Here is the opinion in Herrera v. State of Wyoming:
State SCT cert stage briefs:
ResponseObjection – Petition for review
Prior post here.
Fletcher Wisconsin Law Review Symposium Paper on the Indian Law Restatement
Here is “Restatement as Aadizookaan,” forthcoming in the Wisconsin Law Review. The abstract:
The goal of this essay for the Wisconsin Law Review’s symposium on the Restatement of the Law of American Indians is to develop a framework on the durability of this restatement. The aadizookaanag are unusually durable in terms of their transmission of underlying, foundational lessons, but the stories change all the time. The earth diver story explores and describes the critically important connection between the Anishinaabeg and the creatures of Anishinaabewaki, but only a very broad level of generality. How the Anishinaabe tribal government in the 21st century translates those principles into modern decision making requires new analysis, new stories. Additionally, old aadizookaanag may fade into irrelevance, even disrepute, as times and conditions change.
Law is the same. Restatements are intended to be durable and persuasive, supported by the great weight of authority, but not permanent. There are provisions in the Indian law restatement I believe are truly timeless, while the law restated in some sections is likely to change a great deal over the next few decades. I choose four sections in the restatement and match them with one of the four directions sacred to the Anishinaabeg. The youngest direction, Waabanong, the east, is the most likely to change. The next youngest, Zhaawanong, the south, is older, but still subject to change. Niingaabii’anong, the west, is still older, wiser, less likely to change, but also very dark in its philosophies. Kiiwedinong, the north, is the oldest, wisest, and most durable, yet distant. A restatement section includes black letter law, law that is well settled and indisputable. The reporters’ notes that accompany the black letter law constitute the legal support for that statement of law. The stronger the legal support, more durable the black letter.
In the east, I choose one of the plainest, easiest to restate principles of federal Indian law, the bar on tribal criminal jurisdiction over non-Indians. In the south, I choose the law interpreting the federal waivers of immunity allowing tribes to sue to the United States for money damages. In the west, I choose the darkest, yet perhaps the most foundational principles, the plenary authority of Congress in Indian affairs. For the north, I choose tribal powers, the oldest and most durable of all of the principles in the restatement.
New Scholarship Shows Tribes with Gaming Operations are 30% More Likely to Disenroll Members
Anna Malinovskaya has posted “Understanding the Native American Tribal ‘Disenrollment Epidemic’: An IV Approach” on SSRN.
Here is the abstract:
Recently, over 80 Native American tribes have banned or disenrolled members of their tribes or denied citizenship to eligible individuals. This phenomenon has received media attention nationwide, and even the term the “disenrollment epidemic” was coined. Many speculate that at least some of it is driven by political struggles over multi-million dollar revenues of tribal casinos, which are sometimes distributed in per capita payments to all tribal members. In this paper, we test whether gaming has been driving disenrollments, and since a tribe’s involvement in gaming might be endogenous, we employ an instrumental variable approach. In particular, we use machine learning to select an optimal subset of instruments for a Native American tribe operating a casino from the set of potential instruments all plausibly meeting the exclusion restriction and associated with the geographical characteristics of reservations, such as their proximity to an MSA, an interstate highway, or a border of a neighboring state with no brick and mortar casinos. We find that a tribe’s involvement in gaming leads to a large and statistically significant increase in the probability of the tribe experiencing a disenrollment episode.
An excerpt:
This paper sought to understand if tribes’ involvement in the gaming industry, particularly wealth from per capita distribution of gaming revenues made possible by this involvement, has been the primary factor driving disenrollments and other types of dismemberment episodes. Both gaming and per capita distributions of gaming revenues are likely to be endogenous. Although we did not find an instrument for per capita distributions, we identified a set of instruments for gaming, and used them to understand, albeit indirectly, whether gaming has been driving disenrollments (the direct approach would be instrumenting for per capita distributions rather than gaming). Although this approach has its limitations
(as discussed in the Empirical Strategy section, it represents, to the best of our knowledge, the first attempt to identify a causal link between gaming and dismemberment in Indian tribes. Additionally, the consistency of results across our OLS and IV estimates, as well as across several sub-samples, is encouraging.
This research could be strengthened by instrumenting for per capita distribution of gaming revenues directly, though finding an appropriate instrument might be challenging. It could also be strengthened by finding instruments that would pass the Weak Instruments test for the full sample (327 tribes) that is likely to produce less biased IV estimates, or by using a different quasi-experimental empirical approach that would overcome the limitations associated with IVs when the sample is relatively small.
Tribal Amicus Brief Supporting Cert Petition in LTBB v. Whitmer
Kristen Carpenter Op Ed: World leaves United States behind on commitment to Indigenous Peoples’ language rights
Read it here.
Circe Sturm on the Census and Whiteness
Circe Sturm has published “How the Native American population in the US increased 87% says more about whiteness than about demographics” in the Conversation.
Minnesota Federal Court Dismissed Civil Rights Case against White Earth Nation Police
Here are the materials in Howard v. Weidemann (D. Minn.):
Sklallam Tribes’ Cert Petition over Lummi Nation U&A [U.S. v. Washington subproceeding 11-02]
Here is the petition in Jamestown S’Klallam Tribe v. Lummi Nation:
Question presented:
The question presented is whether the Ninth Circuit—in conflict with decisions of this Court and other courts—properly abrogated the long-settled and original understanding of a central treaty term, without any legal or factual basis for doing so, and while redefining the boundary of a major body of water to accommodate its novel treaty interpretation.
Lower court materials here.
Klickitat County v. Yakama Nation Cert Petition
Here is the petition in Klickitat County v. Confederated Tribes and Bands of the Yakama Nation:
Questions presented:
1. Whether, or in what circumstances, a court may override an Act of Congress adopting a boundary for an Indian reservation, and set its own boundary.
2. Whether the Ninth Circuit erred by holding-in conflict with the decisions of this Court, including a decision involving the very boundary at issue-that the Reservation encompasses the area at issue.
Lower court materials here.
Turtle Talk 
You must be logged in to post a comment.