthew L.M. Fletcher (matthew.fletcher@law.msu.edu) or Wenona T. Singel (singel@law.msu.edu) by October 20, 2006. Proposals should include a working title, an abstract not to exceed 300 words, and a current vita.

Miigwetch!!!!

Urban Indian Health Care Suit

2006-09-26T05:07:00.000-07:00

In Hammitt v. Leavitt, filed in the Eastern District of Michigan before Judge Cohn by a Michigan Law School clinic, the plaintiff class (urban Indians in Detroit and elsewhere) claims the Indian Health Service has failed to meet its health care needs. Only 1 percent of the IHS budget goes toward urban Indian health care.

The motion to dismiss is here. The response brief is here. And the government's reply brief is here. Thanks to Trent Crable for identifying these materials.

Arizona State Mascot Symposium

2006-09-21T05:40:00.000-07:00

From the ASU website:

Pride or Prejudice: Indian Mascots and Imagery
in the United States

October 20, 2006

Throughout the Twentieth Century, Indians and images of Indians became popular for use in branding products and as mascots for athletic teams. As the Twenty-First Century began, these mascots received new scrutiny and disapproval, most recently with the decision of the National Collegiate Athletic Association to prohibit the use of certain mascots and images at NCAA-sponsored events. This conference will feature key players in the ongoing dispute over the propriety of Indian mascots, and will explore both the legal and ethical implications of the use of such imagery by American universities and public schools.

Commentators include:

Kevin Gover
Professor of Law, Sandra Day O'Connor College of Law
Arizona State University

Suzan Harjo
President and Executive Director, Morning Star Institute

Linda Demaine
Associate Professor of Law, Director of Law and Psychology
Graduate Program, Sandra Day O'Connor College of Law
Arizona State University

Stephanie Fryberg, Ph.D.
Assistant Professor of Psychology, University of Arizona

Rebecca Tsosie
Professor of Law, Executive Director Indian Legal Program, William
H. Pedrick Distinguished Scholar
Sandra Day O'Connor College of Law, Arizona State University

Peter French
Director for Lincoln Center for Applied Ethics
Arizona State University

Matthew L. M. Fletcher
Assistant Professor,College of Law, Michigan State University
Director, MSU Indigenous Law Center

Bernard Franklin
Senior Vice-President, National Collegiate Athletic Association

Myles Lynk
Peter Kiewit Foundation Professor of Law & Legal Profession,
Faculty Athletic Representative
Sandra Day O'Connor College of Law, Arizona State University

Suzan Harjo
President and Executive Director, Morning Star Institute

Joseph Abeyta
Santa Fe Indian School Braves
Superintendent, Santa Fe Indian School

Roland McCook Sr.
Former Chairman, Ute Indian Tribe

Ron His Horse Is Thunder
Chairman, Standing Rock Sioux Tribe

Frank Sage
University of North Dakota Student
People Not Logos

Howard Wakeland
President, Honor the Chief Society

Robert Clinton
Foundation Professor of Law, Sandra Day O'Connor College of Law
Arizona State University

Steve Baird
Shareholder, Winthrop & Weinstine, P.A.

Lawrence R. Baca
Deputy Director of the Office of Tribal Justice
United States Department of Justice

Richard Guest
Attorney, Native American Rights Fund, Washington D.C.

Betty Steffens (invited)
General Counsel
Florida State University

Michigan State ICWA Conference Call for Papers

2006-09-12T05:47:00.000-07:00

Call for Papers

The Indian Child Welfare Act at 30: Facing the Future

Michigan State University College of Law

Indigenous Law and Policy Center

March 16-17, 2007

The MSU Indigenous Law and Policy Center will be hosting an interdisciplinary symposium on the Indian Child Welfare Act in anticipation of its 30th anniversary in 2008. We have submitted a proposal to Michigan State University Press to publish the proceedings. We have commitments from the following scholars to appear and/or publish:

· Suzanne Cross, Michigan State University

· B.J. Jones, University of North Dakota School of Law

· Allie Maldonado, Little Traverse Bay Bands of Odawa Indians

· Le Anne Silvey, Michigan State University

· Jill Tompkins, University of Colorado School of Law

· Frank Vandevort, University of Michigan Law School

We are seeking paper proposals in the following areas:

· Whether ICWA is a valid exercise of Congressional authority under the Indian Commerce Clause or other provisions of the Constitution

· Responses to Randall Kennedy’s attack on ICWA in his book Interracial Intimacies

Miigwetch!!!!

UND Pedagogy of American Indian Law Conference Update

2006-08-31T11:43:00.000-07:00

A revised agenda has been placed on the UND website.

Friday, October 13, 2006

8:30-10:00a.m.

Teaching the Marshall Trilogy

Moderator: Greg Gagnon

"Teaching the Trilogy"
- David H. Getches, University of Colorado School of Law

"The Iron Cold of the Marshall Trilogy"
- Matthew L.M. Fletcher, Michigan State University College of Law

10:00-10:15a.m. - BREAK

10:15-11:45a.m.

Teaching Santa Clara Pueblo v. Martinez

Moderator: Kathryn R. L. Rand

"Santa Clara Pueblo: Tribal Sovereignty in a Post-9/11 World"
- Angela Riley, Southwestern Law School

"Santa Clara Pueblo: Light or Shadow?"
- Frank Pommersheim, University of South Dakota School of Law

LUNCH

1:00-2:30 p.m.

Teaching Treaties

Moderator: James Grijalva

"Indian Treaty Abrogation and the Rule against Perpetuities"
- Robert Laurence, University of Arkansas School of Law – Fayetteville

"Teaching DeColonization: Re-Acquisition of Indian Land Within and Without the Box"
- G. William Rice, University of Tulsa College of Law

2:30-2:45 p.m. - BREAK

2:45-3:30p.m.

Teaching Lonewolf v. Hitchcock

Moderator: Tahira Hashmi

"Considering a Law and Literature Approach"
- Kristen A. Carpenter, Via Satellite from University of Denver Sturm College of Law

3:30-5:00 p.m.

Teaching Around the Supreme Court Indian Law Canon

Moderator: Michelle Rivard

"Beyond Indian Law 101"
- Alexander Skibine, S.J. Quinney College of Law – Utah

"When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations"
- Gloria Valencia-Weber, University of New Mexico School of Law

Saturday, October 14, 2006

8:30-10:00a.m.

The Indian Law "Difference"

Moderator:

"Title TK"
- Jim Grijalva, University of North Dakota School of Law

"Compared to What?: Teaching Federal Indian Law in Relation to Legal Doctrine Outside the Field"
- Carole Goldberg, UCLA School of Law

10:00-10:15a.m. - BREAK

10:15-11:45a.m.

Interdisciplinary Teaching

Moderator: Steven Light

"Justice, Culture, and Law: Teaching Law Students"
- Duane Champagne, UCLA

"The 'Actual State of Things:' Teaching About Law in Political-Historical Context"
- David Wilkins, University of Minnesota

11:45-12:00p.m. - BREAK

12:00-12:45p.m.

