The National Park Service is gearing up for two major construction projects: 1) the Yosemite Institute’s Environmental Education Campus at Crane Flat; and 2) several projects pertaining to the Merced River Plan CMP.
New Merced Wild and Scenic River Comprehensive Management Plan – Notice of Intent To Prepare Environmental Impact Statement
A quick background: The National Park Service put forward several construction projects under its Merced Wild & Scenic River Plan, which included the 30 year old (and abandoned) El Portal Wastewater Treatment Facility. The plan called for the demolition of the building and re-vegetation of the soil. However, invasive ground work would have been done to the area which is known to house Indian remains over 9,500 years old. Two cases in the 9th Circuit, Friends of Yosemite Valley v. Kempthorne (464 F.Supp.2d 993) (Kempthorne I) and Kempthorne II (520 F.3d 1024), placed an injunction against the National Park Service for failing to provide a comprehensive managment plan.
Now:
Pursuant to the National Environmental Policy Act (Pub. L. 91-190) and the Wild and Scenic Rivers Act (Pub. L. 90-542), the National Park Service is reopening public scoping for planning and environmental impact analysis for a new Merced Wild and Scenic River Comprehensive Management Plan and Environmental Impact Statement (NMRP/ EIS) in Yosemite National Park.
In response to the litigation:
Consequently the NPS is reopening public scoping for the NMRP/EIS so as to provide additional opportunity for public involvement in developing a new plan . . . Broad participation of interested individuals and organizations is important to the planning and analysis process . . . Dates, times, specific locations, and additional information will be released through regional and local news sources, and updates will be posted at www.nps.gov/yose/planning/mrp.
The NPS is seeking YOUR opinion concerning this project:
In addition, updates regarding future public involvement opportunities, including workshops for alternatives formulation and later release of the draft NRMP/EIS for public review, will be similarly announced in regional news media and on the park’s Web site, and through direct mailings. Written comments should be addressed to the Superintendent, Attn: Merced River Plan, Yosemite National Park, PO Box 577, Yosemite National Park, CA 95389, or faxed to (209) 379-1294, and must be postmarked or transmitted not later than 60 days from the publication date of this NOI in the Federal Register (immediately upon confirmation of this date it will be posted on the park’s Web site and announced via local and regional press). Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment–including your personal identifying information- -may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
One of the reasons cited by Kempthorne I in granting injunctive relief to the plaintiffs was the NPS’ failure to properly consult with the lineal descendents of the Yosemite Indian community. (Kempthorne I at 1008.) If you are such a descendent then now is your time to be heard.
Yosemite Institute’s Environmental Education Campus at Crane Flat; Comments on Draft Environmental Impact Statement
The NPS has submitted a Draft Environmental Impact Statement concerning the Yosemite Institute’s Environmental Education Campus at Crane Flat. It’s preferred plan is to demolish it and build a new one at Henness Ridge which is untouched by any development. It’s other alternative is to keep the Crane Flat campus but give it a much needed facelift and bring it into compliance with ADA. Public comments are now being solicited.
I do not support Alternative 3 (the agency preferred alternative) which would demolish the campus at Crane Flat, but also dig up scenic wilderness at Henness Ridge which could unearth American Indian remains.
Also, the Draft EIS has stated that although the Henness Ridge area (the site of the new campus under alternative 3) was used by Indians as a trade route the language of the EIS states that no American Indian cultural items will be found there. This flies in the face of common sense.
I am concerned over the potential impact on American Indian artifacts this plan may cause and am writing a letter opposing Alternative 3. If you are concerned about the disruption or disturbance of these artifacts then you should reply to the Superintendent at this address:
Superintendent, Yosemite National Park
ATTN: Yosemite Insitute EEC DEIS
P.O. Box 577
Yosemite, CA 95389
FAX: 209-379-1294
Email: Yose_Planning@ nps.gov
Phone: 209-379-1365
Any reply from you on this matter would be greatly appreciated. You have until July 15th to get your comment in.
Relevant Pages from the DEIS:
* iv (Overview of alternatives)
* 1-8 (Purpose & Need, Relationship to Laws, Executive Orders, Policies and Other Plans)
* I-15 (Purpose & Need, overview of NAGPRA and AIRFA)
* 3-109 (Affected Environment & Environmental Consequences – American Indian Traditional Cultural Properties),
* 4-3 (Consultation & Coordination – American Indian Consultation)
So far my summer has been off to a busy start. First of all, I got my grades back and I’m happy to report that I’ve earned the right to continue onto my third year of law school. Yay for me and now it’s off to my summer semester.
The most of my worries – and I use that term lightly because I’m having so much fun – is moot court and law review. In case you haven’t figured it out by now I am a research fiend. I like it, I love it and I want some more of it. Moot court and law review are feeding my desire to keep my research skills sharp. Thus far the moot court brief is coming along, now I need to start putting my arguments into their proper shape now that the research is done. Law review is proving to be rewarding because I get spend all day on WestLaw. Yes, I know: NERD ALERT! That’s me.
Too, I get to spend more time looking across the legal world about the areas of the law that I love. Such as:
Federal Indian Law
An interesting blog post from TurtleTalk’s Matthew Fletcher discusses the current trend with the United States Supreme Court concerning Indian law cases now that Roberts is at the helm:
For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.
