Native American Law Blog

Sovereignty Symposium: Land, Wind and Water - June 3-4-Oklahoma

LAND, WIND, AND WATER

June 3 – June 4, 2009

Skirvin - Hilton Hotel

Oklahoma City, Oklahoma

Topics to be discussed include not only issues surrounding land, wind and water, but also jurisdiction of tribal law, commercial law, workers compensation law, gaming and criminal law to name a few.   

"The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, nonadversarial environment."

For more information visit: OSCN.NET

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Texas judge and Associate Professor of Criminal Justice weighs in on Ward Churchill

Steve Russel, of the Cherokee Nation of Oklahoma, writing for Indian Country Today, speaks up on Ward Churchill:

"The “little Eichmanns” absurdity brings me back to Churchill’s first jury, American Indians. Maybe I don’t get out enough, but I know very few Indians who were not offended enough by that remark to ask “Who is this Indian professor?” All of the mainstream reporting styled Churchill an Indian.

While I too was offended, I remember seeing that card from the United Keetoowah Band on a Web site, so I did not have anything to say about Churchill’s bona fides. If the Keetoowahs wanted to claim him, I support their right to do so. It turns out they didn’t; he abused their trust, and this public insult to the victims of Sept. 11 was more than they could stand. When they told their story, Churchill’s last shred of cover as an Indian was gone.

Churchill’s first jury was the Indian community, to the extent that it is a community, and that jury was not unanimous. There are individuals who are willing to claim Churchill as Indian. Last I looked, however, no individual could confer a tribal identity."

See the full opinion column HERE.

twp

FOLLOW UP: New York Governor's letter seeking to rescind "guidance memo" is under consideration

Earlier this month we reported that New York Governor Patterson wrote to Interior Secretary Salazar, asking him "to  to undo a Bush administration policy that restricts taking off-reservation land into trust for gaming and prevents New York tribes from economic development." Patterson is urging the Department to reverse the  “guidance memorandum” issued by his predecessor, Dirk Kempthorne, in January 2008. That memorandum cited  “commutability” as a new standard for denying off-reservation trust applications for gaming purposes – even though “commutability” does not appear anywhere in the federal regulations or procedures.

As reported in Indian Country Today, Patterson is most concerned with applications from St. Regis Mohawk Tribe and Stockbridge-Munsee Community Band of Mohican Indians because both applications involved land in the depressed Sullivan County area of New York state. He has said that "the economic development potential associated with the projects is the stimulus these tribes and this area of the state desperately need.”

So far no decision has been made yet, but the requests to rescind the guidance memorandum are under consideration by the BIA. 


We will continue to follow this story.

ddg

Wanna' win $500?

A state and tribe COOPERATING in a lawsuit? Jaws dropping all over.....

Even the press, normally uninformed about such matters, notes how unusual this is - "OKLAHOMA CITY – In an uncommon legal move, the Cherokee Nation has agreed to allow the state to represent its interests in a legal dispute with the poultry industry over the alleged pollution of the Illinois River and its watershed."

You can see the full story HERE in the Journal Record.

American Indian farmers prepare to sue the Agriculture Department over alleged discrimination

"An attorney for American Indian farmers suing the government over alleged farm loan discrimination says the group continues to prepare for a trial despite statements by the Obama administration indicating a willingness to resolve such disputes . . . Barack Obama is proposing that the government provide $1.25 billion to settle similar discrimination claims by black farmers against the Agriculture Department. Agriculture Secretary Tom Vilsack in a memo to staff last month said he intends “to take definitive action to improve USDA’s record on civil rights.”  Sellers [the attorney - ed.] said that while he would not rule out a settlement, “we have yet to see any evidence from the Agriculture Department that they have the desire to follow up these broad statements.”

See the full story HERE.

twp

Global Perspectives on Indigenous Rights

The U.N. Declaration and Beyond

6^th Annual
MSU Indigenous Law Conference
September 25-26, 2009 at MSU College of Law

With the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, scholars and advocates will evaluate the success of the Declaration and the work that remains to be accomplished.

Thanks to the Indian Law Resources Center for their assistance with this conference.

Confirmed Speakers Include:

John Borrows, University of Minnesota School of Law
Kirsten Matoy Carlson, Indian Law Resources Center
Angelique Eaglewoman, University of Idaho College of Law
Carrie Garrow, Syracuse University College of Law
James Sakej Henderson, University of Saskatchewan College of Law
Bill Rice, University of Tulsa College of Law
Angela Riley, UCLA School of Law
Siegfried Wiessner, St. Thomas University School of Law

 

CLICK HERE TO LEARN MORE ABOUT IT AND FOR A LINK TO REGISTER

 

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Hopis (and Navajos) prepare lawsuit over ever-delayed mine cleanup

The Arizona Daily Sun reports:  "After 12 years of asking various federal agencies to clean up a federal dump they contend is leaching radioactive waste into the local aquifer, the Hopi Tribe is tired of waiting for action.