Indian Law Practical Teaching & Clinics

Moderator: Margaret Jackson

"Creating a Tribal Law Practice Clinic in Kansas: The Joys and Challenges of Bringing a Clinic into this World"
- Aliza Organick, Washburn University School of Law

Rediscovered Book II -- The Light People by Gordon Henry

2006-08-31T08:16:00.000-07:00

Gordon Henry, a member of the White Earth Band of Chippewa and professor at Michigan State University, published "The Light People" in 1994. The book is a collection of vignettes featuring Anishinaabe people. One vignette, "Requiem for a Leg," is about the discovery of an Ojibwe leg in a Minneapolis museum, frozen and preserved for all time. The story is about the discovery of the leg by members of the leg's family, so to speak. They make a demand for the leg and the museum denies the claim. A federal trial ensues.

The story of the leg had already been told earlier in the book in a chapter titled, "Oshawa's Uncle's Story." The leg came from a guy named Moses Four Bears around in the early 20th century. He had the leg amputated as a result of frostbite. He ordered younger family members to dress the leg in his best regalia and bury it. Of course, it was during a fierce blizzard and the leg was lost in the white blindness.

During the trial in "Requiem," the anthro who discovered the leg floating downstream in the spring brought the leg to the museum. All the anthros opined that is was evidence of ancient culture and was hundreds of years old. This portion of the trial is hilarious. The defense attorney for the museum is named Nugush. I can't repeat here what my grandmother told me that word means.

In the end, the court awarded the leg back to the family. A good story.

New Book Announcement -- Native America, Discovered and Conquered by Robert J. Miller

2006-08-28T09:59:00.000-07:00

Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny by Robert J. Miller (Lewis & Clark).

Professor Gerald Torres of the University of Texas Law School says of the book: "Everyone who is interested in Indian Law and the West will have to read this book."

The book is about the Doctrine of Discovery, Thomas Jefferson, Lewis & Clark, and Manifest Destiny. In the book, he addresses and proves three new ideas that have not been discussed elsewhere:

1. how the American colonies, states, and the federal government adopted the international law Doctrine of Discovery and applied it to the Indian Nations from 1620-2006.

2. how Thomas Jefferson and Lewis & Clark used the Doctrine of Discovery to exercise governmental authority in the Louisiana Territory and to claim the Pacific Northwest for the United States.

3. that Manifest Destiny arose from the identical legal elements and policies of the Doctrine of Discovery. Thus, the eurocentric, religious, and feudal principles of Discovery were adopted into the American law and
policy of westward expansion.

Contact Bob Miller with any questions.

Connecticut Law Review Symposium on the Cohen Handbook

2006-08-24T19:41:00.000-07:00

Check it out. New articles from Joe Singer, Judith Royster, Phil Frickey, Alex Skibine, Carole Goldberg and Duane Champagne, John LaVelle, Kevin Washburn, Sarah Krakoff, and Bethany Berger. A good way to start the new school year.

Zander v. Zander -- Tribal Per Cap as Marital Property

2006-08-24T19:09:00.000-07:00

In an interesting decision, the Minnesota Court of Appeals decided that per capita payments to a member of the Mdewakanton Sioux tribe are marital property under Minnesota law and must be distributed equally to a non-member spouse post-divorce, in this case, Husband.

The court wrote that the Mdewakanton Sioux Tribal Domestic Relations Code, which prohibits this kind of distribution, does not apply because Minnesota is a PL 280 state and the case was brought in Minnesota courts.

There might be a few weaknesses in the opinion:

First, the Minnesota statute suggests that property is not marital property if it was acquired before the marriage or is a gift, behest, devise or inheritance. Certainly, Minn. law doesn't take into consideration something like tribal per caps. Per caps would seem to be something like a gift or inheritance, since they come only because of someone's political and familial relationship to an Indian tribe. And that relationship exists before the marriage. Seems like a court could invoke either provision or create common law consistent with the state statute.

Second, it is unfortunate that the court so blithely decided that since Minn. is a PL280 state, state law applies and trumps the tribal law. PL280, as we should know by now, extends state civil jurisdiction to state courts for the purpose of providing a forum for tribal members where no tribal forum exists -- and state law where no tribal law exists. Here, there is a well-developed tribal law. Just because the parties (presumably) chose the state courts as their venue shouldn't mean that state law is an automatic trump. The purposes of PL280 aren't served by this automatic trump, one would think.

Finally, assuming the Minnesota Supreme Court upholds the decision, it would be interesting to see if Husband can recover the $42,000 per month the court held he is entitled to from Wife. The tribe's immune, so Husband can't recover there. Could Wife use a Cayman Island-style accounts to avoid paying the dough? She certainly could afford creative lawyers....

Regardless, the decision gives all per cap tribes something to think about, especially those in PL 280 states (read: California).

Rediscovered Book I -- The Imperialism of John Marshall

2006-08-24T11:03:00.000-07:00

Wading through biographies of John Marshall, of the "famous" Marshall Trilogy, I discovered an old polemic against the Chief Justice. It's George Bryan's "The Imperialism of John Marshall: A Study in Expediency." My law school's (Mich. State) library didn't have it and even the university library didn't have it.

It was published in 1924 and features a line-by-line dissection of Johnson v. M'Intosh. One great comment:

"Like any other question which is decided by main strength upon 'principles' ethically unsound and avowedly justified only by 'necessity' and expediency, this solution of the issue in [Johnson] grows more difficult to grasp as the opinion continues. One can almost hear the enunciator panting under his burden." [p.64]

UND Pedagogy Conference Announcement

2006-08-04T13:00:00.000-07:00

UND Indian Law Conference – “The Pedagogy of American Indian Law”

UPDATED August 23, 2006

October 13-14, 2006
University of North Dakota School of Law, Grand Forks, ND

The teaching methods used by the more experienced Indian law professors who earned their bones in treaty and civil rights cases and in legal aid might vary a great deal from the less experienced professors. Professors who became interested in Indian law from their scholarship in constitutional law, property, federal courts, and so on might have yet more views. It is time again to reflect on the pedagogical aspects of American Indian Law.

The teaching of what we call Indian law to law students is a new art, beginning with Professor Ralph Johnson’s first classes at the University of Washington (his teaching materials still an integral part of many law libraries, including UND) and Monroe Price’s Native American Law Manual, reproduced by the California Indian Legal Services in the late 1960s and early 1970s. We now have several pages of Indian law professors listed in the AALS Directory of Law Teachers, over 125 by our count, and many more professors that teach Indian law either not listed in the Directory or who teach primarily in other disciplines. And, as far as we can tell, there at least 35 American Indians that now teach Indian law in law schools and possibly many more.

Previous symposia in this vein have focused on the justification for teaching Indian law, as in the 1995 New Mexico symposium, or on the education of scholars unfamiliar with Indian law, such as the 2001 Tulsa symposium on integrating Indian law into the law school curricula. The North Dakota symposium, in contrast, would urge Indian law scholars and teachers to speak to each other. There are more of us every year and we have a lot to learn from each other, specifically as to how we teach our classes.

The North Dakota Law Review has agreed to publish the papers from this symposium in a special issue of its Volume 82.

