Month: April 2010

Joe Singer on the Original Acquisition of Property

Matthew L.M. Fletcher

Joseph William Singer has posted his paper, “Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity,” forthcoming from the Indiana Law Journal, on SSRN.

Here is the abstract:

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

Keepseagle Settlement Deadline May Soon Pass

Matthew L.M. Fletcher

From Law.com:

By Marcia Coyle

The clock is ticking on negotiations to settle another mammoth discrimination lawsuit against the U.S. Department of Agriculture, this one brought by Native American farmers and ranchers.

The class action, filed in Washington, D.C., federal court in November 1999, accuses the department of denying thousands of Native American farmers and ranchers the same opportunity to obtain farm loans that it routinely gave to white farmers. The discrimination allegedly caused the loss of billions of dollars in credit over a 25-year period. The suit also charges the department with failure to accept and investigate many civil rights complaints filed by those farmers and ranchers.

This past December, Agriculture Secretary Tom Vilsack asked the plaintiffs in Keepseagle v. Vilsack to join the department in seeking a stay of the class action in order to focus on settlement negotiations. U.S. District Judge Emmet Sullivan of the District of Columbia agreed to halt the litigation for 60 days. Although that initial stay expired in mid-February, the parties won another stay, which runs out April 21.

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John Echohawk on The Nation’s List of Potential Supreme Court Nominees

Kate Fort4 Comments

From The Nation, which lists 8 potential nominees in their slide show:

Slide Show: Who Will Be Obama’s Next Supreme Court Nominee?
Justice John Paul Stevens, nearing 90, confirmed recently that he will retire from the Supreme Court this summer. He “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term,” he told the New York Times. Stevens’s retirement will give President Obama his second opportunity to name a Supreme Court justice, but will not shift the ideological balance on the court. The following possible nominees are some of The Nation‘s top choices for a replacement.

John Echohawk, a legendary lawyer who has run the Native American Rights Fund for more than thirty years, would bring a perspective to the court that has been overlooked for 230 years.

And for our Michigan readers, Gov. Jennifer Granholm made the list as well.

The Indian Law Legacy of Justice Stevens

Matthew L.M. Fletcher2 Comments

Justice Stevens’ retirement this summer allows us a chance to review his legacy in relation to federal Indian law and policy. Justice Stevens ascended to the Supreme Court as the sole appointee of President Ford in late 1975. He voted in exactly 100 cases related to Indian law and tribal interests during that period.

Loosely speaking, Justice Stevens is the sitting Justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable.

Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.

The Stats

Overall voting record: 31 votes in favor of tribal interests; 63 votes against; and 7 votes unclassifiable.

Voting from 1976-1983: 14 votes in favor; 20 votes against; 1 unclassifiable

Voting from 1985-2000: 9 votes in favor; 41 votes against; 4 unclassifiable

Voting from 2001-2009: 8 votes in favor; 2 votes against; 1 unclassifiable

Important Indian Law Opinion Favoring Tribal Interests by Stevens, J.

Washington v. Fishing Vessel Assn (U.S. v. Washington) (1979): Justice Stevens headed a 6-3 majority upholding Judge Boldt’s 50-50 split in Indian/non-Indian fishing rights in the Stevens Treaties (what a coincidence!) case. Justice Stevens’ footnote suggesting that tribal fishers would be very unlikely to meet the 50 percent capacity reserved to them, later scholarship demonstrated, perhaps swayed enough of the Court to affirm Judge Boldt’s rule in pertinent part.

Well, that’s about it for significant opinions for the Court authored by Justice Stevens favoring tribal sovereignty.

Brendale: Justice Stevens authored the plurality opinion, joined only by one other Justice (O’Connor), splitting the baby in this tribal regulatory authority case. He held that the tribe had authority to assert land use regulatory authority over non-Indians and non-Indian lands in the “closed” part of the Colville Reservation, but not in the “open” part of the reservation. This confusing decision likely has no import after cases like Strate and Hicks.

Justice Stevens authored dissents in several cases favoring tribal sovereignty, especially in recent years.

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And Rep. Bart Stupak Too (Retire)

Kate Fort1 Comment

From the Washington Post’s Fix Column:

Bart Stupak to retire

Updated, 10:38 am
Michigan Democratic Rep. Bart Stupak will not seek reelection this fall, a decision that comes hard on his front-and-center (and controversial) role in the recent passage of President Barack Obama‘s health-care legislation.

Stupak confirmed his decision to the Associated Press and is expected to formalize it at a news conference at 12:30 p.m. Eastern time in Marquette, Mich.

Stupak made the decision to retire while attending the Butler-Michigan State game at the Final Four. A series of prominent Democratic leaders made pleas for him to reconsider – including President Obama who called Stupak on Wednesday – but his mind was made up.

