Here’s an interesting case out of the Federal Court in Victoria B.C. It’s apparent that the judge was pretty reluctant to let this guy off, but ultimately the offender pulled the old, “got off on a technicality” trick. Classic. Aside from its tangential aboriginal connection, it’s also a case which illuminates some interesting differences in the United States and Canada concerning freedom of speech.
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Anna Mae Aquash – A.I.M. Murder Trial (Finally) Begins This Week
This week, John Graham (aka John Boy Patton) stands trial for the murder of Anna Mae Aquash. Graham is from the Tsimshian tribe in the Yukon.
In 1975, Anna Mae Aquash (Pictou), a Mi’kmaw Indian from Nova Scotia, Canada and a member of the American Indian Movement, was shot execution style in the back of the head in the South Dakota Badlands. It was erroneously believed that she was an FBI informant. For those interested, here’s a useful chronology of her life and the events leading up to her death.
Canada endorses the UN Declaration on the Rights of Indigenous Peoples. And itself.
Wow. Big news out of Canada. Or is it? On November 12th, the Government of Canada formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples. Here’s the official declaration, as given by Canada’s Ambassador to the United Nations, John McNee, to the President of the UN General Assembly, Joseph Deiss.
Call me a skeptic, call me a cynic, but something just doesn’t feel right with Prime Minister Harper’s perfect 180 degree half-pirouette on this issue.
Aboriginal Peoples Music Choice Awards
The 2010 Aboriginal Peoples Choice Music Awards will be broadcast live on APTN (Aboriginal Peoples Television Network) on Friday, November 5th at 8:00pm CST.
Seattle attorney Quanah Spencer honored by National Center for American Indian Enterprise Development
Another 40 under 40 award, this time for Yakima citizen and tribal attorney Quanah Spencer. The link is here.
On the “Supreme Court Bar” and Indian Law
The NYTs’ Adam Liptak published a fairly scathing article on the so-called “Supreme Court Bar” — the specialists that argue more than 50 percent of all Supreme Court cases now decided. It’s worth reviewing this article, especially in light of the rise of the Tribal Supreme Court Project, which has a goal of recruiting specialists to argue Indian law cases (as well as brief the merits briefs and at least some of the amicus briefs).
Given the NYTs article, which suggests that some (many?) of the Supreme Court Bar members are more interested in self-gratification than winning a case (and notes that Chief Justice Roberts once made some very disparaging remarks about them ten years ago), have tribal interests been prejudiced by the Tribal Supreme Court Project’s efforts to utilize these lawyers? Has there been any effect at all?
A few decades ago, law prof Mark Galanter argued that “repeat players” [corrected link] (“the haves”) have distinct and significant advantages over one-timers. While he didn’t emphasize the Supreme Court’s cases (or individual attorneys), his theory seems to have significant resonance in this area. It would make sense that entities that have frequently appeared in the Supreme Court would have advantages over a party that will be there once and never again. At our conference last weekend, Douglas Laycock indicated that many organizations that appear frequently as amici in the Court’s religious freedom cases are very good at organizing amici strategies, indicating that these repeat amici have advantages, too.
It would make sense that lawyers that appear frequently before the Supreme Court would have some advantage as well, especially since those lawyers likely to be retained to argue multiple cases are usually former Supreme Court clerks, current or former lawyers with the Office of Solicitor General, or otherwise exceptional appellate litigators. These factors were enough to persuade the big thinkers in the Tribal Supreme Court Project (circa 2001) to pursue a strategy of recruiting and retaining the Supreme Court Bar in future.
Our sense is that the jury’s still out. We don’t know yet whether the Supreme Court Bar makes a difference, in part because it took nearly five years to persuade the tribal clients to retain the Supreme Court Bar.
News Coverage of Wisconsin Oneida Proposal to Expand Tribal Court Jurisdiction
From the Green Bay Press Gazette, via Pechanga:
A legislative proposal to revamp the Oneida judicial system and define its authority is part of a larger trend among Native American tribes across the country to establish their own law enforcement and judicial systems.
* * *
The authority and jurisdiction of modern tribal courts is complex.
Wisconsin is one of six states where a 1953 federal measure called Public Law 280 gave criminal jurisdiction over tribal areas to the states from the federal government, and also allowed state courts jurisdiction over civil matters on reservations.