Presenters (in no particular order):

Alexander Skibine, S.J. Quinney College of Law – Utah

Gloria Valencia-Weber, University of New Mexico School of Law

Carole Goldberg, UCLA School of Law -- “Compared to What? Teaching Federal Indian Law in Relation to Legal Doctrine Outside the Field”

Jim Grijalva, University of North Dakota School of Law

Aliza Organick, Washburn University School of Law

Christine Zuni Cruz, University of New Mexico School of Law

Duane Champagne, UCLA -- “Justice, Culture, and Law: Teaching Law Students”

David Wilkins, University of Minnesota -- “The ‘Actual State of Things:’ Teaching About Law in Political-Historical Context”

David H. Getches, University of Colorado School of Law -- “Teaching the Trilogy”

Matthew L.M. Fletcher, Michigan State University College of Law -- “The Iron Cold of the Marshall Trilogy”

Kristen A. Carpenter, University of Denver Sturm College of Law -- “Stories of Allotment: Using Law and Literature to Illuminate Indian Property Losses”

Robert Laurence, University of Arkansas School of Law – Fayetteville -- “Indian Treaty Interpretation and the Rule against Perpetuities”

Bill Rice, University of Tulsa College of Law -- "Teaching Decolonization: Re-Acquisition of Indian Land Within and Without the Box"

Angela Riley, Southwestern Law School -- “Tribal Sovereignty in a Post-9/11 World”

Frank Pommersheim, University of South Dakota School of Law

All titles are tentative.

Tribal Court Civil Jurisdiction

2006-07-21T12:52:00.000-07:00

There was another big win for tribal court civil jurisdiction this week in Plains Commerce Bank v. Long Family Land and Cattle Co. The federal court upheld tribal court jurisdiction over a claim by a family farm owned and operated by a Cheyenne River Sioux Tribe family that their lending bank had committed an act of fraud and discriminated against them. Specifically, the bank promised to make loans to the farmers and then failed to make good on those promises. The tribal court, per Judge B.J. Jones of the UND Tribal Judicial Institute, found in favor of the plaintiffs on several of these charges following a two-day jury trial. The CRST appellate court upheld the trial verdict, over some very threatening comments made by defense counsel on appeal, criticized heavily by appeals court judge Frank Pommersheim. I've written about these comments in a recent paper as well.

Of course, the bank was located off reservation and alleged that Supreme Court cases like Nevada v. Hicks and Strate foreclosed tribal jurisdiction. But the bank only argued that the discrimination verdict was foreclosed by Hicks. The court was unpersuaded, in large part, because the bank had attempted to use the tribal court to foreclose against the Longs. The voluntary use of the tribal court in another aspect of the same case amounted to a consensual relationship as discussed in the Montana case. This was the same result reached in Smith v. Salish Kootenai College, a case in which the Supreme Court recently denied cert.

The Montana 1 exception -- consensual relationships -- should be exploited by tribes. More and more non-Indians come to Indian Country to do business and, as entities enjoying tribal services, they should consent to tribal jurisdiction.

Cobell -- Ouch!!!!

2006-07-12T08:22:00.000-07:00

The D.C. Circuit removed Judge Lamberth from the Cobell case in its latest opinion. Apparently, an opinion from the judge that included some inflammatory language about the federal government's continuing reluctance to cooperate was the final straw for the court of appeals. It appears the more irritated you can get a federal judge about your behavior, the better off you are.

blackprof.com has a good piece on Judge Lamberth from a former clerk.

NIGC Drops Another Decision

2006-07-10T08:55:00.000-07:00

The National Indian Gaming Commission's decision that the so-called "Shriner Tract" in Kansas City, KS [once known, as the district court acknowledged, as "Wyandotte City"] did not qualify as Indian lands under the land settlement exception in IGRA Section 20 has been reversed.

The case, Wyandotte Nation v. National Indian Gaming Commission is a long-running case over a parcel of land that was a cemetery for the tribe during their "stay" in the area. The Wyandotte, or Huron, or Wendat [I believe, I could be wrong], came from the Great Lakes region. But they were removed west in numerous instances, eventually to arrive in Oklahoma. Though the Nation is located in Oklahoma, they wished to commence gaming on trust land in Kansas City, KS. Since the cemetery was held in trust in perpetuity as a cemetery, the Nation purchased adjoining land and persuaded the Secretary to take the land into trust (long, long ago, in the 1990s) for gaming purposes. There have been challenges from the Kansas government, the tribes located in Kansas, and later the NIGC -- but it appears the Nation is winning more often than not.

The case highights numerous (sometimes) ugly issues relating to gaming, especially Tribe vs. Tribe.

Sovereignty and Illiberalism

2006-07-06T07:13:00.000-07:00

One of the more provocative articles to appear in some time, Sovereignty and Illiberalism, by Angela Riley (Citizen Potawatomi), is available for download. The article will be published in Volume 95 of the California Law Review. Get it now while it's hot!

From the abstract:

Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this article, Professor Riley argues that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards Indian nations' inherent right to live and govern beyond the reach of the dominant society. This “measured separatism” embodies liberalism's commitment to the accommodation of pluralism. On the other hand, however, critics charge that imposing liberalism onto Indian nations is necessary to prevent infractions of individual rights by tribal governments. For these scholars, individual autonomy must always be preferenced above Indian nations' continued existence. Scholars concerned with illiberal practices perpetrated by tribal governments are increasingly calling for an expansion of federal civil rights laws into tribal communities. But these urgings are rarely accompanied by a thorough and thoughtful analysis of American Indian tribal sovereignty. In fact, most scholars writing in this area fail to acknowledge that expansion of such laws into tribal communities would potentially eviscerate tribal sovereignty and wipe out Indian differentness altogether. Accordingly, based on a detailed examination of tribal sovereignty - both as embodied in American law and as experienced by Indian nations “on the ground” - Professor Riley concludes that the United States' own theory of Indian sovereignty supports the perpetuation of Indian nations' autonomous existence. Further, it mandates that internal tribal decisions regarding Indian culture and tradition be left to Indian tribes, even when those decisions are inapposite to Western liberal ideals.

Supreme Court 2006 Term

2006-07-06T06:52:00.000-07:00

The Supreme Court's October 2006 Term may shape up to be one of the most critical Terms for Indian law in several years.

First, the Court may decide to take the fee-to-trust cases where the States of Utah and South Dakota are directly challenging the constitutionality of the statute authorizing the Secretary of Interior to take land into trust for Indians and Indian tribes. In the 1990s, the Court, over a strident dissent from Justice Scalia, vacated an Eighth Circuit decision (69 F.3d 878) declaring the statute unconstitutional.

Second, the Court may decide to hear Morris v. Tanner and/or Means v. Navajo Nation, cases challenging the validity of the Duro Fix. If you thought U.S. v. Lara answered this question, think again. Two of the Justices in the seven-justice majority have departed and two others in the majority (Thomas and Kennedy) wrote concurrences suggesting they would be glad to revisit the question if a nonmember Indian brought a challenge to a tribal court conviction (which Lara neglected to do).

And, third, though it may be a Term away, the NLRB v. San Manuel case may be decided by the D.C. Circuit this fall, paving the way for a petition for cert. in the winter.

