Kevin Washburn on Federal “Deemed Approved” Gaming Compacts

Dean Kevin K. Washburn has posted “Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal ‘Deemed Approvals’ of Tribal-State Gaming Compacts,” forthcoming in the Michigan Journal of Law Reform.

Here is the abstract:

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions.

New Kevin Washburn Paper: “Everybody Does Better in Indian Country When Tribes are Empowered”

Posted in SSRN, here.

The abstract:

Fifty years ago, President Lyndon Johnson appointed a blue ribbon panel called the National Advisory Commission on Civil Disorders to examine the causes of urban riots that happened during the summer of 1967. The Kerner Commission, as the group came to be known, produced a report on March 1, 1968, that identified some of the causes of the unrest. The Kerner Commission report found the riots to be rooted in crushing urban poverty and recommended solutions that would address those deep issues, such as job training, living wages, and funding for public schools. To commemorate the 50th Anniversary of this work and to refocus attention on these important issues, the last living member of the Kerner Commission, former U.S. Senator Fred Harris, compiled a book “Healing our Divided Society: Investing in America Fifty Years After the Kerner Report” that revisits some of these issues. Harris invited several scholars to contribute to the book, including Professor Joseph Stiglitz, Professor Washburn. Professor Washburn contributed the attached essay which highlights the changes that have occurred in federal Indian policy in the last 50 years and makes recommendations about continuing efforts to address poverty there.

Harvard Law Review Indian Law Commentary Series by Kevin Washburn and Angela Riley


What the Future Holds: The Changing Landscape of Federal Indian Policy

Indian Law Commentary Series

Essay by

Native Nations and the Constitution: An Inquiry into “Extra-Constitutionality”

Indian Law Commentary Series

Essay by

On the Minnesota SCT Rule 10 Proposed Revisions on Recognizing Tribal Court Orders and Judgments

Link: Proposed Rule 10

The Minnesota Tribal Court State Court forum is petitioning the Minnesota Supreme Court for a new and improved rule on the recognition of tribal court judgments in state courts, known as Rule 10 of the Minnesota General Rules of Practice. The existing rule was adopted in 2003, and it fell far short of what advocates sought at the time. At the time, Professor Washburn was critical of the outcome as not being sufficiently respectful of tribal court judgments. In this article,, Washburn and Chloe Thompson explained that the rule was far less respectful than Arizona’s equivalent rule and speculated as to why Minnesota’s rule would be less respectful than Arizona’s. Washburn characterized Rule 10 as providing wide discretion and little guidance to Minnesota District Courts. According to a letter submitted on the rule, Professor Washburn finds the new proposed Rule 10 to be much improved and believes that it addresses most of the concerns about the previous rule. He urges the Minnesota Supreme Court to adopt the improved rule.
The comment period closes today. The next step is consideration of the petition by the Minnesota Supreme Court Advisory Committee on General Rules of Practice. A public hearing on the petition will be held by the advisory committee on March 31, 2017 at the Minnesota Judicial Center.

Guest Post — Kevin Washburn: The LSAT’s Key Role in Native Legal Education


By Kevin Washburn

In this morning’s post on Turtle talk, Mr. Jay Rosner asks what would it mean for Native Americans and law schools that seek to increase their numbers of Native students if the LSAT lost its leading role in legal education.

The answer: it could be bad. Very bad.

Indeed, it could kill the PreLaw Summer Institute (PLSI) at the American Indian Law Center located the University of New Mexico School of Law, which helps Native law students succeed in law school — and helps law schools recruit Native students.

The PLSI program, which is about to celebrate its 50th anniversary, began out of a desire to meet the federal trust responsibility to tribal nations in part by developing more Native lawyers.  It was supported originally with federal funding. It takes a couple of hundred thousand dollars each year provide travel and living stipends to the 25 to 35 students who attend the two-month PLSI program each summer and to pay the professors and staff who run the program. The professors are excellent and it can be a life changing experience for the students. Professors Matthew Fletcher and Wenona Singel have taught in the program, as have many of the other leading law professors in the field.

For years, the program existed at the whim of federal officials, some of whom were supportive, and some who were not. Its funding has tended to vacillate over the years and, indeed, for a couple of years in the 1980s, the program did not exist at all.

At least twice in the PLSI’s history, the Law School Admission Council (LSAC) has come to the rescue when the PLSI program lost federal funding. For decades, the LSAC has annually directed modest revenues from its reserves toward various pipeline programs for law schools, to help poor and minority students gain access to a legal education.

In times of crisis for the PLSI, funding from the LSAC has literally saved the program. In total, during the last three decades, the LSAC has provided more than $3 million in funding at various times to keep the PLSI program alive.

Most of us are ambivalent in legal education about standardized tests, especially the most important one of all, the bar exam. It is true that standardized tests can produce disparate outcomes in scores. No one who sees inequities in society will be surprised by these disparities. Psychometricians who design the LSAT work very hard to identify raw analytical ability and to minimize the advantages that “wealth” might contribute to test scores. But inequality in education surely exists in our society, and none of us are terribly surprised that it cannot be entirely eradicated from tests.

We should keep working on the perfect test that can find a way to eradicate any influence, even indirectly, that socioeconomic factors play. In the meantime, in light of the fact that the bar exam will always be an obstacle to be overcome for anyone seeking to become a lawyer, I am grateful for the pipeline programs supported by the LSAT, and I do not want to see them disappear.  Because of my own personal interest in pipeline programs, I have served within the volunteer board structure of the LSAC and am currently a member of the board. I also recently joined the board of the American Indian Law Center, which runs the PLSI. I am writing today not on behalf of either of these two organizations, but only myself.  From my perspective, the collaboration between the LSAC and the PLSI program has dramatically improved the number of Native American lawyers in the United States. Indeed, the PLSI program is sometimes called the single most successful program in Native American education. That program changed many lives, including my own.

I am glad that Mr. Rosner has asked what it might mean for Native American law school applicants and law schools seeking more Native Americans to lose the support of the LSAC as a leader in legal education. It is important that we all understand the answer: a program that has helped more than a thousand Native Americans succeed in law school in the last 50 years might be at risk. In sum, the answer is that it could be devastating for Native Americans seeking a legal education.

Kevin Washburn on the Future of Federal Indian Law and Policy

Kevin Washburn has posted “What the Future Holds: The Changing Landscape of Federal Indian Policy,” forthcoming in the Harvard Law Review Forum.

The abstract:

Since first described by Chief Justice John Marshall, the United Stated has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations who gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Instead of federal paternalism, federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, and the trust responsibility can be described today by a new set of norms. The evolution, however, is not complete. Some of the old paternalistic features continue to animate federal Indian law and serve as obstacles to tribal self-governance. Moreover, as tribal governments exercise greater powers, they are subject to new scrutiny. Perhaps ironically, even some Native Americans have sought to reinstate federal oversight of tribal nations. The shifting norms of federal policy have produced new conflicts and will require a new reckoning about the federal role as old norms clash with new.