The Hopi Tribe filed a notice of intent to sue Thursday, stating that a plume containing uranium and other contaminants leaching from an open dump near Tuba City was within 2,500 feet of contaminating water supplies for two Hopi villages. The pollution left in the unlined dump -- a dump created by the Bureau of Indian Affairs -- is an "imminent and substantial" threat to public health and the environment, and is a result of multiple federal agencies approving Cold War-era mining and milling operations that have polluted multiple landscapes in Arizona, the tribe asserted.

The Navajo Nation has already filed a notice that they intend to sue over the same issue."

See the full story HERE.

twp

Follow Up: Muscogee Creek Nation files suit against Tax Commission for cigarette seizure.

As reported last week, agents with the Oklahoma Tax Commission stopped two Muscogee Creek Nation trucks, with the help of state highway patrol, and seized $108,000 worth of cigarettes. The tribe has now filed suit in Tulsa's federal district court. 

 

The Commission said that the two loads would have pulled in $42,000 worth of taxes which would have been lost by the state if the tobacco had been sold. As reported on Tulsa World, “[t]he cigarettes were not on the state's Master Settlement Agreement roster, which lists what brands can legally be sold in the state. None had tax stamps.” The tribe alleges that ‘[e]ach stop and seizure happened without a warrant, without the driver's consent and without probable cause.” The Tax Commission asserts that the stops and seizures did not violate the Fourth and Fourteenth Amendments to the Constitution because pursuant to state law the highway patrol is allowed to “stop and inspect trucks without a search warrant if they are believed to be carrying contraband cigarettes.”  

 

A motion for preliminary injunction has been filed. The judge has asked both sides to submit briefs on the motion by Tuesday, and has asked the Tax Commission to refrain from pulling over Muscogee Creek Nation vehicles that are carrying tobacco until the motion can be ruled upon.

 

You can read the full story on Tulsa World.

 ddg

Carcieri decision to be addressed by Senate Indian Affairs Committee today at 2:15 EST.

As reported on Indianz.com, the hearing starts at 2:15pm in Room 628 of the Senate Dirksen Office Building. The witness list is as follows:

Ed Lazarus
Partner, Akin Gump Strauss Hauer & Feld

Ron Allen
Secretary, National Congress of American Indians

Larry Long
Chairman, Conference of Western Attorneys General

You can find a link to the testimony submitted on behalf of the National Congress of American Indians on the issue at Turtle Talk.

We will continue to follow this story. 

ddg  

Professor Larry Echohawk confirmed as head of Bureau of Indian Affairs

Hot off the presses.....this morning the Senate formally confirmed BYU law professor Larry Echohawk as the head of the US Bureau of Indian Affairs.

See the full story HERE in the Deseret News.

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Supreme Court declines to hear two Indian Law cases

The US Supreme Court has declined to hear Marceau v. Blackfeet Housing Authority (regarding homes built using federal funds that were uninhabitable due to mold - see the full story HERE) and Seneca v. USET (regarding a federal employee fired after allegedly improperly pressuring tribes and influence testimony - see the full story HERE).

It should be noted that it is not unusual for the Supreme Court to simply decline to hear cases...perhaps one in a hundred (or more) cases that are brought to the Court on certiorari petitions are not heard.

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Mt. Taylor, a sacred site to many tribes, may or may not be protected

From the AP story in the Santa Fe New Mexican:  "American Indian tribes have appealed to a committee to protect their sacred mountain, considered one of the most endangered historical landscapes in the country, as private landowners defended their property rights and public access to Mount Taylor.

The state Cultural Properties Review Committee on Friday heard from both sides on whether to place Mount Taylor on the State Register of Cultural Properties list.

The committee plans to vote on the designation June 5. Should the nomination fail, its supporters would have to wait five years before trying again."

Will this panel support Native American religious rights?  We'll see.....

twp

True Indian scholars start to weigh in - Ward Churchill should NOT be reinstated

From Indian Country Today, another scholar says that pretend-Indian Ward Churchill should not be returned to his tenured position as professor at University of Colorado.  See the full story HERE.

But here's a sampling:  " Actually, the case that should have been tried against Mr. Churchill was a case of fraud, identity theft and scholarly misconduct which Native scholars (who were largely absent from the court as witnesses during the free speech case) have understood from the beginning. The spectacle of Churchill’s claim to Indian heritage has been an ongoing scandal, unfortunately an unchecked plague in the field of Indian studies for which there seems to be no remedy."

twp

Followup - Supreme Court possible nominees...or not.....

Your erstwhile editor has been away from his usual digs (Albuquerque), but still in Indian Country.  Today there was a (quite excellent, actually) conference sponsored by University of Tulsa College of Law on "Exhibiting Culture:  Museums and Indians" where there was considerable discussion of the laws that museums have to observe these days when it comes to the whole variety of Indian items they might have in their collections.

