Obama

Obama Vaguely Supportive of Cobell Settlement

Matthew L.M. Fletcher

An excerpt from BLT:

Also at the news conference, a reporter asked Obama whether he can commit to winning legislative approval of two settlements that would end major discrimination claims against the federal government: the Cobell and Pigford II settlements. The Cobell claims relate to unpaid royalties from natural resource extraction on American Indian lands, while the Pigford claims relate to disparate treatment for black farmers in U.S. Department of Agriculture programs.

Obama did not make a commitment, but he said he would try. “It is a fair settlement. It is a just settlement,” Obama said, appearing to conflate the two settlements. “We think it’s important for Congress to fund that settlement, and we’re going to continue to make it a priority.”

The lead lawyer for plaintiffs in the Cobell litigation has accused the White House of not making the settlement a priority.

Detroit News on a Possible Granholm SCT Nomination

Matthew L.M. Fletcher

From the Det. News:

Gov. Jennifer Granholm is apparently on the short list for the U.S. Supreme Court, to fill the vacancy of retiring Justice John Paul Stevens. Her nomination would be an interesting, unusual choice.

Granholm is included along with more conventional candidates such as U.S. Solicitor General Elena Kagan, former dean of Harvard’s law school and several federal appellate court judges. The other political figure prominently mentioned as a candidate is Homeland Security Secretary Janet Napolitano, former governor of Arizona.

If Granholm is nominated, it will break at least one pattern: all of the current justices are former federal appellate court judges.

It would mark a return to a previous style in nominations, in which political figures were named to the court, such as former California Gov. Earl Warren and former Michigan Gov. Frank Murphy. Murphy distinguished himself in the high court’s history by being one of the few justices to dissent from a now embarrassing Supreme Court ruling during World War II approving the West Coast round-up and removal to remote camps of Americans of Japanese descent.

Granholm would bring to the court political experience as a former governor and state attorney general, albeit one whose gubernatorial record, including a brief government shutdown and a controversial tax hike, has been a disappointment, though she did win a second term against a novice but well-funded opponent.

As one court watcher, Russell Wheeler of the Brookings Institution, told The News, a Granholm strength is that she would “bring empathy as the governor of a state that has had such high unemployment.”

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Mankiller: Obama’s opportunity: Add America’s name to declaration

Kirsten Matoy Carlson

From Indian Country Today

Originally printed at http://www.indiancountrytoday.com/opinion/41586817.html

President Obama has an opportunity to send the world a message about American justice.

All the countries of the Americas must now exert the political will to finalize and adopt the American Declaration.

He can add America’s name to the Declaration on the Rights of Indigenous Peoples before the Organization of American States. This is a historic effort by all countries in the Americas to recognize and declare that human rights belong to indigenous peoples, both as individuals and as communities, nations, or tribes. Negotiations over the draft American Declaration in the Organization of American States have reached a critical point. All the countries of the Americas must now exert the political will to finalize and adopt the American Declaration. Last year, the United States refused to actively negotiate. This must change, and each of us can help make that happen.

The adoption of a strong American Declaration would be a tremendous step toward ending the appalling treaty and human rights violations that are so often inflicted on our Indian and Alaska Native tribes and communities. The declaration states the commitment by these countries to the rights of Indian peoples – our right to exist as distinct cultures, our right to govern our own affairs, our right to own and use our lands, and our right to be free from discrimination.

We live in an era of self-determination, yet Congress still claims the power to do what it wants – confiscate our native lands in violation of the Constitution, strip our jurisdiction, exploit our natural resources and refuse to honor its treaty obligations. Many of our nations and communities face a daunting set of social and economic challenges, as well as violation of treaty and human rights on a daily basis. Our northern tribes and Native Alaska villages see their very existence threatened as climate change undermines their subsistence lifestyles.

Indian and Alaska Native nations have always had to fight to make sure the United States government respects and protects our rights as tribal governments and as Indian peoples. This declaration is an important step in protecting those rights. The United States did not vote for the United Nations Declaration on the Rights of Indigenous Peoples even though it publicly agreed with most of its provisions. We have a new opportunity to make sure the United States commits to protecting our rights by joining in adopting of a strong American Declaration.

United States leadership is key to gaining the respect for treaty and human rights that is lacking in the Americas. Strong leadership from the United States would signal a change in its foreign policy on human rights, reinvigorate the OAS negotiations, and lead to the adoption of a strong American Declaration. The new administration provides an excellent opportunity for us to encourage such leadership from the U.S.

