The New York Times reports that the Havasupai have settled their lawsuit over the misuse of tribal members’ blood samples by ASU researchers for $700,000. ASU has also agreed to return the samples and help build a high school and health clinic for the tribe.
From the New York Times:
http://www.nytimes.com/aponline/2010/04/21/us/AP-US-Havasupai-Lawsuits.html?_r=1&ref=global-home
From ICT’s Rob Capriccioiso:
WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.
Stevens, who announced April 9 he would retire in late June or early July, has served on the court since 1975. A member of the court’s liberal voting bloc, he slowly grew stronger on tribal issues, including sovereignty, during his tenure, legal observers said. Still, the consensus is, he had a long way to go.
“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a commissioner with the Seattle Human Rights Commission. “His 35-year tenure on the court meant he was involved in some of the most significant cases in Indian law history.
“He wrote the Supreme Court’s [1979] opinion affirming the Boldt decision upholding Washington tribal fishing rights and rejecting the state of Washington’s appeal led by then-Attorney General Slade Gorton. That case remains one of the most profound recognition of the power of treaties.”
Stearns added that Stevens was “the lone voice of reason” on the court during the controversial Carcieri decision of 2009, in which he argued in favor of the Narragansett Tribe’s position.
On the other hand, Stearns noted that Stevens sometimes dissented against tribal interests in cases favoring tribes, such as Cabazon, which involved gaming, and Holyfield, which involved the Indian Child Welfare Act.
Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, expanded on Stevens’ anti-tribal decisions, saying that his legacy in Indian law is “very, very bad.”
Fletcher said that Stevens was particularly tough in the area of federal Indian law preemption cases, where all tribal taxation cases fit.
“During the 1970s and through the 1980s, the tax cases were hit and miss because the court was unsure how to handle them. But in 1989’s Cotton Petroleum case (authored by Stevens), the court placed the advantage squarely with the states and local governments. From then on, the court only took cases far out of step with its settled understanding. …”
Fletcher also believes Stevens would “have eviscerated tribal sovereign immunity long ago,” since he often has argued against any form of immunity, tribal, federal and state, for decades, to little or no avail.
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From the San Diego Union-Tribune:
California can’t force Indian tribes to share gambling profits to repair the state’s budget problems, the 9th U.S. Circuit Court of Appeals said Tuesday.
In a stunning blow to Gov. Arnold Schwarzenegger’s tactics when dealing with tribes wanting casinos, a divided, three-judge panel of the appeals court said the governor can’t ask for money for the state’s general fund without offering something of value in return because that amounts to an illegal tax.
The court upheld a 2008 ruling by a federal judge in San Diego that the governor was playing dirty in his negotiations with North County’s Rincon Indian band.
“This is a great, big message to the state,” Rincon Chairman Bo Mazzetti said. “Your days of trying to bully tribes around … those days are over.”
In the decision, Pasadena-based Judge Milan Smith Jr. compared the state’s efforts to those of the federal government when it took land from the Sioux after Lt. Col. George Custer reported finding gold in the Black Hills of South Dakota.
“Today, many tribes have struck figurative gold with casino gaming, and again, some state governments, just like their predecessors, are maneuvering to take, or at least share in, some of that figurative gold,” Smith wrote for a two-judge majority.
In his dissent, Judge Jay Bybee said tribes with casinos here and around the country have agreed for years to share revenue with state governments, just as Schwarzenegger was seeking.
“The holding … does not just upset the apple cart — it derails the whole train,” Bybee wrote. “If the majority is correct, then there is nothing for California to do but to authorize whatever (slot machines) the band wants. The band wins. Everything.”
The state will seek to have Tuesday’s decision reviewed by a larger panel of 9th Circuit judges, said Jeff Macedo, a spokesman for Schwarzenegger.
Legal experts disagreed on whether the case would be reviewed by a larger panel, or by the U.S. Supreme Court, should it be asked.
Macedo said the governor sees this as federal meddling.
“We still believe we were negotiating in good faith,” Macedo said. “This amounts to the federal courts again telling the state what it can and can’t do, and it’s not allowing the state the ability to negotiate these compacts.”
The ruling has big implications for Schwarzenegger, who campaigned on a promise to make tribes “pay their fair share” for casino expansions.