That’s not good news however I should have suspected as much with one half of the SCOTUS leaning to the right. Very fine legal history by Mr. Fletcher. We’ll wait and see how the SCOTUS decides (or declines) certain cases and its impact on Federal Indian jurisprudence.
The Tribulations of John Yoo
John Yoo, former federal attorney (in)famous for writing the “torture memos” is now being prosecuted by Jose Padilla, a convicted terrorist. Basically, Yoo writes memos to Bush & Friends saying that there is a legal basis for “enhanced interrogation” (not advocating that they should but just that it’s possible, in legal theory) and Bush & Friends implement these measures at places like Abu Ghraib and Guantanamo. One such person victimized by these policies was Jose Padilla, a terrorist, who then brings a civil suit in the US District Court for the Nothern District of California for violation of his 5th Amendment rights. Why Yoo as the defendant? Because his memos were the basis for Bush & Friend’s actions which caused him harm. Naturally, Yoo files a motion to dismiss but it was denied and now this lawsuit is actually going to trial. As reported by the Wall Street Journal’s legal blog, Judge White of the ND of CA stated:
Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.
Hint, hint Eric Holder. Does this lawsuit have merit? No. Is Yoo the real person that needs to be sued for Padilla’s harm? No. Does the Obama Administration need to open up investigation into possible human rights violations and go after the real parties in interest? Yes.
Obama’s Turn Around on Military Commissions
One of my current favorites of jurisprudence is Guantanamo Bay and the military commissions. It’s a fascinating area of the law if you ever want to look into it. Obama said he’d shut them down but then decided to re-open them. I’m not surprised in the slightest because it’s typical politician fluff: say one thing to get elected, do another when you are elected. Also, I think once Obama got into office and someone briefed him on the top secret stuff behind the War on Terror he had to change his tune. Maybe the commissions are a great idea but Bush’s execution of them was wrong. Maybe that’s why Glenn Greenwald, blogger on Salon.com, labeled these new tribunals the “kinder, gentler military commissions”:
There is simply no way to reconcile Barack Obama’s embrace of military commissions with the core criticisms made about Bush’s system. Just consider what was said in the past about Bush’s military commissions by key Obama officials, Bush critics generally and, on occasion, even by Obama himself, and decide for yourself if this is anything other than a replica of one of the worst and most extremist abuses of the Bush era.
The idea of having a place away from the mainland of the United States to determine who is a genuine threat to the United States and who isn’t is a great idea. It’s planning and execution, however was done with a neolithic disregard for due process – and that’s putting it nicely.
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Take care and thanks for reading! I’m sure I’ll have more to gripe about as time passes, so I’ll talk at you later!
In writing these articles the first challenge I ran into was whether to write them at all; the methods by which tribes have used to expel members has been questionable and on the surface, downright despicable. I struggled hard to come up with a counter argument, one that would allow me to step into the shoes of those performing the disenrolling, to give disenrolling gaming tribes the benefit of the doubt and see both sides of the issue. I think the only real success that came of these efforts is that I just made the effort. Whether or not the counter arguments those efforts engendered are persuasive or not is another story. But looking back at these articles I knew I had the right idea in writing them because I was simply curious as to how this issue has been playing out in California courts. I didn’t always like what I found but my curiosity has been satisfied.
Furthermore, one thing that I must point out is my own bias. I want you to know where my opinions come from so you know that I’m just another person with an opinion on tribal disenrollments; here’s the research that I’ve done and these are my conclusions, but they do not have to be your own. I want you to think for yourself, whether what I’ve seen through my eyes is right or wrong when viewed through yours and if so, then why? Or why not? Above all, I want you to know my stance on this issue so it can provoke your own thoughts and research so that you might inform yourselves on what’s going on. If there’s an argument that I’m not making then what is it?
So, here are my biases:
I’m a capitalist. I love the idea of living in a country where you can go from rags to riches; all you need is determination and a strong work ethic. I think that the idea of having a free market capitalist system is one of the requisites of sustaining a democracy. I love the idea of having a group of people who’ve known poverty all their lives could suddenly get together with nothing but an idea, hope, hard work and make their world better. Indian gaming didn’t just appear overnight. It started out as small bingo hall operations or card rooms in places off the beaten track, off the main roads where people would just go to play games. Look where it went. I love knowing that kind of thing can happen in America. I think it’s what America is all about and who better to cash in on the American Dream than the First Americans themselves? Isn’t it about time? After all the stereotypes in a million cowboy and Indian movies, all the sports mascots that demeaned rather than honor, after living hard lives on a reservation with little to no basic necessities, and now Indian people can have their chance to earn a little bit for themselves. Only in America.
I am of Native American descent. My people were Ah-Wah-Nee-Chee, the First People that lived in Yosemite Valley back when it was called Ah-Wah-Nee. The Ah-Wah-Nee-Chee were a mix of Paiute and possibly Mono Indians who came over to Yosemite from the areas that straddle the California and Nevada border. In the late 19th Century, the last leader of the people, Ten-ie-ya (Tenaya), resisted white domination as best he could but was ultimately unsuccessful. He and his people were forced out by the Mariposa Battalion and made to live in reservations. One day he returned along with his people but by then the State of California had asserted its guardianship over the tourist attraction that Yosemite was quickly becoming, all the way up until the National Park Service assumed responsibility. Since this time Tenaya’s descendents have struggled to gain federal recognition and those descendents are scattered about different groups, each with their own opinions, viewpoints, agendas, and strategies. Each group or faction has not been cordial with others; as you can imagine, numerous fights have broken out over the greater part of the 20th century and 21st century as to who really is a Yosemite Indian and who isn’t. I’ve seen firsthand the meetings where different sides of my family have fought and bickered with each other. I’ve learned that Indian politics is family politics, and if you’re familiar with just how dysfunctional a family can be you can guess just how mature a tribal government can act. Sometimes there’s outright name calling, threatening, and belittling. I have seen these things within my own people and while I have not personally seen these things with other Indian nations I can take a pretty good guess and say that Indian politics is the same wherever you go. If you and your family are not liked by another family, and that family is in control of the tribal council then your life is going to get complicated real fast. It doesn’t sound like conduct fit for the operation of a small government.
