“Identity in Flux: Challenging Outsider Definitions of Tribalism”
New Mexico
Interview with Roxanne Dunbar-Ortiz
From Towards Freedom:
| Written by Roxanne Dunbar-Ortiz | |
| Thursday, 03 January 2008 | |
Roxanne Dunbar-Ortiz
Roxanne Dunbar-Ortiz, a writer, teacher, historian, and social activist, is Professor Emeritus of Ethnic Studies and Women’s Studies at California State University, East Bay, and author of many articles and books, including Blood on the Border: A Memoir of the Contra War (South End Press, 2005), Outlaw Woman: A Memoir of the War Years, 1960-1975 (City Lights Books, 2001) and Red Dirt: Growing Up Okie (Verso, 1997). Her most recent book is Roots of Resistance: A History of Land Tenure in New Mexico (University of Oklahoma Press, 2007).In this interview, Dunbar-Ortiz talks about her new book, Roots of Resistance, indigenous land revolts in the US, international solidarity and the importance of learning about the history and current issues of Native Americans. Toward Freedom: Please tell us a little about how you came to write the first version |
Article on the Impact of New Mexico Indian Gaming & Crime
In short, not much. From the article, “evidence of a measurable impact of casino gambling on crime is inconclusive.” And, “While there may be a perceived increase in crime by the public, it cannot be attributed directly to the state’s casinos.” However, it seems clear that the researchers here looked hard to find a link and are no friends to Indian gaming. It appears their research started with the 1999 National Gambling Impact Study Commission Report — anti-tribal gaming as anything — and went from there.
Tales from the Cert Pool: Montana Taxes at Crow
The Supreme Court denied cert in a case captioned Montana v. Crow Tribe of Indians, 484 U.S. 1039 (1988) (No. 87-343). The case involved the State’s attempt to impose severance and gross proceeds on a non-Indian mining company.
The cert pool memo (from a Rehnquist clerk no less) ripped the State’s argument:
[Montana]’s contention that its taxes should not be preempted because they fall on Westmoreland, rather than on the Crow Tribe itself, is ludicrous. The state severance and gross proceeds taxes have restricted the amount of taxation [Crow] can levy on its lessees. The CA9 found that the marketability of [Crow]’s coal was significantly diminished by [Montana]’s taxes, resulting in a corresponding decrease in the amount of money accruing to[Crow]’s coffers.
Cert Pool Memo at 7.
How times have changed. After Cotton Petroleum and Wagnon, states can strategically tax for the specific purpose of limiting on-reservation activities and all but eliminate tribal tax base.
Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum
Cotton Petroleum Corp. v. New Mexico is one of the harshest outcomes in the modern era of Indian law cases decided by the Supreme Court. In this case, the Court held that states may tax non-Indian-owned businesses doing business in Indian Country, even where the tribe has imposed its own tax. In short, the states may double-tax non-Indians, effectively preempting tribal taxes on the tribe’s own land.
The recent uploading of Justice Blackmun’s papers on the internet offers a glimpse into the background of the case.
In Cotton Petroleum, two documents are available: The cert pool memo and Justice Blackmun’s docket sheet recording the votes of the Justices.
The Court decided to grant certiorari in this case over the recommendation of the cert pool memo to deny cert. Justices White, Stevens, O’Connor, and Blackmun voted to grant cert (in accordance with the Rule of Four, only four votes are required to grant cert), while Rehnquist, Brennan, Marshall, Scalia, and Kennedy voted to deny.
One interesting (and awful) tidbit from the cert pool memo is that the memowriter noted that the tribal interests weren’t represented in the litigation and that, importantly, Cotton Petroleum hadn’t introduced evidence about the impact of New Mexico’s tax on tribal sovereignty:
“As [New Mexico] and [state] amici explain, this Court’s precedents require a showing of actual impact on tribal interests in self-government before pre-emption will be found, and [Cotton Petroleum] failed to introduce evidence of such impact in this case.” Cert Pool Memo at 7.
As noted above, the impact of New Mexico’s tax on tribal sovereignty was devastating, but since Cotton Petroleum was never in a position to make the argument, it was never developed.
Moreover, in a case denied cert that same Term, Rodney, Dickason v. Revenue Division of New Mexico, the cert pool memowriter (Deborah Malamud of NYU) argued that “the Indian preemption framework serves a substitute for the now-repudiated doctrine that state law has no effect on Indian reservations…. As that doctrine was geographical in nature, perhaps it makes sense that those same limits should apply to its modern substitute.” Cert Pool Memo in Rodney, Dickason at 8-9. But, alas, the Court decided not to adopt such a workable bright-line rule.
More tales from the cert pool memos will follow over the next several weeks.
Turtle Talk 