MENU

Indian Law

The New Trail of Tears: How Washington Is Destroying American Indians - Podcast

Environmental Law & Property Rights Practice Group Podcast
Naomi Schaefer Riley, Timothy Sandefur September 07, 2016

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book The New Trail of Tears: How Washington Is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation—and the rays of hope—and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,” writes Riley, “have chosen civilization; now it’s time for America to make them equal Americans.” With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum looked at the legal and political problems that plague the more than 500 reservations in North America.

Featuring:

  • Naomi Schaefer Riley, New York Post columnist, author of The New Trail of Tears: How Washington Is Destroying American Indians
  • Commentary by: Timothy Sandefur, Vice President for Litigation, Goldwater Institute 

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Decision SCOTUScast

SCOTUScast 8-18-16 featuring Zachary Price
Zachary Price August 18, 2016

On June 23, 2016, the Supreme Court decided Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court was whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

In a per curiam opinion, the judgement of the Fifth Circuit was affirmed by an equally divided court.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

United States v. Bryant - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Thomas F. Gede
Thomas F. Gede July 12, 2016

On June 13, 2016, the Supreme Court decided United States v. Bryant. Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. He did not have the benefit of counsel with respect to these convictions, though they complied with the Indian Civil Rights Act (ICRA). Having made further domestic assaults in 2011, Bryant was charged with violating 18 U.S.C. §117(a), which makes it a federal crime for any person to “commi[t] a domestic assault within...Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” He argued that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element. Although the district court rejected Bryant’s argument the U.S. Court of Appeals for the Ninth Circuit agreed with him, vacating his conviction and directing dismissal of the indictment. 

By a vote of 8-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. Justice Ginsburg delivered the opinion for a unanimous Court, which held that because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Justice Thomas filed a concurring opinion.

To discuss the case, we have Thomas F. Gede, who is Principal at Morgan Lewis Consulting LLC and of counsel at Morgan, Lewis & Bockius LLP.

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Argument SCOTUScast

SCOTUScast 12-15-15 featuring Zachary Price
Zachary Price December 15, 2015

On December 7, 2015, the Supreme Court heard oral argument in Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

Is the Akaka Bill Back? - Podcast

Civil Rights Practice Group Podcast
Hans A. von Spakovsky December 17, 2014

The Akaka Bill, originally proposed by former U.S. Senator Daniel Akaka, was designed to establish a process for Native Hawaiians to gain federal recognition similar to that of some Native American tribes. Based on this status, members can then receive preferential treatment. Critics argue that such treatment would violate the Equal Protection Clause of the U.S. Constitution. Supporters argue that such preferences would be authorized because they would be on the political relationship that existed between the U.S. government and its native peoples, and based on the pre-existing sovereignty of those native peoples. Will the Akaka Bill, or some version of it, resurface? If so, is it good law? Good policy?

  • Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation