Native American Law Blog

Followup - More controversy over Geronimo remains

Is the man who is suing for the relocation of Geronimo's remains back to the American West a true descendant of the legendary Native American leader?  As the Las Cruces Sun-News reports HERE, "A second Mescalero family, also claiming to be descendants of the legendary Geronimo, plans to oppose an attempt to repatriate the Apache warrior's remains to New Mexico."  This second family claims that the plaintiff is engaging in a form of "identity theft."  Looks as if at some point the courts really will have to sort this all out.

twp

US Supreme Court rules in Carcieri - and it's not good for tribes recognized after 1934

Just out - the US Supreme Court has issued a long-awaited ruling in the Carcieri case, and the news isn't good for any tribe recognized after 1934 that wanted to put land into trust, a common practice for tribes that want to do economic development on such lands (usually resorts and casinos, and most usually big business).  See the full story on Indian Country Today HERE. And you can find the full text of the decision HERE.

twp

Followup - ultralight pilot refuses Hualapai offer of settlement

We admit, we continue to be fascinated by this case - and we're getting lots of hits on the blog from searches on the topic.  Here's the latest - the Hualapai Tribe offered a settlement to the ultralight pilot whom they accused of trespassing over tribal lands by violating their claimed airspace.  They wanted him to admit he trespassed, and apologize.  Mr. De Antoni declines to do so.  The Tribe, which sent officers off of their tribal lands to make seizures of Mr. De Antoni's property, have returned his motorhome, but still have some $10,000 worth of camera equipment and the ultralight aircraft.

See more details HERE on the Arizona Daily Sun website.

Followup - United States v. Navajo Nation (the coal/trust case) oral arguments....

.....can be found in the transcript HERE on the Supreme Court website.

Supreme Court to hear arguments in Hawaii v. Office of Hawaiian Affairs

Yes, the case title sounds like the same party suing itself, but it's a little more complicated than that.  The Hawaii Supreme Court issued a decision that the STATE of Hawaii can't sell any state-owned land until it reaches a political settlement over the forceful taking of land during the US annexation of Hawaii with Native Hawaiians.  The Office of Hawaiian Affairs is a institution created by a state constitutional convention in 1978 to receive and manage part of the funds derived from the ceded land to the benefit of Native Hawaiians. 

So don' underestimate this case - it is HUGELY significant to the entire State of Hawaii, and, obviously, in particular the Native Hawaiians.  Any Supreme Court case is likely to attract some attention, but this one has gotten more than the usual....and more than the usual amicus briefs, too, at least one of which asks the question of whether or not Native Hawaiians should be legally considered and treated on the same grounds as Indians.

Law student Patrick Nemeroff posted a nice summary of the case, to be heard Wednesday by the Court, HERE on the SCOTUSBLOG.

twp

Followup - EXCELLENT article on Navajo Nation v. Forest Service (case over spraying "reclaimed" sewage water on sacred mountains)

We've commented on this case before, and our opinion hasn't changed....but we would like to point out an truly excellent article on the ramifications of the case by our colleagues at University of California, Davis.  Well done, gentlemen.

Readers can find their article HERE, and it's well worth the time.

How a banishment case tears apart a tribe - and may not be legal

It is one of the worst things that can happen to a tribe - to have to banish members.  It may be worse that such a case is brought before a federal judge and a court system almost always unfamiliar with a particular tribal culture and practices.  The result is unsurprising and always tragic, like a divorce writ large on large billboards for public display.

Read the story of the fight over banishment from the Snoqualmie tribe and the question of whether or not the banished members received due process HERE in the Seattle Times.

twp

Followup - Tribe does NOT want to move Geronimo's remains?

Seems to be some disagreement - the Deming (NM) Headlight reports HERE that the Fort Sill Apache Tribe, which claims to be the successor tribe to the Chiricahua tribe, lpans to protest and resist the attempt by Harlyn Geronimo, a direct descendant, to move his remains back to New Mexico. 

twp

Followup - Hualapai airspace case will continue

What you'll find HERE is an editorial from the Arizona Daily Sun about the case of the Hualapai Tribe, which  has argued for years that it has jurisdiction over flights over the portions of the Grand Canyon in which their tribal lands are located, sending tribal rangers off the reservation and confiscating the motorhome, paraglider and camera equipment of a European tourist, Lionel De Antoni.  It's a pretty fair editorial, we think.

