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Indian Law

Michigan v. Bay Mills Indian Community - Post-Decision SCOTUScast

SCOTUScast 6-2-14 featuring Tom Gede
Thomas F. Gede June 02, 2014

Thomas F. GedeOn May 27, 2014, the Supreme Court issued its decision in Michigan v. Bay Mills Indian Community. The question in this case is twofold. First, whether a federal court may exercise jurisdiction to prohibit an activity that violates the Indian Gaming Regulatory Act (IGRA), but does not occur on Indian lands; and second, whether tribal sovereign immunity precludes a state from suing a tribe in federal court for violations of IGRA that take place outside of Indian lands.

By a vote of 5-4, the Court held in an opinion delivered by Justice Kagan that Michigan's suit against Bay Mills is barred by tribal sovereign immunity. Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor joined the opinion of the Court. Justice Sotomayor authored a concurring opinion. Justice Scalia wrote a dissenting opinion. Justice Thomas also wrote a dissenting opinion, joined by Justices Scalia, Ginsburg, and Alito. Justice Ginsburg wrote a separate dissenting opinion. The opinion of the Sixth Circuit was affirmed and the case was remanded.

To discuss the case, we have Tom Gede, who is a principal in Bingham Consulting and of counsel at Bingham McCutchen.

Michigan v. Bay Mills Indian Community - Post-Argument SCOTUScast

SCOTUScast 12-31-13 featuring Tom Gede
Thomas F. Gede December 31, 2013

Thomas F. GedeOn December 2, 2013, the Supreme Court heard oral argument in Michigan v. Bay Mills Indian Community. The question in this case is twofold. First, whether a federal court may exercise jurisdiction to prohibit an activity that violates the Indian Gaming Regulatory Act (IGRA), but does not occur on Indian lands; and second, whether tribal sovereign immunity precludes a state from suing a tribe in federal court for violations of IGRA that take place outside of Indian lands.

To discuss the case, we have Tom Gede, who is a principal in Bingham Consulting and of counsel at Bingham McCutchen.

Adoptive Couple v. Baby Girl - Post-Decision SCOTUScast

SCOTUScast 7-10-13 featuring Tom Gede
Thomas F. Gede July 10, 2013

Thomas F. GedeOn June 25, 2013, the Supreme Court announced its decision in Adoptive Couple v. Baby Girl. The case involved the Indian Child Welfare Act (ICWA) of 1978, and considers the following: 1) whether a biological father who initially renounced custodial rights over his daughter can invoke the ICWA to block her adoption by a non-Indian couple; and 2) whether the ICWA’s definition of “parent” includes an unwed biological father who has not followed state rules for obtaining legal status as a parent.

In an opinion delivered by Justice Alito, the Court held by a vote of 5-4 that, if the biological father is assumed to be a parent for ICWA purposes, the Act does not bar termination of the father’s parental rights. Chief Justice Roberts, as well as Justices Kennedy, Thomas and Breyer joined the majority opinion. Justice Thomas and Justice Breyer filed concurring opinions. Justice Scalia filed a dissenting opinion. Justice Sotomayor also filed a dissenting opinion, which was joined by Justices Ginsburg and Kagan, and by Justice Scalia in part.

To discuss the case we have Tom Gede, a commissioner on the Indian Law and Order Commission and Of Counsel with Bingham McCutchen LLP.

Adoptive Couple v. Baby Girl - Post-Argument SCOTUScast

SCOTUScast 5-13-13 featuring Tom Gede
Thomas F. Gede May 13, 2013

Thomas F. GedeOn April 16, 2013, the Supreme Court heard oral argument in Adoptive Couple v. Baby Girl.  The case involves the Indian Child Welfare Act (IWCA) of 1978, and considers the following: 1) whether a biological father who initially renounced custodial rights over his daughter can invoke the ICWA to block her adoption by a non-Indian couple; and 2) whether the ICWA’s definition of “parent” includes an unwed biological father who has not followed state rules for obtaining legal status as a parent. 

To discuss the case we have Tom Gede, a commissioner on the Indian Law and Order Commission and Of Counsel with Bingham McCutchen LLP.

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Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA?

Engage Volume 13, Issue 2, July 2012
Thomas F. Gede August 06, 2012

Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA?Ever since the U.S. Supreme Court issued its 1978 decision in Oliphant v. Suquamish Tribe, holding that Indian tribes do not have inherent criminal jurisdiction over non-Indians, there has been a high level of demand that Congress overturn the decision through legislation. Scholarly literature, policy studies and political analysis have heavily criticized the decision and many have suggested an “Oliphant-fix,” along the lines of the 1991 “Duro-fix,” in which Congress amended the 1968 Indian Civil Rights Act (“ICRA”) to recognize the inherent authority of tribes to prosecute and punish non-member Indians. An “Oliphant-fix” would extend that recognition of authority, in full or in part, over non-Indians. Oliphant has long been considered by tribes and tribal advocates as a wound in the side of federal Indian law and policy; it has been described as “the most serious judicial onslaught on tribal territorial sovereignty.” Scant literature has been published supporting Oliphant, yet there has been little movement in Congress, outside of the Senate Indian Affairs Committee, to further a full or partial repeal. However, the first significant move came with the Senate’s April 26, 2012 passage of the reauthorization of the Violence Against Women Act (“VAWA”) containing a partial Oliphant repeal. The VAWA reauthorization bill, S. 1925, with its incorporated SAVE Native Women Act, S. 1763, included in Title IX a provision, like the Duro-fix, recognizing inherent authority of tribes to prosecute and punish certain domestic violence crimes committed by non-Indians against Indian women in Indian country... [Read more!]