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Justice Stevens WILL Retire This Summer

Matthew L.M. Fletcher

From USA Today:

Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.

Justice Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”

His announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Justice Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Mr. Obama’s presidency.

The timing of his announcement leaves ample time for the White House to settle on a successor and Senate Democrats, who control 59 votes, to conduct confirmation hearings and a vote. Republicans have not ruled out an attempt to delay confirmation.

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NAGPRA Review Committee Call for Information from Tribes about NAGPRA Compliance

Matthew L.M. Fletcher

From the Federal Register: “For the May 14 meeting, the Review Committee is soliciting presentations by Indian tribes, Native Hawaiian organizations, museums, and Federal agencies on both the positive experiences and the barriers encountered with NAGPRA compliance. The deadline for submitting presentations on this topic is April 9, 2010. Electronic submissions are preferred, and are to be sent to: David_Tarler@ nps.gov.

Mailed submissions are to be sent to:
Designated Federal Officer, NAGPRA
Review Committee, National Park
Service, National NAGPRA Program,
1201 Eye Street, NW., 8th Floor (2253),
Washington, DC 20005.

T.P. Racing v. Ariz. Dept. of Gaming — Denial of Gaming Supplier License Affirmed

Matthew L.M. Fletcher

Here is the unpublished opinion from the Arizona Court of Appeals (Div. 1).

North Dakota Supreme Court Rejects Challenge to UND Board on Fighting Sioux; Nickname “Killed”

Matthew L.M. Fletcher

Here is the opinion in Davidson v. State. Briefs and oral argument materials are here. And the UND Board “killed” the nickname.

An excerpt:

Eight members of the Committee for Understanding and Respect (“plaintiffs”) appeal from a district court judgment dismissing their action against the State Board of Higher Education to enforce a settlement agreement in a prior lawsuit by the University of North Dakota (“UND”) and the Board against the National Collegiate Athletic Association (“NCAA”) and to enjoin the Board from shortening the time period for the Spirit Lake Tribe and the Standing Rock Sioux Tribe to consider approving or rejecting UND’s use of the “Fighting Sioux” nickname and logo. Because we conclude the district court did not err in interpreting the language of the settlement agreement, we affirm.

And:

The plaintiffs, enrolled members of the Spirit Lake Tribe, thereafter sued the Board, alleging its proposed termination of the Fighting Sioux nickname and logo before November 30, 2010, violated the settlement agreement and seeking to enjoin the Board from terminating the nickname and logo before November 30, 2010. The plaintiffs claimed the settlement agreement precluded termination of the nickname and logo before November 30, 2010, and the Board was contractually bound to make a good-faith effort to obtain namesake approval from both tribes during that time.

And:

Although the language of the settlement agreement recognizes the North Dakota Sioux Tribes have important contributions in determining whether the Fighting Sioux nickname and logo should be used by UND and the agreement requires UND to continue to solicit the views of the two tribes on the use of the nickname and logo, we do not construe that language to require UND to continue using the nickname and logo through November 30, 2010.

Cobell Settlement Deadline Extended until Late May

Matthew L.M. Fletcher6 Comments

As announced today at the Fed Bar meeting at Buffalo Thunder….

Via the BLT:

A federal judge in Washington today implored Congress to pass necessary legislation approving a billion-dollar settlement in long-running Indian trust suit, saying that justice is on hold because of inactivity on Capitol Hill.

Senior Judge James Robertson of the U.S. District Court for the District of Columbia spoke today during a status conference in the suit, Cobell v. Salazar, which was filed more than a decade ago here. Justice and Interior department officials announced a $1.41 billion settlement in December in the suit, which seeks a historical accounting of billions of dollars of royalty funds flowing from the use of natural resources on Indian land.

The suit, filed in 1996, requires congressional authorization to approve the settlement amount. But since the settlement was announced, two deadlines have passed without congressional approval of the deal. The latest deadline, April 16, was extended today until the end of May. The lead plaintiff, Elouise Cobell, was skeptical the April 16 deadline would be met.

Robertson announced the extension today in court following a 45-minute meeting with Justice and Interior lawyers and the attorneys for the plaintiffs. Associate Attorney General Tom Perrelli, who was active in negotiating the settlement, participated in the meeting in chambers.

In court, Robertson called the settlement a “win-win proposition” for the plaintiffs and the government. He cautioned, however, that his remarks were not meant to be construed as a final approval of the deal. Once Congress approves the settlement amount, members of the plaintiffs’ class will have a chance in court to object to the settlement.

“The need for Congress to act is real,” Robertson said today. “Until or unless Congress acts the lawyers on both sides who have devoted themselves to this case for 15 years are on hold. More importantly, all of Indian Country is on hold.”

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