American Indian law

Oregon has passed a bill that would allow school districts to receive the permission of American Indian tribes to use school mascots "that represent or are significant to the tribes," the Portland Tribune reports. The Oregon State Board of Education voted to prohibit public schools from using American Indian names, symbols or images as school mascots after July 1, 2017, the Tribune also reports.

The governor previously vetoed similar legislation because "he believed it created an overly broad exception to the State Board of Education’s decision to ban Native-themed mascots," the Tribune further reports. The legislation was changed to require that the board approves agreements reached between school districts and tribes.

While American Indian reservations are sovereign nations, tribes have not had the legal authority to arrest non-Indian women who assault or rape Indian women on reservations, The Washington Post reports. But the Violence Against Women Act, signed in March, will for the first time give Indian tribes jurisdiction over some crimes of domestic violence committed by "non-Indians in Indian Country," The Post further reports (The law won't cover assaults committed by non-Indians against native women and it doesn't cover native women in Alaska).

The level of violence against American Indian women is startling: "An estimated one in three Native American women are assaulted or raped in their lifetimes, and three out of five experience domestic violence," The Post also reports.

A federal judge has certified a class action over the treatment of American Indian children in South Dakota's foster care system, the Associated Press reports: "It alleges the state is violating the Indian Child Welfare Act by holding improper hearings after children are removed from homes. It says the hearings are sometimes as short as 60 seconds and do not give parents the opportunity to introduce evidence showing their ability to care for the child or to question the state."

A federal judge has certified a class action over the treatment of American Indian children in South Dakota's foster care system, the Associated Press reports: "It alleges the state is violating the Indian Child Welfare Act by holding improper hearings after children are removed from homes. It says the hearings are sometimes as short as 60 seconds and do not give parents the opportunity to introduce evidence showing their ability to care for the child or to question the state."

The greater level of child abuse, domestic violence, and violence against women on American Indian reservations is horrifying. One of the recommendations of the nine-member Indian Law and Order Commission in "A Roadmap to Making Native America Safer" to improve that situation is to allow tribes to opt of currently existing law enforcement systems in favor of their own--along with the establishment of a "U.S. Court of Indian Appeals to which a defendant could appeal on the grounds that his 4th, 5th, 6th or 8th amendment rights under the U.S. Constitution had been violated," Indian Country Today Media Network reports. The report argues for an American Indian law-centric circuit court '"because it would establish a more consistent, uniform, and predictable body of case law dealing with civil rights issues and matters of Federal law interpretation arising in Indian country."'

The localism of such a system reflects the strand in American polity that favors smaller government and also would promote the sovereignty of tribes at the same time. Commission Chairman Troy Eid, a former U.S. Attorney for the District of Colorado, told Indian Country Media Network,  the commision's report '"is not to tell anyone what to do, but it's also to say, 'Local government works best; it's the American way.' It's emphatically a better way to prevent crime…. It's clear that many Native governments, even those with not a lot of means, want to and will sacrifice in order to put sovereignty into action through enforcing their own criminal laws."'

Matthew H. Birkhold, a visiting scholar at the Humboldt-Universitat zu Berlin, writes for Bloomberg that it was a double-edged sword for the Annenberg Foundation to purchase 24 sacred American Indian objects that were auctioned off by a Paris auction house. The foundation plans to return the objects to the Hopi and the San Carlos Apache tribes. Even though the foundation denounced the sale of cultural property, it legitimized commerce in cultural property by participating in the auction, Birkhold opines.

The best solution for indigenous peoples to regain their cultural property that is not protected by intellectual property law is to work within the legal system, Birkhold argues: "The best bet for indigenous people to secure their cultural property is through the legal system, where taking a principled stand could pay dividends. A developing legal framework provides the tools to restore cultural artifacts to their rightful owners. In addition to the 1970 United Nations Educational, Scientific and Cultural Organization Convention, the UN Declaration on the Rights of Indigenous Peoples explicitly establishes the rights of indigenous peoples to maintain, control and protect their cultural heritage and obligates signatory states to take effective measures to protect their right to do so. This framework needs to be strengthened. In the meantime indigenous groups can further develop the law while making progress in its shadow."

The Associated Press reports that Wisconsin has enacted a law to make it harder for public schools to be forced to drop American Indian mascots and nicknames. A 2010 law required " Wisconsin's Department of Public Instruction to hold a hearing on a school's race-based nickname if it received even one complaint," according to the AP. Now complainants must submit a petition with signatures equal to 10 percent of the school district's student body in order to trigger a departmental review.

Republican Governor Scott Walker said in a statement that he supported moving away from offensive nicknames and mascots, but that he signed the law because "I am very concerned about the principle of free speech enshrined in our U.S. Constitution. If the state bans speech that is offensive to some, where does it stop?" 

Ho Chunk Nation heritage preservation executive director Robert Mann, however, asked in an interview with the AP: "It'd be freedom of speech for who? I guess that's what you'd want to ask."

The case of the auction of sacred Hopi masks in France highlights the lack of protection for indigenous peoples' culture under intellectual property law in Western countries.

The Associated Press reports that the Drouot auction house in France sold 25 sacred Hopi Kachina masks, despite protests, for $1.6 million this week.  "Though a judge ruled last week that the sale of the artifacts is legal in France, the American Indian Hopi tribe says the artifacts represent their ancestors' spirits and cannot be sold as merchandise," the AP also reports. Also included in the sale was objects from the San Carlos Apache tribe and a Zuni tribe altar.

The AP decided against publishing images of the objects "because the Hopi have long kept the items out of public view and consider it sacrilegious for any images of the objects to appear." 

The Guardian reports on U.S. Supreme Court oral arguments today in a case in which the state of Michigan argues that the Bay Mills Indian Community inappropriately opened an off-reservation casino without authorization of the federal government and in violation of a state agreement. Some of the justices took a skeptical view of the position that tribal sovereignity gives extra protection against closing the casino or other action by Michigan. Justice Stephen Breyer, for one, said, "My belief is Indian tribes all over the country, operate businesses off the reservation, and businesses all over the country are regulated. And does the State, I guess, in your view not have the power to enforce the regulation against the Indian tribe?" The Guardian reported.

The Consumer Financial Protection  Bureau has filed a brief in a federal court siding with  "Benjamin Lawsky, New York’s top financial regulator, against a lawsuit from two western Native American tribes," The Daily Caller reported. The tribes sued over cease-and-desist letters sent by Lawsky over the online payday loan businesses. Lawsky contend that the interest rates charged by the businesses for their loans are too high, while the tribes argue that they are sovereign entities and they follow federal law, The Daily Caller further reported.