Native American Law Blog

US Supreme Court issues decision in Hawaii v. Office of Hawaiian Affairs

You can find the entire Alito-written decision HERE in .pdf format.

Briefly, the Court says that claims of Native Hawaiians that the State of Hawaii could not sell or otherwise alienate lands in the state, based on the wrongfulness of the American takeover/annexation/theft of the islands from the rightful monarchy, are not grounded in the law, Congress's Apology Act notwithstanding.  The Hawaiian Supreme Court decision is thus reversed and remanded. 

Dry Creek disenrollments having an effect?

From NativeBiz.Com (you can login there and get an account for free to read the whole story):

"The Dry Creek Rancheria Band of Pomo has postponed action on a controversial "code of conduct" for its members until a committee can review the proposal.

The rules would subject tribal members to banishment and fines if their actions "demean or otherwise injure the reputation and image of the tribe or any tribal operation."

Critics said the policy is too broad and is an attempt to muzzle opposition to tribal leaders.

The measure states that picketing, leafleting, demonstrating and speechmaking could be defined as interference with tribal operations if done without the permission of the Tribal Council."

twp

Interested in law school? Join us!

You are invited to attend:

A Law School Information Session

Hosted by the Indian Legal Program & the Native American Law Students Association

Monday, April 6, 2009

NOON - 1:15 PM

ROOM 114

Sandra Day O'Connor College of Law
Arizona State University

Food will be provided.

This session is perfect for undergraduate or graduate students interested in applying to law school. Whether you are a freshman, senior or Masters student, there will be something for you. Law students will guide you through the application process and be available for questions. Please feel free to share with others you think might be interested.


twp

Should have been a no-brainer - Wyoming Supreme Court upholds BIA officer detaining DWI driver for subsequent arrest

OK, this should not have been so difficult to figure out that it had to go to a state supreme court....but it did.

"CHEYENNE -- A Wind River Indian Reservation officer's detention of a suspected drunk driver did not make the subsequent arrest by a deputy sheriff unlawful, the Wyoming Supreme Court ruled Wednesday.

The Wyoming Department of Transportation suspended the driver's license of David R. Colyer of Lander because he refused a blood chemical test after a traffic stop in Fremont County.

Colyer claimed his arrest was unlawful because he is a non-Indian who was stopped by a Bureau of Indian Affairs agent.

A Fremont County deputy sheriff subsequently arrested Colyer for driving under the influence of alcohol."

See the full story HERE on the Casper Star Tribune website.

twp

California Indian Legal Services looking for law clerks..

From the CILS website: Position:	Law Clerk
Location:	Eureka, Sacramento & Escondido Offices
Salary:	$15.00/hr; work-study or course credit
Availability:	Spring & Summer 2009
Application Deadline:	Open until filled
Program Description: California Indian Legal Services is a statewide non-profit corporation that provides free and low-cost legal services to Indians and Indian tribes. CILS is governed by an Indian Board of Trustees selected by California Indian tribes and other Indian organizations. CILS' primary funding sources are the Legal Services Corporation, California State Bar Trust Fund and many tribal grants and contracts. Each year CILS represents approximately fifty Indian tribes, and two thousand families on cases that span the complete range of federal Indian law and tribal representation. Job Duties and Responsibilities Include: Conduct client intakes, appointments and maintain client files and records. Conduct case and legislative research. Drafting of pleadings, discovery requests, motions and memoranda. Complete other assignments consistent with the request of a supervising attorney. Qualifications: Second year law students who are interested in Federal Indian Law and serving Indian communities. Applicants must be highly skilled in legal research and writing. To Apply: Please submit resume, writing sample, and law school transcripts to Patricia De La Cruz-Lynas, Director of Administration by e-mail hiring@calindian.orgThis e-mail address is being protected from spambots. You need JavaScript enabled to view it , fax (760) 746-1815 or mail California Indian Legal Services, 609 S. Escondido Blvd., Escondido, CA 92025. CALIFORNIA INDIAN LEGAL SERVICES IS AN EQUAL OPPORTUNITY EMPLOYER

The Supreme Court and the Future of Federal Indian Law - conference at Harvard Law School MONDAY APRIL 6

Had we known about this sooner, we would have posted it sooner.....but there will be what looks to be a very interesting conference on the Future of Federal Indian Law being put on by our colleagues at Harvard Law School on Monday, April 6.  You can see the (very cool) ad poster for it HERE in .pdf format, and in text HERE, both on the TurtleTalk blog.

twp

Another tribe contemplating disenrollments - over casino money?