Oneida Nation Reacquired Lands Not Subject to Foreclosure Despite City of Sherrill Decision

2006-06-06T12:25:00.001-07:00

In City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 (2005), the United States Supreme Court held that that laches caused by the Nation’s long delay in reasserting its sovereignty over areas that had become dominantly non-Indian barred the Oneida Indian Nation from seeking relief against municipal property taxation of parcels within their original reservation reacquired through open market repurchase. Many thought that meant that municipalities would therefore be entitled to collect millions of dollars in property taxes from this gaming-wealthy tribe. Not so fast! Despite the Supreme Court ruling, a federal district court has now barred the municipalities from enforcing their property taxation claims against the Oneida Nation through the normal remedy for nonpayment of property taxes -- foreclosure actions. Thus, there appears to be more than one legal theory to arrive at a just result.

The relatively short district court relied on the Non-Intercourse Act, 25 U.S.C. § 177 (which forbids the transfer of title to tribal lands without Congressional approval), denials of due process, and traditional notions of tribal sovereign immunity to bolster its conclusion that the lands reacquired by the Nation were not subject to foreclosure proceedings. The district court concluded its opinion by noting:

In conclusion, it would be wise for all sides to ponder the words of President Abraham Lincoln in his annual message to Congress on December 1, 1862. The words still ring true today.

Fellow citizens, we cannot escape history. We . . . will be remembered in spite of ourselves. No personal significance, or insignificance can spare one or another of us. The . . . trial through which we pass, will light us down, in honor or dishonor, to the latest generation. . . . The dogmas of the quiet past, are inadequate to the . . . present. . . . We must think anew, and act anew. We must disenthrall ourselves.

If the last words are heeded, and the parties resolve the many land claim issues with good will and friendship between nations, the citizens of this time and place will be remembered by future generations with admiration and gratitude. In the alternative, future generations will still be coping with an endless stream of federal and state lawsuits, land claims, and land trust applications.

At least one member of the federal judiciary seems to understand the lessons of history. Too bad they have been lost on far too many other members of the federal judiciary. The brief opinion is available here.

Federal Court Subpoenas & Sovereign Immunity

2006-05-29T11:16:00.000-07:00

In United States v. Juvenile Male 1, the federal district court in Arizona (PHX) delivered an incendiary response to arguments by Navajo Nation tribal attorneys that a federal court subpoena was "extra-territorial" and thus required domestication in Navajo tribal courts.

Excerpts:

We first dispatch political rhetoric and then get to the heart of the matter. The United States of America is a country. Its sovereignty extends to its full geographical limits. And, under Article VI of the United States Constitution, its Constitution and laws "shall be the supreme Law of the Land." An Indian tribe is not a legal unit of international law. Cayuga Indian Claims (Great Britain v. United States), 20 Am. J. Int'l. L. 574 (1926). An Indian tribe is not a foreign state under the Constitution. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 20, 8 L.Ed. 25 (1831). And, 25 U.S.C. § 71 (originally enacted as Act of March 3, 1871, ch. 120, 16 Stat. 544, 566), provides that "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power."
It was thus frivolous for the lawyers representing the Tribe to refer to a federal subpoena as "extra-territorial," to describe the Tribe as a "separate sovereign nation," to refer to this court's processes as "foreign subpoenas issued from neighboring sovereigns," and to refer to this court as "foreign." If this rhetoric had come from non-lawyers, one could just dismiss it as hyperbole. But lawyers have an obligation to refrain from making frivolous contentions. See, e.g., E.R. 3.1, Arizona Rules of Professional Conduct, which applies to lawyers authorized to practice before the United States District Court for the District of Arizona. LRCiv 83.2(d). This includes tribal lawyers. LRCiv 83.1(b)(2).

But the case is more than a question of territoriality. In United States v. James, 980 F.2d 1314 (9th Cir. 1992), the 9th Circuit quashed a federal court subpoena on tribal records in a criminal case because Congress didn't explicitly waive tribal immunity in the Major Crimes Act (in essence). The Juvenile Male 1 court distinguished James because the defendant in Juvenile Male 1 argued that the tribe's failure to deliver the documents amounted to a violation of the Sixth Amendment -- no such constitutional claim was present in James. The district court also harshly criticized the reasoning of the James opinion. Importantly , the district court suggested that the constitutional question "outweighed" tribal sovereign immunity, further suggesting that the case was "certworthy." Keep an eye out for this one.

The court concluded:

Were we free to do so, we too would reject James. But we are not. Nevertheless, we agree with the juvenile here, and the court in Snowden, that James does not control because the defendant there did not raise constitutional challenges to the claim of immunity. The mischief caused by an extension of immunity beyond its purpose was neither presented to nor considered by the court in James. Indeed, we believe that if given an opportunity there is every likelihood that the United States Court of Appeals for the Ninth Circuit would revisit the issue. If not, a very plain circuit split would exist. And this would be no ordinary circuit split. Indians prosecuted for federal offenses on that part of the Navajo reservation in the District of New Mexico (and very likely the District of Utah), would have the right to compulsory process under the Constitution, and those Indians prosecuted for federal offenses on that part of the Navajo reservation in the District of Arizona would not. This would very likely raise a certworthy issue.

Supreme Court Declines to Hear Pechanga Disenrollment Case

2006-05-24T22:21:00.000-07:00

The Supreme Court declined yesterday to review the decision of the California Court of Appeals in Lamere v. Superior Court declining to entertain claims brought under tribal law and the federal Indian Civil Rights Act by disenrolled members of the Temecula Band of Luiseno Mission Indians of the Pechanga Indian Reservation, commonly known as the Pechanga Band. The case involved the disenrollment by the Pechanga Band of over 130 members. The state court held that Public Law 280 granted no jurisdiction to the state courts to entertain cases about fundamental membership decisions in part due to the traditional sovereign immunity of tribes. The case was captioned Salinas v. LaMere in the United States Supreme Court.

In an earlier case out of the Table Mountain Rancheria, Lewis v, Norton, the Ninth Circuit had held that federal courts should not intervene in tribal disenrollment disputes due to tribal sovereign immunity. Since the Pechanga Band lacks a tribal court, the combined effect of the two decisions leaves the disenrolled plaintiffs without any judicial forum in which to pursue their legal claims regarding the alleged invalidity of their disenrollment from the tribe.

Should these decisions be applauded as a vindication of tribal sovereign immunity or condemned as questionable invocations of tribal sovereign immunity to thwart the rule of law, including tribal law, in favor of the whims and vagaries of the politics of tribal councils. While no one should question th wisdom of the courts' fundamental point that these issues are best finally resolved by the tribes, do tribal governments adequately serve their people or their former members when they provide no independent, neutral forum for the resolution of legal claims by former members claiming their disenrollment was illegal under tribal and federal law? On the other hand, does the lack of such an adequate judicial remedy justify intervention by others sovereigns? That clearly was the issue posed in both Lamere and Lewis. The denial of review in Lamere together with the result of Lewis legally leaves that answer to that last question a resounding no. Practically (but not technically) this position reaffirms by inaction the Supreme Court’s earlier ruling to the same effect in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

Construing Treaties Strictly

2006-05-22T07:46:00.000-07:00

Regardless of what you think of industrial hemp cultivation, United States v. White Plume is a classic example of how federal courts say they construe Indian treaties liberally, but actually construe them narrowly.

