Harvard Law Review
Harvard Law Review Comment on Michigan v. Bay Mills
Here is Leading Case: Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014).
An excerpt:
While the Court’s decision is a victory for those who feared the abrogation of tribal immunity, its suggestion that states seek remedies in state law signals approval of leaving the resolution of legal questions central to state-tribe disputes to the states, even when the question concerns the extent of Indian land. Such a view would be inconsistent with recent trends generally favoring greater federal control and congressional support for tribal self-determination, and could result in actions that are detrimental to tribes.
Harvard Law Review Note on “Bad Men” Clause Litigation
The Harvard Law Review has published, “A Bad Man Is Hard to Find” (PDF).
Here is an excerpt:
Nine treaties concluded between the United States and various Indian tribes in 1867 and 1868 each contain what is known as a “bad men” provision. Within each of these provisions is a clause in which the United States promises to reimburse Indians for injuries sustained as a result of wrongs committed by “bad men among the whites, or among other people subject to the authority of the United States.”
Although these “bad men among the whites” clauses have rarely been used in the last century and a half, they remain the source of a viable cause of action for Indians belonging to those tribes that signed the nine treaties of 1867 and 1868. In 2009, Lavetta Elk won her action for damages under the Fort Laramie Treaty of 1868, recovering a judgment in the Court of Federal Claims of almost $600,0004 from the United States government.
Post-Hoc Revision of Supreme Court Decisions
This has made big news in SCT watcher circles. Prof. Lazarus’ draft Harvard Law Review article (which I suppose is itself subject to later revision) highlights two Indian law decisions, one of the Seminole Nation trust cases of the 1940s and Cass County in 1998.
The excerpt on Cass County:
The errata sheets have acknowledged the mistaken omission of the fact that Justices dissented and of an entire separate opinion of a Justice. The Court has even used the errata sheet to delete part of its rationale. In Cass County v. Leech Lake Bank of Chippewa Indians, decided in 1998, the Court explained that it declined to consider a particular legal issue concerning the scope of the Indian Nonintercourse Act because “the parcels at issue here are not alienable – and therefore not taxable – under the terms of the Indian Nonintercourse Act.” In a subsequent volume of the U.S. Reports, the Court described that reason as erratum and added that “this issue is outside the question presented in the petition for certiorari.”
An on Seminole Nation:
Seminole Nation v. United States, 316 U.S. 651 (1942) (amending opinion to make clear that certain legal issues were available for consideration on remand (see 316 U.S. 286 (1942))
Harvard Law Review Profile of the VAWA Tribal Jurisdiction Provisions
The Harvard Law Review has published “Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)” (PDF).
From the conclusion:
From a practical standpoint, section 904 does not release a substantial amount of power back to the tribes; it is a cautious experiment, not a revolution. Indeed, section 904 is primarily a statement about values — the value of tribal sovereignty, the value of liberal ideals, the proper balance between them, and above all, Congress’s role in fixing that balance. By aligning section 904 so closely with the Court’s previously expressed concerns, Congress leaves the Court with no choice but to accept its calibration of these important values, and consequently, its privileged role in setting federal Indian policy.
Harvard Law Review Comment on Adoptive Couple v. Baby Girl
Here.
An excerpt:
It is this very inability to escape uncertainty, qualification, and conflict that ultimately situates Adoptive Couple in the Court’s parental rights canon and that suggests its ongoing significance. Like its predecessors, Adoptive Couple is another deeply divided and closely fought decision, which refuses to wholly deny the power of biology even as it insists upon proactive parenting and affective relationships. The conditions and disclaimers embedded in the case’s holding, taken together with the equal conviction and fervor of both opposing opinions, thus serve as proof of the interminability of such judicial debates about the family.94 Further, the Court’s very willingness to engage in a stark contest over biology versus family in a case that by no means required it — and to engage vigorously, even viciously — seems a harbinger of things to come: in an age of momentous changes in the composition of the family, alluded to both in the decision and in other decisions of the Term, questions regarding which relationships and nontraditional ties warrant judicial protection promise to appear with ever more frequency and complexity. As Adoptive Couple shows, however, the Court remains mired in the same disputes it first unleashed forty years earlier, still grappling with the fundamental tension between nature and nurture. Yet this irresolution and ongoing struggle may well be a cause for comfort rather than concern, a sign that the essential questions about the most essential ties and relationships remain open for investigation and reinvestigation.
Harvard Law Review Student Note: “Indian Canon Originalism”
Harvard Law Review has published “Indian Canon Originalism.”
From the article:
Indian treaties are “quasi-constitutional” documents. So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties “in the same manner as [they do] constitutional provisions.” But no scholar has ever explained how the principles of constitutional interpretation would actually apply to an Indian treaty — and whether those principles might change in that new environment. This Note attempts to do just that.
Harvard Law Review Book Review by Richard Hasen of Jack Abramoff Book
Here.
Excerpts:
One of his greatest faults, he explains in a bit of false modesty, was that he was giving away too much money to charity while he was raking in funds from competing Native American tribes and taking money on the side for his consulting work with business partner Mike Scanlon in an arrangement he did not disclose to his clients (pp. 166, 193).
And:
At many points in the book, Abramoff describes himself in the best possible light. He downplays his business prowess in explaining his questionable SunCruz dealings with Adam Kidan (p. 138). He further says that it “never occurred to us” that his use of a nonprofit organization to launder funds from Native American tribes to himself and Scanlon was illegal (p. 190). He even hedges on the main charge of self-dealing with the tribes:
I neglected to tell my clients how much I was profiting from these grassroots efforts. I reasoned that the tribes and clients were happy with their victories, that our efforts were priced in accordance with their value and that they were paying what they agreed to pay to stop threats they identified to us, after proper fee negotiations. Plus, I wasn’t even keeping the money I made anyway. I was giving away upwards of 80 percent ofmy income for good causes and to help people. What could possibly be wrong with any of this? (p. 193)
Harvard Law Review Profiles (and Lauds) Stephen Pevar’s Updated “Rights of Indians and Tribes”
Here. An excerpt:
In this updated edition of his landmark 1983 work, Stephen L. Pevar continues his decades-long effort to distill the intricacies of Indian law into an easy-to-understand format that will help Indian tribes vindicate their rights and their sovereignty. Mr. Pevar concisely explains important concepts in Indian law through a question-andanswer format, drawing on history, case law, legal scholarship, and sociology to explain not only what the state of Indian law is, but also why it has come to be that way, taking into account major recent developments in Indian law. While Mr. Pevar is proud of the progress Indian civil rights activists have made since the “termination era” of 1953 to 1968, which he describes in scathing terms, he also expresses fear for the future of Indian rights and sovereignty, which he views as threatened by a conservative Supreme Court and aggressive federal legislators (pp. 11–15). The book contains a number of useful maps, lists, and charts, as well as the texts of major Indian law statutes and over 130 pages of helpful footnotes. Mr. Pevar’s work will be of interest to legal scholars, historians, Indian law litigators, and Indian rights activists alike.
More details about Stephen’s book here.
Turtle Talk 