Now, add a multi-billion dollar enterprise into this mix. Add in a sudden influx of money into an area that for the last 100 years has seen nothing but poverty. No running water, no electricity, no standardized housing, no jobs, substandard health care, little to no scholarship money for Indian students, no cars – no future. Indian gaming came along at the perfect time.
I understand history: to the victor go the spoils; the weak suffer the strong, etc. We were a conquered people and our lives were dictated by those that conquered us. We weren’t treated fairly; we were targets for extinction and then moods shifted and they wanted to “re-organize” us into mini-republics to promote self-reliance, and then the mood shifted again when they wanted to set us “free” by terminating our ward status and making us go out into world that we were never prepared for, and now it’s back to self-reliance even if only somewhat. I understand the history and I understand why it had to be that way; I never agreed with it, I think it was unfair and genocidal in some places but I understand. But I also understand that what goes around comes around. The people that were never thought to amount to anything, these former “savages” would get organized enough to come up with a way to make their people rich, to stop the poverty and Indian gaming did just that.
I support Indian gaming and I support tribal sovereignty, but there is a terrible irony that has attached itself to both concepts.
Greed or Growing Pains?
So, greed or growing pains? How about both? I present to you the clearest expression of my opinion on this matter with all the research I’ve conducted and the things that I’ve seen coming out of Indian Country. Indian tribes who use gaming as a means of self-reliance in a negative way towards their own people are suffering growing pains because their greed is making them grow into something that these Indians were not before. They are growing into tyrants.
Tyranny is not only a strong word but it’s also overused, so my use of it here hopefully has some resonance because by now, if you’ve read the articles, then you know that I wouldn’t use it carelessly. Also know that tyranny comes in degrees; you can have a lesser tyrant or perhaps even a benign one but you can also have great tyrants depending upon how much power is wielded and how that power is executed. I believe that gaming tribes that have disenrolled their own for the sake of higher gaming revenue allotments have acted tyrannically; the degree of tyranny is yet to be adjudged but I think we can agree that disenrollment under those reasons requires some minimum standard of autocracy.
The case for greed is well developed by now. Almost every disenrolled Indian that has been interviewed has lobbied this opinion. The legal community is also aware of the attitude. Previously, in Lamere v. Superior Court, the presiding judge remarked: “Where large sums of money are involved, however, it has long been recognized that the potential for corruption always exists.” (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1068, fn. 10 [31 Cal.Rptr. 3d 880].) Reaching back to Santa Clara Pueblo, Justice White noted in his dissent:
[A witness before the Senate Subcommittee concerning the Indian Civil Rights Act] complained “[the] people get governors and sometimes they get power hungry and then the people have no rights at all,” to which Senator Ervin responded: “‘Power hungry’ is a pretty good shorthand statement to show why the people of the United States drew up a Constitution. They wanted to compel their rulers to stay within the bounds of that Constitution and not let that hunger for power carry them outside it.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 81 [98 S.Ct. 1670, 56 L.Ed.2d 106] (dis. Opn. of White, J.).)
The case for growing pains is less developed. On March 2nd, 2009 I came across news that the Chukchansi Indians who ran the Chukchansi Gold Casino were disenrolling hundreds of members. When reading the article I came across the reasons behind the disenrollment:
[The issue of disenrollments] is already tearing our tribe apart. Should we take the path of summarily disenrolling members from our Tribe, our Tribe could become the example of greed that gaming has engendered from coast to coast. This kind of press directly affects our Casino business, and contributes to the already significant backlash against Indian gaming in California and across the U.S…
Instead let’s practice the traditions of our people: respect, restraint and generosity in unraveling years of poor enrollment practices so that all people of Chukchansi blood are dealt with fairly.
What “poor enrollment practices” has to do with ancient Indian customs that predate modern, BIA imposed enrollment regulations is beyond this author. A sharper quote comes from a Chukchansi council member: “We didn’t disenroll anybody. We just corrected our paperwork.” (Fagan, TribesToss Out Members in High-Stakes Conflict, S.F. Chronicle (Apr. 20, 2008), p. A1.) This issue is dealt with in depth in the article that I wrote on the subject.
And then there’s Carol Goldberg’s quote: “Some of the human drama is being amplified…the tribes concede their sovereign authority if they talk to the non-Indian world, so they don’t say much, which just leaves opponents to do much of the talking.” I can’t completely disagree with this conclusion. As you’ve noted from these articles, tribal sovereign immunity is a precarious theory, resting upon thin ice, its very survival uninsured from judicial review or congressional abrogation. Creative attorneys look for anything and everything they can use to make the case that an Indian tribe has voluntarily conceded its immunity from suit. As legal advice, keeping quiet is the best practice. Furthermore, Indian tribes don’t have to say anything at all, not because it’s good for maintaining sovereign immunity, but because they simply don’t have to. No one other than Congress has any authority to foist liability on an Indian tribe. Tribes can effectively scoff at any request by local and state governments for anything from consent to be sued, cooperation with state law, serve an arrest warrant, or tax their cigarettes. Aside from exceptions such as gaming compacts with the state, tribes are sovereign nations even if just “dependent domestic” ones and do not have to talk to anyone if they don’t want to.