The petitioners in White Plume argued that, during the negotiations of the 1868 Treaty of Fort Laramie, Indian farmers cultivated hemp. As such, the treaty allowed the cultivation of hemp today. The court's response:

Appellants further argue that the Treaty gives the White Plumes a right to grow hemp. The Treaty between the United States and the Tribe provided in part that if any head of a family within the Tribe wished to farm, the government would provide them with a tract of land, as well as seeds and agricultural implements for the first year. Appellants assert that because hemp was either grown by Indian tribes or its cultivation was being encouraged by the United States government at the time of the signing of the Treaty, language guaranteeing farming support to the Tribe means the Treaty contemplated all kinds of farming, including hemp. Regardless of the historical accuracy of the assertion that the federal government encouraged hemp growing when the Treaty was signed, the plain language of the treaty merely refers to "farming"-it mentions nothing about farming hemp. Indian treaties are to be interpreted liberally in favor of Indians, and any ambiguities are to be resolved in their favor. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200 (1999). The record does not support an assertion that the Treaty is ambiguous as to whether it contemplated the growing of hemp by the Tribe.
Under statutory interpretation, a statute is ambiguous if it is " 'capable of being understood in two or more possible senses or ways." ' Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001) (quoting Webster's Ninth New Collegiate Dictionary 77 (1985)). The language of the Treaty as written is not ambiguous on the matter of farming hemp because the Treaty is not written in the context of permitting the cultivating of particular crops. Rather, the Treaty simply provides for government assistance should members of the Tribe choose to farm. Given that the CSA prohibits the cultivation of marijuana without a DEA registration, and given that "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States ... shall extend to the Indian country," the White Plumes may not cultivate hemp without a DEA registration, and the Treaty does not reserve any such right.

This is how Indian treaties are construed. The court adopts what contracts teachers refer to as the "four corners" rule -- if the language of the document is plain, then the court may not refer to outside sources or evidence to seek out ambiguity.

But the four corners rule, as any contracts teacher can tell you, is a mostly empty vessel. Courts generally allow for the introduction of extrinsic evidence provisionally to determine whether what appears to be plain language may in fact be ambiguous. E.g. Evergreen Investments, LLC v. FCL Graphics, Inc., 334 F.3d 750, 756 (8th Cir. 2003) (construing Illinois law). And the White Plume petitioners alleged that the United States encouraged the Lakota people to farm hemp. Appellants' Brief at 33. Maybe they couldn't prove it, but the federal courts appear not to care.

So, although the Eighth Circuit will cite Mille Lacs for the proposition that they construe Indian treaties liberally, they actually adopt a stricter rule of construction for Indian treaties than they do for simple contracts. Hmmm.

Tribal Economies & Anarchy

2006-05-13T14:38:00.000-07:00

The Harvard Project on American Indian Economic Development long has advocated a "nation building" theory of economic development. But what about anarchy?

In a recent paper mentioned at the Law and Society blog, one economist, Peter Leeson, suggests that in smaller, insular communities (which he unfortunately labels "primitive"), anarchy is a better mode of economic development, more efficient.

This wouldn't be the anarchy of punk rockers, but more like the anarchy of the Spanish trade unions of the 1930s and the Israeli kibbutzim. Thinkers such as Bertrand Russell and Noam Chomsky, calling it "libertarian socialism," have called it the most egalitarian form of economic systems.

In some ways, is "nation building" the same thing as "libertarian socialism"?

Pro Se Defendants

2006-05-10T13:09:00.000-07:00

There's a report summarized at Crim Prof Blog that indicates criminal defendants representing themselves do better than if represented by appointed counsel. I wonder if whoever's defending the Morris v. Tanner case will mention this in the briefing!

If it's true in Indian Country (and why not?), then why should we care if ICRA doesn't mandate appointed counsel for indigent defendants?

Well, not everyone can stand up for themselves. And not everyone is Vernon Bellecourt.

From the Baltimore Sun report:

In the study, which is scheduled to be published in the North Carolina Law Review, [Erica] Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto's review of data, a sample from the National Archive of Criminal Justice Data that covers the country's 75 largest counties in the even years between 1990 and 1998.

The Pocahontas Exception

2006-05-09T11:39:00.000-07:00

Interesting new article from Kevin Noble Maillard:

Kevin Noble Maillard, "The Pocahontas Exception: American Indians and Exceptionalism in Virginia’s Racial Integrity Act of 1924" (March 23, 2006). ExpressO Preprint Series. Working Paper 1187.

From the abstract:

Most scholarship on Loving v. Virginia (1967) briefly mentions the “Pocahontas Exception,” a subsection of Virginia’s Racial Integrity Act of 1924 which counted persons of limited American Indian ancestry as white. However, few of these works raise the issue outside of a footnote. This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s antimiscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened “by the quagmire of mongrelization.” Exempted from this racial policing regime were those influential whites, the “First Families of Virginia,” who proudly claimed Native American ancestry from Pocahontas. Why would Native American ancestry, as opposed to others, pass as acceptable nonwhite blood and good law? This exception translates into contemporary social practice, as increasing numbers of Americans freely and lately claim Native ancestry. This openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. This paper contends that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia’s antimiscegenation statute.

Dry Creek Lodge Redux

2006-05-09T09:35:00.000-07:00

The Tenth Circuit in Walton v. Tesuque Pueblo reversed a district court decision asserting jurisdiction under the Dry Creek Lodge exception. It was an easy case for the panel, as well it should be. The troubling part is that the appellate court had to reverse the lower court.

From the opinion:

Here, too, we have no difficulty concluding that the Dry Creek exception is inapplicable. The District Court held that Mr. Walton, like the plaintiffs in Dry Creek, had no tribal forum to settle the dispute. To the contrary, Mr. Walton successfully availed himself of a tribal forum, although the decision of that tribunal was ultimately unfavorable to him. A tribal court's dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute, see Olguin, 87 F.3d at 404 (holding that the third prong of the Dry Creek exception is not met when a tribal court has expressly agreed to hear the dispute), and such a ruling would come into direct conflict with Santa Clara Pueblo. As such, the District Court erred in concluding it had jurisdiction pursuant to the Dry Creek exception over Mr. Walton's non-habeas claims against either the Tesuque Pueblo or its individual officers.

New Fake Indian Tribes

2006-05-09T09:06:00.000-07:00

Last fall at the DC FBA Conference, Hal Stutsman, an FBI agent based out of Bismarck, described the new fake Indians -- former survivalists (people who claim they are "sovereign citizens" in order to avoid federal taxes, etc.) that went underground after 9-11 are coming back up as non-recognized Indian tribes.

Two recent court cases (well, at least one) seem to involve these parties. The first, Richmond v. Wampanoag Tribal Court Cases, 2006 WL 1073561 (D. Utah, April 21, 2006), involved a claim by an pro se plaintiff demanding the federal district court of Utah comply with tribal court orders issued by "Pembina Nation Little Shell Calif."

This is a classic example, but one of the first involving fake Indian tribes. Check out Angela P. Harris's article, "Vultures in Eagles’ Clothing: Conspiracy and Racial Fantasy in Populist Legal Thought," from Volume 10 of the Michigan Journal of Race & Law, for more examples.

