Indian tribes – Overlawyered

May 20 roundup

Walter Olson — Wed, 20 May 2020 10:30:34 +0000

Is universal access to reliably functioning electric power better or worse in countries that officially treat access to electric power as a right rather than a private good? [David R. Henderson on Burgess et al., Journal of Economic Perspectives]
“There’s bad lawyering, and then there’s lawyering so bad that the Tenth Circuit holds the plaintiffs’ lawyer liable for $1 mil in attorneys’ fees. But that’s what you get if you ignore orders not to file ‘any more prolix, redundant, meandering pleadings or briefs.'” [Institute for Justice “Short Circuit” on Snyder v. Acord]
1st Circuit: Dept. of Interior broke law when it turned land owned by Mashpee Wampanoag tribe into new reservation land. Feds: okay, we’ll comply and tribe will own land in conventional form instead. Progressive Twitter: settler colonialist shock horror! [WBUR]
“Supreme Court Agrees to Decide, What is Hacking?” [Orin Kerr on Van Buren v. U.S.]
“The Second Circuit has upheld the awful decision by [a district court] to sanction a building owner millions of dollars for daring to paint the walls of his own building.” [Cathy Gellis, TechDirt; earlier; Visual Artists Rights Act violation found after building owner permitted graffiti installations, later painted them over]
“Led Zeppelin wins ‘Stairway to Heaven’ copyright case” [Jonathan Stempel, Reuters]

Tags: art and artists, Indian tribes, music and musicians, sanctions

May 20 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Read: my WSJ piece on a bad Minnesota bill on race and child welfare

Walter Olson — Tue, 07 Apr 2020 10:05:51 +0000

Cato has now reprinted, with no paywall, my February Wall Street Journal piece on an audaciously unconstitutional bill moving through the Minnesota senate committee that would introduce explicit racial classifications into the state’s child welfare system, the idea being to institute markedly stronger protections for black families (but not others) against child removal. Earlier here.

Tags: Child Protective Services, Indian tribes, Minnesota, racial preferences, WO writings

Read: my WSJ piece on a bad Minnesota bill on race and child welfare is a post from Overlawyered - Chronicling the high cost of our legal system

March 4 roundup

Walter Olson — Wed, 04 Mar 2020 10:59:28 +0000

Educated Canadian circles have politely indulged theories about how indigenous sovereignty is purer and more legitimate than so-called settler government. Ten thousand land acknowledgments later, comes the reckoning [J.J. McCullough, Washington Post] Read and marvel: “As lawyers and legal academics living and working on this part of Turtle Island now called Canada, we write to demand…” [Toronto Star; similarly, David Moscrop, Washington Post]
Plaintiff’s lawyers in talc case played footsie with Reuters reporters: “Judge Sanctions Simmons Hanly for ‘Frivolous’ Disclosure of Johnson & Johnson CEO’s Deposition” [Amanda Bronstad, New York Law Journal]
Bernie Sanders’ disastrous rent control plan [Cato Daily Podcast with Ryan Bourne and Caleb Brown] Housing construction unwelcome unless public? Vermont senator boosts opposition to East Boston plan to build mix of 10,000 market and affordable new homes on defunct racetrack [Christian Britschgi]
Happy to get a request from Pennsylvania to reprint and distribute my chapter on redistricting and gerrymandering, found on pp. 293-299 of the Cato Handbook for Policymakers (2017). If you’re interested in the topic, check it out;
Family courts deciding the future of a child commonly don’t take testimony from foster carers. Should that change? [Naomi Schaefer Riley/Real Clear Investigations, quotes me]
Supreme Court will not review Ninth Circuit ruling that Eighth Amendment’s prohibition on cruel and unusual punishment prohibits city of Boise from enforcing law against homeless encampments when there are insufficient beds available in shelters [Federalist Society teleforum and transcript with Andy Hessick and Carissa Hessick]