That said, silence isn’t always golden. An explanation for actions concerning tribal disenrollments after major influxes of cash is more than necessary at this point, and we are in need for something beyond redressing prior enrollment problems or correcting the paperwork. There’s a fundamental violation of due process that may be taking place in Indian Country and it’s being perpetuated against Indians by Indians. The basis for disenrollment sometimes amount to no more than a rumors concerning the disenrolled’s family ancestry. Sometimes it could just be simple mathmatics: the less people in the tribe, the more money for everyone else – what we see in the news are excuses that cloak the underlying unfairness. Why should the United States tolerate such a gross violation of basic rights to American citizens? The answer seems so simple but as you can see from the underlying legal theories, Indian Country and Indians themselves are legal curiosities; sometimes the laws of our country apply and sometimes they don’t. However, in the situation of the disenrolled, an explanation of tribal council behavior would be nice. If a tribe is worried about waiving its immunity by explaining its actions then it should be more concerned about leaving their “opponents to do much of the talking” than keeping quiet, because those opponents are seeking redress to the one authoritative body that can do something about the problem. That body is the United States Congress. Whether an explanation of this magnitude would constitute a waiver is mildly ambiguous and fundamentally, (and ironically to some) an explanation for a tribe’s actions may actually mitigate their loss of social currency.
In the end, I leave the reader to decide whether Indian nations have conducted themselves properly. The amount of materials that can be found on the issue of tribal disenrollment are far vaster than what was cited in this article. Indeed, many of the best sources on this issue are the comments that Indians themselves have left on my articles. Those are the real stories of substance and they can provide much more profound insight than I could with just citations to news articles and court cases. It also to them that I dedicate these series of articles along with my best wishes on one day being inducted back into their tribal nations of origin.
If there are any true solutions to be found to this issue then they will not come from an American courtroom. Courts are bound to follow the principle of stare decisis, and will thus uphold court cases that have gone before them – court cases that have cast Indians in a subordinate role in American society. If there is a solution to be had it would have to come from Congress:
…tribes have been given broad power to order their own affairs without regard for Eurocentric mores. To the extent that Congress has not chosen to provide an effective external means of enforcement for the rights of tribal members, the omission is for Congress to reconsider if and when it chooses. (Lamere v. Superior Court, supra, 131 Cal.App.4th 1059, 1063, fn. 2.)
I support Indian gaming. It is probably one of the most genius ideas that the Native Americans ever conceived to lift themselves out of poverty. With casino revenue rolling in tribes are now in a position to provide for themselves in a way never thought possible. I just don’t see how disenrollments serve that purpose.
These articles are at their conclusion. As stated previously, was I right in my conclusion? Wrong? Both? Why? Why not? Do you think this issue is worthy of further research on your part? Have you already done more research? What did that lead you to? Never stop asking questions about how you perceive an issue and how you conclude on an issue. If you live your life questioning the things around you, you will never stop learning and you will always grow. I hope this is a lifestyle you find worth copying.
Thank you for your time.
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TABLE OF AUTHORITIES
Tribal Sovereign Immunity
Turner v. United States (1919) 248 U.S. 354
U.S. v. U.S. Fidelity & Guaranty Co. (1940) 309 U.S. 506
Kiowa Tribe v. Manufacturing Tech., Inc. (1998) 523 U.S. 751
I know it’s finals time because I’ve spent the past week looking at outlines and flashcards, trying to stuff as much law into my head as possible.
Been sitting at starbucks for hours on end pouring over this crap. Down to my last two finals now: property and criminal procedure.
Today I attempted my first property final at my own pace and after four hours my brain hurts. The problem is that what I’ve written isn’t going to even remotely look like what I’ll write on an actual exam; I won’t have time. And yet that’s the problem with this class, there is so much stuff to know!
On the other hand there’s criminal procedure which I’ve given very little attention and yet I feel like I know it backwards and forwards…or at least I think I do. 4th Amendment, 5th Amendment, 6th Amendment – that’s about it. Voluntariness, custodial interrogation, miranda, critical stage, search and seizure, warrants, and exigencies. Not too bad.
Property: adverse possession, future interests, landlord-tenant, gifts, lost property, nuisance, water, easements, covenants, equitable servitudes, licenses, conveyances (listing agreements, contracts of sale, mortgages, six covenants of title, priority of lenders, title chains, warranty deeds, and security devices), zoning, and eminent domain. And every topic comes with its own history stemming back to the Middle Ages it seems and some of the history is useful and some of it isn’t. Well, most of it isn’t but whatever. Ironic coming from me given that I was once a history major and yet I remonstrate unto you: screw history!
So, for the time being I’m stopping and devoting my energies to searching for a leisure activity.
Not that you needed to know any of this but you went and read the whole thing anyway, so there ya go.