Another case, Pembina Nation Little Shell of North America ex rel. Wasserman v. White, 2006 WL 1131821 (S.D. Ill., April 25, 2006), involved a claim by another pro se plaintiff that his license plates and driver's license should be respected in Illinois. Of course, the reason the plaintiff didn't have valid plates of his own is that his own license/plates were revoked in Illinois for repeated drunk driving convictions. In this case, the "Nation" sent a letter to Colin Powell, then-Secretary of State of the United States, informing him that they would soon be issuing plates and licenses. The court rejected the claim.

The Anti-Defamation League has a website about these guys.

Abramoff and the White House

2006-05-08T14:56:00.000-07:00

He WAS there!

The Washington Post op-ed page reports that they finally forced the White House (actually the Secret Service) to disclose documents about Jack Abramoff's visits.

http://www.washingtonpost.com/wp-dyn/content/article/2006/05/07/AR2006050701022.html

The Origins of the EPA's Indian Program

2006-05-07T10:44:00.000-07:00

Jim Grijalva at the University of North Dakota School of Law posted "The Origins of the EPA's Indian Program" at ssrn.com.

The abstract reads:

The United States Environmental Protection Agency’s modern Indian Program - which recognizes Indian tribes as local governments appropriately responsible for environmental management in Indian country - has draw increasing fire in the last decade. Indian country environmental litigation has proliferated as states and non-Indian actors have challenged Agency decisions delegating program primacy to tribes, denying primacy to states, and retaining federal authority in the absence of tribal primacy. Without question, the genesis of these modern decisions, and the policy principles they reflect, can be traced directly to EPA’s official Indian Policy, adopted in 1984, and reaffirmed by every Administrator since that time. This article contributes to scholarly discussions on Indian country environmental law by identifying and analyzing the motivations, assumptions and goals of EPA’s nascent Indian program, which served as the foundation for the modern Indian Program. The article undertakes a legal and historical analysis of: EPA’s creation and early regulatory activities; its first Indian Program actions; the first case testing EPA’s Indian program; the development and content of EPA’s first Indian Policy in 1980; the failure of the 1980 Policy; the deliberative development of its successor, the 1984 Indian Policy; and the substantive content of the 1984 Policy and its accompanying Implementation Guidance. The article concludes that the Agency’s Indian Program was initially born of necessity in a program-specific context, and expanded into a cross-program, Agency-wide institutional approach under the influence of two important shifts in federal policy occurring at the time. The necessity derived from EPA’s view that in the absence of congressional delegation, states generally lacked civil regulatory authority adequate to protect the Indian country environment. Congress’ silence in the environmental laws of the early 1970s convinced EPA that an unacceptable regulatory void existed in Indian country. The solution, EPA posited, was an approach according tribal governments a regulatory role akin to the role states enjoyed under the cooperative federalism model of environmental management. That approach harmonized with the contemporary shift in national environmental policy away from independent state control and toward increasing federal supremacy, but in partnership with local governments. And, the state-like approach was also in tune with federal Indian policy’s movement toward tribal self-determination and away from federal control of Indian programs.

Tribes and Tribal Businesses

2006-05-07T10:08:00.000-07:00

In Wright v. Colville Tribal Enterprise Corp., 111 P.3d 1244 (Wash. App. 2005), the Washington Court of Appeals held that tribal corporations and their officers and employees do not retain tribal immunity for suit in cases arising outside of Indian Country. The Washington Supreme Court granted cert. and will hear the case May 16, 2006.

When the U.S. Supreme Court decided Kiowa in 1998, it asked Congress to revisit the issue of whether Indian tribes doing business off-reservation could retain their immunity. Congress did (thanks to Slade Gorton) and rejected the legislation.

The Wright case is a microcosm of an interesting dilemma for tribal businesses. The outside world views tribal businesses as a waste of time unless they are separate from the politics of tribal government, e.g., in 2002, the Wall St. Journal praised the CSKT businesses for their commitment to profits and not politics. But separating out the tribal businesses from the tribe (e.g., Section 17 corporations, etc.) leads to cases like Wright and those troublesome Tuscarora/Coeur d'Alene-type cases.

At the 2005 UND Indian Law Conference, practitioner Steve Olson argued the best way to retain sovereign immunity and other exemptions is to tie the business to the tribe so as to make them inseparable. He had just won Prescott v. Little Six in the Eighth Circuit.

Cornell and Kalt suggest there are tribes engaged in the "standard" form of economic development (failures) and there are tribes engaged in the "nation-building" form of economic development (winners) and tribes in between. There are elements of tribal control and letting go in the "nation-building" form -- and vice versa in the "standard" form.

All this sounds good, but what's to prevent tribes from following the Little Six model in an attempt to preserve immunity and exemptions from federal/state law? To control or not to control?

"Active Liberty" and Active Sovereignty

2006-05-05T09:48:00.000-07:00

Justice Breyer's new book, "Active Liberty," is an interesting discussion of Supreme Court views, helpful to Supreme Court practitioners and Indian law scholars. One major theme of the book, in the words of Paul Gewirtz, is "democratic participation." Here is an important theme within the Court (or at least for Justice Breyer alone, way out there in the moderate left) that tribal advocates should consider carefully. Indeed, this year's Federal Bar Association conference theme was "Active Sovereignty," a deliberate choice on the part of the co-chairs (myself, Allie Maldonado, Gabe Galanda, Cheryl Fairbanks, Mike McBride, and Donna Goldsmith). Here's an excerpt from the blurb:

Tribal leaders and advocates have long known, understood, and even memorized Felix Cohen's classic statement of tribal sovereignty appearing on page 122 of his original Handbook of Federal Indian Law: The powers vested in Indian tribes are inherent powers of a limited sovereignty that has never been extinguished. In the early years of the 21st century, after years of struggle to prevent further extinguishment of those powers, it is time to move away from focusing on the "limits" of sovereignty and examine how Indian tribes can activate those inherent, but often latent, powers that will expand and solidify tribal sovereignty. Indians and Indian tribes live and learn in the real world, on the ground, and in daily interactions with Indian and non-Indian community members; federal, state, and local governments and government officials; and Indian and non-Indian businesses.
The 2006 FBA Indian Law Conference focuses on the active, dynamic, and often untapped resource of inherent tribal sovereignty. ***This conference invites trial leaders and advocates to look inward and to strengthen the core of inherent sovereignty. We believe that a strong inner foundation will help build a greater capability to face opposition.***

Perhaps Justice Breyer's vote is tied to (and now we're quoting from Judge Posner's description of John Hart Ely's argument) "mak[ing] American government more democratic." Federal Indian law created a little room for tribes to operate. With what will the tribes fill that space?

Wither the Eastern Land Claims?

2006-05-05T07:32:00.000-07:00

The Third Circuit affirmed the rejection of the Delaware Nation's Pennsylvania land claims. Excerpts:

This case arises from the claim of an American Indian nation to a portion of its aboriginal land. For the reasons that follow, we find that any aboriginal rights held by the Delaware Nation to the land known as "Tatamy's Place" were extinguished by Thomas Penn via the Walking Purchase of 1737. We also find that the tribe does not hold fee title to Tatamy's Place.

