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ACHPDakota Access Pipeline.con.06may16
cultural resources
Professor Tsosie on Indigenous Identity & Sports Mascots
Professor Tsosie’s excellent Federal Lawyer article on identity and sports mascots is available below. Her longer law review article on these subjects is available here.
Tsosie Fed Lawyer Art on Mascots
As one of the curators of the Indian law columns for the Federal Lawyer, I am proud to have solicited this piece and grateful that she could squeeze writing it into her schedule.
News Profile of Cert Denial in Knight v. Thompson
New Student Scholarship on Indian Sports Mascots and Nicknames
The BYU Education and Law Journal has published “Between a Tomahawk and a Hard Place: Indian mascots and the NCAA” by Stephanie Jade Bollinger. [pdf]
An excerpt::
Thus, a reviewing court should find that agreements between Native American tribes and Universities granting approval for the use of Indian names as mascots should be void as against public policy. If the approval is found to be void, the NCAA would have a harder time basing approval as the primary factor for exemptions from its own mascot policy at championship games. Without the mascot exemption, more universities may decide to eliminate their use of Indian mascots and, in doing so, discontinue the harmful effects from their use of Indian mascots.
Snarky News Commentary about Pro-Football Inc.’s Cert Petition
Hey it’s Friday! 🙂
From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”
An excerpt:
As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:
“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”
The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.
If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.
Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.
Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?
Angela Riley & Kristen Carpenter Publish “Owning Red”
Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.
Here is the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, Professor Riley and Professor Carpenter situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.” It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.
Pro-Football Inc. v. Blackhorse Cert Petition
Here.
Question presented:
The “disparagement clause” in § 2(a) of the Lanham Act bars the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a). The questions presented are:
1. Whether § 2(a)’s disparagement clause violates the First Amendment.
2. Whether § 2(a)’s disparagement clause is impermissibly vague, in violation of the First and Fifth Amendments.
3. Whether the government’s decades-long delay between registering a trademark and cancelling the registration under § 2(a)’s disparagement clause violates due process.
The Fourth Circuit matter is still pending. This is an effort to jump ahead of the process to join another petition currently pending captioned Lee v. Tam. We posted about that Federal Circuit decision here.
US Confiscates Fake Indian Art from Santa Fe Plaza Stores
Federal Court Dismisses Suit to Force BIA to do More to Protect Eagles affected by Wind Energy
Here are the materials in Protect Our Communities Foundation v. Black (S.D. Cal.):
34-1 Ewiiaapaayp Band of Kumeyaay Indians Motion
43 Ewiiaapaayp Band of Kumeyaay Indians Reply
EWI Protect Our Communities Order Granting Motion for Judgment on Pleadings_3-29-16
An excerpt:
This case concerns the construction of the second phase of an industrial-scale wind farm and the well-being of eagles who nest in or pass through the same general area. More particularly, Plaintiffs, with the noble goal of protecting these eagles, challenge a federal agency’s approval of the project despite its potential to harm eagles. The issue in this case and for these Motions is not whether the agency and those involved in building the wind farm may simply disregard the eagles’ well-being. Harming or killing eagles is a serious offense that subjects offenders to civil fines, criminal fines, and even imprisonment. That is not in dispute. Rather, the question in this case and for these Motions is whether the agency that Plaintiffs sued—BIA—was obligated to take further steps to protect these birds under federal law. Because BIA did not have a legal obligation to proactively ensure that Tule would not violate other federal laws and because, after BIA issued its decision, there was no remaining major federal administrative agency action that would require supplemental environmental analysis, the Court GRANTS Tule’s, the Tribe’s, and BIA’s Motions.
News Profile of Klamath River Dam Removal Plan
Here.
More here:
http://www.krcrtv.com/north-coast-news/news/dam-removal-along-klamath-river-moves-forward-with-agreement/38903812
http://www.capitalpress.com/Water/20160406/state-federal-officials-sign-new-klamath-dam-agreements
Coverage focusing on the tribal impact: http://www.takepart.com/article/2016/04/06/removal-klamath-river-dams-california-oregon
Turtle Talk 
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