Posts Tagged ‘Indian tribes’

September 12 roundup

  • Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
  • “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
  • Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
  • “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
  • Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
  • And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]

Canada follows a UN lead on indigenous rights

The government of Prime Minister Justin Trudeau has moved to support bringing Canada’s laws into line with the terms of the U.N. Declaration on the Rights of Indigenous Peoples, something predecessor administrations had resisted. The result is likely to involve major changes to the current rights and obligations of Canadians [Matt Pollard, Opinio Juris; earlier on the Declaration here and here, and related here, here and here]

Distantly related, perhaps: a symposium on “Global Justice for Indigenous Languages” [Columbia University Institute for the Study of Human Rights]

Supreme Court roundup

  • After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
  • In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
  • High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
  • “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
  • University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
  • Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]

Free speech roundup

  • Two new podcast series on free speech: “Make No Law,” from Ken White (Popehat) on Legal Talk Network; Clear and Present Danger: A History of Free Speech from Jacob Mchangama for FIRE and other groups;
  • No, Section 230 of the Communications Decency Act does not require tech companies to provide a “neutral public forum.” Has Sen. Ted Cruz been properly briefed on this? [John Samples]
  • “Arizona naturopath Colleen Huber is suing me in Germany for defamation over my opinions about her so-called natural cancer treatments and research.” [Britt Hermes, Naturopathic Diaries]
  • “Should the Government Get to Define ‘Native-American’ Art? One Woman’s Free Speech Fight” [Paul Detrick, Reason]
  • “Minnesota prohibits any insignia deemed to be “political” — as determined solely at the discretion of the on-site election judges—from being worn into a polling place.” Overbroad? [Ilya Shapiro and Reilly Stephens on Cato brief in Minnesota Voters Alliance v. Mansky]
  • Free speech was under fire in 2017 [Jeffrey M. McCall, Providence Journal]

Schools roundup

November 29 roundup

  • Will it ever end? “Monkey Selfie Photographer Says He’s Now Going To Sue Wikipedia” [Mike Masnick, TechDirt, earlier]
  • Justice Thomas argues Indian Reorganization Act is unconstitutional [Upstate Citizens for Equality v. U.S., land-into-trust, dissenting from denial of certiorari]
  • “How much does it cost to reimburse a probation officer for $60 pants? About $4,300, so far” [John Beauge, PennLive]
  • On Gill v. Whitford, partisan gerrymandering, and the uses of math in law [Erica Goldberg]
  • Brazil makes progress on fighting corruption, advancing rule of law [Juan Carlos Hidalgo on new Cato policy analysis by Geanluca Lorenzon]
  • “Activision are fighting a [trademark] for ‘Call of DooDee’, a dog-poop-removal service” [PC Games]

Thanksgiving: a Day of Indigenous Mourning for American land?

Yesterday’s Thanksgiving celebration was accompanied by a fair bit of commentary about how the November holiday is a “day of indigenous mourning,” a symbol of the theft of the United States from its pre-Columbian population. Yet as I wrote in 2011 in the Schools for Misrule chapter on Indian land claims, the historical premise that Indian land in the U.S. was by and large stolen by the white man is false:

In 2005 a young UCLA law professor, Stuart Banner, published How the Indians Lost Their Land, an extensively researched work that does much to correct the portrayal of white-Indian relations as a mere catalog of thefts, conquests, and usurpations. As Banner demonstrates, the actions and attitudes of white Americans and their institutions have shown a full range of shadow and light, from extreme wickedness and ignorance to as much grace, goodwill, and foresight as could have been expected under the circumstances. Tracing the many twists and reverses of federal Indian policy, Banner notes that it was usually anything but obvious which proposed measures would truly serve the interests of aboriginal inhabitants, that nearly all major changes in policy enjoyed support among some Indians and Indian-friendly white reformers, and that most of the major disasters to afflict America’s Indian population were either unforeseen or not well controllable by the central government.

I also quote the leading 20th Century scholar of Indian law, Felix S. Cohen, architect of the “Indian New Deal” and one of the most progressive law professors and FDR appointees of his era:

Fortunately for the security of American real estate titles, the business of securing cessions of Indian titles has been, on the whole, conscientiously pursued by the Federal Government, as long as there has been a Federal Government. The notion that America was stolen from the Indians is one of the myths by which we Americans are prone to hide our real virtues and make our idealism look as hard-boiled as possible. We are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical.

It is, in fact, difficult to understand the decisions on Indian title or to appreciate their scope and their limitations if one views the history of American land settlement as a history of wholesale robbery.

More in this short 2012 Cato post and the Richard Reinsch essay to which it links.

Transferring drug patents to Indian tribes, cont’d

More on the controversy that erupted in September: By ruling the patent invalid due to obviousness, a federal judge may have mooted Allergan’s innovative move to transfer its patent over a successful dry-eye drug, Restasis, to the St. Regis Mohawk tribe. “The Restasis patents are at the center of a novel legal strategy that involves using Native American sovereignty rights to avoid certain types of patent reviews, called inter partes reviews, or IPRs….But this ruling won’t be the last time sovereign immunity is used to defend patents.” [Joe Mullin, ArsTechnica] And for something contrarian, Joanna Shepherd at Truth on the Market offers context on the bypassing of inter partes reviews, saying IPR is a process itself unbalanced in favor of patent challengers.

November 1 roundup

  • Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
  • Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
  • Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
  • Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
  • More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
  • “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]

Schools and childhood roundup