Tags: Bernie Sanders, Canada, foster care, Idaho, Indian tribes, Ninth Circuit, Pennsylvania, redistricting reform

March 4 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Minnesota bill would prescribe child-removal standards that differ by race

Walter Olson — Sun, 01 Mar 2020 16:55:29 +0000

“Should the law require state child-welfare authorities to treat black children differently from white children? Lawmakers in Minnesota may soon vote on a bill to do just that. ” I have an op-ed in the weekend Wall Street Journal’s “Cross Country” column (paywalled) on a bill that has passed a Minnesota senate committee and would introduce explicit racial classifications into the state’s child welfare system, the idea being to institute markedly stronger protections for black families against child removal. I argue that if the provisions are a good idea, they should apply to all families, an argument with implications for the Indian Child Welfare Act (ICWA), on which the Minnesota bill was modeled. More on the proposed Minnesota African American Family Preservation Act: Sara Tiano/Chronicle of Social Change, Brainerd Dispatch, Insight News.

Tags: Child Protective Services, Indian tribes, Minnesota, racial preferences

Minnesota bill would prescribe child-removal standards that differ by race is a post from Overlawyered - Chronicling the high cost of our legal system

A podcast on the Indian Child Welfare Act

Walter Olson — Sun, 16 Feb 2020 17:01:07 +0000

I join Caleb Brown at the Cato Daily Podcast for a discussion of the constitutional and practical problems with the Indian Child Welfare Act of 1978 and the challenge currently before the Fifth Circuit in Brackeen v. Bernhardt.

Tags: adoption, Child Protective Services, foster care, Indian tribes

A podcast on the Indian Child Welfare Act is a post from Overlawyered - Chronicling the high cost of our legal system

Libel, slander, and defamation roundup

Walter Olson — Mon, 13 Jan 2020 10:58:36 +0000

Texas trims back its SLAPP law after complaints it was being used in circumstances far from original design [John G. Browning, D Magazine] Howard Wasserman on John Oliver on SLAPP suits [Prawfsblawg]
In the U.S., sovereign governments can’t sue for libel. Does that include Indian tribes? [TMZ, Eugene Volokh]
“Your Periodic Reminder that Blogging About Litigation Can Generate More Litigation” [Eric Goldman]
Virginia emerges as libel tourism destination in high-profile cases [Justin Jouvenal, Washington Post; Paul Alan Levy, Public Citizen on Devin Nunes action, earlier]
“Virginia Legislator Joe Morrissey Gets Called “Fool,” Sues, Arguing He’s Not a Fool” [Eugene Volokh] “Retired Law Professor Sues Lawyer-Commenters on Law Blog” [same]
“Kansas senate leader ordered to pay nearly $39,000 in legal fees to The Kansas City Star after a judge dismissed his defamation lawsuit” [Katie Bernard, Kansas City Star]

Tags: forum shopping, Indian tribes, Kansas, libel slander and defamation, Texas, Virginia, watch what you say about lawyers

Libel, slander, and defamation roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Fri, 08 Nov 2019 10:59:36 +0000

A Cato-centric selection:

