NYTs Op/Ed: “Federal Judges Should Write Their Own Opinions”

Here.

On This Day in History: 1924 Citizenship Act

Here.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

Senate Finance Committee Testimony on Tax Reform

Here:

Member Statements

Max Baucus 
(D-MT)

Download Statement [352 KB]

Orrin G. Hatch
(R-UT)

Download Statement [300.6 KB]

Witness Testimony

Ms. Sarah Hall Ingram, Commissioner, Tax Exempt and Govenment Entities, Internal Revenue Service, Washington, DC

Download Testimony

The Honorable Robert Odawi Porter, President, Seneca Nation of Indians, Salamanca, NY

Download Testimony

Dr. Lindsay G. Robertson, Professor of Law, University of Oklahoma College of Law, Norman, OK

Download Testimony

Dr. Steven Maguire, Specialist in Public Finance, Congressional Research Service, Washington, DC

Download Testimony

Information on the Tribal Court Trial Advocacy Program

From the federal press release:

The result of a collaborative effort by the Bureau of Indian Affairs Office of Justice Services (OJS) and DOJ’s Access to Justice Initiative (AJI), the Tribal Court Trial Advocacy Program is the first national effort by DOI and DOJ to offer trial advocacy training with courses designed specifically for tribal courts and free training to the judges, public defenders and prosecutors who work in them. Training is provided in three topic areas – domestic abuse, illegal narcotics and sexual assault on children and adults – with faculty and instructional materials prepared by experts knowledgeable about tribal court issues. The program is unique because it also has training specifically for public defenders.

A pilot training session on domestic violence held by the OJS and the ATJ in August 2011 in Rapid City, S.D., proved so successful that the OJS and its federal partners provided funding for seven additional sessions. The first of those, which focused on illegal narcotics, was held March 13-15, 2012, in Phoenix, Ariz. Each of the six remaining sessions, to be held through the rest of 2012 and into 2013, will focus on one training topic. The schedule for the coming sessions is:
July 24-26, 2012, Duluth, Minn.
August 14-16, 2012, Durango, Colo.
September 11-13, 2012, Great Falls, Mont.
October 2-4, 2012, Seattle, Wash.
October 23-25, 2012, Chinle, Ariz.
January 15-17, 2013, Albuquerque, N.M.

For more information about the DOI-DOJ Tribal Court Trial Advocacy Program, which training topic will be offered at which site, and how to register for upcoming sessions, contact the BIA’s Indian Police Academy at 575-748-8151.

Job Posting: Administrative Judge, Interior Board of Indian Appeals

Here.

En Banc Ninth Circuit Holds Forest Service Violated the Endangered Species Act in Approving Mining at Klamath Nat’l Forest

Here is today’s opinion in Karuk Tribe of California v. USFS.

Audio and video of the en banc argument here. Briefs here.

An excerpt:

There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

New Book: “Captured Justice: Native Nations and Public Law 280″ by Duane Champagne and Carole Goldberg

Here.

Captured Justice: Native Nations and Public Law 280

by Duane Champagne, Carole Goldberg

2012 • $30.00 • 244 pp • paper • ISBN: 978-1-61163-043-5 •LCCN 2011034877

The policy of forced assimilation, called “termination,” that Congress pressed upon Native Americans in the 1950s brought state criminal jurisdiction to more than half of all Indian reservations for the first time in American history. The law that accomplished most of this shift from a combination of tribal and federal control to state control is widely known as Public Law 280. Tribes did not consent to the new and alien forms of criminal justice, and the federal government provided no funding to state or local governments to ease the new burdens thrust upon them.

Present-day concerns about community safety in Indian country raise questions about the appropriate strategy for achieving that end. Is expanded state criminal jurisdiction an appropriate response, or should that option be off the table? Does the experience with Public Law 280 suggest conditions under which state jurisdiction is more or less successful?

Captured Justice is the first systematic investigation of the success or failure of the Public Law 280 program substituting state for tribal and federal criminal justice in Indian country. The authors first identify a set of six conditions that are necessary for criminal justice to succeed in Indian country. They then present the results of hundreds of interviews and surveys at sixteen reservations across the United States, tapping reservation residents, tribal officials and staff, and state and federal law enforcement officers and criminal justice personnel, to find out how the state jurisdiction regime is faring and to compare experiences on Public Law 280 reservations with those on non-Public Law 280 reservations. Before-and-after case studies of tribes that were able to remove state jurisdiction from their reservations complete the book.