***

The Delaware Nation next argues that, even if Thomas Penn was sovereign and had the power to extinguish its aboriginal title with the Walking Purchase, he did not do so because the circumstances surrounding the Walking Purchase were fraudulent, and "fraud is not a valid means to extinguish aboriginal title." However, the manner, method, and time of the sovereign's extinguishment of aboriginal title raise political, not justiciable, issues. United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941). "[W]hether (extinguishment) be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts." Id. (emphasis added); United States v. Alcea Band of Tillamooks, 329 U.S. 40, 46 (1946) (noting that the sovereign "possessed exclusive power to extinguish the right of occupancy at will."). Accordingly, the District Court correctly held that "[p]roof of fraud is not a material fact that would nullify Proprietory Thomas Penn's extinguishing act." The Delaware Nation, 2004 U.S. Dist. Lexis 24178, *28.

Blood Quantum in Federal Indian Policy

2006-05-04T18:33:00.000-07:00

The South Dakota Law Review just published "A Legal History of Blood Quantum in Federal Indian Law to 1935" by Paul Spruhan.

An excerpt from the intro:

In Part III the article concludes that blood quantum in federal Indian policy to 1935 is more striking for its lack of use than its application. Though early federal officials were aware of blood quantum and used it in scattered situations for specific purposes, they generally preferred definitions that applied matrilineal or patrilineal descent or tribal membership. Blood quantum became an important method of defining Indian and tribal membership only in the early twentieth century. By the passage of the Indian Reorganization Act, blood quantum was firmly entrenched in federal Indian policy, though it existed alongside political definitions of Indian status. The shift from the almost exclusive use of political definitions to the selective use of biological ones tracks the changing perception of the federal government's relationship to Indian tribes. Ultimately, the lack of consistency in applications of blood quantum reflects the failure of the United States to reconcile the foundational contradictions of federal Indian law.

Taxation and the Prisoner's Dilemma

2006-05-03T21:08:00.000-07:00

The May 2006 cover story in the ABA Journal features Mike Taylor, tribal attorney for the Tulalip Tribes north of Seattle. Mike is the architect of Quil Ceda Village, the big tribal mall on I-5. The mall brings in excellent revenues to the Tribes, but the tribal retailers (including Wal-Mart and Home Depot), must collect taxes on sales to nonmembers and remit the money to the State of Washingon. The article reads:

For the state, it's a sweet deal. It doesn't have to make any concessions or put up any money to get a large new tax base. At Quil Ceda, for example, all the utility work for roads, sewers, water lines, electricity, etc., was paid for by the tribes. The Tulalips even contributed money for work on a new interchange from the interstate, which also benefits nearby communities. The tribes also hire, train and pay for their own police force.

But the state gets all the sales tax money. Thought some of the money eventually makes its way back to the local economy in the form of county and local grants and revenue sharing, the tribes get none of the tax money in return for their infrastructure investment and ongoing administrative expenses.

"The state right now is engaged in theft," Taylor says.

Best quote of the week. Like any competitor for a limited pie, the State of Washington played the prisoner's dilemma game with the Tulalip tribes -- and won because they contributed nothing. John Nash predicted that repeated plays of the game would lead to a more optimum result -- the Nash equilibrium -- but the Tulalips got to play only once.

Others, like Del Laverdure, talk about how local governments benefit from tribal economic development -- all without having to contribute much back to the tribe. At a talk at the Turtle Mountain Community College, Del alleged that a large portion Big Horn County's annual budget is derived from property taxes collected on fee land owned by Crow Tribe members. He called it "taxation without representation," but it's just the prisoner's dilemma.

Federal Torts Claims Act & Tribal Law

2006-05-03T11:15:00.000-07:00

The Federal Tort Claims Act states that torts committed by federal employess may be redressed in federal courts "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). That means, whenever the act occurs within a State, that the law of the State governs. FDIC v. Meyer, 510 U.S. 471, 478 (1994).

What happens when the act occurred in Indian Country? Say, the Turtle Mountain Reservation in North Dakota and the alleged tortfeasor was an employee of the Indian Health Service. In Lafromboise v. Leavitt, the Eighth Circuit held that the the law of place remains the law of the state. In fact, it isn't even a close question. Several federal courts have been confronted with similar questions and only one, Cheromiah v. United States, a district court case, has ruled that tribal law should apply.

The Lafromboise Court based its decision on three points: (1) the FTCA says "law of the place", not "law of the places", and that the plaintiff's argument would require the court to apply a combination of North Dakota and Turtle Mountain Band law; (2) other federal cases turn on the territorial location, not the jurisdiction; and (3) that Congress never would have agreed to expose federal employees to the law of over 560 Indian tribes.

The first argument seems to be a play on words, dismissible had the plaintiff's case been structured differently. In the case, the plaintiff argued that state law applied, except for the part of the law that required the plaintiff to file a supporting affidavit from a medical expert within three months of filing. If the plaintiff had argued all along that Turtle Mountain Band law applied to the exclusion of state law, then only one law of the place would arguably apply.

The second argument seems to have more oomph, but still leaves something to be desired. The court mentioned a claim arising on a Columbia River dam between Washington and Oregon where both states held concurrent jurisdiction. Because the accident took place on the Washington side, so Washington law applied, even though Oregon arguably had jurisdiction. This appears to be the result of the courts seeking a bright-line rule more than real textual analysis. Where a tribe has a developed tort law statutory and common law jurisprudence, it makes no sense to impose state law into these cases. Moreover, don't the foundations of federal Indian law have some place in this discussion? Applying tribal law over state law doesn't seem to violate the meaning of the Act.

The third argument is most troubling and cynical. The court relied on the notion that the waivers of sovereign immunity are to be strictly construed. One recent case the court cited with Dolan v. United States Postal Service. There are some exceptions to the immunity waiver in the FTCA for postal employees and the Supreme Court construed those exceptions broadly in Dolan. But those exceptions were explicit. There are no exemptions for fedeal employees doing work in Indian Country. One could argue, that since Congress did extend FTCA coverage to some tribal officers and employees, that Congress intended tribal law to apply.

The Lafromboise Court also invoked pragmatic "administrative" concerns. There are over 560 tribes and they might all have, in Justice Souter alleged in his Hicks concurrence, "unusually difficult" law. But the Turtle Mountain Tribal Code of 1976 is not so different than North Dakota law. And a lot of tribal courts follow the laws of the state where they are located and/or the Restatement. Look at Smith v. Salish Kootenai College.

NCAA Denies UND Appeal on "Fighting Sioux"

2006-05-02T13:43:00.000-07:00

On April 28, after a long year, especially for UND Indian students, the NCAA finally denied the University of North Dakota's request to keep using the "Fighting Sioux" name and logo. If you'll recall, last summer the NCAA posted a list of 30 colleges and universities that would be banned from hosting NCAA championship events because of their offensive use of American Indian names, mascots, and imagery. UND and the North Dakota state board of education appear to be planning to sue in federal court over the matter.

The issue raises educational issues, as many of you know, about the potential hostility of the campus environment to Indian students. There's the hostility of going to school on a campus inundated with offensive material, but there's also the hostility of being an American Indian student at a time when the use of the names, mascots, and images is being attacked. In some ways, this second situation is far worse.