As reported in the Central Michigan Morning Sun by Patricia Ecker, "A sharply divided Saginaw Chippewa Indian Tribal Council has voted to start the process of disenrolling some members, according to Tribal documents.

But the Tribe won't say how many people, or who they are. When asked to respond to rumors of possible disenrollments, Tribal Council issued a statement Wednesday asking for "respect of its government process."

You can find the full story HERE.

Judging by the commentary already made to this story on their website, this is already controversial in the tribe's geographic area.  We'll follow up if/when we can.

twp

Followup - Cobell case probably headed back to court

As reported by Jodi Rave, in The Missoulian, "Native advocates who believed President Barack Obama would settle a long-standing lawsuit between the Interior Department and Native landholders say they're disappointed with the new administration.

Instead, Obama and Interior Secretary Ken Salazar have expressed a need to settle the Cobell v. Salazar case in court rather than sit down and talk to Native landowners and negotiate a settlement.

“Salazar's out there talking, saying he wants to settle this case and putting false hopes into Indian people,” said Elouise Cobell, the lead plaintiff in the case.

“It's really a slam in the face,” she said. “Why is this administration taking this avenue? They have to live up to their trust responsibility and they need to talk to Indian people.”

So it looks as if the long-standing, highly controversial Cobell case is going be back in court......

You can find the full story HERE.

Stay tuned, we'll update whenever something new comes along.

twp

While Florida is debating and negotiating, Connecticut is fighting over smoking in INdian casinos

As reported on NativeBiz.com, "Leaders of the Mohegan Tribe on Wednesday threatened to sue the state and possibly withhold slot machine revenue payments if a controversial bill to ban smoking at tribal casinos in Connecticut becomes law."

You can get the full story on Nativebiz.com, but you have to sign up (free) to see the website.....

twp

Follow Up: Senate passes bill expanding gambling in Florida.

As reported yesterday, both the House and the Senate each rolled out their gambling proposals with the House bill restricting the Seminole Tribe to slot machines, and the Senate bill expanding the tribe's right to include Class III gaming. Last night, the Senate Regulated Industries Committee approved the Senate bill. 

The debate over the future of gambling in Florida is now underway. We will keep you updated. 

 

See the story at tbo.com. 

 

ddg

Florida Senate and House start gambling debate.

The House and Senate each rolled out their gambling proposals and they couldnt be more different. The House bill would strip the tribe of its existing blackjack and banked card games allowing only slot machines on their seven properties, while the Senate's version proposes "a virtual no-holds-barred gambling expansion" that includes more Vegas-style games for the tribe and more options for horse and dog tracks and jai alai frontons.

 

 

As reported in the Miami Herald, "the Senate plan would produce $1 billion a year in annual revenue dedicated to education, including $400 million in yearly payments from the tribe. The House plan, by contrast, would require the tribe to pay $100 million a year because it would continue to allow it exclusive use of Class III, Vegas-style slot machines outside of Miami-Dade and Broward counties."  The state is facing a $6 billion budget deficit.

 

We will keep you posted on the progress, if any.    

 

You can find further information at sun-sentinal.com and naplesnews.com 

 

ddg

 

Upcoming Indian Education Conference

Not, strictly speaking, a Native American LAW conference, nonetheless, we professors are in the education business, so here's the announcement, and you can find additional information and registration HERE:

Join us April 17 – 19, 2009 for the 2009 Partnerships for Indian Education conference in Norman, Oklahoma. Important Dates Advance Registration: Jan. 13 – April 10, 2009 Late/Onsite Registration: April 11 –18, 2009

The 2009 national conference provides an opportunity for Indian education partners at all levels to participate and engage in an effective dialogue for addressing the issues facing American Indian and Alaska Native students, their schools, families, and communities.

Registration includes:

• One all-access name badge and conference materials
• Plenary luncheon sessions
• Continental breakfasts and daily refreshments
• Dinner on Day 1

The 3-day forum will help foster communication, collaboration, and cooperative strategies among federal, state, local and tribal agencies, and national advocacy organizations.