As Indian nations and as communities and individuals, this is the time to vigorously encourage the United States to support a strong American Declaration that respects and declares our rights. And while we are at it, let’s also see to it that the U.S. declares its support for the UN Declaration on the Rights of Indigenous Peoples.

Wilma Mankiller is the former principal chief of the Cherokee Nation.

Lloyd Miller: A New Deal for Native America

Matthew L.M. Fletcher2 Comments

From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:

In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs.  After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments.  Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.

Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos.  Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California).  Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%.  The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.

Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.

Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
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ICT Editorial on Carcieri

Matthew L.M. Fletcher1 Comment

From ICT:

Decision’s in. ‘Now’ begins work to fix Carcieri

The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. Carcieri seemingly overturns the Department of Interior’s 70-year-plus practice of taking land into trust for Indian tribes federally recognized after 1934. But while the decision will be disruptive and expensive for Indian tribes affected, it might not be utterly devastating.

Carcieri held that the secretary has no authority to take land into trust for the Narragansetts because they are not an eligible Indian tribe as defined by the 1934 Indian Reorganization Act. Only tribes that meet the definition of “Indian tribe” under the IRA are eligible for the fee to trust benefit; in other words, according to the court, tribes that were “under federal jurisdiction” on June 1, 1934. The secretary of the interior did not recognize the Narragansett Tribe as an Indian tribe at that time, and so the court held that the secretary may not take land into trust for the tribe under the IRA. The court’s cramped reading of “now” is the worst kind of judicial formalism, like that recently critiqued by Professor Alex Skibine in the American Indian Law Review.

It is important to parse out exactly which tribes – and which land parcels – are affected by this decision. First, Indian lands already in trust with the secretary of the interior are safe, because the United States already owns the land and is immune from a suit seeking to reverse a fee to trust acquisition. That means tribes operating business enterprises on trust land will be protected by the federal government’s immunity. Second, Indian tribes such as the Pokagon Band of Potawatomi Indians with special statutes authorizing the secretary to take land into trust for them, usually as a result of a congressional recognition act or land claims settlement act, also are exempted.

The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934.

Interestingly, the final paragraph in Justice Clarence Thomas’ majority opinion – a major litigation-starter – appears to assume that the Carcieri case is limited to its facts, and therefore only applies to the Narragansett Tribe. The concurring opinions from Justices Stephen Breyer and David Souter, as well as Justice John Paul Stevens’ dissent, suggest that numerous other tribes that can demonstrate that they were “under federal jurisdiction” in 1934, even if “the Department did not know it at the time,” in Breyer’s words. The concurring and dissenting justices named several tribes that fit into this category, including the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe. In short, according to Justice Breyer, a tribe that could show it was party to a treaty with the United States, the beneficiary of a pre-1934 congressional appropriation, or enrollment with the Indian Office as of 1934. The Narragansett Tribe, according to the court, was under the jurisdiction of Rhode Island in 1934, not the Department of the Interior, and so they are not eligible.

These exceptions to the general Carcieri rule mean that Indian tribes in the twilight of the concurring opinions may be engaged in expensive litigation to prove that they were “under federal jurisdiction” in 1934. Such litigation may require the heavy expenditure of funds for expert witnesses, forcing some tribes to undergo the strange and humiliating process of earning a kind of federal recognition all over again. In the coming weeks, the Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.

The Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.

Regardless, now is the time for Indian country to test the waters in Washington D.C., to see if the Obama administration is serious about change and to press the Democratic-controlled Congress for a Carcieri “fix.” It might not take much legislation, just a quick rewording of the definition of Indian tribe in the IRA to remove the word “now.” The administration and Congress may be sympathetic, given that the Roberts Court seems to go out of its way to punish Indian tribes. A Carcieri “fix” pitched as merely reversing a bad Supreme Court decision would not work a major change on the federal-tribal-state relationship because it would merely be restoring the pre-Carcieri state of affairs that had existed for over seven decades.

For the Narragansett Tribe, this decision is yet another slap in the face to a tribe that has done nothing wrong but what it can to survive. For six justices, the Narragansetts did not pass the test of “federal jurisdiction,” a test that no one could have known in 1934 they would have been required to pass. Nothing could be more arbitrary and capricious.

Matthew L.M. Fletcher is associate professor at the Michigan State University College of Law and director of the Northern Plains Indian Law Center. He is an enrolled citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.