“It’s about millions and millions of dollars to the state of California,” said Matthew L.M. Fletcher, a law professor at Michigan State University who follows Indian legal issues nationally.
The ruling could affect other casino negotiations, he said.
The issue comes down to the kind of bargain that tribes and states can strike. The federal 1988 Indian Gaming Regulatory Act, known as IGRA, laid out how tribes can set up Las Vegas-style casinos. It said such gambling requires state approval, but that states can’t tax the profits.
Occasionally we’re contacted by law students and colleagues who practice in Indian law who are interested in becoming a law professor. The process for breaking into the law teaching can be a bit mysterious for the uninitiated, but programs like the one below offer an excellent introduction. This one is held in conjunction with the Third National People of Color Legal Scholarship Conference, and the program’s title is How to Enter the Legal Academy: Pipeline Program. Topics include preparing your CV, what goes on at the “meet market”, interviewing, handling call backs, fellowships and visitorships, writing law review articles, developing a research agenda and advice for late bloomers. The program runs from 11 am – 3 pm on September 9, 2010 at Seton Hall, and registration is only $20.
From the San Diego Union-Tribune:
A federal appeals court Tuesday backed a North County tribe that says Gov. Arnold Schwarzenegger negotiated in bad faith by demanding payments for the state general fund.
The ruling in a lawsuit by the Rincon Indian band against the governor has big implications for the governor, who campaigned on a promise to make tribes “pay their fair share” for casino expansions, and for future negotiations for casino compacts.
“It’s a huge deal,” said law professor Matthew L.M. Fletcher, who follows Indian legal issues nationally. “It’s about millions and millions of dollars to the state of California.”
And it could affect negotiations between the state and other tribes, said Fletcher, who teaches at Michigan State University’s law school.
The issue comes down to what kind of bargain tribes and states can strike. The Indian Gaming Regulatory Act, which oversees how tribes can set up Las Vegas-style casinos, says that states must approve such gambling but can’t tax the profits. So states and tribes have entered into revenue-sharing contracts in which tribes have paid part of their profits in exchange for getting exclusive rights to gamble.
Here is the opinion, captioned United States v. Bell.
Judge Bybee dissent in Rincon Band is not a very good example of legal scholarship (not that it has to be, since he’s a judge, not a law professor), but one potential problem is that he resorts to the “parade of horribles” argument at the very end:
The majority’s legal errors carry grave–and widespread–practical repercussions. The majority’s decision will call into question Tribal-State gaming compacts not just in cash-strapped California, * * * but throughout the country. The Second Circuit has never addressed a legal challenge to the Connecticut compacts governing the behemoth Foxwoods and Mohegan Sun Casinos, but the majority decision here will inevitably spur such challenges in Connecticut and in New York. The Sixth, Tenth, and Eleventh Circuits have yet to consider the validity of general revenue sharing under IGRA, but it can be reasonably be expected that district court clerks in Michigan, New Mexico, Oklahoma, and Florida will be docketing challenges sometime soon. These lawsuits * * * will eat up State, tribal, and federal resources and will unsettle dozens of mutually beneficial revenue-sharing provisions that have fed both tribal coffers and revenue-hungry state treasuries.
So many points, but here are a few. (1) At least in regards to the 1993 compacts in Michigan, it won’t happen. Those compacts came about as a result of a negotiated settlement and consent decree. (2) This is a pretty crass effort to get an issue on the Supreme Court’s radar, where there are no other splits in authority because states simply have not waived their 11th Amendment immunity. (3) How many times in one paragraph can one assert that states are desperate for tribal gaming revenues (implying, I think, that the judge thinks states are entitled to them)?
If, and it’s a huge if, another circuit decides a revenue sharing case, and that decision rejects the Rincon Band majority’s reasoning, then it will be a matter for the Supreme Court. Not before.
Here is the Ninth Circuit’s opinion in Rincon Band v. Schwarzeneggar (over a dissent).
Only some of the materials are available (since this case is so old, and CA9 only recently joined the 21st century):
[Picayune Amicus Brief unavailable]
California Response to Picayune Amicus Brief
Here are the lower court briefs and materials.
From SCOTUSBlog:
Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a [member] and then to compel the State to give full faith and credit to the decrees entered in those proceedings.
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