Monday, May 29, 2006

Federal Court Subpoenas & Sovereign Immunity

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.


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 And, 25 U.S.C. § 71 (originally enacted as Act of March 3, 1871, ch. 120, 16 Stat. 544, 566), provides that "[n]o Indian nation or tribe within the territory of the United States shall be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.

Wednesday, May 24, 2006

Supreme Court Declines to Hear Pechanga Disenrollment Case

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).

Monday, May 22, 2006

Construing Treaties Strictly

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.

Saturday, May 13, 2006

Tribal Economies & Anarchy

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"?

Wednesday, May 10, 2006

Pro Se Defendants

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.

Tuesday, May 09, 2006

The Pocahontas Exception

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

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

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.

Monday, May 08, 2006

Abramoff and the White House

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.

Sunday, May 07, 2006

The Origins of the EPA's Indian Program

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

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

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?

Friday, May 05, 2006

"Active Liberty" and Active Sovereignty

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?

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.

Thursday, May 04, 2006

Blood Quantum in Federal Indian Policy

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.

Wednesday, May 03, 2006

Taxation and the Prisoner's Dilemma

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

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.

Tuesday, May 02, 2006

NCAA Denies UND Appeal on "Fighting Sioux"

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

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.

Monday, May 01, 2006

Negotiation of the Navajo Fort Sumner Treaty of 1868

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

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