Obama Adminstration Opposes Office of Native Hawaiian Affairs in SCT Case

Matthew L.M. Fletcher

From the Hawaiian Reporter (via How Appealing):

The state of Hawaii and state Office of Hawaiian Affairs have contracted two of the nation’s top legal “heavy hitters” to back their respective side in a case being presented to the U.S. Supreme Court later this month over who has the right to sell the state’s “ceded lands” or crown lands left by Hawaiian royalty to the state.State attorney general Mark Bennett, Hawaii’s top state law enforcement officer, will present oral arguments himself on the state’s behalf in Hawaii v. Office of Hawaiian Affairs, No. 07-1372, but the state’s written brief is being prepared by Former Solicitor General of the United States, Seth Waxman, who is considered to be the “lawyer’s lawyer” on the most important cases before the Court.

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SCOTUSBlog Predictions on a Possible SCT Nominee in Summer 2009

Matthew L.M. Fletcher

Jennifer Granholm, our governor, is listed as a dark horse candidate. Our commentary on the other candidates (Kagan, Wood, and Sotomayor) is here. We haven’t yet discussed Jennifer Granholm as a possible Justice.

From SCOTUSBlog:

Before the election, I wrote two posts (here and here) on likely Democratic nominees to the Supreme Court.  It seems an appropriate time for an update.  For example, despite my earlier predictions, Elliot Spitzer’s odds now seem lower, and President Obama is unlikely to appoint himself.

Equally important, we can learn something from the President’s initial appointments to other jobs in the government.  In my opinion, they seem pragmatic and focused on objective qualifications (including academic appointments) and tend less than did those of Clinton and Bush 43 towards friends of the President.  The appointments to date have also involved few totally out of the box and unexpected choices.  The appointments have been diverse, but the choices don’t seem race and gender driven.

We also have the benefit of the President’s specific appointment of Elena Kagan to be SG, which elevates her prospects considerably.

In my opinion, if there is an appointment this summer — which principally means that some otherwise serious candidates will not yet have had the time to be appointed to a court of appeals and develop experience there — there are three reasonably clear front runners, and one dark horse candidate.  All are women, for the simple reason that there is only one woman on the Court now and I cannot imagine that the President will conclude that he cannot find a highly qualified female nominee.

The three obvious candidates are Elena Kagan (SG), Sonia Sotomajor (CA2), and Diane Wood (CA7).  The sleeper candidate is Michigan Governor Jennifer Granholm.

WSJ: Obama and the Federal Judiciary

Matthew L.M. Fletcher

From WSJ (via How Appealing):

U.S. President-elect Barack Obama is expected to have a speedy and significant impact on a number of federal courts of appeal, with the potential to lessen the conservative influence that several of these courts now wield.

Given significant vacancies in some the nation’s 13 federal appellate courts, Mr. Obama’s appointments may shape the ways laws are interpreted across the country. “He really has an enormous opportunity,” said Carl Tobias, a law professor at the University of Richmond in Virginia and expert on the federal judiciary. “At least initially, I don’t see him having much trouble getting his seats filled.”

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Mary Frances Berry: Abolish the US Civil Rights Commission

Matthew L.M. Fletcher

From the NYTs:

AS the country prepares to enter the Obama era, anxiety over the legal status and rights of gays and lesbians is growing. Barack Obama’s invitation to the Rev. Rick Warren, an evangelical pastor who opposes same-sex marriage, to give the invocation at his inauguration comes just as the hit movie “Milk” reminds us of the gay rights activism of the 1970s. Supporters of gay rights wonder if the California Supreme Court might soon confirm the legitimacy of Proposition 8, passed by state voters in November, which declares same-sex marriage illegal — leaving them no alternative but to take to the streets.

To help resolve the issue of gay rights, President-elect Obama should abolish the now moribund Commission on Civil Rights and replace it with a new commission that would address the rights of many groups, including gays.

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Wizipan Garriott Named First Americans Public Liaison

Matthew L.M. Fletcher

Go Wizi!

From Indianz:

President-elect Barack Obama has created a “First Americans Public Liaison” post on his transition team, Indian Country Today reports.

Wizipan Garriott, a member of the Rosebud Sioux Tribe of South Dakota, was named to the post. His job is to work with tribes, though he appears unable to comment publicly about his efforts. Garriott served as director of the Native vote outreach for the Obama campaign. He is one of seven prominent tribal members on Obama’s transition team.

Get the Story:
Wizipan Garriott named Obama’s First Americans Public Liaison (Indian Country Today 12/8)