There’s a bunch of stuff happening in the legal world. For example, the 9th Circuit just handed down a decision stating that a business run on Indian trust land is subject to overtime payment requirements to employees under the Fair Labor Standards Act. It’s not an earth shattering decision (especially if we’re aware of the Coeur d’alene case) but interesting nonetheless in that tribal sovereign immunity against suit doesn’t work against acts of Congress that they have deemed are of general application to the country as a whole regardless of Indian treaties and domestic dependent sovereign status.
My own ancestral homeland, Yosemite, was a supporting character in the ongoing legal drama of a man (the defendant) caught videotaping sacred sites and ceremonies without permission. He was brought to task for it at the Yosemite branch of the Eastern District of California and was convicted; however, once news photos of the judge surfaced showing a hangman’s noose on his coat rack the defendant filed a lawsuit stating his trial was unfair as the judge failed to recuse himself. Judge Wanger in the Fresno branch of the E.D. Cal ruled in favor of the defendant and vacated his conviction. The whole thing with the noose was that it was a parting gift from the judge’s former colleagues in a district attorney’s office with the message: “Don’t forget where you came from.” Had it been in a glass case or something or at his home then I think no one would’ve cared, but why it was lying around arbitrarily who knows. As for the defendant, well, I still think he broke the law.
Also, as you may know the Gitmo detainees are now allowed to bring their habeas corpus suits into federal district courts in America via the landmark case Boumediene v. Bush. Now, the detainees at Bagram Air Force Base in Afghanistan are bringing their own habeas suits (fyi: Bagram is just as bad as Gitmo, just not in the news.) The DC Circuit granted three of the four petitioner’s writs but denied one petitioner’s writ stating, amongst other things, that because the United States has no intention of ever leaving the Guantanamo Bay, Cuba area then this factual distinction between our intention to someday leave Afghanistan once the War on Terror is over is enough to distinguish the cases. The theory behind this distinction is that the Constitution applies to areas where the United States has permanent control and under Boumediene the Constitution guarantees everyone the writ of habeas corpus, including those the US has control over in areas that the US has ultimate jurisdiction. That exists at Gitmo but not Afghanistan therefore Constitution doesn’t apply at Bagram. However, the detainees were so similar to the ones in Boumediene that Boumediene’s holding affected them equally and their writs were granted – except for the fourth guy. Can’t wait for finals to be over so I can read this case in more detail; it is very fascinating in an area of law that is constantly changing.
The US Supreme Court has decided Arizona v. Gant which limits the police’s search incident to arrest powers. Generally, under our 4th Amendment search and seizure laws, a person has a reasonable expectation of privacy in their persons, houses, papers and effects, and those rights shall not be infringed except through a valid search warrant backed by probable cause supported by oath or affirmation that describes the places to be searched and the things to be seized…unless the police making the search or arrest can show an exception to the warrant requirement. One such exception is the Search Incident to Arrest. If a police officer had valid probable cause to make an arrest then upon that arrest he now has authority to search the defendant’s person and the areas within their reach. This rule was extended to automobiles via New York v. Belton which limited the automobile search incident to arrest to just the areas in the car within defendant’s grasp which basically means the cops can search the entire car but not the trunk. If they want to get into the trunk they’ll try and hornswoggle you into giving consent or arrest you, impound the car and conduct an inventory search where they now have the right to strip the car down and catalog everything they find in the interest of preserving your property and making sure you can’t accuse them of stealing your stuff.
Now, the Gant decision says this (quoting Volokh link):
The police can search a car following arrest only if they could have a reasonable belief 1) that the person arrested “could have accessed his car at the time of the search” or 2)”that evidence of the offense for which he was arrested might have been found therein.”
Don’t jump for joy yet because what we’ll end up seeing is a new flood of litigation where cops are claiming reasonable belief to get into the car existed at the time of arrest.
Side Note: There’s a lot of really good officers out there but there’s also some bad cops out there who have abused Belton’s broad grant of authority to search and such decisions are necessary to deter police misconduct. That was always the aim of 4th Amendment jurisprudence and I think Gant does a reasonably good job of staying in the lines of that goal.
Okay, back to work, these outlines aren’t going to write themselves! See you after finals.
In the last article, I examined the federal and California state cases that highlighted the failure of the Indian Civil Rights Act to find an adequate remedy to the disenrolled Indians. This article will highlight the next federal statute, Title 28 of the United States Code, section 1360(a), better known to its adherents, followers, and enemies as Public Law 280.
Brief History Behind Public Law 280
The relationship between Native Americans and the United States government is tense, to say the least. Beginning in 1949, the American government moved away from a prior era that favored Indian self-government:
In 1949 the Hoover Commission issued its Report on Indian Affairs, recommending an about-face in federal policy: “complete integration” of Indians should be the goal so that Indians would move “into the mass of the population as full, taxpaying citizens.” …Though now formally repudiated by the federal government, the memory of congressional committees and bureaucrats in Washington “terminating” the existence of hundreds of tribes across Indian country stands as a chilling reminder to Indian peoples that Congress can unilaterally decide to extinguish the special status and rights of tribes without Indian consent. (Getches et. al., Cases and Materials on Federal Indian Law (2005) p. 201.)
A quote from Senator Arthur Watkins provides the intent behind the Termination policies:
In view of the historic policy of Congress favoring freedom for the Indians, we may well expect future Congresses to continue to endorse the principle that “as rapidly as possible” we should end the status of Indians as wards of the Government and grant them all the rights and prerogatives pertaining to American citizenship… Following in the footsteps of the Emancipation Proclamation…I see the following words emblazoned in letters of fire above the heads of the Indians – “These people shall be free!”
