Indian Law Articles in This Month’s Judicial Notice (New York Court Publication)


4 New York’s Quest for Jurisdiction over Indian Lands by Hon. Carrie Garrow

20 New York State’s Recent Judicial Collaboration with Indigenous Partners: The Story of New York’s Federal-State-Tribal Courts and Indian Nations Justice Forum by Hon. Marcy L. Kahn

34 The Origins and Evolution of the Indian Child Welfare Act by Danielle J. Mayberry

48 Thomas Indian School: Social Experiment Resulting in Traumatic Effects by Lori V. Quigley, Ph.D.

Tribal Police Jurisdiction Decision from NY

People v. Herne

It could be a bad law school exam–a tribal member is arrested by tribal police on land currently subject to an ongoing land claim and the state court finds no jurisdiction. Solve for X.

(X being the New York state statute the court incorrectly claims established the St. Regis police force. Which the court holds gives the tribal police jurisdiction only ON the reservation, not in the Triangle.)

Oneida Indian Nation and State of New York Agreement on Wide Range of Issues

Here. Another article here.

Details from the article:

In a deal announced today, the Oneidas will give 25 percent of their gaming machine revenues to the state in exchange for exclusive rights to run casinos in a 10-county area of Central New York. Gov. Andrew Cuomo said that could mean $50 million a year for the state.

— Oneida and Madison counties agree to drop all legal action against the Oneidas over land and tax issues. The state will drop any support of those actions.

— No casinos would be built in the 10-county Central New York region, which includes Onondaga County. Vernon Downs, which opened in 2006, could continue to operate.

— The Oneidas, which have been granted 13,000 acres of tax-exempt trust land by the federal government, agree to cap their total trust land to 25,000 acres.

— Oneida County will get $2.5 million a year and Madison County will get $3.5 million from the state’s share of the Oneidas’ payments.

— The Oneidas will charge — and keep — the same sales taxes New York state charges. The Oneidas must use that money for the same kinds of services New York does.

— The nation will waive its sovereign immunity for the agreement, allowing New York to take the tribe to federal court in any disputes.

NYTs: New York Complains about Tribal Smokeshops

From the NYTs:

He emerged from the No. 2 subway at 125th Street wearing a bright orange shirt and aviator sunglasses, with a small backpack concealing his stock in trade — tax-free Newport cigarettes.

Like a Yankee Stadium hawker, but in voice closer to a stage whisper, he kept repeating his pitch: “Newports. Loosies. Shorts. Longs.”

His name is Paco, but on the streets of Harlem he is known simply as a “$5 man,” the nickname for a highly visible network of peddlers who sell bootleg cigarettes. His illegal traffic in Newports — $5 a pack or a single “loosie” cigarette for 50 cents — can bring him $100 or more a day.

Paco will not reveal his last name or the source of his Newports, the menthol brand widely popular in urban communities. But legal authorities say the trail of the $5 men leads to American Indian reservations in New York State, a path they contend is smoothed by the tacit cooperation of some cigarette makers and distributors.

July 2007 NY State Bar Exam Indian Law Question

We know that Washington, New Mexico, and South Dakota have Indian law on the state bar exam, but so did the July 2007 New York state bar(!!!!).

Update from Paul Spruhan: The question came from a “multistate performance test” that is created by the National Conference of Bar Examiners and administered in all states that utilize the MPT.  The MPT is an additional part of those states’ bar exams in addition to the essays and multi-state multiple choice exam (here’s their web site:

Continue reading

Video Links to 4th Annual Haudenosaunee Conference

Links to the videos of the 4th Annual Haudenosaunee Conference, “Conflict, Colonization, and Co-Existence: The Haudenosaunee and New York State” are here.

Speakers included Oren Lyons, Maurice John, Laurence Hauptman, and Rob Porter.

St. Regis Mohawk Suit re: Delay in Fee to Trust Decision

In a case where the Department of Interior issued a FONSI in 2006 and the Governor of New York concurred in the trust acquisition (for gaming purposes) shortly thereafter, Secretary Kempthorne still has not taken action. So, the St. Regis Mohawk tribe sued, alleging that the only reason for the delay is Secretary Kempthorne’s “personal views opposing off-reservation gaming.

This will be an interesting case to watch.

Tales from the Cert Pool: Circuit Splits and Federal Indian Law

Most cases now reach the Supreme Court because of circuit splits or splits in authority between federal courts of appeal and state supreme courts, but federal Indian law is an exception. In my study of the digital archive of Justice Blackmun’s cert pool memos from docket years 1986-1993, perhaps a quarter of cases that attracted the Court’s attention (reaching the so-called “discuss list” at conference) did so because there was a split.

One reason for the lack of circuit splits in federal Indian law is geography — well over 80 percent of cert petitions arise out of the Eighth, Ninth, and Tenth Circuits (and the states located within those circuits).

Moreover, because the cert petition subject matters are based on treaties or statutes that apply only within a state or a region, there is little likelihood of there ever being a split where the federal circuit and the state supreme court agree. Two examples from my forthcoming paper, “Factbound and Splitless”:

In South Dakota v. Spotted Horse, the Justice Blackmun’s clerk wrote a supplemental memo to the cert pool memo in which she wrote, “As the poolwriter noted, there will never be a split on the question of South Dakota’s jurisdiction over these tribal highways because both CA8 and the S.D. SCt agree that the State is without jurisdiction.” In Tarbell v. United States, a criminal case involving the application of a federal statute that applied to New York Indians, the cert pool memowriter (Mark Snyderman, an O’Connor clerk) noted, “Of course, NY state is probably the only other jurisdiction that would have an opportunity to rule on the issue.”

In one famous instance, the Court granted cert in a case thinking there was a circuit split when there really wasn’t (or more accurately, the split dissolved when the Court decided the case). The cases were Anderson v. Wisconsin Dept. of Revenue and Oklahoma Tax Commission v. Sac and Fox Nation. In Anderson, the WI Supreme Court ruled that Indians living off the rez but working on the rez have to pay state income taxes. In Sac and Fox, the CA10 ruled that Indians living on trust land and working for the tribe on trust land don’t have to pay tax. That’s the split, but the split disappeared when the Court decided that trust land is the same as “Indian Country” — making the factual predicate for the split (the residence of the tribal member: one was off, one was on) disappear.

I go into greater depth in the paper, but the story basically is this. The OTC’s petition in Sac and Fox reached the Court first, but neglected to mention the Wisconsin case. The Wisconsin case reached the cert pool next, alleging the split in authority. The cert pool writer thought the Sac and Fox case was factually messier (because of the trust land question) so recommended the Court grant cert in Anderson. Also, the cert pool memowriter argued that the OTC was a bad litigant for not noting the split in the first place, so recommended that the Court go for the Wisconsin case instead. But Anderson filed indigent, and he shouldn’t have, so the Court had to order him to comply with SCT rules before his appeal would proceed. In the meantime, the Court decided to hear Sac and Fox instead. The Anderson pool memo is here and the Sac and Fox memo is here.

And it’s good thing too. Bill Rice’s mastery of oral argument before the Supreme Court can be heard here (with a little help from Edwin Kneedler).

Had the Court decided Anderson instead, it seems clear to me that it would have ruled against Anderson, who was living off the rez and refusing to pay state income taxes. Who know what would have happened to Sac and Fox Nation?