Sunday, April 22, 2007

Federal Indian Bar Debriefing

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.



Wednesday, April 18, 2007

Zuni Public School Dist. No 89

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.

Monday, April 09, 2007

Updated List of Speakers for the MSU Law & Lit Conference

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.

  • 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)

Wednesday, April 04, 2007

MSU4th Annual Indigenous Law Conference -- Call for Panels

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:
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

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!).


Matthew Fletcher, Wenona Singel, and Kate Fort

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

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.