News

ICT Article on Elena Kagan Supreme Court Nomination

Matthew L.M. Fletcher

From ICT:

WASHINGTON – Conservative criticism of Elena Kagan’s nomination to the Supreme Court was all but guaranteed.

But critiques are also coming from more unlikely sources, as a groundswell of progressive scholars question her past commitments to minorities. Of special interest to Indian country, her positions on tribal and Indian legal issues are unknown, and she has lacked engagement on some major Native topics.

Kagan, 50, was nominated by President Barack Obama May 10 to replace retiring Justice John Paul Stevens. She currently serves as Solicitor General of the United States, the first woman to hold that post. Previously, President Bill Clinton appointed her as Associate White House Counsel.

Kagan has never been a judge, and she has published relatively few scholarly articles. Most analysts have predicted that she will likely be able to be confirmed by the Senate due, in part, to her non-controversial background. Her lack of public stances on hot-button issues, like abortion, is believed to have played a role in Obama’s selection of her.

Before serving in government, Kagan was the dean of Harvard Law School and a professor of law there. She was also previously a professor of law at the University of Chicago.

It’s her service as a leader at Harvard that’s got some minority advocates, including Native Americans, concerned.

Of the 32 tenured and tenure-track academic hires Kagan made while dean, a position she held from 2003 – 2009, only one was a minority, of Asian descent. Of the 32, seven were women. The rest were white males. None of Kagan’s hires were Native American.

Compared to other institutions of Harvard’s pedigree, Kagan’s hiring was lax in its inclusion of minorities. At the same time, she was credited with breaking a logjam at the institution in hiring conservative scholars.

Part of the hiring issues surrounding Kagan involve her failing to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law.

Many Indian scholars were touted by tribes and Indian organizations during Kagan’s tenure as candidates to permanently hold the Oneida chair, but action never occurred.

“That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard,” said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University.
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More Indian Law Practitioners on the SG Nomination Shortlist

Matthew L.M. Fletcher

Maybe “practitioners” is a bit of a stretch, but most of the names on the shortlist have some experience in Indian Law.

From BLT:

Replacing Kagan: Speculation is swirling on potential nominees to replace Solicitor General Elena Kagan if she is confirmed for a slot on the U.S. Supreme Court, The National Law Journalreports today. Washington state Gov. Christine Gregoire is reportedly on a White House short list for Kagan’s post. The list of names being mentioned include: Principal deputy solicitor general Neal Katyal, former Jenner & Block partner Donald Verrilli, current Kellogg, Huber, Hansen, Todd, Evans & Figel partner David Frederick, former New York solicitor general Preeta Bansal, former Morrison & Foerster partner Beth Brinkmann and partner Patricia Millett of Akin Gump Strauss Hauer & Feld.

Washington Gov. Christine Gregoire on Short List for Solicitor General?

Matthew L.M. Fletcher

This would be an interesting development, as Gov. Gregoire has some Indian law experience.

From the Seattle Times:

OLYMPIA — Gov. Chris Gregoire is on the White House list to replace Elena Kagan as the solicitor general. The question is, would she take the job if it’s offered?

So far, the governor isn’t saying.

President Obama this week nominated Kagan to the U.S. Supreme Court.

Gregoire’s press office at first said she wasn’t on any list. But after the White House on Wednesday confirmed the governor was being considered, her spokesman, Cory Curtis, said: “Nobody has offered her the job yet, or even told her she’s on the shortlist.”

When asked if she’d take the job if offered, Curtis said: “She hasn’t been offered the job yet, so she can’t answer that.”

A White House official declined to disclose other names under consideration for solicitor general, who represents the U.S. government before the Supreme Court.

Gregoire has been rumored as a candidate for White House posts ever since Obama was elected. There was speculation she could be a candidate for commerce secretary (a job given to former Gov. Gary Locke) and even the U.S. Supreme Court.

Last year, amid talk she was in line for a White House job, Gregoire told reporters she ran for re-election in 2008 because she wanted to be governor: “I made it clear early on I would not accept an appointment.”