In short, in the name of liberty, the trust relationship between Indians and the United States was over, the guardian ward position that the United States had assumed over Indian tribes was over, and tribal sovereignty was “effectively ended.” The government cut checks to individual Indians for the value of their land which often was not very little money and said nothing for the loss of federal benefits and protections.
In keeping with the tone of setting the Indians “free” from federal interference, Congress passed Public Law 280, a federal law that conferred civil and criminal jurisdictions from federal oversight to state oversight. The law only applied in certain states; California being one of them.
But what about Santa Clara Pueblo v. Martinez and its proclamation that inter-tribal matters are matters left to tribes? Was that decision abrogated upon the passage of PL-280?
PL-280 and California State Courts
In the last article, I briefly surveyed Lamere v. Superior Court of Riverside. In that case, members of the Pechanga Indian Reservation were disenrolled “on the general ground that the ancestor from whom [the disenrolled] claimed descent was not one of the ‘original Pechanga people’ and her descendants therefore did not qualify as Band members.” The disenrolled brought their action in state court because Pechanga lacked a tribal court of their own; their basis of finding that the court had jurisdiction to hear the case rested on PL-280’s grant of state civil jurisdiction over Indian tribes. The court had this to say:
…in light of [Santa Clara Pueblo v. Martinez], Public Law 280 cannot be viewed as a general grant of jurisdiction to state courts to determine intratribal disputes. …this provision “seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens… In our view, [the current case] is not a “private legal dispute between reservation Indians,” but rather goes tot he heart of tribal sovereignty. (Lamere v. Superior Court of Riverside (2005) 131 Cal.App.4th 1059, 1064 [31 Cal.Rptr.3d 880]).
In the Lamere quote, the court cited Bryan v. Itasca County, a United States Supreme Court case that has been foundational in interpreting the grant of civil jurisdiction to state courts. In Bryan, the issue was whether PL-280 would allow “the States to tax reservation Indians except insofar as taxation is expressly excluded by the terms of [PL-280].” (Bryan v. Itasca County (1976) 426 U.S. 373, 375 [96 S.Ct. 2102, 48 L.Ed.2d 710]). Citing Bryan, the Court of Appeal of California held that:
…the Supreme Court explicitly denied that Public Law 280 confers jurisdiction in teh states over the tribes themselves: “[PL-280] itself refutes such an inference: there is notably absent any conferral of state jurisdiction over the tribes themselves.” California courts are in accord. “No case been cited to us, and we have found none, which concludes or even suggests that [PL-280] conferred on California jurisdiction over the Indians…” (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 954 [17 Cal.Rptr.3d 517]).
As you can see, Santa Clara’s holding is left intact because matters of tribal sovereignty can never be adjudged or scrutinized by a state government. That doesn’t make the situation better for disenrolled Indians, however. All it means is that they are denied yet another means of contesting their disenrollment.
Beating a Dead Horse
The majority of my conclusion is in the last article, but for now, I would like to reflect on the past few months and the words that I have written thus far.
If these articles have taught you anything it’s that tribal sovereign immunity bars courts the jurisdiction necessary to hear these cases and try them on their merits. Without jurisdiction, courts will never be able to use their equitable discretion in determining whether the disenrolled Indians were unfairly cast out or whether their disenrollments were proper exercises of sovereign matters.
There is slight comfort in knowing that tribes’ sovereign immunity remains intact. Not all tribal council decisions concerning members are negative. Not all membership issues are disenrollment issues. Although I want to develop this theme in the conclusion, I do want to take the time to say that I fully support what little sovereignty that Indian tribes have left. Being Native American means being in peril: precious rights often hang by threads and similar threads are all that keep the swords dangling above the heads of Indians from breaking.
I wrote these articles because I had questions concerning the disenrollments. I wanted to know whether the disenrolled sought their day in court, what past precedent the judges were using in making their decisions and what those decisions said. My curiosity was rewarded though I am not that happy for it. I didn’t always like what I found – matter of fact, I hardly ever “liked” what I found but my curiosity has been sated.
My biggest fear is that these articles are nothing more than an exercise in futility. Over the months I have written four articles all basically saying the same thing. The disenrolled have nothing to protect them from their tribal councils. For months I feel that I have beaten a dead horse, constantly blogging, quoting court cases and statutes, and always coming back to the same spot: the courts have no jurisdiction. Always the lack of jurisdiction.
And what of the courts themselves? Eternally bound by past precedent, whether its the United States Supreme Court or individual federal and state courts, the courts carry forward the legacy of racist and discriminatory policies that have already died out in many ways in our society but courts are forced to carry them forward. It has become very apparent to me that the Judicial Branch of the United States government is the worst place to fight for an Indian’s rights. For far too long the disenrolled have essentially been barking up the wrong tree. I can’t blame the courts for that, though; it’s their job to follow the code of stare decisis. Courts need guidance from a different precedent.
It appears that only Congress can give those rights…or take them away.
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This is the last substantive article on the issue of tribal disenrollments. If you wish to end your journey here then feel free to do so; there is no more law to quote, no more statutes to read and no more history that I feel is relevant to this issue. The next article is merely one large conclusion and it’s purely optional – I feel like I’ve kept you here long enough.