There are interesting questions of tribal sovereignty as well. The NCAA decided at some point during this year (largely due to incredible political pressure from both Bush Administrations over the Florida State Seminoles), that a college or university's use of American Indian names, mascots, and imagery is okay if the affected tribes consent. One of the two Florida Seminole tribes consented -- FSU's use was accepted and their school taken off the list. The Saginaw Chippewa Tribe consented -- Central Michigan University was taken off the list. And so on. At UND, this new rule resulted in the University President Charles Kupchella appealing to every North Dakota Sioux Tribe -- Standing Rock, Sisseton, and Spirit Lake. While some of the tribal councils wavered, they ultimately didn't budge from their standing objections, for the most part. These objections were sufficient to convince the NCAA.

The question remains -- can one tribe consent to the use of American Indian imagery? What if UND received consent from one (or even all) of the three Sioux tribes? What about the Sioux tribes in South Dakota, Nebraska, Minnesota, Montana? Can any one of them exercise sovereignty and block UND's use? What about tribal organizations, such as the United Tribes Technical College, which has long and strenuously objected to UND's use?

An outstanding powerpoint presentation developed by UND Native Media Center's Holly Annis details the troubling history of the Fighting Sioux name and logo.

Supreme Court Denies Review in ICWA Case

2006-05-02T12:03:00.000-07:00

The United States Supreme Court today denied review in Doe v. Mann, a case out of California contesting whether a Public Law 280 state had current jurisdiction with the tribe over Indian child welfare proceedings brought to enforce state child protection laws. The Elem Indian Colony had contested California’s jurisdiction over such proceedings, claiming that it was regulatory in nature and therefore not within the scope of jurisdiction granted to states covered by Public Law 280. The Ninth Circuit had rejected the argument, noting that Congress was aware when it enacted the Indian Child Welfare Act of 1978 (ICWA) that some states already were exercising such jurisdiction. Rather than undoing the existing jurisdictional arrangements, Congress ratified them in ICWA and provided a procedure, which the Elem Indian Colony had not invoked, by which an Indian tribe could initiate the resumption of exclusive jurisdiction over Indian child placement proceedings involving member children domiciled on the reservation. That opinion can be found here. The United States Supreme Court has now declined review and therefore has not overturned the Ninth Circuit’s interpretation.

Negotiation of the Navajo Fort Sumner Treaty of 1868

2006-05-01T20:43:00.000-07:00

The Farmington, NM DailyTimes today ran an interesting article by Erny Zah summarizing the four days of negotiations that led to the Navajo Nation's Fort Sumer Treaty signed July 1, 1868. The Treaty was negotiated after five years of Navajo incarceration at Bosque Redondo (Hweeldi in Navajo) in southern New Mexico following their forced military evacution from their sacred Four Corners area on the Long Walk. Interestingly, General William T. Sherman first suggested that the Navjo be relocated to the Indian Treaty. Navajo negotiators led by the great Navajo leader Barboncito successfully insisted on return to their sacred Four Corners area. The complete story can be found here.

Fourth Circuit Decision on Indian Preference

2006-05-01T16:35:00.000-07:00

Last week the United States Court of Appeals for the Fourth Circuit rejected one of the most recent attacks on Indian preference, this one brought against the Eastern Band of Cherokee's casino contract manager, Harrahs, for compliance with the Eastern Band's Tribal Employment Rights Ordinance. In addition to rejecting on the merits the nonmember's claims brought under the Family and Medical Leave Act, the Court also staved off the plaintiff's effort to end-run the express exemptions supporting Indian preference contained in Title VII of the 1964 Civil Rights Act by filing suit under 42 U.S.C. sec. 1991, the post-Civil War statute now interpreted to cover employment contracts. Section 1981, of course, contains no express exemptions permitting Indian preference, although a reasonable argument could be made that it was impliedly limited in this respect adoption of Title VII. The Fourth Circuit avoided all such difficult questions, holding that the Eastern Band of Cherokees was a necessary and indispensable party to the litigation and since they could not be sued due to their sovereign immunity from suit, the litigation could not proceed. The opinion, Yashenko v. Harrahs NC Casino, can be found at http://caselaw.lp.findlaw.com/data2/circs/4th/051256p.pdf.

Tribal Court Jurisdiction and the Non-Member

2006-04-28T11:00:00.000-07:00

Those dismayed by the recent decisions of the United States Supreme purporting to limit some tribal court jurisdiction over nonmembers, sometimes on the illusory fears of unfairness, should review a recent article by Professor Bethany Berger of the Wayne State University School of Law recently published in Arizona State University Law Journal entitled Tribal Courts and the Outsider.

After reviewing years of reported decisions from the Navajo Nation, Professor Berger reports that in cases where non-Indians and other nonmembers were involved in litigation in Navajo courts, they prevailed approximately 48% of the time and did not approximately 52% of the time, a relatively balanced and fair handling of their claims. This finding is significant because the Navajo Nation courts are among the most traditional tribal courts in the nation, frequently employing Navajo customary law where it applies to resolve disputes that come become for them. Professor Berger's thoughtful and thorough study seems to disprove as illusory the fears frequently heard by non-Indian attorneys of unfairness and mistreatment of nonmembers in tribal courts. It also brands as perhaps racial phobia the expressed distrust of tribal courts often voiced by the United States Supreme Court. This article strikes me as a necessary attachment to any legal brief about jurisdiction of tribal courts over non-Indians or other nonmembers.

Indian Tribal Land and Trust Status

2006-04-28T09:37:00.000-07:00

While preparing for a talk delivered at a recent conference on the Indian Trust Doctrine sponsored by the Indian Legal Program of Arizona State University College of Law (now the Sandra Day O'Connor College of Law), I came to the startingly realization that I knew of no legal reason why tribally held Indian land (as opposed to individually owned Indian allotments) were held in trust by the federal government. While the federal government claims trust ownership of most tribal and lands and those of us who teach federal Indian law have accepted and taught this claim as gospel for years, its actual legal justification eluded me.

No federal statute expressly authorizes such trust status. Only one out of the over 400 treaties with Indian tribes mentions Indian tribal land being held in trust by the federal government. The failure of the other treaties to so expressly provide might suggest a contrary indication. The fact that lands given to removed southeastern tribes in the Indian Territory, now eastern Oklahoma, frequently were granted and are currently held by the tribes in fee simple, rather than in trust status, suggests that there was no tradition or common understanding in the 1830s that Indian tribal lands were to be held by the federal government in trust. Certainly, by the time of the enactment of section 5 of the Indian Reorganization Act of 1934, a common understanding had emerged that tribal lands should be held in trust by the federal government. No one dobuts that federal trust status at core was intended to restrict alienation or taxation of those tribal lands. Some of those restrictions are actually codified, as in 25 U.S.C. sec. 177 restraining the alienation of Indian land. Unfortunately, trust status also has meant federal mismanagement of tribal lands and some federal statutes deal with such management, particularly in the area of timber and mineral development. But is there any actual legal justification for the claim of the United States to legally hold tribal lands in trust status? To date I have been unable to find one and would appreciate other comments or thoughts on the matter.