Massachusetts bans the most popular variety of self-defense firearms and that violates the Second Amendment, as SCOTUS should make clear [Ilya Shapiro and James T. Knight II on Cato Institute amicus brief in Worman v. Healey] Congress has never passed a law criminalizing the accessories known as bump stocks and the Executive branch can’t change that on its own [Trevor Burrus and James Knight, Guedes v. BATF]
Three more Cato certiorari amicus briefs: With return of Little Sisters case, Court should make clear that scope of accommodation under Religious Freedom Restoration Act is not for executive agencies to expand and contract accordion-like [Ilya Shapiro and Sam Spiegelman] Berkeley, Calif.’s ordinance requiring disclosure of the purported risks of cell phone radio frequency (RF) exposure poses First Amendment questions of forced commercial speech [Ilya Shapiro and Michael Collins on return to SCOTUS of CTIA v. Berkeley] Supreme Court has rejected attempt to use Alien Tort Statute to assert universal jurisdiction over human-rights abuses in overseas business, but Ninth Circuit still hasn’t gotten the message [Ilya Shapiro and Dennis Garcia, Nestle v. Doe]
Summing up the last Court term: speech by Miguel Estrada and a short video with Ilya Shapiro for the Federalist Society;
“Fearful that the Supreme Court will reject a broad interpretation of the CWA’s [Clean Water Act’s] scope, environmentalist groups have been seeking to settle the Maui case before the Court rules.” [Jonathan Adler on Maui v. Hawaii Wildlife Fund]
Another case of surprise plain meaning? Advocates argue that Congress didn’t really end Indian reservation status for much of the state of Oklahoma even if everyone at the time thought it did [Will Baude on Sharp v. Murphy; earlier on surprise plain meaning]
“An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know” [new book by Randy Barnett and Josh Blackman; described here, and discussed in this Cato video]

Tags: Cato Institute, constitutional law, guns, Indian tribes, Oklahoma, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

August 29 roundup

Walter Olson — Thu, 29 Aug 2019 09:59:44 +0000

“We’re not asking for the Wild West. We’re asking for cookies.” New Jersey is the last state without a law legalizing at least some cottage food sales [Amelia Nierenberg, New York Times]
Reversing district court, Fifth Circuit panel upholds Indian Child Welfare Act against constitutional objections; dissent by Judge Owen finds a commandeering problem [Brackeen v. Bernhardt, earlier]
“The Larsens’ videos are a form of speech that is entitled to First Amendment protection.” Eighth Circuit panel rules [correctly, in my view] for videographers who wish to craft wedding videos only when the ceremonies accord with their religious beliefs [Telescope Media Group v. Lucero; Eugene Volokh]
“Innocent man spent months in jail for bringing honey back to United States” [Lynn Bui, Washington Post/MSN]
Preakness, Peter Pan Inn, relocating USDA jobs, Baltimore and Abell Foundation in my new Free State Notes roundup;
Pushing back against the argument, much circulated lately, that eviction is a major factor in causing poverty [John Eric Humphries, Nicholas Mader, Daniel Tannenbaum, Winnie van Dijk, Cowles Foundation]

Tags: Baltimore, Indian tribes, landlord tenant law, Maryland, New Jersey

August 29 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Making eagle feathers legally safe for Native American worshipers

Walter Olson — Tue, 16 Jul 2019 04:05:17 +0000

Eagle feathers have long been important in Native American religious practice, but federal law generally bans possession of eagle feathers under stringent penalties. While the law authorizes the Interior Department to exempt Native American religious use, the Department has sometimes been stinting and ungenerous in its granting of permission. Although the Fifth Circuit ruled in favor of Indian worshipers in a big 2014 case under the Religious Freedom Restoration Act of 1993, uncertainty continues to linger. Now advocates have petitioned for a rulemaking that would expand the exemption from federally recognized tribes only to all sincere believers including members of state-recognized tribes, and would set the exemption on a firmer legal footing for the future by taking it through the notice and comment process. [Joseph Davis, Federalist Society, earlier; End the Feather Ban advocacy page]

Tags: endangered species, Indian tribes, religious liberty

Making eagle feathers legally safe for Native American worshipers is a post from Overlawyered - Chronicling the high cost of our legal system

Cato joins amicus brief challenging Indian Child Welfare Act

Walter Olson — Sun, 10 Feb 2019 16:59:27 +0000

“For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.” The Cato Institute has joined an amicus brief challenging the Indian Child Welfare Act (ICWA) in the Fifth Circuit case of Brackeen v. Bernhard. I’ve got more details in a new post at Cato at Liberty. Earlier on ICWA here.

Tags: adoption, Cato Institute, Indian tribes

Cato joins amicus brief challenging Indian Child Welfare Act is a post from Overlawyered - Chronicling the high cost of our legal system