Danielle Delaney on Environmental Law, Indigenous Identity, and #NoDAPL

Danielle Delaney has published “Under Coyote’s Mask: Environmental Law, Indigenous Identity, and #NoDAPL” in the Michigan Journal of Race & Law.

The abstract:

This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture to remind non-indigenous activists and the wider media audience that the protests were an indigenous protest, rather than a purely environmental protest, a distinction that was obscured as the litigation progressed. The NoDAPL protests, the litigation to prevent the completion and later operation of the pipeline, and the social movement that the protests engendered, were an explosive expression of indigenous resistance—resistance to systems that silence and ignore indigenous voices while attempting to extract resources from their lands and communities. As a case study, the protests demonstrate how the use of litigation, while often critical to achieving the goals of political protest, distorts the expression of politics not already recognized within the legal discourse.

Michigan Journal of Race & Law Reunion This FRIDAY

I hope to have more pics to include later in the week but here’s a taste — copies of two of the first four issues of the Journal:

MJRL

Agenda here. My panel:

Panel I: Beginnings
9:00-10:15 A.M.

Moderator: Matthew Fletcher, ’97, Professor of Law and Director if the Indigenous Law & Policy Center, Michigan State University College of Law

Todd Aagaard, ’97, Associate Professor of Law, Villanova University School of Law

Emily M.S. Houh, ’96, Gustavus Henry Wald Professor of the Law of Contracts, University of Cincinnati College of Law

Travis Richardson, ’96, Richardson & Mackoff

Hardy Vieux, ’97, Martin & Gitner PLLC

Barbara Creel on the the Right to Counsel in Indian Country

Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.

While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe’s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts.

Defense counsel is an indispensable element of the adversary system without which justice would not “still be done.” Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.

Highly recommended!

“Factbound and Splitless” Talk

Here’s the abstract for my talk tomorrow at U-M Law School, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

The process by which the Supreme Court reviews petitions for writs of certiorari is intended to parse through the thousands of petitions to pick out the most important cases for the Court to decide. These include cases in which there is a split of authority, cases in which a lower court has committed a gross error, or cases in which there is a critical constitutional issue at stake. Cases in which there is no split, cases that will affect only a few people, cases involving simple error correction, or cases involving an unimportant issue are unlikely to be heard by the Court.

Since the 1980s, more and more Justices have resorted to a pool of law clerks for a write-up of each cert petition that includes a recommendation of whether or not the Court should grant cert using these factors. With the release of Justice Blackmun’s papers, the cert pool petitions from the docket years 1986 to 1993 are available for study. The views of Supreme Court clerks in the cert pool memos are often the only written documentation of the Court’s views of the vast majority of petitions that are denied.

The certiorari process creates a structural barrier to the fair adjudication of federal Indian law cases. Because over 80 percent of Indian law cases arise in three circuits, few circuit splits arise, rendering most petitions “splitless.” Moreover, since Indian law cases are often sui generis, they are labeled “factbound.” Most importantly, Supreme Court clerks do not find Indian law cases to be important in regards to the legal issues in dispute, except when the petitioner is a state or local government opposing a tribal interest such as a tribe or a tribal member.

What this means is that the clerks almost never recommend a grant when the petitioner is an Indian tribe or an Indian because the petition is “splitless,” “factbound,” or just unimportant. Conversely, when a state or local government petitions, the Court grants the petition around 75 percent of the time, regardless of whether any split exists. Perhaps this is part of the explanation for why tribal interests have lost 75 percent of their cases before the Court since 1987.

The classic case is a treaty rights case brought by a tribe. If the tribe loses below, the clerks will never find a split in authority because the treaty is unique, making the case sui generis. And Supreme Court clerks almost never find the petitions of Indians and Indian tribes to be important enough to be certworthy. But if the tribe wins below, the opponents usually are state governments, whose cert petitions are viewed favorably by the clerks.

This paper argues, as have occasional Supreme Court clerks, that the Court should recognize the special relationship that exists between the United States and Indian tribes in the certiorari process. The Court should also recognize the structural inequity of the certiorari process in the context of federal Indian law. Both of these changes could be accomplished through an amendment to Supreme Court Rule 10, which articulates the Court’s factors in considering certiorari petitions. Either the Court should grant more petitions filed by tribal interests or deny more petitions filed by tribal opponents.

Hope you can make it. The talk begins at 12:20 in Room 150 in the law school. Lunch is available. The talk is sponsored by the U-M NALSA and the Michigan Journal of Race & Law.

Talk Announcement: “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law” @ UM Law School

Your humble blogger will be giving a talk at the University of Michigan Law School (co-sponsored, I understand, by the U-M NALSA and the Michigan Journal of Race & Law) on November 12, 2007 at 12:20 PM in Room 150 of Hutchins Hall.

My talk will be called, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

Here’s the blurb I gave the students on this talk:

I have reviewed each of the 144 Indian law-related cert petitions filed in the Supreme Court from the 1986 to 1993 Terms. Tribal interests began losing 75 percent of their cases in the Court starting in 1987, a significantly worse win rate than even convicted criminal petitioners. I argue that the critical factors the Court looks for in deciding whether to grant cert — “circuit splits,” cases of national “importance,” and cases that are not “factbound” — create structural (and yet wholly discretionary) barriers to the vindication of tribal interests in Supreme Court adjudication.

If you want to read the documents I’ve read in this study, check out the Digital Archive of the Papers of Harry A. Blackmun. And bring your docket numbers, because that’s how it’s organized.

Michigan Affirmative Action Symposium

The Michigan Journal of Race & Law is hosting a symposium on affirmative action in Michigan after Prop. 2.

The symposium announcement is here.

For materials on Prop. 2 and its potential impact on American Indian students, please go here and here. For a pdf copy of the Michigan Civil Rights Commission report on Prop. 2, go here. Attachment no. 4 of the report concerns the impact of Prop. 2 on American Indian tuition waiver and is here.

From the symposium announcement….

From Proposition 209 to Proposal 2:
Examining the Effects of Anti-Affirmative Action Voter Initiatives

The diversity of perspectives that is cherished and celebrated by the Michigan Journal of Race & Law and the University of Michigan community is threatened with the passage of ballot initiatives like Michigan’s Proposal 2, which bans the use of race and gender in school admissions. These issues are both timely and critically important in a society that is becoming increasingly segregated by race and ethnicity, both residentially and socially. With the recent passing of Proposal 2 as well as the recent U.S. Supreme Court ruling regarding the use of race in public schools, we believe it is crucial to maintain an open and positive dialogue regarding race and education. To that end, our Symposium endeavors to address the variety of policy and legal questions arising out of the anti-affirmative action movement. Our Symposium will explore a broad range of issues including: the current effects of Proposition 209 in California and the potential effects of Proposal 2 on public university education and leadership within the state of Michigan, potential legal alternatives to affirmative action, and existing and emerging efforts to remedy K-12 educational disparities. Most notably, we present this symposium with the hope of preserving the University of Michigan’s longstanding commitment to diversity and as an answer to University of Michigan President Coleman’s request to “Show others what a U-M education looks like”.