Andrew Cohen

Andrew Cohen on the Redskins Nickname Controversy and Critical Issues Facing Indian Country

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Why didn’t anyone like Costas or Krauthammer, or any veterans group for that matter, stand up for Dusten Brown, who is still today a member of our nation’s military?  Right or wrong, why wasn’t his case or cause the subject of great national debate? Instead of talking about a football team’s name, why aren’t we talking today instead about the role of religion in the Brown case or the disturbing revisionist trend some see in these custody and adoption cases, a trend exacerbated by the Supreme Court’s ruling, that enables non-Indian couples to get around the protections of the Child Welfare Act?

The new debate over the team’s name comes at a time of great anguish for the American people and few have been hurt more by the government shutdown than Native Americans. The economic costs have been great but so have the social ones. And even before the shutdown, during the period of sequestration when many federal programs were cut or limited, American Indian interests in particular were harmed. Did you know that the Indian Health Service, which tries to ensure medical coverage for tribes, was not exempted from the effect of sequestration the way most every other large federal health program was?

When the sequestration began to hit, in March of this year, the chairwoman of the National Indian Health Board told members of a Senate committee: “Since the beginning of the year, there have been 100 suicide attempts in 110 days on Pine Ridge. We can’t take any more cuts. We just can’t.”  Why are so many talking about the nickname of a football team when so few are talking about these suicide attempts on an Indian reservation and our government’s inability to adequately fund mental health services for these people?

Andrew Cohen on Baby Veronica in The Atlantic

Matthew L.M. Fletcher1 Comment

A powerful read. Update — We’ll keep this on the front page of Turtle Talk for a few days.

Here.

An excerpt:

The United States Supreme Court next Tuesday hears argument in a head-spinning case that blends the rank bigotry of the nation’s past with the glib sophistry of the country’s present. The case is about a little girl and a Nation, a family and a People. The question at the center of it has been asked (and answered) over and over again on this blessed continent for the past 400 years: Is the law of the land going to preclude or permit yet another attempt to take something precious away from an Indian?

Update: Kate Fort’s post on the case here on the Faculty Lounge.

Andrew Cohen: Beer Summit between Arvo Mikkanen and Sen. Coburn?

Matthew L.M. Fletcher

Here.

An excerpt:

Sen. Robert Menendez, the Democrat from New Jersey, got grief, and rightfully so, when he put a hold earlier this month on the judicial nomination of U.S. Magistrate Patty Shwartz for a spot on the 3rd U.S. Circuit Court of Appeals. The senator said at the time that he was unimpressed with Shwartz’s knowledge of the law. Media reports, however, suggested that Menendez’s opposition to Shwartz had more to do with magistrate’s personal relationship with a federal prosecutor who had led a 2006 corruption investigation into Menendez. Awkward!

I have consistently railed against Republican senators who hold up President Barack Obama’s judicial nominees for no good reason. For example, I haven’t shut up about the lingering candidacy of a worthy man named Arvo Mikkanen, whose nomination in Tulsa has been held up, without explanation, by Tom Coburn, one of Oklahoma’s Republican senators.

But two wrongs just make a larger wrong — the major difference between what Menendez did to Shwartz and what Coburn has done to Mikkanen could be the extent of their candor — and a funny thing happened on the way to Shwartz’s failed judicial nomination. Under political pressure, Menendez agreed to meet with her again and, following their meeting, agreed to drop his reservations against the candidate.

Andrew Cohen on Obama’s Indian Policy Part 2

Matthew L.M. Fletcher

Mr. Cohen has now quoted extensively from Indian country for greater context.

Here.

Andrew Cohen Named 60 Minutes Legal Analyst

Kate Fort

According to the 60 Minutes Twitter feed, Andrew Cohen has been named a 60 Minutes legal analyst. As we’ve mentioned before, Cohen is dedicated to Indian issues and has used his platform at the Atlantic to highlight them. Congratulations!

Andrew Cohen on the Obama Administration’s Indian Policy

Matthew L.M. Fletcher5 Comments

Here is the link to the Atlantic Online piece. And an excerpt:

President Barack Obama meets with American Indian leaders this afternoon in Washington but, on the law front, it’s already been a tough year for the tribes. In February, the president nominated Arvo Mikkanen, an Ivy-educated Native American, to a spot as a federal trial judge in Oklahoma. He would be only the third documented Native American federal judge in U.S. history. But GOP Senator Tom Coburn immediately blocked the nomination and, nine months later, Mikkanen still hasn’t received a hearing, much less a floor vote. Worse, no one in Washington seems to care.

Then, in June, the United States Supreme Court stuck it to American Indian interests in a case styled United States v. Jicarilla Apache Nation. In a 7-1 decision, the Court ruled that the U.S. could withhold from lawyers for the Jicarilla Apache Nation hundreds of documents that may be relevant to the tribe’s long-standing mismanagement claims against the feds. Justice Samuel Alito justified the decision by reminding his audience that the relationship between the feds and the tribe was less about trusteeship and more about power.

In the first instance, Congress failed to do right by Native American interests. When asked why he so quickly denounced the Mikkanen nomination, Sen. Coburn told reporters in February, “I know plenty.” Yet he has never had to explain what he knows or why it is enough to sink Mikkanen’s candidacy. In the second instance, it’s the judicial branch that has failed American Indian iterests. Only Justice Sonia Sotomayor called out the High Court majority in Jicarilla. She said that Justice Alito’s opinion “rests on false factual and legal premises.”

