From SCOTUSblog:

Docket: 09-326
Title: Harjo v. Pro-Football, Inc.
Issue: Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the National Congress of American indians
• Amicus brief of law professors
• Amicus brief of psychology professors
• Amicus brief of the Social Justice Advocacy Group

The case is Peason v. Chugash Governmental Services, Inc. (D. Del.). The materials:

Pearson DCT Order

Chugash Motion to Dismiss

Pearson Opposition to Motion

Chugash Reply Brief

Two important cert petitions, Elliott v. White Mountain Apache Tribal Court (09-187) and Harjo v. Pro-Football, Inc. (09-326) are set for this Friday’s Conference.

Our sense is that the Court will decline to hear either case, and there’s no word from SCOTUSBlog on these petitions yet. However, the Court’s interest is always heightened when a tribal court asserts jurisdiction over a non-Indian, as is the case in the Elliott case. And there appears to be a circuit split (on trademark grounds) in the Harjo case, with one side of the split supposedly involving an opinion from then-Third Circuit judge Alito. So there is a possibility in each case.

Here are the materials in Elliott:

Docket Sheet

Petition for Cert

Brief in Opposition

And here are the materials in Harjo:

Docket Sheet

Petition for Cert

Brief in Opposition

Psychologists Amicus Brief

Social Justice Amicus Brief

Law Professors Amicus Brief (Phillips)

National Congress et al. Amicus Brief

DC Circuit Opinions and Briefs

District Court Opinions and Briefs

Trademark Trial and Appeals Board

From S.D.:



The court held that the trial court was correct in refusing to comply with the ICWA notice requirement when the father claimed Western Cherokee Nation of Arkansas and Missouri heritage.

Here is the opinion in Heard-Masterson v. Arkansas Dept. of Human Services.

Here are the opinions out of the Eastern District of Washington:

Wapato Heritage DCT Order Granting Partial Summary J

Wapato Heritage DCT Order to Dismiss

An excerpt:

On May 19, 2006, Plaintiff submitted to Defendant a proposed “Replacement Lease” for MA-8, which would run for a term of 99 years and allow housing development on part of MA-8. In order to secure approval of the Replacement Lease, Plaintiff needed to obtain the consent of a majority of the beneficial owners of MA-8. To that end, Plaintiff and the BIA scheduled a number of meetings in the summer of 2006 with Indian landowners to provide information about the Replacement Lease. During the summer of 2006, Plaintiff asserted that a majority of beneficial owners had consented to the Replacement Lease, and included its own approximately 24% ownership interest in calculating that majority. Plaintiff’s  [*3] interest is a life estate, with the remainder reverting to the Colville Confederated Tribes (“Tribe”).

From Salon:

In July 1972, musician Johnny Cash sat opposite President Richard Nixon in the White House’s Blue Room. As a horde of media huddled a few feet away, the country music superstar had come to discuss prison reform with the self-anointed leader of America’s “silent majority.” “Johnny, would you be willing to play a few songs for us,” Nixon asked Cash. “I like Merle Haggard’s ‘Okie From Muskogee’ and Guy Drake’s ‘Welfare Cadillac.’” The architect of the GOP’s Southern strategy was asking for two famous expressions of white working-class resentment.

“I don’t know those songs,” replied Cash, “but I got a few of my own I can play for you.” Dressed in his trademark black suit, his jet-black hair a little longer than usual, Cash draped the strap of his Martin guitar over his right shoulder and played three songs, all of them decidedly to the left of “Okie From Muskogee.” With the nation still mired in Vietnam, Cash had far more than prison reform on his mind. Nixon listened with a frozen smile to the singer’s rendition of the explicitly antiwar “What Is Truth?” and “Man in Black” (“Each week we lose a hundred fine young men”) and to a folk protest song about the plight of Native Americans called “The Ballad of Ira Hayes.” It was a daring confrontation with a president who was popular with Cash’s fans and about to sweep to a crushing reelection victory, but a glimpse of how Cash saw himself — a foe of hypocrisy, an ally of the downtrodden. An American protest singer, in short, as much as a country music legend.

Years later, “Man in Black” is remembered as a sartorial statement, and “What Is Truth?” as a period piece, if at all. Of the three songs that Cash played for Nixon, the most enduring, and the truest to his vision, was “The Ballad of Ira Hayes.” The song was based on the tragic tale of the Pima Indian war hero who was immortalized in the Iwo Jima flag-raising photo, and in Washington’s Iwo Jima monument, but who died a lonely death brought on by the toxic mixture of alcohol and indifference and alcoholism. The song became part of an album of protest music that his record label didn’t want to promote and that radio stations didn’t want to play, but that Cash would always count among his personal favorites.

