Turtle Talk

The Supreme Court of Idaho ruled in the Coeur d’Alene Tribe’s favor yesterday when it ordered the Secretary of State to put in effect S.B. 1011. The bill repeals a section of Idaho code enacted in 2013 that permitted wagering on “historical” horse races. That law led to millions being invested in racing machines at non-Indian racetracks, but the Tribe and other critics claimed they were more similar to slot machines illegal under Idaho law.

The repeal went before the Governor on March 30, 2015. However, he did not veto the bill until April 6, after the constitutionally mandated 5-day deadline. Despite the violation, Idaho’s legislature took a vote to override the veto but it did not get a supermajority and the Secretary of State refused to certify the bill into law when the Tribe requested.

New Scholarship by Rebecca Tsosie on Cultural Production

September 11, 2015September 11, 2015Matthew L.M. Fletcher

Rebecca Tsosie has published Just Governance or Just War?: Native Artists, Cultural
Production, and the Challenge of “Super-Diversity” in Cybaris an Intellectual Property Law Review.

An excerpt:

Many, if not most, non-Indians fail to understand the significance of cultural identity to Indigenous peoples, nor do they understand the concept of cultural harm. Consequently, the battle over cultural appropriation continues as Dan Snyder, owner of the Washington team, proclaims that the “Redskins” logo and team name actually honors Indians, ignoring the protests of Native leaders and tribal members who assert that the mascot disparages and degrades them. The battle continues over sacred symbols as pop music giant Pharrell Williams and countless other celebrities wear garish “war bonnets” in a caricature of the ceremonial headdress that is culturally authorized for use only by esteemed and worthy tribal leaders from the Indigenous nations of the Southern and Northern Plains. But is this really a desecration or is it a permissible act of artistic appropriation? If there is no legal right to stop these appropriations, why should it matter? Perhaps most vexing of all, it seems to outsiders that not “all Indians” agree on the terms of the debate. Team owner Dan Snyder pointed this out as he hosted his VIP guests, then-Navajo Nation President Ben Shelly and First Lady Martha Shelly, during a 2014 football game in Glendale, Arizona, all wearing hats with the infamous Washington Team logo.

It’s always a good day when a new article by Professor Tsosie arrives.

Second Circuit Rejects Jay Treaty Statute Defense to Criminal Prosecution

September 11, 2015September 11, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Malachowski:

Appellant Brief

Appellee Brief

CA2 Order

An excerpt:

Malachowski invokes 8 U.S.C. § 1359, which allows American Indians born in Canada to freely cross the borders of the United States, and contends that he was wrongfully convicted of counts three, four, five, and six. The statute extends only “to persons who possess at least 50 per centum of blood of the American Indian race,” and we previously expressed skepticism that Malachowksi satisfied his burden of proof on this point. See Malachowski, 415 F. App’x at 313 (noting the “dearth of evidence respecting [Malachowski’s] ancestry”). Neither the immigration officer assigned to Malachowksi’s case nor the ATF agent investigating Malachowksi unearthed evidence of his American Indian heritage. G.A. 58, 146-47. And when Malachowski was arrested by a border patrol agent and asked “Do you claim any legal status in the United States?” Malachowski answered “No.” G.A. 54. During this encounter, Malachowski also did not “claim any other citizenship or nationality.” Id. Malachowksi has accordingly fallen short of prevailing on this claim.