So what is the other branch of government, the executive branch, doing for Native Americans as 2011 comes to a close? Is the White House pushing for Mikkanen to get a hearing? No. Is it pushing Congress to help change the procedural rules in Indian trust cases so that American Indian litigants can have more access to federal documents that pertain to their claims against federal officials? No. Those things would involve the expenditure of political capital — and the administration has shown repeatedly its unwillingness to spend in this area.

Instead, the Obama Administration is looking inward. This week came news that five American Indians have been named to an Indian Trust Commission that will help suggest reforms to the odious federal management of Indian trusts. The effort is expected to take two years, at a minimum, and of course won’t be the final word. And, today, President Obama will go to the Interior Department to participate in the White House Tribal Conference, to which over 550 Native American tribes were invited. He will no doubt talk about his Administration’s devotion to Indian interests.
Devotion which is quite underwhelming. Just last month, for example, the Justice Department announced that it is “considering whether to adopt a formal policy that would memorialize and clarify its practice of enforcing federal wildlife laws in a manner that respects and protects the ability of members of federally recognized tribes to use eagle feathers and other bird feathers for cultural and religious purposes.” Amid the rubble of Jicarilla and Mikkanen, the feds want to quietly reassure Tribal members that they won’t be prosecuted as often for dealing in eagle feathers.

Andrew Cohen: Turtle Talk SCT Preview in the Top 10

Matthew L.M. Fletcher1 Comment

Here:

It’s the last Friday in September, just hours before the first Monday in October, which means you cannot swing a cat without hitting a preview of the coming Supreme Court term. I wrote one earlier this week. My esteemed colleague here at The Atlantic, Garrett Epps, wrote a really good oneyesterday. And all throughout the universe of law and journalism, women and men of good cheer and business suits are chiming in from behind water glasses and paper name-cards to help explore and explain what the nine justices will be pondering over the next nine months.

Because I know you’ll itch to have something meaty to absorb while you are watching the start of the playoffs in baseball, or the excellent college football games Saturday afternoon, or the even better professional football games on Sunday, I figured I would save you the trouble of scouring through the InterWeb to find the best Supreme Court previews out there. My list of 10 is by no means complete. But it’s a good start and I hope you’ll feel free in the comments to suggest other previews which are worthwhile.

***

6. Regular readers of this space know that I try when I can to raise attention to Indian law issues, which almost never get the mainstream attention they often deserve. Here then fromTurtle Talk is a straightforward preview of the cases the justices could accept for review this term. Unfortunately, the High Court has a shameful record of blowing off Native American interests in the certiorari process.

Andrew Cohen on Justice Alito’s Visit to Pine Ridge

Matthew L.M. Fletcher3 Comments

Here is the short article in the Atlantic. Here is the Rapid City Journal news article detailing the visit to Pine Ridge, which came at Judge Karen Schreier’s invitation and included a visit to Red Cloud Indian School. Chi-miigwetch to everyone who sent it along.

Mr. Cohen offered three questions he would have asked Justice Alito at Pine Ridge if he could have gone. One on Arvo Mikkanen’s nomination; one on Justice Sotomayor’s dissent in Jicarilla; and one on Factbound and Splitless. He has previously written on all three issues: The Mikkanen nomination here and here; the Jicarilla case here; and Factbound and Splitless here.

Andrew Cohen in the Atlantic about the Dearth of American Indians on the Federal Bench

Matthew L.M. Fletcher3 Comments

Here is the article. An excerpt:

In the nation’s history, only two Native Americans have ever been confirmed by the Senate for a job on the federal bench. Two. And of those two only one was “openly” Native American at the time of his confirmation (that judge, Frank Howell Seay, found out about his Indian heritage long after he was on the bench). Those numbers are particularly appalling when you consider that (only) 170 or so black judges have been appointed over the same span.

Today, the Senate has before it the nomination of a man named Arvo Mikkanen, who is partially of Native American descent. Mikkanen went to Dartmouth College and Yale Law School, clerked for two federal judges, and has been a federal prosector for nearly two decades. He received a “unanimously qualified” rating from the American Bar Association. President Barack Obama nominated him to fill a seat on the federal trial bench in Oklahoma.

Yet there have been no speeches in the well of the Senate on behalf of Mikkanen. No senators have patted themselves on the back for breaking through another barrier of bias and bigotry. Instead, the Mikkanen nomination languishes in silence, six months after the President first put it into play. No hearing date has been set for his nomination even though other candidates nominated before him already have been approved out of Committee.

Oklahoma’s Congressional delegation was quick to denounce Mikkanen’s candidacy as “unacceptable” but to this day has never (publically, anyway) explained why. Meanwhile, the White House appears to have expended no political capital in pushing Mikkanen’s nomination to the forefront of the battle between the branches over judicial nominees. Like so many of his predecessors, Mikkanen has been left twisting in the wind by the U.S. government.

 

 

Andrew Cohen’s CourtWatch and “Factbound and Splitless”

Matthew L.M. Fletcher3 Comments

From CBS News (download the paper here) (How Appealing and Indianz):

Bury My Chance at Supreme Court

Andrew Cohen: Study Shows Indian Tribes Face Long Odds In “Cert Pool” Process at High Court

This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.

The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would “encourage the filing” of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.

While the merits of the case are complex, it is a virtual certainty that the Court’s majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.

Fletcher’s trenchant study, entitled “Factbound and Splitless,” concludes that the “Supreme Court’s certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically,” he writes, “there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty.” A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.
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