It’s not clear if her response would be different this time.

Other names are being floated for the job. CNN reported that White House lawyer Donald Verrilli and Kagan’s deputy, Neal Katyal, are in contention.

Gregoire has an extensive legal background. She got her law degree in 1977 from Gonzaga University. She worked as an attorney in the state Attorney General’s office from 1977 to 1988. And she was elected state Attorney General in 1992. She served in that role nearly 12 years before running for governor in 2004.

According to the Attorney General’s office, she personally argued three cases — on matters ranging from stream-flow requirements to the state obscenity law — before the U.S. Supreme Court during her career there. Two as attorney general and one as a deputy. She won all of them.

Salon on Arizona’s Prohibition on Ethnic Studies

Matthew L.M. Fletcher3 Comments

As others (most especially Angelique EagleWoman) have asked, does this affect the Indian law programs at U of A and ASU?

From Salon:

When did Arizona get so mean? As if what they’ve done already isn’t bad enough, Gov. Jan Brewer and the state legislature have just passed a lawforbidding state public schools from teaching ethnic studies courses. Or, as they put it in the new legislation, students “should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.” A promising start there. I’m glad we’re finally rooting out the Mexican Klan meetings in middle schools.

Apparently, state education chief Tom Horne (unsurprisingly, a current candidate for attorney general), is behind this, and he’s especially incensed about one textbook in particular. “Occupied America: A History of Chicanos,” by Rodolfo Acuña, has really gotten his goat. “To begin with, the title of the book implies to the kids that they live in occupied America, or occupied Mexico,” Horne told the Los Angeles Times. You have to love a guy whose argument literally seems to be that we should judge the book by its cover.

So the complaint is that ethnic studies in general, and Chicano studies in particular, teach hate. In a moment of truly dazzling irony, Horne said, “It’s just like the old South, and it’s long past time that we prohibited it.”

The logic seems to be that any time brown folks get together in groups to talk about their identity and history, they must be plotting against white people. Maybe something here sounds like the old South, but I don’t think it’s the students and teachers.

More News Coverage of Eagle Rock Protest

Matthew L.M. Fletcher

KBIC, Kennecott to talk – From Mining Journal
http://www.miningjournal.net/page/content.detail/id/543915.html?nav=5006

Article in the Huffington Post
http://www.huffingtonpost.com/cynthia-pryor/a-sacred-fire-is-burning_b_567652.html

Miigwetch to A.K.

Poaching Case to Reach Sault Tribe Tribal Court

Matthew L.M. Fletcher

From the Escanaba Daily Press vie Pechanga:

ESCANABA – Three members of the Sault Ste. Marie Tribe of Chippewa Indians, accused of illegal commercial fishing in Little Bay de Noc in 2009, will appear in tribal court this month, officials said.

Five tribal members and one Delta County man were arrested in early 2009 for allegedly illegally catching and selling walleye from Little Bay de Noc. The tribe has legal jurisdiction over the five tribal members, while Delta County has legal jurisdiction over the non-tribal member.

In March of this year, the tribe announced three of the accused tribal members were cited with approximately 100 civil infractions including illegally setting nets and selling thousands of pounds of walleye for profit.

The fish were allegedly being sold through a tribal commercial fishing operation consisting of two tribal members and a state-licensed wholesaler. Investigation continues regarding these three individuals who have not yet been officially charged.

According to Brenda Browning, a clerk at the tribal court in Sault Ste. Marie, the citations have been issued against the three tribal members accused of illegally poaching and selling walleye. Their pretrial hearings are scheduled in tribal court in mid-May. The court is not releasing their names because the case is in the pretrial phase, Browning explained Friday.

Browning also said these three cases are considered civil matters, which are being handled by Special Prosecutor Monica Lubiarz-Quigley.

When contacted Monday, Lubiarz-Quigley referred the Daily Press to the tribe’s general counselor, Thomas Dorwin. Dorwin did not return a call from the newspaper prior to press time.