So why do you care if you weren't there?  Well, the keynote speaker tonight was Mr. Kevin Gover, Esq., former professor of law at ASU, and extremely well-respected Native American attorney......and currently Director of the Smithsonian Institution's National Museum of the American Indian.  Mr. Gover has been mentioned other places as being a potential candidate for the Supreme Court position soon to be vacated by Justice Souter.

So, being an altogether incautious fellow, when he finished with his keynote speech and the floor was open for questions, I asked him if he'd been approached, and, if offered, would he accept.  I shall summarize Mr. Gover's answer - he has not been approached, and he doesn't want to be approached, because he has a terrific job already.

Which does NOT mean that there aren't any other potential Indian candidates out there....but if they haven't asked Mr. Gover, it doesn't look as if the administration is looking for any at all........rather a sad situation, since there is not a Native American ANYWHERE on the federal bench.

And great kudos to our colleagues at University of Tulsa College of Law and the Gilcrease Museaum in Tulsa for putting on such an excellent conference.

twp

Followup - North Dakota Board of Higher Education drops "Fighting Sioux" Nickname

From the Argus Leader:  "North Dakota's Board of Higher Education has agreed to drop the University of North Dakota's Fighting Sioux nickname and Indian head logo, a move intended to resolve a decades-long campus dispute about whether the name demeans Native Americans.  The name and logo, which is a profile of a Native American man with feathers and streaks of paint on his face, still could be saved if North Dakota's Standing Rock and Spirit Lake Sioux tribes agree by Oct. 1 to give UND permission to use them for at least 30 years.  However, tribal officials say that possibility is remote, and board members and UND President Robert Kelley spoke of the logo and nickname in the past tense Thursday. Unless the name and logo receive tribal endorsement, they will be retired for good Aug. 1, 2010.

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Purported "short list" of potential Supreme Court nominees contains no Native Americans......is anyone really surprised?

See the full story HERE.  Unsurprisingly, there are no Native Americans, male or female, on the "short list" of possible candidates to fill the upcoming vacancy on the Supreme Court with Justice Souter's resignation.

twp

Tribes vs. states tobacco "wars" continue....

From The Tulsa World:  "The Muscogee (Creek) Nation is weighing its legal options after a shipment of the tribe's cigarettes was confiscated Wednesday by the Oklahoma Highway Patrol and the Oklahoma Tax Commission.

The truck was stopped by the OHP about 9:30 a.m. on U.S. 75 at 221st Street as it traveled from the tribe's headquarters in Okmulgee to smokeshops in the Tulsa area. Tax Commission agents were on hand to confiscate the cigarettes, Creek Nation Attorney General Roger Wiley said.

About $40,000 worth of cigarettes were seized, Tax Commission spokeswoman Paula Ross said.

Wiley said the search of the truck and seizure of the cigarettes not only was a violation of tribal sovereignty but that the driver did not give consent to search the vehicle and no search warrant was presented.

"The Muscogee Nation takes the position that this was an illegal confiscation by the Oklahoma Tax Commission, and we are evaluating all of our legal remedies at this time, and we intend to aggressively pursue our legal remedies," Wiley said. "They used bolt cutters on the lock on the back of the truck and took what they wanted. They violated the Fourth Amendment."

See the full story HERE.

twp

Followup - oral arguments held in Cobell case

Yesterday (Monday, May 12), the DC Circuit Court heard oral arguments in the long-running Cobell case. As the AP reports:  "The government told a federal appeals court Monday it owes nothing to 500,000 American Indians and their heirs who claim they were cheated out of billions of dollars in land royalties.

The long-running suit, first filed 13 years ago, is before the U.S. Court of Appeals after both sides appealed a lower court's decision last year that the Indian plaintiffs are entitled to $455 million -- far less than the $47 billion or higher they say they are owed.

The suit claims the Indians were swindled out of royalties overseen by the Interior Department since 1887 for things like oil, gas, grazing and timber.

Indian plaintiffs, led by Elouise Cobell, a member of the Blackfeet Tribe from Montana, have argued that the government has improperly accounted for the money and should pay it back with some form of interest.

The government appeal contends the court does not have the jurisdiction to award the money at all, pointing to a district court decision last year that the task of accounting for the trust money was ultimately impossible. They have also pointed to the lower court's ruling that Congress has not given the Interior Department enough money to do a full accounting."

See the full AP story HERE, among other places.

twp

Administration leaves Indian Safety and Health money out of budget - so no money for tribal police and courts

Despite campaign promises that garnered him widespread support in Indian Country, President Obama's proposed budget omits anything for the Emergency Fund for Indian Safety and Health.  Why is this important to those concerned with Indian Law?  As Senator John Thune points out, "Over the next four years, the fund is authorized to spend $750 million for public safety, including money for Tribal police and courts, detention facility construction, investigation and prosecution of crimes and resources for cooperation between tribal, state, local and federal officials." 

Anyone who works in the field knows how critically short many tribes are in these areas already - and the deleterious resulting effects in Indian Country.

See the full story HERE on Indianz.com.

twp