Captured Justice is both an important assessment of an historic federal Indian policy that remains with us today, and a guide to future criminal justice policy for Indian country.

Available Briefs in Swinomish Indian Tribal Community v. Wash. State Dept. of Ecology

Not sure why the parties’ briefs aren’t up there…..

68162-1 – Swinomish Indian Tribal Community, Appellant v Washington State Dept. of Ecology, et al, Respondents 

• Amicus Curiae Center for Environmental Law & Policy
• Amicus Curiae Interested Indian Tribes

Caroline Mayhew in ICT on “VAWA Tribal Provisions and Race Discrimination Arguments”

Here.

An excerpt:

Interestingly, the prospect of enhanced tribal jurisdiction over non-members has raised the issue of racial discrimination in varied and even competing ways. Two recent statements by members of Congress, both of whom have been important allies in tribal law enforcement efforts including the enactment of the Tribal Law and Order Act, illustrate this point. Following passage of the Senate bill, Senator Jon Kyl of Arizona released a statement claiming that “by subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race,” the tribal jurisdiction provision “would quite plainly violate the Constitution’s guarantees of Equal Protection and Due Process.” Then, during the House Judiciary Committee’s markup of a bill that did not contain the tribal jurisdiction provisions, Representative Darrell Issa of California stated that the lack of such a provision raised questions of race discrimination, since whether an individual will be brought to tribal, state, or federal court for a domestic violence offense under current law depends on whether the defendant is Indian or non-Indian.

While seemingly in opposition to each other, neither one of these statements accurately reflects the current legal and political reality of Indian tribes. Instead, they illustrate how easy it can be for us to slip into a widely employed discourse of race that is not always helpful or relevant in the realm of Indian law and policy. Unfortunately, this mistake can obscure the role that racial discrimination is actually playing in the VAWA reauthorization debate.

Patrick O’Donnell’s Basic Bibliography of Indian Law

North American Indian Law: A Basic Bibliography (PDF)

Patrick S. O’Donnell

Department of Philosophy

Santa Barbara City College (2012)

Not a few of the titles here are not about American Indian law as such, but might be considered indispensable (i.e., provide important historical, sociological, anthropological, political, or other forms of knowledge) for understanding endogenous and exogenous variables viewed through emic and etic perspectives that directly or indirectly influence this or that aspect of Indian law. I welcome suggestions for additional titles. Some excellent blogs and internet sites are appended to this compilation. (Thanks to Professor Matthew L.M. Fletcher for some title suggestions.)

Aberle, David F. The Peyote Religion among the Navajo. Norman, OK: University of Oklahoma Press, 2^nd ed. 1991 (1966).

Adair, John, Kurt W. Deuschle and Clifford R. Barnett. The People’s Health: Medicine and Anthropology in a Navajo Community. Albuquerque, NM: University of New Mexico Press, 1988 ed.

Adams, David Wallace. Education for Extinction: American Indians and the Boarding School Experience, 1875-1928. Lawrence, KS: University Press of Kansas, 1995.

Alfred, Taiaike. Peace, Power, Righteousness: An Indigenous Manifesto. Ontario: Oxford University Press, 1996.

Ambler, Marjane. Breaking the Iron Bonds: Indian Control of Energy Development. Lawrence, KS: University Press of Kansas, 1990.

Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 2^nd ed., 2004.

Anderson, Robert T., Bethany Berger, Philip P. Frickey, and Sarah Krakoff. American Indian Law: Cases and Commentary. St. Paul, MN: Thomson Reuters/West, 2^nd ed., 2010.

Anderson, William L., ed. Cherokee Removal: Before and After. Athens, GA: University of Georgia Press, 1992.

Asch, Michael, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference. Vancouver, BC: University of British Columbia Press, 1997.

Austin, Raymond D. Navajo Courts and Navajo Common Law: A Tradition of Tribal Self Governance. Minneapolis, MN: University of Minnesota Press, 2009.