The Daily Press also left a message with the tribe’s attorney, Aaron Schlehuber, on Monday.

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Navajo Nation Council Attacks on Navajo Judiciary?

Matthew L.M. Fletcher1 Comment

Here are three competing press releases from various branches of Navajo government (two of three, as Paul notes below):

Navajo Judiciary Committee on Court Reform

Navajo Nation Council Unhappy with TRO

Navajo President Opposes Election of Navajo Judges

Indian Treaty Rights Showdown in Minnesota Possible

Matthew L.M. Fletcher1 Comment

From the Minneapolis Star-Tribune:

LEECH LAKE RESERVATION — The stage is set for an off-reservation treaty rights battle to begin Friday in Bemidji that ultimately could engulf much of northern Minnesota. Some Leech Lake Chippewa band members say they’ll set nets in Lake Bemidji the day before Minnesota’s walleye and northern pike seasons begin.

The Indians are gambling they’ll be busted for violating state angling rules, sparking a legal battle not only over northern Minnesota fish but also its wildlife and perhaps its timber, minerals and other resources.

Citing a treaty more than 150 years old, the Chippewa say most state fish and wildlife rules don’t apply to them across a large section of northern Minnesota — generally north of Interstate 94 — that they ceded to the federal government in 1855.

The stakes are high for everyone. The Leech Lake Chippewa, and those of the White Earth band about an hour away, risk backlashes that could cut into their casino profits and fracture relations with nonband members that in some instances are already tenuous.

And while the state has signaled it will hold fast to its contention that the bands have no off-reservation hunting, fishing and gathering rights, its costly defeat in the U.S. Supreme Court to the Mille Lacs and other Chippewa bands over similar treaty claims in 1999 hasn’t been forgotten.

“We need to exercise our rights or our sovereignty is just a thought,” said Renée Jones-Judkins, 52, of Cass Lake, who with her four sons will net Lake Bemidji on Friday. She was one of about 125 Leech Lake members (out of a tribal enrollment of 9,400) who attended a tribal treaty rights meeting Friday at the band’s Palace Casino in Cass Lake.

The White Earth and Leech Lake tribal councils aren’t sanctioning the protests. Instead, they will sponsor a public forum on Friday in Bemidji to inform nonband members about rights the Chippewa say they hold.

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NYTs: Obama to Nominate Elena Kagan for the Supreme Court

Matthew L.M. Fletcher

Our post on her Indian law record (lack thereof) is here. Challenges to her record as Harvard dean are here and the White House response is here.

From the NYTs:

WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of JusticeAnthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

With all signs pointing to a Kagan nomination, critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

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ICT Article on Indian Child Welfare Act

Matthew L.M. Fletcher1 Comment

From ICT:

SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law pertaining to American Indian and Alaska Native children that many tribal members are unaware of. Attorneys, judges, social workers and state court systems work with this act almost daily. The United States Congress enacted ICWA more than 30 years ago to protect the best interests of Indian children, and to promote the cohesiveness of Indian families and tribes. Because it is a federal law, it pre-empts state law in its application, meaning in a state court setting applying the standards of ICWA is mandatory.

For ICWA’s protections to apply, a child must be an enrolled member of an Indian tribe or be eligible for enrollment. The individual tribe to which the child belongs is responsible for determining membership eligibility.

ICWA applies to children who have parents whose rights are being terminated, or who have been taken out of their home and placed into a guardianship, foster care or any permanent or pre-adoptive placement.

State court systems and judges in states with very low Indian populations often misunderstand the law, such as Georgia.

Sault Ste. Marie Tribe of Chippewa Indians’ prosecuting attorney Eric Blubaugh, said, “Everyone gets in a sort of professional comfort zone, and state courts are no exception. A state court, when confronted with a case involving an Indian child, must apply different standards than they would in a case involving a non-Indian child. And the frontline professionals – caseworkers and attorneys – must assess an ICWA case’s merits much differently due to the higher standards of proof.”

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