Senate Judiciary Committee

I’ll turn now to some of the provisions that I cannot support. For instance, S.1925 states that it recognizes the “inherent power” of Indian tribes “which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.” Now I believe in the importance of federal responsibility for law enforcement and social services for Indian tribes. And I believe in tribal self-government. But as we meet here today, there is no inherent power of tribes to do anything of the sort the bill says. Self-government is not government over “all persons” – including non-Indians.

Because tribes lack this power, it’s untrue to say that Congress can recognize and affirm it. And if we do, I don’t know what effect such language will have on current law enforcement arrangements. After all, the bill goes much further than changing something for the future. It says that something exists that does not now exist.
For the first time, the Committee would extend tribal criminal jurisdiction over non-Indians. I do not believe the Committee has a good understanding of what the consequences would be of doing so. This was put in the bill. Like the other provisions to which I object, it was not the subject of any hearing.

Why would Congress, should it decide for the first time to make such a change, do so on a bill to reauthorize VAWA? Why should domestic violence cases be the first criminal cases to be treated in this way? What precedent would be created that might lead to other prosecutions of non-Indians in tribal courts? The bill’s expansion of the civil jurisdiction of tribal courts over non-Indians also needs more thought.

Well, the good news is that the opposition is on record. And now we know the opposition is explicitly racializing the problem of domestic violence in Indian country. In other words, Sen. Grassley would do nothing about DV offenders in Indian country who are non-Indian. I suspect he is tough on crime in every other instance, except where a non-Indian in Indian country commits a crime (or where the victim is gay).

ICT Article on Elena Kagan (Senate Hearings Start TODAY!!!!)

June 28, 2010June 28, 2010Matthew L.M. Fletcher

Here is the call I made to Sen. Franken last year right before the Sotomayor hearings, and perhaps we’ll have an Indian law question for Elena Kagan.

From ICT:

WASHINGTON – With Elena Kagan’s Senate confirmation hearing looming, top Harvard University officials are defending her record on Native American issues. Meanwhile, some Indian groups and individuals are supporting her nomination to the U.S. Supreme Court, despite her largely unknown positions on Indian law.

“Elena Kagan as dean [of Harvard Law School] had such a strong interest in the issues of Indian country and Indian law that she allocated funds from her discretionary funding to support work in that area,” said Martha Minow, current dean of Harvard Law School. She said Kagan used funds to support Indian scholars, conferences, and visiting tribal law officials.

Still, some scholars have blamed Kagan for failing to racially diversify her staff when she served as dean from 2003 – 2009. Of the 32 tenured and tenure-track academic hires she made while in the position, only one was a minority, of Asian descent.

“No dean can wave a magic wand and hire anybody on a law faculty,” Minow said. “It’s not by accident that the job is often described as herding cats.”

She said Kagan made decisions on hiring women and people of color “consistent with the standards of excellence at the school.”

Indian scholars have largely been concerned that Kagan failed to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, with the understanding that Harvard would hire a full-time, tenured faculty member dedicated to Indian law.

But Robert Anderson, who was selected after Kagan’s tenure to hold a 5-year guest position as Oneida chair, said her actions were consistent with what she could do in her position.

“It’s not really the dean’s decision to hire a person with tenure; the faculty ultimately has to decide,” said the Minnesota Chippewa tribal citizen who directs the Native American Law Center at the University of Washington.

Anderson said he supports Kagan’s high court nomination, given her background and his knowledge of her ideology from when they both served in the Clinton administration. He’s also confident that she met many scholars at Harvard who imparted the importance of understanding Indian law.

Regarding the Oneida chair, Minow said the institution is “very honored to have” the position, adding that the plan under Kagan had been to have visitors rotate into the job.

Anderson hopes that some senators will specifically ask Kagan about her knowledge of Indian law during her confirmation process.

“I don’t think she knows a lot about the intricacies of Indian law, but I believe they would find out that she knows it’s an important field.”

At least one senator seems prepared to question Kagan on tribal law. Some staffers for Sen. Al Franken, D-Minn., have requested information from Indian legal scholars in preparation for Franken’s questioning of Kagan. The senator sits on the Senate Judiciary Committee.