Frankly, we don't see the jurisdictional leg that the Tribe is trying to stand on.  Even if (and we can't find it in the law, comments pointing us in the right direction are welcome) the Tribe has jurisdiction over the airspace, how does that justify the warrantless, off-reservation seizure of this tourist's motorhome?  After all, the motorhome didn't fly over the reservation, did it?

twp

Tax to discourage Indians from selling land out of protected trust status

The Tulalip government is trying to enact a new tribal code in an attempt to discourage trust protected land sales to non Indians. One possible way to target such a sale is to add a tax when an Indian sells to a non-Indian; perhaps even a 17% tax on the land value. The purpose of targeting these land sales is to try to keep the land, which is believed to be sacred, in trust. Cris Stainbrook, president of the Indian Land Tenure Foundation, explained "Trust land can't be sold to a non-Indian. . . It can be sold to another Indian and it can be sold to the tribe and stay in trust, but it can't be sold to a non-Indian and stay in trust. There's a conversion from trust land to fee-simple land that happens, sometimes within moments."  Tribal leaders may present the final proposal to tribal members at a meeting scheduled for March.

Read the story HERE.

ddg

Will NAGPRA work to force a return of the remains of Geronimo to the Gila Mountains?

Announced today, February 17, a lawsuit filed per the provisions of the Native American Graves Protection and Repatriation Act may force the relocation of the remains of the famous Indian leader Geronimo from Fort Sill, Oklahoma to what is now the Gila Wilderness area, traditional lands of the Apache.  See the full story HERE in the Las Cruces, NM Sun-News.

Cherokee Nation and Freedmen....the controversy continues

On February 3, the Cherokee Nation filed a lawsuit to have a federal court declare than Freedmen, descendants of Cherokee-owned black slaves, who have no actual Indian ancestry, have no right to Cherokee citizenship.

This is the latest in a longstanding controversy over membership in the Cherokee Nation.  The descendants of the Freedmen base their claim on not only their ancestors presence in the Nation and participation in the life of the Nation, historically, but also on the Treaty of 1866 between the US government and the Nation, that made Freedmen (the Cherokee Nation ended slavery in 1863) equal to Cherokees.

In 2007, the Nation voted to amend its constitution with a requirement that tribal citizens by Indian by blood.

Will the US District Court finally resolve the issue, and if so, how long will it take????....we don't know, but a 2003 lawsuit by Freedmen descendants claiming they were denied the right to vote in Cherokee Nation elections is still pending.........

You can read a long story with a fuller treatment of the controversy HERE in the Northwest Arkansas version of the Arkansas Democrat.

twp

Followup - Amicus brief filed with Supreme Court in Navajo Nation v. Forest Service

The 9th Circuit said that it was OK to spray "reclaimed sewage water" on the San Francisco Peaks to make artificial snow, despite the fact that the Peaks (near Flagstaff, AZ) are considered sacred to the tribes of the region. (How that is not a "substantial burden" on the practice of their religious beliefs in hard to understand - shall we next spray it on the Catholic Church in Flagstaff? How about on any and all federal courthouses? Has the 9th Circuit even READ the Religious Freedom Restoration Act?) The case is now pending cert. in the US Supreme Court.

And a group has already filed an amicus brief with the Court urging reversal of the 9th Circuit. You can find it HERE on the turtletalk website.

twp

Followup - the "buzz" continues to be about Professor Larry Echohawk for BIA

More and more, the rumor mill has it that BYU Law Professor Larry Echohawk will be the new administration's pick for heading up the Bureau of Indian Affairs.  Hawaii's Senator Daniel Inouye has said just that.

You can read the story in the Utah Daily Herald HERE, on Indianz.com HERE, and in the Deseret News HERE.

This is not without some controversy.  As the Attorney General of Idaho, Echohawk generally opposed tribal casinos.  Various press reports have him quietly speaking to those tribes that were affected and re-building some bridges that had at least been scorched......but Professor Echohawk simply isn't talking to the press about any of it.  All inquiries and requests for statements have been met with "no comment " - to which we say, good for Professor Echohawk, as it seems a much more dignified way to approach the situation than the usual political grandstanding we see from presidential appointees of whatever party and stripe, only to have them look foolish later (e.g., Bill Richardson, et. al.)

twp

Man aquitted because he doesn't meet the definition of Indian under federal law.

Christopher Cruz was convicted of assault resulting in serious bodily injury for an incident that occurred on the Blackfeet Nation in Montana. He was prosecuted in federal court under a statute which made the crime a federal offense when committed by an Indian on an Indian reservation (18 U.S.C. § 113(a)(6)). On Tuesday, a divided panel of the Ninth U.S. Circuit Court of Appeals vacated his conviction based on a finding that he doesn't meet the definition of an Indian. The appeals court panel relied on a prior ruling that established a test of an individual's Indian status, defining it as requiring a "sufficient degree of Indian blood" as well as "tribal or federal government recognition as an Indian." Cruz met the first test, since he had 22% Indian blood, however, the court found that he failed the second test -- whether he has tribal or federal government recognition as an Indian. The court noted that although he qualifies for certain benefits as a Blackfeet descendant, he never enrolled in the tribe or applied for federally funded benefits to which Indians are entitled, and therefore, could not legally be classified as a Native American. Since he did not meet the definition of "Indian" under federal law, the 9th Circuit said he shouldn't have been tried in federal court. If the appeal stands, this will leave Cruz beyond the reach of the law because of the constitutional protection of double jeopardy.