The conference seeks to:

• Share information on successful collaborative interagency partnerships in Indian education
• Provide opportunities to discuss current research in Indian education
• Engage and discuss research-based projects suitable for replication
• Reveal the latest and most innovative practices that successfully advocate for Native student success in all areas of their community

The 2009 Partnerships for Indian Education conference will bring together educators, administrators, researchers, parents, policy makers, and advocates to address the unique needs of American Indian and Alaska Native students. Join us in building a stronger and more resilient community.

Call for Presentations
Proposals for presentations and workshops are invited on the following education-related topics that may focus on students, schools, family, and community:

• Current Research
• Interagency Partnerships
• Innovative Program Practices
• Safe and Healthy Communities 

Serious lawsuit, or just a stunt? - Tribe sues New Jersey for $1 TRILLION

It's being reported in numerous locations, the Indian Country Today story is HERE.

Briefly, "A New Jersey tribe has filed a federal lawsuit against the state to reclaim its ancestral land.

Filed by the Sand Hill Band of Lenape and Cherokee Indians, the lawsuit demands that the state recognize the tribe and pay $1 trillion in damages, to be paid in 1-ounce gold coins.

Although there are no federally recognized tribes based in the Garden State, the state legislature has passed resolutions acknowledging three groups -- the Nanti coke-Lenni Lenape, whose tribal office is in Cumberland County; the Powhatan-Renape of Burlington County; and the Ramapough Lenape, headquartered in Mahwah.

The resolutions, however, do not provide the groups with special services or tax breaks.

As for the $1 trillion the tribe is seeking, one tribal member said it is to show how serious the tribe is in resolving the matter.

"It's a financial move that says that we are serious," said Ronald Holloway, 45.

Although not a lawyer, Holloway said he plans to litigate the case himself."

Frankly, claiming $1 trillion, demanding it in gold coins and litigating without proper representation doesn't go very far in convincing us that you're very serious.  So we're leaning towards thinking this is no more than a stunt.

twp

Followup - Dry Creek Rancheria disenrollments lead to protests, cancelled meetings

From the Saturday Press Democrat in Santa Rosa, CA:

"The leaders of the Dry Creek Rancheria canceled a tribal meeting scheduled for today, citing fears over the safety of elders during a planned protest by dissident tribal members.

In a meeting Friday, the board of directors unanimously voted to call off this morning’s “town hall” meeting at the Pomo Indians’ tribal offices in Healdsburg, according to a spokesman.

“They canceled the meeting because of concerns for the elders being in a confrontational situation,” said tribal spokesman Dave Hyams. “It was concern about their physical well-being.”

But one of those who planned to protest at today’s meeting and had announced plans to “confront” tribal leaders said the cancellation was not surprising.

“They don’t want to face the membership,” said Alexis Elgin. “They don’t want to hear it, so they cancel the meeting.”

Read the full story HERE.

twp

Does bill to institute smoking ban in casinos infringe on tribal sovereignty?

The Mashantucket Pequot Tribal Nation and the Mohegan Tribe says that it does, and they are going to discuss the issue with state government. The tribes do not object to the issues of secondhand smoke, but to the "proposed infringment by the Connecticut General Assembly on our sovereignty,” says Mohegan Chairman Bruce “Two Dogs” Bozsum, chairman of the Mohegan Tribe, which owns Mohegan Sun. “The Mohegan Tribe, and all of the tribes in the United States, will fight to protect our constitutional right to govern our tribal lands."  Attorney General Richard Blumenthal said that "the proposed ban is “fully consistent” with the tribes' sovereignty, and simply implements a provision of their casino compacts with the state. Our position is that the compact imposes a requirement that the tribe adopt public heath and safety standards that are at least as rigorous as those that apply to the rest of the state.” 

 

Both tribes have already proposed to limit smoking at the casinos, but the bill proposes a complete ban on smoking at tribal casinos by 2011. Under the bill, casinos would not be issued "a liquor permit unless they entered into a written agreement with the governor's office concerning the reduction, removal and monitoring of secondhand smoke in the permitted premises.”  The bill will probably be up for vote next week.