The story of Cash and “Ira Hayes” began a decade before the meeting with Nixon. On the night of May 10, 1962, Cash made a much-anticipated New York debut at Carnegie Hall. But instead of impressing the cognoscenti, Cash, who had begun struggling with drug addiction, bombed. His voice was hoarse and hard to hear, and he left the stage in what he described as a “deep depression.” Afterward, he consoled himself by heading downtown with a folksinger friend to hear some music at Greenwich Village’s Gaslight Café.

Onstage was protest balladeer Peter La Farge, performing “The Ballad of Ira Hayes.” A former rodeo cowboy, playwright, actor and Navy intelligence operative, La Farge was also the son of longtime Native activist and novelist Oliver La Farge, who had won a Pulitzer Prize for his 1930 Navajo love story, “Laughing Boy.” The younger La Farge had carved out an intriguing niche in the New York folk revival scene by devoting himself to a single issue. “Pete was doing something special and important,” recalls folksinger Pete Seeger. “His heart was so devoted to the Native American cause at a time that no one was really saying anything about it. I think he went deeper than anyone before or since.”

Cash never pretended that music could stay immune from social, but he tried his best to “not mix in politics.” Instead he talked about the things that unite us like the dignity of honest work. “If you were a baker,” he told writer Christopher Wren in 1970, “and you baked a loaf of bread and it fed somebody, then your life has been worthwhile. And if you were a weaver, and you wove some cloth and your cloth kept somebody warm, your life has been worthwhile.”

Raised in rural poverty on the margins of America, Cash empathized with outsiders like convicts, the poor and Native Americans. But his identification with Indians was especially deep — even delusional. During the depths of his early ’60s drug abuse, he convinced himself, and told others, that he was Native American himself, with both Cherokee and Mohawk blood. (He would later recant this claim.)

At the Gaslight, once he had listened to “Ira Hayes’ and La Farge’s other Indian protest tunes, including “As Long as the Grass Shall Grow” and “Custer,” Cash was hooked. “Johnny wanted more than the hillbilly jangle,” Peter La Farge would write later about meeting Cash at the Gaslight. “He was hungry for the depth and truth heard only in the folk field (at least until Johnny came along). The secret is simple, Johnny has the heart of a folksinger in the purest sense.” In fact, Cash had written an Indian folk protest ballad of his own in 1957. “I wrote ‘Old Apache Squaw,’” Cash later explained to Seeger. “Then I forgot the so-called protest song for a while. No one else seemed to speak up for the Indian with any volume or voice [until Peter La Farge].”

Cash, like many in the 1960s, could see that everything that was certain, rigid and hard was breaking apart. Social movements were blossoming. But the thunderous American choir that was singing “We Shall Overcome” and “We Shall All Be Free” drowned out the cry of the loose-knit Native movement. As Martin Luther King and other leaders steered their people toward legislative victories that would further integrate them into a society they were locked out of, the rising tide of Native youth activists wanted something different.

“In my mind, Native people could not have a civil rights movement,” American Indian Movement activist and musician John Trudell says. “The civil rights issue was between the blacks and the whites and I never viewed it as a civil rights issue for us. They’ve been trying to trick us into accepting civil rights but America has a legal responsibility to fulfill those treaty law agreements. If you’re looking at civil rights, you’re basically saying ‘all right treat us like the way you treat the rest of your citizens’. I don’t look at that as a climb up.” Rather than pursue assimilation into the American system, Native American activists wanted to maintain their slipping grip on sovereignty and the little land they still possessed.

By the early ’60s, the burgeoning National Indian Youth Council (NIYC) was attempting to stake its own claim for their equal share of justice. With the expansion of fishing treaty violations and the breach of two major land treaties that led to the loss of thousands of acres of tribal land in upstate New York for the Tuscarora and Allegany Seneca (the story behind La Farge’s “As Long as the Grass Shall Grow”), the NIYC, led by Native activists like Hank Adams, responded by adapting the sit-in protest. Rechristened as the “fish-in,” the NIYC disputed the denial of treaty rights by fishing in defiance of state law. Fish-ins were held in New York and the Pacific Northwest.

The fish-in tactic worked in helping build some public support, but it did little to stop the treaty violations. Instead, the U.S. government ramped up its efforts to crush any momentum the Native movement was building. Oftentimes their tactics were brutal and violent. “This was the time of Selma and there was a lot of unrest in the nation,” remembers Bill Frank Jr. of Washington state’s Nisqually tribe. “Congress had funded some big law enforcement programs and they got all kinds of training and riot gear-shields, helmets. And they got fancy new boats. These guys had a budget. This was a war.”

By 1964, the Native American cause had attracted the interest of another celebrity. On March 2 the NIYC gained national attention as actor Marlon Brando joined a Washington state fish-in. Already an outspoken supporter of the civil rights movement, Brando’s very public support and subsequent arrest for catching salmon “illegally” in Puyallup River helped to boost the Native movement. Brando’s involvement with the Native cause had begun when he contacted D’Arcy McNickle after reading the Flathead Indian’s book “The Surrounded,” a powerful novel depicting reservation life in 1936. Brando’s involvement in Native issues led to government surveillance that lasted decades. His FBI file, bursting with memos detailing possible means of silencing the actor, quickly grew to more than 100 pages.

Three days after Brando’s arrest in Washington, Cash, fresh off the biggest chart success of his career, the single “Ring of Fire,” and having just finished recording a very commercial album called “I Walk the Line,” began recording another, very different album. When Cash left Sun Studios for Columbia in the late 1950s, he believed his rising star would give him the creative capital to produce and record something a little outside the pop and country mainstream — albums of folk music and live prison concerts. He was alternating folky albums like “Blood Sweat and Tears,” a celebration of the working man, with commercial discs laden with radio-ready singles. “Ring of Fire,” which had reached No. 1 on the country charts and had crossed over to pop, had bought him the permission of Columbia to make an album of what he called “Indian protest songs.”

In the two years since Cash had first met La Farge and listened to “The Ballad of Ira Hayes,” Cash had educated himself about Native American issues. “John had really researched a lot of the history,” Cash’s longtime emcee Johnny Western recalled. “It started with Ira Hayes.”

As Cash explained, “I dove into primary and secondary sources, immersing myself in the tragic stories of the Cherokee and the Apache, among others, until I was almost as raw as Peter. By the time I actually recorded the album I carried a heavy load of sadness and outrage.”

But Cash felt a special kinship with Ira Hayes. Both men had served in the military as a way to escape their lives of rural poverty longing to create new opportunities. Plus, both suffered from addiction problems; Cash and his pills and Hayes with alcohol. He decided to anchor the album with “The Ballad of Ira Hayes.” And since the song had provided the spark for Cash’s vision, it just felt right that he should learn more about the song’s subject.

Cash contacted Ira Hayes’ mother and then visited her and her family at the Pima reservation in Arizona. Before Cash left the Pima Reservation, Hayes’ mother presented him with a gift, a smooth black translucent stone. The Pima call it an “Apache tear.” The legend behind the opaque volcanic black glass is rooted in the last U.S. cavalry attack on Native people, which took place on Apaches in the state of Arizona. After the slaughter, the soldiers refused to allow the Apache women to put the dead up on stilts, a sacred Apache tradition. Legend says that overcome by intense grief, Apache women shed tears for the first time ever, and the tears that fell to the earth turned black. Cash, moved by the gift, polished the stone and mounted it on a gold chain.

With the Apache tear draped around his neck, Cash cut his protest album. He recorded five of La Farge’s songs, two of his own, and one he’d co-written with Johnny Horton. All were Native American themed. “When we went back into the studio to record what became ‘Bitter Tears,’” Cash bassist Marshall Grant says, “we could see that John really had a special feeling for this record and these songs.”

Yet the album’s first single, “Ira Hayes,” went nowhere. Few radio stations would play the song. Was the length of the song, four minutes and seven seconds, the problem? Radio stations liked three-minute tracks. Or maybe disc jockeys wanted Cash to “entertain, not educate,” as one Columbia exec put it.

“I know that a lot of people into Johnny Cash weren’t into ‘Bitter Tears,’ ” explains Dick Weissman, a folksinger, ex-member of the Journeymen and friend of La Farge. “They wanted a ‘Ballad of Teenage Queen’ not ‘The Ballad of Ira Hayes.’ They wanted ‘Folsom Prison.’ They didn’t want songs about how American’s mistreated Indians.”

The stations wouldn’t play the song and Columbia Records refused to promote it. According to John Hammond, the legendary producer and Cash champion who worked at Columbia, executives at the label just didn’t think it had commercial potential. Billboard, the music industry trade magazine, wouldn’t review it, even though Cash was at the height of his fame, and had just scored another No. 1 country single with “Understand Your Man” and No. 1 country album with “I Walk the Line.”