I would like to take this time to thank every one of my readers who have patiently waited for each article to come out. Sorry about the delay between articles – law school has kept me extremely busy, so I hope you understand. In particular, I would like to thank the disenrolled Native Americans who have stopped by to read and offer their two cents on the whole affair. I would like to dedicate these articles to you and along with my thanks, wish you the best and hope that you one day get the justice that many of you, whether you are in California or any other state, deserve. You will always be an Indian, no matter what any person says and no one can take that away from you.
In 2006, the California Supreme Court held the following:
…we can see no sustainable basis to distinguish [website publishers] from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.
[The website publishers] are reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial. (O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1468 [44 Cal.Rptr.3d 72]).
The court mentions a “constitutional privilege.” What is that? It is the privilege by state and federal law guaranteeing a free press by not punishing the failure to not disclose confidential sources and information. Specifically, the California constitution states:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication… shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (Cal. Const., art. I, §2, subds. (a) -(b))
In a nutshell, a website called O’Grady’s PowerPage, which is a website that publishes articles on mobile technology and Apple products, got into trouble when an anonymous poster disclosed the specs of a yet-to-be-seen Apple product. Drama ensued in the courts when Apple sought disclosure from the website about the person or persons who disclosed the information. The petitioners sought to block the subpoenea ordering disclosure on the grounds that as web publishers, whose website was akin to an online news magazine, they were protected by California’a Media Shield (via Article I, Section 2(b).) The Court held in their favor.
Article I, Section 2(b) of the California Constitution applies to website publications because they are similar to “traditional print media… They consist primary of text, sometimes accompanied by pictures, and perhaps occasionally by multimedia content.” (O’Grady v. Superior Court, supra, 139 Cal.App.4th 1423, 1462.)
Therefore, not only do website publishers are protected in their publishing activities but their information and anonymous sources are protected from disclosure. Such a ruling keeps the law current with the changing nature of news media and online publication.
So, do the blogs fit in as “website publishing”? In a footnote commentary the Court stated:
However, we have avoided the term “blog” here because of its rapidly evolving and currently amorphous meaning. It was apparently derived from “we blog,” a whimsical deconstruction of “weblog,” a compounding of “web log,” which originally described a kind of online public diary in which an early web user would provide links to, and commentary on, interesting Web sites he or she had discovered…
However, the meanings ultimately to be given these neologisms, as well as their prospects for survival, remain unsettled. (Id. at p. 1464, fn. 21.)
What would you think of Strict Liability in Blog in light of the California Supreme Court’s opinion? Or the Volokh Conspiracy? Or the Wall Street Journal’s legal blog? Do we sound like reporters or magazine publishers? Do we put more emphasis on personal ramblings rather than news-oriented items such as the American economy, the War on Terror, the environment, or the latest Apple gadget? Obviously, I’m going to weigh in and say we are protected by the Media Shield as well; not all blogs are a collection of entries pertaining to the daily ins and outs of one’s life. Some blogs are issue driven; others pay close attention to legal topics and so on. This blog and many others are just as deserving of federal and state protection as a “website publisher.” (I’m assuming this wouldn’t count for websites that intentionally participate in committing torts or crimes though.)
The O’Grady decision is not without its foes however, especially those committed to protecting their trade secrets out of the hands of anonymous leakers but that issue cannot be addressed here. As always, there’s two sides to an issue and this article showcases one of them.
A new Fresno Bee article concerning Chukchansi Gold’s disenrollment of hundreds of members has stated:
Tribal Chairman [of Chukchansi] says the disenrollments were necessary to correct past membership mistakes and had nothing to do with increasing the wealth of remaining tribal members.
“We had to find out if they were qualified Chukchansi,” he said. “It was a process and procedure that had to be followed.”
In my research on tribal disenrollments I’ve only dealt with court cases and news articles. This is not the first time that I recall hearing something from the other side – the disenrolling side – on any due process procedure given to those who are about to be disenrolled. However, some clarity was added when looking at a February 2005 newsletter published by Chukchansi (provided by the Fresno Bee):
Feb 2005 Newsletter Excerpt
The newsletter then went to discuss a larger issue concerning a recall election and various political rivalries within the tribe. An interesting sentence:
[The issue of disenrollments] is already tearing our tribe apart. Should we take the path of summarily disenrolling members from our Tribe, our Tribe could become the example of greed that gaming has engendered from coast to coast. This kind of press directly affects our Casino business, and contributes to the already significant backlash against Indian gaming in California and across the U.S…
Instead let’s practice the traditions of our people: respect, restraint and generosity in unraveling years of poor enrollment practices so that all people of Chukchansi blood are dealt with fairly.
Poor enrollment practices? Membership files being lost, stolen or destroyed? Is there more to the disenrollment issue than just the “evil council” perpetuating disenrollment after disenrollment for the sake of cronyism and greed?
In my own life I have seen just how easily it is for a tribal government (or one’s pretending to be) to misplace files. I was never aware of all the facts at the time so I can’t accuse anyone of deliberately destroying or losing files that could prove detrimental to their own positions or authority however the prevailing, unofficial opinion was that the documents were lost to either intentionally or negligently. So it doesn’t surprise me that such a large tribe (or at least not as large as it used to be) would have trouble holding onto their documents.