 

You can read the full story on The Day.com

 

ddg

The drama continues in Ward Churchill case....

Watching the whole Ward Churchill v. CU mess is like watching a train wreck - it's horrible, but you just can't tear your eyes away from it.

Our colleagues at DU Law School are doing a fine job reporting the trial in their blog, www.theracetothebottom.org/ward-churchill/, for which they have our gratitude (and we'd bet, a whole ton of hits on their blog).

But particularly revealing was testimony from Dr. Marjorie McIntosh, who sat on the committee that recommended Churchill's termination, which they described from yesterday:  

***

McIntosh stated that she is a Distinguished Professor of History Emertia at CU. Establishing the weight of her testimony, O’Rourke went over both her scholarly history and her initial position concerning Churchill’s First Amendment rights prior to joining the investigative committee. McIntosh stated that she did not know Churchill personally but was troubled by calls to fire him. Relating some brief personal history demonstrating her support for free speech, McIntosh stated that she was troubled by calls to fire Churchill when the media first broached the story. “My sympathies were very much with Professor Churchill,” McIntosh stated. When she was asked to join the investigative committee she said that she was wary of becoming part of a “right wing conspiracy to get Professor Churchill.” However, after reading the Ad Hoc committee’s report, she believed they had made a strong statement in defense of Professor Churchill and thus many of her concerns with joining a scholarly witch-hunt were allayed. 

McIntosh’s introduction posed a strong juxtaposition to the picture painted by Churchill’s attorneys of Mimi Wesson. Whereas Wesson had been accused of joining the committee with biases that could be construed as anti-Churchill, McIntosh was presented as having a bias in the other direction. 

Discussing her qualifications to analyze Churchill’s work, McIntosh described her work as focused on the history of England between 1300-1600 and the history of women in Africa in the 1900s. Her study of Africa, she stated, helped her ability to judge the importance of oral history and traditions in scholarly work. She said she brought awareness for “relevant methodologies.” She also stated that she has a reputation for being fair-minded and balanced. 

O’Rourke then asked whether McIntosh detected any bias on the part of other committee members, including Mimi Wesson. She responded that she saw “no evidence of any kind” of a bias on Wesson’s part: “I was struck by how neutral and fair she was at all times; I saw no bias.” 

Turning to the investigative committee’s research concerning the 1837 smallpox epidemic, McIntosh went through a lengthy discussion of her findings on Churchill’s claim that smallpox was spread into the Native American Indian communities through blankets intentionally infected by the United States Army. McIntosh stated that the committee gave him “a great big benefit of the doubt,” taking additional steps to ensure that he had the best possible chance to demonstrate that his work was substantiated. She stated that although they gave Churchill leeway to provide sources for his oral history, he could not provide sufficient support. 

Discussing Churchill’s ghostwriting essays, McIntosh stated that publishing under someone else’s name is unacceptable. This, she said, does not honor historical record because if someone writes an article under someone else’s name it becomes impossible to tell who wrote what and who is responsible for the work.  Even worse, she said was Churchill's practice of citing the work and representing that it was someone's work when that actually was not the case:  the appearance given that the citations by multiple authors bolstered his claims.

McIntosh described the broad to narrow questions posed to Churchill by the committee, and she said that based on the evidence she concluded that statements that blankets were taken from infirmaries in St. Louis were fabricated.

***

This strongly corroborates what your editor has always believed from the time that this whole mess started - that Churchill is a fraud who doesn't belong in any kind of scholarly/academic position.  

twp

A tribal council attempts to expel council member - for calling suggesting another member is "Japanese."

There's not a truly large LEGAL issue in this story, but it is fascinating, and illustrative of how odd the infighting can get in tribal governments.

After four unsuccessful tries, Lisa Brown finally managed to get elected to the Siletz Tribal Council - and practically the first thing the Council did was try to eject her from the Council.  Why?  

From the story on the Newport News Times website, "The pivotal issue is found in a written statement Brown posted onwww.siletz.net - billed as “a virtual community center” for the tribe and operated by Lynette Warren, another council candidate and a supporter of Brown - the morning after the election and a few hours before the swearing-in ceremony. A paragraph within that statement referred to Jim Kikumoto, who at the time was still general manager of the tribe's Chinook Winds Casino Resort in Lincoln City.

