Wish we had video for this…
From How Appealing:
The Hill reports that “McConnell scolds Franken for making faces from dais during his speech.”
The Associated Press reports that “Franken apologizes for irritating GOP leader.”
And Politico.com reports that “Senate gets ‘a little weird.'”
Here.
From How Appealing:
“Elena Kagan and the Miracle at Harvard”: Kevin K. Washburn, law professor and dean of the University of New Mexico School of Law, has posted this essay online at SSRN.
Here is the call I made to Sen. Franken last year right before the Sotomayor hearings, and perhaps we’ll have an Indian law question for Elena Kagan.
From ICT:
WASHINGTON – With Elena Kagan’s Senate confirmation hearing looming, top Harvard University officials are defending her record on Native American issues. Meanwhile, some Indian groups and individuals are supporting her nomination to the U.S. Supreme Court, despite her largely unknown positions on Indian law.
“Elena Kagan as dean [of Harvard Law School] had such a strong interest in the issues of Indian country and Indian law that she allocated funds from her discretionary funding to support work in that area,” said Martha Minow, current dean of Harvard Law School. She said Kagan used funds to support Indian scholars, conferences, and visiting tribal law officials.
Still, some scholars have blamed Kagan for failing to racially diversify her staff when she served as dean from 2003 – 2009. Of the 32 tenured and tenure-track academic hires she made while in the position, only one was a minority, of Asian descent.
“No dean can wave a magic wand and hire anybody on a law faculty,” Minow said. “It’s not by accident that the job is often described as herding cats.”
She said Kagan made decisions on hiring women and people of color “consistent with the standards of excellence at the school.”
Indian scholars have largely been concerned that Kagan failed to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, with the understanding that Harvard would hire a full-time, tenured faculty member dedicated to Indian law.
But Robert Anderson, who was selected after Kagan’s tenure to hold a 5-year guest position as Oneida chair, said her actions were consistent with what she could do in her position.
“It’s not really the dean’s decision to hire a person with tenure; the faculty ultimately has to decide,” said the Minnesota Chippewa tribal citizen who directs the Native American Law Center at the University of Washington.
Anderson said he supports Kagan’s high court nomination, given her background and his knowledge of her ideology from when they both served in the Clinton administration. He’s also confident that she met many scholars at Harvard who imparted the importance of understanding Indian law.
Regarding the Oneida chair, Minow said the institution is “very honored to have” the position, adding that the plan under Kagan had been to have visitors rotate into the job.
Anderson hopes that some senators will specifically ask Kagan about her knowledge of Indian law during her confirmation process.
“I don’t think she knows a lot about the intricacies of Indian law, but I believe they would find out that she knows it’s an important field.”
At least one senator seems prepared to question Kagan on tribal law. Some staffers for Sen. Al Franken, D-Minn., have requested information from Indian legal scholars in preparation for Franken’s questioning of Kagan. The senator sits on the Senate Judiciary Committee.
Beyond her involvement with Indian issues at Harvard, Kagan has had few known brushes with tribal law.
Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University, explained that Kagan was once heavily involved with the negotiation and execution of a major tobacco-related court settlement that resulted in what’s known as the master settlement agreement. The agreement is seen as harmful to some tribal tobacco interests.
Fletcher posited that if a tribal tobacco case reached the Supreme Court, “one would have to believe Kagan would not be sympathetic to Indian law claims there.”
On the more positive side, Fletcher noted that while dean, Kagan once introduced the Navajo Nation Supreme Court, calling it distinguished in quality and scope.
“She’s a relative unknown, but her centrist-liberal bona fides are established in all of her other work,” Fletcher said. “She’s no Thurgood Marshall or even a Sonia Sotomayor, but overall I’d support her.”
Very nice. I imagine soon-to-be-Justice Kagan’s words will be quoted time and again by tribal advocates:
At about four minutes in she describes the Navajo Judiciary and caseload, and then the money quote (at about 4:25):
“And the Navajo Nation’s judicial system is distinguished by quality as well as by scope.”
She then quoted at length from the Harvard Project from 1999 in awarding honors to the Navajo judiciary, noting:
“[The judiciary’s] innovative legal system is independent, fair, responsive, and consistent with the Nation’s culture and traditions.”
Must have RealPlayer to view.
Download here (near the bottom), or here:
April 12, 2006 – Remarks – Opening of Navajo Supreme Court Session
In short, not much. But she might be a little bit more knowledgeable about Indian law than I previously thought. But some signs suggest she will be hostile toward tobacco/smokeshop-related cases.
1. United States v. Tohono O’odham Nation
We already knew Kagan likely will have to recuse herself from this case, which will be argued in the October 2010 Term sometime. In her Senate questionnaire, she describes the case on page 142. Earlier this month, she addressed the judges of the Federal Circuit and described the case again (here, pages 5-6). She also mentioned, but did not discuss the Navajo Nation cases involving the Peabody Coal claims (page 7).
Interestingly, leading up to her description of the T.O.N. case, Kagan mentioned a 1906 Indian law case, United States v. Cherokee Nation, 202 U.S. 101 (1906). She noted that the first woman admitted to practice in the Supreme Court (and in the Federal claims court), Belva Lockwood, successfully argued this case on behalf of the Eastern Cherokees at the age of 75, and won over $7 million for the tribe (here, pages 4-5).
2. American Indian Empowerment Fund. She remains a member (here, page 2).
3. Native American Alumni Celebration (Oct. 2007)
An agenda is available here, pages 132-34. The agenda included “A Conversation with Dean Elena Kagan,” but unfortunately there are no notes or materials on that conversation.