Somewhat related to this subject is the issue of finding geneaological records. The basis of many enrollment and distribution lists were census records taken in the 19th century – a time period where America could have cared less about Indian people and would much rather have them put to the sword or sent to boarding schools. As such, documenting one’s roots are next to impossible. In my family tree there are numerous references made to misspelled names, vague entries, or simply put, no records exist at all. Also, numerous members of my family were misidentified as Miwuks when they were really Paiutes.
Two questions emerge from this turmoil: 1) Did the census takers interview the Indians directly to get their information? or; 2) Did they ask other Indians. If the answer to the second question is yes then that raises all sorts of issues. How can you rely off second hand information for anything important like a census?
Compounding the problem further is that Indians in those days didn’t keep such records or have birth certificates. My great-grandmother was born in 1915; my mother and grandmother said she has one but the State of California can’t find it.
The sad truth is that researching one’s Indian ancestry is heavily dependent upon the shoddy research of 19th century census takers. One wonders if they were biased against Indians given the attitudes of Manifest Destiny prevalent in the American West which would aid their motivations to conduct as shallow research as possible, just enough to get by and move on to the next assignment. Or maybe they did try but no Indian would talk to the white man – they certainly had their reasons. Whatever the reason – tracing Indian lineage in the American West, particularly around Nevada and California is very difficult.
The trouble with documents when it comes to Indians is that despite all the research holes the government bases its conclusions on who is a legally recognized Indian and who isn’t on them. The Indians took care of each other; they took in people from other bands for the sake of survival and community. Despite the weakness of documentation the Indian communities made up for that weakness by enrolling together as one tribal government. It seems that the lack of paper evidence was disregarded in favor of communal ties and family relationships – the type of bond that only blood and friendship can bring. And like the newsletter points out, the more people on the roll list then the more money they got from the BIA.
So if the tribes needed their enrollment numbers up at one time then why do they need them reduced now? What factors would justify the tribes to get serious about determining who is a member of their tribe and who isn’t? What role does having a casino play in determining whether the membership lists needed to be reduced or expanded?
Whether the “evil council” stereotype holds up to scrutiny, I must conclude that given the wrongs committed against the Indians and the reaction to those wrongs – i.e. community building as a means of survival and friendship – the use of disenrollment as a function of protecting the tribal community is a gross farce. I find such excuses by this tribal council or any tribal council to that effect to be putting up the window dressing of due process when it smells of something different.
For more information on the tribal disenrollments in California, please see my article series on the subject:
Has the ready availability of digital law review collections on LexisNexis, Westlaw, HeinOnline and law review websites eliminated the need for subscribing to law reviews?
…
And then there is the irrelevance factor. Maybe law review articles simply are not as relevant to members of the bench and bar as they once were…
The author concludes with an interesting prediction:
Judges just don’t use [law review articles] any more. My own view is that in todays world there is a waste of emphasis on legal theory which no one, other than other law review writers, find helpful. Law reviews also take too long to publish. My last two article each took well over a year to get published!
I believe online short law review journals are the waive of the future together with blogs which provide immediate commentary on developing issues.
Oh, really? I can only express a cautious and guarded optimism in the thought that online media is becoming a new source of legal treatising, commentary and theory; however, I firmly believe law review articles have a very special place in the legal world.
A law review article can expound with more information, more insight, more analysis and more stimulation than a blog article could ever hope to contain. And believe me, I love blogging but let’s face it, this just ain’t the way to go about things.
If law review articles are in decline – and what I’m about to say is highly speculative and subjective – it’s because:
Like the blog author noted, WestLaw and LexisNexis provide online access to hundreds of law review articles, all of which can be accessed via term, connections and keyword searches. This quick and easy feature of online databases puts mail-based subscriptions on the back burner.
Perhaps the quality of writing and analysis turns away those who are looking for insightful commentary on a legal issue. Analagogous to this particular notion comes from my experience as a former senior editor of a peer-reviewed, graduate level history journal – not a law review by any stretch of the imagination but both were graduate level publications, each required close scrutiny to citation of pertinent and relevant sources, each required that its authors had some basic concept of fact analysis, and lastly, you had to be able to put a sentence together in a readable fashion. Much of the entries I reviewed were either bad or catastrophically bad, you wouldn’t have been able to tell these were graduate students. Fortunately, the articles we accepted for publication were awesome but just thinking about the reject pile makes me shiver over the quality (or lack thereof) of graduate level writing. I do not find it hard to imagine a similar situation occurring in law review editors’ rooms across the nation.
We live in a culture of immediacy – everything has to happen now, now now; attention spans last all of 20 nanoseconds and if we can’t have the information we want then we move on to somewhere else. Who wants to read a 50 page law review article? Even 20 is cutting it close. There is some justification to Mitchell Rubinstein’s prediction that online media like blogs are better for up-to-the-minute commentary and analysis. Why skim the rows of the law review section of the library when you have google?
Despite this, however, I believe in declines as much as I believe in renaissances. Sooner or later people are going to realize that the informational quick fix is nothing like the mature, well-written, engrossing and longer law review article.
First of all, I am not an attorney and even if I were this blog in no way is intended nor shall be construed as me giving you legal advice. Furthermore, by reading this blog you are not to assume that there is an attorney-client privilege established between you and I. Especially because I'm not an attorney.
Also be aware that this blog contains my thoughts and opinions and that they are my own and no one else's. The opinions and conclusions I draw are based on whatever law I cite and the research that I have conducted. These blogs are not binding like a court decision; rather, they are just the thoughts of some 2L spouting off about all the cool stuff he's been learning.
