Protecting Native Nations for the Seventh Generation. News, views, and opinions about federal Indian law and tribal governance by law professors who teach in the field.
Monday, November 24, 2008
Geneva Institute on Indigenous Peoples
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
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.
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.
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
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.
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
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:
IGRA 20th Anniversary Conference -- Oct. 16-17, 2008
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
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?
American University Washington College of Law (WCL) is hosting a conference, What Do We Know About Tribal Courts? An Examination on the 30th 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.
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.
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.
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
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:
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.
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.