4. Navajo Nation Supreme Court Oral Arguments (2006)
Press coverage of this event is here, pages 109-112. Then-Dean Kagan is quoted as saying, “In an age of global conflict we have much to learn from the Navajo peacemaking court system.” (page 111)
5. Tobacco Settlement Negotiations (1990s)
Apparently, while part of the Clinton Administration, Kagan became known as a “wonderwonk” in these negotiations (here, page 99). She also helped to draft tobacco legislation for John McCain in 1996 (here, page 103). If for some reason one or more of the various cases involving the Tobacco Master Settlement Agreement reaches the Court, a safe bet would be that she will be hostile toward any Indian or tribal immunity argument.
Available here.
It’s hard to judge Elena Kagan on her work as the shepherd of the Oneida Chair at Harvard, or as a dean that hired a single minority person during an unprecedented hiring spree at Harvard during her tenure, but the White House’s response to the criticism is so weak and misdirected that it might require additional consideration. The allegations are that Kagan, as dean, hired only 1 person of color (and I think it was 5-7 women) at a time when the Harvard faculty hired over 30 new faculty members. The WH’s weak response was that we don’t know how many offers she made to minority candidates, and that she did offer many visiting positions to people of color. Both are virtual non sequitirs.The Oneida Chair, created in 2003, required Harvard to hire a full-time, tenured faculty member dedicated to Indian law. That still hasn’t happened * * *. In short, Harvard has not found a permanent Oneida Chair to its liking. That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard. * * *Generally, deans are figureheads in law school hiring processes that don’t have a lot of say on faculty hires. They might attempt to guide a faculty hiring committee in a certain direction, but their main job in the hiring season is to negotiate a contract with someone the faculty has already agreed to hire. So it is a little unfair to judge Kagan for failing to hire minorities in general, and specifically a full-time Oneida chair. But one could make a sensible claim that Harvard simply is playing dirty pool with the Oneida Chair. * * * And the deans generally do have control over which outside law profs are offered visits. This is troubling to say the least, though to be fair, few of the top law schools in the United States hire minority candidates in any given year.I find it disconcerting that Harvard has failed to hire a permanent Oneida chair after most of a decade, especially after being granted free money to do so (I think the Oneida Indian Nation under Ray Halbritter donated $3 million). * * * But how much of the blame goes to then-Dean Kagan? Again, that’s tough. * * *
From ICT:
WASHINGTON – Conservative criticism of Elena Kagan’s nomination to the Supreme Court was all but guaranteed.
But critiques are also coming from more unlikely sources, as a groundswell of progressive scholars question her past commitments to minorities. Of special interest to Indian country, her positions on tribal and Indian legal issues are unknown, and she has lacked engagement on some major Native topics.
Kagan, 50, was nominated by President Barack Obama May 10 to replace retiring Justice John Paul Stevens. She currently serves as Solicitor General of the United States, the first woman to hold that post. Previously, President Bill Clinton appointed her as Associate White House Counsel.
Kagan has never been a judge, and she has published relatively few scholarly articles. Most analysts have predicted that she will likely be able to be confirmed by the Senate due, in part, to her non-controversial background. Her lack of public stances on hot-button issues, like abortion, is believed to have played a role in Obama’s selection of her.
Before serving in government, Kagan was the dean of Harvard Law School and a professor of law there. She was also previously a professor of law at the University of Chicago.
It’s her service as a leader at Harvard that’s got some minority advocates, including Native Americans, concerned.
Of the 32 tenured and tenure-track academic hires Kagan made while dean, a position she held from 2003 – 2009, only one was a minority, of Asian descent. Of the 32, seven were women. The rest were white males. None of Kagan’s hires were Native American.
Compared to other institutions of Harvard’s pedigree, Kagan’s hiring was lax in its inclusion of minorities. At the same time, she was credited with breaking a logjam at the institution in hiring conservative scholars.
Part of the hiring issues surrounding Kagan involve her failing to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law.
Many Indian scholars were touted by tribes and Indian organizations during Kagan’s tenure as candidates to permanently hold the Oneida chair, but action never occurred.
“That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard,” said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University.
Continue reading
The answer at this point is — nobody knows, or could possibly know.
Solicitor General Kagan has almost no paper record of scholarship on Indian law, no judicial opinions, and little else in the way of a paper trail. Her most intimate association with Indian Country is her membership (now likely former) on the board of the American Indian Empowerment Fund (as noted here), which probably came about as a concomitant duty related to her Harvard deanship and duties in filling the Oneida Chair at Harvard Law. As is well known, Harvard Law has had some difficulty in completing the requirements of the Oneida endowment (hiring a full-time Indian law prof), as the Chair is always filled by visitors. What this means is anyone’s guess, though some of my former law school colleagues are certain it is a bad thing she had trouble hiring minority law profs.
The only known impact of Kagan’s nomination if she is confirmed, is that she will likely be forced to recuse herself in the 2010 Term’s lone (so far) Indian law case, United States v. Tohono O’odham Nation (No. 09-846). Who knows how that will affect the decision, though the T.O.N. would only have to find four Justices to prevail (as would happen in a 4-4 tie). Once the T.O.N. case is decided, we may hear much more from a Justice Kagan, who perhaps will be tapped write some of the Indian law decisions (as junior Justices often are).
Which leads to my final comment. A Justice Kagan is yet another player from the elite of the legal profession, an elite that rarely has even more than a passing interest in Indian law and Indian Country. From Justice Brennan referring to Indian law cases as “chickenshit” (page 435 of The Brethren), to the modern and open hostility of most Justices to Indian cases, this does not bode well. It could, if a Justice Kagan is open-minded and willing to listen and learn, but more likely than not, she (as do most or all of the other Justices) may find her Indian law assignments a burden. That would be a shame.
Perhaps we’ll see.
Turtle Talk 
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