Beyond her involvement with Indian issues at Harvard, Kagan has had few known brushes with tribal law.

Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University, explained that Kagan was once heavily involved with the negotiation and execution of a major tobacco-related court settlement that resulted in what’s known as the master settlement agreement. The agreement is seen as harmful to some tribal tobacco interests.

Fletcher posited that if a tribal tobacco case reached the Supreme Court, “one would have to believe Kagan would not be sympathetic to Indian law claims there.”

On the more positive side, Fletcher noted that while dean, Kagan once introduced the Navajo Nation Supreme Court, calling it distinguished in quality and scope.

“She’s a relative unknown, but her centrist-liberal bona fides are established in all of her other work,” Fletcher said. “She’s no Thurgood Marshall or even a Sonia Sotomayor, but overall I’d support her.”

Continue reading →

A Call to Senator Al Franken re: Sotomayor Confirmation Hearings

July 13, 2009Matthew L.M. Fletcher8 Comments

It looks like Sen. Al Franken of Minnesota is the only Democratic member of both the Judiciary and Indian Affairs committees. Sen. Franken, who visited Indian Country a few times in his campaign for the Senate, may be the only Senator who would even consider asking Judge Sotomayor a question about Indian law.

A straight up question about Indian law doctrines is likely to get a response about how the nominee would not comment on a particular case, and a question asking her what she knows about Indian law might do nothing except embarass her, so here are a few potential topic areas that could get at how the nominee might view tribal interests.

1. Federalism. Would she be persuaded by a canon of statutory construction that would construe very narrowly a law that limits state authority? Does she think the Constitution establishes a hierarchy of sovereigns, with state governments at the virtual top?

2. Minority property rights. Is Judge Sotomayor aware of how the U.S. acquired sovereignty over Puerto Rico, or New Mexico and California, or Indian Country east of the Mississippi, or Indian Country west of the Mississippi? How about the different character of treaties that both established and preserved property rights for discreet catagories/classes of Americans? Would she respect them? One expects the answer to the Puerto Rico question is yes.

3. Rule of Law. Tribal interests, like many other plaintiffs, raise claims based on clear violations of law by state or other actors. The Roberts Court often reaches outcomes rejecting those claims by relying on arguments never or only partially presented by the parties, often creating entirely new law to undermine the claims. Would Judge Sotomayor respect the rule of law in these contexts? Under what circumstances would she be willing to go beyond the arguments of the parties to decide a case?

Sen. Franken would make a huge splash in federal Indian law and policy by even hinting at caring about Judge Sotomayor’s views on tribal interests. Here’s hoping he does it.

Indian Woman Nominated to be USA for D. Ariz.

November 16, 2007Matthew L.M. Fletcher

From Indianz:

Hopi woman nominated as US Attorney for Arizona

Friday, November 16, 2007

Diane J. Humetewa, a member of the Hopi Tribe of Arizona, has been nominated as the U.S. Attorney for Arizona.

Humetewa told the Associated Press she was “extremely honored” to be nominated. President Bush sent her nomination to the Senate yesterday. Humetewa was recommended for the job by Sens. John McCain (R) and Jon Kyl (R) after Paul Charlton, the former U.S. Attorney, was fired by the Bush administration last December. But Bush passed over Humetewa when he appointed an interim U.S. Attorney in February. Humetewa has worked for the Department of Justice, the U.S. Attorney’s Office in Arizona and for McCain during his two tenures as chairman of the Senate Indian Affairs Committee. If confirmed by the Senate, se would be the first Native American and first Native woman to serve as U.S. Attorney for Arizona.

Get the Story:
Bush taps Hopi for Ariz.’s U.S. attorney (The Arizona Republic 11/16)

Press Release: McCAIN, KYL URGE SENATE JUDICIARY COMMITTEE TO SWIFTLY VOTE ON THE NOMINATION OF DIANE HUMETEWA AS ARIZONA DISTRICT U.S. ATTORNEY (McCain/Kyl 11/15)