READ ABOUT IT HERE in the L.A. Times. For additional information and background take a look at Metnews.com.

ddg

A new Federal Indian Law Program is created at Gonzaga University

Gonzaga University School of Law has officially launched its new Federal Indian Law Program.  According to Indian Country Today, "the central theme of the program is nurturing the development of both Gonzaga law school students and American Indian government. It will focus on providing students a doctrinal and practical education experience, so when they graduate, they will have the substantive knowledge and practical skills in federal Indian law to become highly talented counselors. For American Indian governments, the program focuses on analysis and development of tribal public policy in numerous areas and how that policy relates to tribal law and government for tribal members to strengthen the long-term vitality of Indian government within the American political system."

Learn more about the program HERE.

ddg

Call for papers - William Mitchell Law Review

We've been contacted by Vanessa Denis, the Executive Editor for the William Mitchell Law Review, and she's asked us to pass along the following information, which we're glad to do:

CALL FOR PAPERS - NATIVE AMERICAN LAW
William Mitchell Law Review, Vol. 36, Issue II (Fall 2009)

The William Mitchell Law Review is proud to dedicate its second issue to Native American Law in its upcoming Volume 36 (Fall 2009). We are currently seeking papers that examine current issues and recent developments in this important area of law. Submissions may either take the form of shorter commentaries or longer law review articles. We are also accepting submission proposals at this time.

The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner to Supreme Court Justices Sandra Day O'Connor, Bryon White and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.

Please direct inquiries to Executive Editor Vanessa Denis at vanessa.denis@wmitchell.edu. Please send submissions to lreview@wmitchell.edu or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.

William Mitchell Law Review
William Mitchell College of Law
875 Summit Avenue, Suite 159
St. Paul, Minnesota, 55105

twp

Native American law on every bar exam? Gabe Galanda of Indian Country Today makes the case....

At the moment, three states, Washington, New Mexico and South Dakota, have included Native American law on their state bar exams. In this editorial, Gabe Galanda makes the case that ALL states should include material on at least ICWA and the Native American law aspects of federal jurisdiction. You can read the whole piece HERE.

twp

Followup - Federal Bar Ass'n announces agenda for Native American law conference in Santa Fe

You can find the agenda for this conference, entitled "Coming Home to Indian Country," HERE in .pdf format.

Of interest - the recently-named Secretary of the Interior, former US Senator from Colorado Ken Salazar has apparently been invited to be a keynote speaker.

Also note, this is NOT cheap - it's $385 early registration if an FBA member, and $495 early registration if you're not. So if you want to save 100 bucks, register before March 4

twp

NAICJA Announces Tribal Judge Workshop

From the announcement by the National American Indian Court Judges Association:

"NAICJA is proud to announce that it will be continuing a series of workshops, entitled ìJudges Training Judgesî throughout the year. Each of these workshops will be taught by tribal court judges and court clerks and will address topics from a practitionerís standpoint. Participant interaction will be encouraged and utilized to create an active learning environment. Instructors will draw upon experience and current practice to foster an atmosphere where real learning and sharing can occur.

Essential Skills for Tribal Court Judges
March 9 - 10, 2009 * Albuquerque, New Mexico

Tenative Agenda - Coming Soon

Conference Description:
Sessions will include:
Concepts of Jurisdiction
The Power of the Court
Civil Jurisdiction
Criminal Jurisdiction
Indian Civil Rights Act and Due Process
Search and Seizure Law
Judicial Ethics and Immunity
Evidence 101 and 201
Controlling Your Court Room
Working with Your Court Clerk
Ajudicating with Pro Se Clients
Peacemaking
Family Law
Cultural Concerns
Banishment
Dual Office Holding
And More

Hotel:
This will be held at the Sandia Resort Hotel and Casino in Albuquerque, New Mexico. At the foothills of the majestic Sandia Mountains, sits a resort close to the heavens and far from commonplace. Featuring electrifying casino action with Las Vegas style table games and slot machines, an 18-hole golf course designed by Scott Miller, a state of the art spa and fitness facility, a lavish buffet, steakhouse and a fine dining rooftop restaurant featuring the most spectacular view of the Land of Enchantment. Hurry and reserve your room by February 25, 2009 and tell them you are with the National American Indian Court Judges Group. Visit the Sandia website at http://www.sandiacasino.com/ or call 800.526.9366 to make reservations."

twp