“Time to cut that budget - wherever possible - so members can get a bigger per capita,” Brown wrote, in part. “I was serious when I said we need to work Sar Richards into the GM position. And let Kikumoto know when it's time to go - I'll even learn how to say it in his ‘native' tongue - Japanese.”

The other Tribal Council members variously described that as "a racial slur" made by "an unethical person."

So the Council is now going through the expulsion process spelled out in the tribal protocols, with a special session set for Thursday to conduct an expulsion hearing.  

Your intrepid editors can't help but mentally compare this to the recent political infighting that has dominated Hopi tribal government....and observe that once started, these things seem to go on forever.

We'll update you if/when we hear anything more.

Read the full story HERE.

twp

Followup - Tribe loses claim to Ft. Reno land on statute of limitations - Tribal Governor says it's the lawyer's fault

When Fort Reno (Ok) was created, the land to do so was taken by the federal government from the Cheyenne-Arapaho tribes - "exclusively for military purposes."  However, the land has since been put to other use, and the tribe wanted it back, since those uses were no longer for the military.  But a federal appeals court said that the tribe's claim failed since they didn't bring a claim for the land within the statute of limitations.

Interestingly, the Tribal Governor claims that the lawyer who purports to represent the tribe does not legally represent the tribe.

 "Richard Grellner, an attorney illegally hired by the legislature for the Cheyenne and Arapaho Tribes, has lost the case for return of the Fort Reno lands to the tribes,” Flyingman [Tribal Governor - twp] said in a statement. "… After 12 years and hundreds of thousands of dollars paid to Mr. Grellner, the Court of Appeals has rejected the tribes’ claims.”  See the full story HERE. 

The tribe will seek a re-hearing in front of the entire Court of Appeals, at least in part on the grounds that many government documents that may well be relevant to when military use of the land ended are still classified, and so out of discovery reach.

twp

Federal Appeals Court rules Cheyenne - Arapaho Tribes shut out by statute of limitations.

The events leading up to this appeal date back to almost 140 years ago, when rights to land originally designated as part of a reservation for the Cheyenne- Arapaho Tribes of Oklahoma were later carved out by executive order in 1883 to be used as  a U.S. military installation "for military purposes exclusively.” The Tribes claim this limitation gave them a reversionary interest that would vest once the land, known as Fort Reno, was no longer used for military purposes. The Tribes brought suit in 2006 to quiet title to the land claiming that they had a reversionary interest. The District Court granted the government's motion to dismiss for lack of subject matter jurisdiction on the ground that the Tribes’ claim was barred by the twelve-year statute of limitations in the Quiet Title Act. The court also denied the Tribes discovery request in which they sought additional discovery in an attempt to establish jurisdiction. 

 

 

The Tribes appealed and the appellate court affirmed, finding that pursuant to the Quiet Title Act, 28 U.S.C. § 2409a,  the Tribes“knew or should have known that the United States had used the land for nonmilitary purposes from actions taken by Congress in 1937 and 1948 that transferred sections of Fort Reno from the Department of War to the Departments of Justice and Agriculture. These transfers put the Tribes on notice that the government continued to claim the land even though it was no longer being used for “military purposes exclusively,” in direct conflict with the Tribes’ alleged reversionary interest under the 1883 executive order." Thus, the Court held that "The statute of limitation for the tribes’ claims, if they had any, began to run as soon as the government used Fort Reno for something other than a military purpose," the court said in the 12-page decision. "More than twelve years have since elapsed and the tribes’ quiet title action is therefore time-barred."

 

You can read the story on Indianz.com which also has a link to the opinion. 

 

ddg 

Federal Court rules NYC can proceed against Mastic smoke shops.

A federal judge ruled that New York City can go ahead with their lawsuit against eight smoke shops on the Poospatuck Reservation. The Judge said that the smoke shops are not operated by the Unkechaugh Indian Nation, a state recognized tribe, and therefore can't assert a sovereign immunity defense. The Court further stated that "the shops could be sued under federal law because the reservation is not recognized as Indian land." The City is seeking $200 million dollars in back cigarette taxes. A hearing will be held in May.

 

 

 

Read the story HERE. 

 

ddg