The law was a product of the termination era — a period in the 1950s and ’60s when the federal government severed relationships with many tribes, said Matthew Fletcher, a professor and director of the Indigenous Law and Policy Center at Michigan State University.
However, Congress didn’t appropriate any money to these states to increase the law enforcement necessary to enforce the jurisdiction, leading local officials to often ignore problems on reservations, Fletcher said.
When federal Native American policy shifted toward self-determination, giving tribes more control over their governance, tribes began developing their own law enforcement systems and courts. As they did, questions arose about jurisdiction.
Commentary on the Oneida Land Claim Debacle in the Second Circuit
As Indianz reported yesterday, the Second Circuit has once again applied the so-called Sherrill defenses to the New York land claims, this time to the Oneida Indian Nation (opinion here, briefs here).
First, it is all but certain that the once mighty Eastern land claims based on the Non-Intercourse Act violations of the late 18th century are all but dead. There may come a scenario where the Second Circuit sitting en banc or perhaps the First or Third Circuits issue an opinion declining to apply the Sherrill defenses to a NIA claim, but it’s doubtful. And even if that happened, Supreme Court review is virtually guaranteed (both because of the resulting split in authority and because of the state interests involved), with the predictable 5-4 result (assuming the tribal interests can persuade even that many to dissent).
Land claims and other claims based on treaty rights seem to have been successful for the time being, but time will tell on those claims.
Frankly, a new strategy is needed, and perhaps it’s time to review why the Eastern land claims were relatively successful in the first place. I believe it’s the federal government’s fear of United States liability for failing to prevent the fraudulent land sales and illegal tax foreclosures of Indian lands. The entire face of Indian land claim statutory law is based on this fear, including the 1982 statute passed to eliminate the statute of limitations for Indian land claims (28 U.S.C. 2415(a)). Maybe it’s time to remind Congress and the DOJ of the government’s potential liability, though the Cobell settlement, the American Indian farmer and African-American farmer settlements indicate Congress could really care less about liability. One thing in which the Rehnquist/Roberts Courts have been incredibly successful is preserving and bolstering federal and state (and even tribal) sovereign immunity.
Help Support the UN Declaration on the Rights of Indigenous Peoples
July 7, 2010 – Chief Darwin Hill, Tonawanda Seneca Nation, addresses U.S. Department of State officials in Washington, D.C. on the UN Declaration on the Rights of Indigenous Peoples.
The United States is currently reviewing its position on the United Nations Declaration on the Rights of Indigenous Peoples. Federal officials are taking comments on the Declaration through October, 2010. Now is the time to speak out and to urge the White House to endorse the UN Declaration.
Visit www.indianlaw.org to send an e-letter to the White House supporting the U.S. endorsement of the UN DECLARATION on the RIGHTS OF INDIGENOUS PEOPLES!
The Indian Law Resource Center also has draft letters and suggested language for Indian leaders and Non-governmental Organizations to use in your letters to the U.S. Department of State.
Get involved and make a difference!
A Twist on the Haudenosaunee Passports Controversy?
So we should all be familiar with the Iroquois (Haudenosaunee) passports dispute (news articles here and here and here). Update: They can go! Another update: They can’t go.
Here’s a possible reason (I say possible with the faintest of certainty) that the State Department has suddenly become interested in Haudenosaunee passports (another reason might be the alleged immigrant and drug smuggling across the border problem):
The State Department has been litigating a massive NAFTA arbitration claim against Six Nations Grand River Enterprises, a large Haudenosaunee tobacco wholesaler located in Ontario and doing hundreds of millions of dollars of business in the States. The issue is whether the United States illegally destroyed Six Nations GRE’s investment in the U.S. by enforcing the Tobacco Master Settlement Agreement against them. Docs are here. The case is pending.
The opening argument in the actual hearing before the arbitration tribunal was made by the counsel for the State Department Harold Koh, who noted the importance of the tobacco MSA to the Obama Administration.
One way for the United States to lose the NAFTA arbitration (perhaps) is if the tribunal finds the tobacco MSA was intended to wipe out legitimate wholesalers like Six Nations GRE (which it most certainly is doing, and in my view it appears very likely that the major tobacco manufacturers and state AG offices had at least some intent to do when negotiating the settlement agreement).
Maybe the State Department is doing this business with the passports as payback? Who knows?
Turtle Talk 
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