Here is the opinion from yesterday, an ongoing divorce that involves members of the Standing Rock Sioux Tribe. The first Kelly case involved questions of tribal court jurisdiction.
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Supreme Court Citations to Indian Law Scholarship
In light of recent commentaries about the value (or lack thereof) of legal scholarship (here) and new scholarship about the frequency the Supreme Court Justices cite to legal scholarship (it’s rather a lot), we thought it would be fun to list some findings about the Supreme Court’s citations of Indian law scholarship going back to 1959.
We’ll look later at the frequency of citations overall in later work.
Treatises and Casebooks
First, let’s get the Cohen Handbook out of the way. We have a liberal definition of legal scholarship (no pun intended). The numbers in parentheses are number of cases, and number of citations):
Cohen 2005 — 2 cases, 11 citations [U.S. v Jicarilla Apache had 10 cites alone — guess the Court is finally reading the thing]
Cohen 1982 — 31, 72
Cohen 1958 [actually, Dept. of Interior rewrite] — 20, 40
Cohen 1940/1940/1942/1945 — 15, 29
Overall, the Handbook of Federal Indian Law in all its incarnations has been cited in 68 cases, for a total of 152 citations.
Law and the American Indian/American Indian Law
Price, 1973 edition — 3 cases, 4 citations
Price & Clinton, 1983 edition — 1 case, 1 cite
Clinton, Newton, and Price, 1991 edition — 1 case, 1 cite
Getches, Wilkinson, and Williams on Federal Indian Law — 1 case, 1 cite
Canby Nutshell — 1998 edition — 1 case, 1 cite
Mills, Oklahoma Indian Land Laws (1924) — 1 case, 1 cite
Law Review Article/Book Authors
Leading Repeat Players: There aren’t very many of these. Most articles or books cited are one and done. Here are the top repeat players, their articles, and the opinions that cite them:
David Getches Memorial Today
Program brochure here.
Tenth Circuit En Banc Petition in Ute Mountain Ute Case
Tenth Circuit Affirms Conviction of Former Cheyenne-Arapho Tribal Leaders for Theft from a Tribal Organization
Here is the unpublished opinion in United States v. Blind. And here is the related unpublished opinion in United States v. Sankey.
An excerpt:
William Blind appeals his conviction of eight counts of embezzlement and theft from an Indian tribal organization in violation of 18 U.S.C. § 1163 and his resulting sentence. He argues there was insufficient evidence to sustain his convictions and that the district court erred in calculating the amount of loss for the purposes of sentencing, including restitution. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court AFFIRMS the judgment of conviction and AFFIRMS the sentence except as to restitution. The order of restitution is REVERSED and the matter is REMANDED for resentencing only as to restitution.
ICWA-Related Federal Civil Rights Claim Dismissed
Here is the opinion in Belinda K. v. County of Alameda (N.D. Cal.):
Belinda K v County of Alameda.
Here is an excerpt:
Plaintiff’s Count Sixteen is a § 1983 claim based on her allegation that her ICWA right to competent counsel in the Superior Court dependency proceedings was violated. Plaintiff alleges that the defendants “conspired and agreed that appointed attorneys would not as a custom and practice produce any written pleadings for the defense of their clients, nor would they be paid for their time to consult with their appointed clients.” Compl. ¶ 212. Plaintiff alleges that appointed counsel appeared in court but provided no “substantive actual effort, no investigation of the facts or the law nor vigorous defense or responsive pleadings” on behalf of appointed clients. Compl. ¶ 214. Plaintiff is asserting a direct claim for violation of ICWA (on the basis of ineffective assistance of counsel and on a number of other bases as well) in the related action, J.H. v. Baldovinos, pending before this Court. In Count Sixteen’s § 1983 claim, Plaintiff seeks to hold defendants liable for money damages and attorney’s fees based on this alleged violation. These remedies are not available to Plaintiff in her direct ICWA claim.
State Supreme Court Outcomes: Iowa and Nebraska
Here are two grain belt states, Iowa and Nebraska.
In Iowa, tribal interests are successful in 31 percent of cases
In Nebraska, tribal interests are successful in 33 percent of cases.
Here are the Iowa cases:
Swinomish mourns passing of former leader
Wa-Walton (Bob Joe, Sr.), who served on the Swinomish Senate for 25 years and as tribal chairman for 18 years, passed on yesterday. Here’s a link to his obituary.
Tax Court of Canada: s. 87 Indian Act Tax Exemption – You Win Some, You Lose Some
With the recent glut of denied appeals for aboriginals seeking s. 87 tax exemption, it’s promising to see a case where the court did in fact, provide that shelter.
Thanks to Scott Robertson of Gowlings Ottawa (notwithstanding that I interviewed with Gowlings Ottawa in 2008 and wasn’t offered a job. But I digress…) for pointing out Dugan v. The Queen, 2011 TCC 269, a recent case where the Tax Court of Canada accepted three (of five) appellants’ claims for s. 87 tax protection.
State Supreme Court “Scorecard” — Week 2
Here are the “win” percentages for tribal interests in the states we’ve looked at so far (week 2 additions are in red):
New York 88 percent (7 wins, 1 loss)
Montana 68 percent (38 wins, 18 losses)
Colorado 67 percent (4 wins, 2 losses)
South Dakota 50 percent (27 wins, 27 losses)
Florida 50 percent (1 win, 1 loss)
Alaska 46 percent (18 wins, 21 losses)
Utah 43 percent (3 wins, 4 losses)
Kansas 42 percent (5 wins, 7 losses)
Oregon 40 percent (2 wins, three losses)
North Dakota 38 percent (9 wins, 15 losses)
Arizona 29 percent (4 wins, 10 losses)
Wyoming 20 percent (2 wins, 8 losses)
Overall 51 percent (120 wins, 117 losses)
Turtle Talk 
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