One editor of a country music magazine demanded that Cash resign from the Country Music Association because “you and your crowd are just too intelligent to associate with plain country folks, country artists and country DJs.” Johnny Western, a DJ, singer and actor who for many years was part of Cash’s road show, recalls a conversation with “a very popular and powerful DJ.” According to Western, the DJ was “connected to many of the music associations and other influential recording industry groups. He had always been incredibly supportive of John.” Western and the DJ started discussing Cash’s new album and the “Ira Hayes” single. “He asked me why John did this record. I told him that John and all of us had a great feeling for the American Indian cause. He responded that he felt that the music, in his mind, was un-American and that he would never play the record on air and had strongly advised other DJs and radio stations to do the same. Just ignore it until John came back to his senses, is what he told me.”

“When John was attacked for ‘Ira Hayes’ and then ‘Bitter Tears,’” explains Marshall Grant, “it just ripped him apart. Hayes was forced to drink by the abuse and treatment of white people who used and abandoned him. To us, it meant Hayes was being tortured and that’s the story we told and it’s true.”

When “Bitter Tears” and its single did not get the attention he felt they deserved, Cash insisted on having the last word. He composed a letter to the entire record industry and placed it in Billboard as a full-page ad on Aug. 22, 1964.

“D.J.’s — station managers — owners, etc.,” demanded Cash, “Where are your guts?” He referred to his own supposed half Cherokee and Mohawk heritage and spoke of the record as unvarnished truth. “These lyrics take us back to the truth … you’re right! Teenage girls and Beatle record buyers don’t want to hear this sad story of Ira Hayes … This song is not of an unsung hero.” Cash slammed the record industry for its cowardice, “Regardless of the trade charts — the categorizing, classifying and restrictions of air play, this not a country song, not as it is being sold. It is a fine reason though for the gutless [Cash's emphasis] to give it a thumbs down.”

Cash demanded that the industry explain its resistance to his single. “I had to fight back when I realized that so many stations are afraid of Ira Hayes. Just one question: WHY???” And then Cash answered for them. “‘Ira Hayes’ is strong medicine … So is Rochester, Harlem, Birmingham and Vietnam.”

As Cash later explained, “I talked about them wanting to wallow in meaninglessness and their lack of vision for our music. Predictably enough, it got me off the air in more places than it got me on.” In reality, however, as Cash noted in his letter, “Ira Hayes” was already outselling many country hits. Ultimately, thanks in part to aggressive promotion by Cash, who personally promoted the song to disc jockeys he knew, “Ira Hayes” reached No. 3 on the country singles charts, and “Bitter Tears” peaked at 2 on the album charts.

Later, long after “Bitter Tears,” and after he’d won his battle with drugs, Cash would dial back his claims of Indian ancestry. But he never wavered from his support for the Native cause. He went on to perform benefit shows on reservations — including the Sioux reservation at Wounded Knee in 1968, five years before the armed standoff there between the FBI and the American Indian Movement — to help raise money for schools, hospitals and other critical resources denied by the government. In 1980, Cash told a reporter: “We went to Wounded Knee before Wounded Knee II [the 1973 standoff] to do a show to raise money to build a school on the Rosebud Indian Reservation” and do a movie for “Public Broadcasting System called ‘Trail of Tears.’” He joined with fellow musicians Kris Kristofferson, Willie Nelson and Robbie Robertson to call for the release of jailed AIM leader Leonard Peltier.

Since Cash first recorded “The Ballad of Ira Hayes” in 1964, many musicians have recorded their own versions. Kris Kristofferson is one of those musicians. He summed up the spirit behind Cash’s now nearly forgotten protest album in his eulogy for Cash, who died in 2003. Cash, he said, was a “holy terror … a dark and dangerous force of nature that also stood for mercy and justice for his fellow human beings.” Four years before his famous concert at Folsom Prison, four years before the American Indian Movement formed, and at the pinnacle of his commercial success, Cash insisted on producing an uncommercial, deeply personal protest record that was a close as he could come to truth. He would always cherish it. “I’m still particularly proud of ‘Bitter Tears,’” Cash would say near the end of his life, while talking about the topical music he recorded in the 1960s. “Apart from the Vietnam War being over, I don’t see much reason to change my position today. The old are still neglected, the poor are still poor, the young are still dying before their time, and we’re not making any moves to make things right. There’s still plenty of darkness to carry off.”

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Antonino D’Ambrosio is the author of “A Heartbeat and a Guitar: Johnny Cash and the Making of Bitter Tears.”

The CFP is here; and the deadline is November 15.

M. Brent Leonhard has published “There Are No Implied Easements Over Trust Lands” in the American Indian Law Review.

The abstract:

Those who regularly practice law in Indian Country have no doubt encountered the myriad of issues surrounding rights-of-way over Indian lands. They can be pernicious. Among them are claims by non-Indian fee land owners that they have an implied easement over adjacent trust lands. Far from being arcane, this issue is one faced by tribes on a regular basis. This article shows why there are no implied easements over trust lands.