The Skinny

From Wampum (new and improved!), a debunking of the myth that the Cobell plaintiffs were offered $7 billion to settle the case and rejected it, the implication being they got what they deserved for being greedy. Never happened. The government never offered a dime to resolve the Cobell suit. And now you know. Also, Cobell is definitely appealing. I wish them luck, of course, but unless Obama wins and appoints one or two new justices before this hits the Supreme Court, I won't be holding my breath.

A Little Good News

Senator Byron Dorgan (D-North Dakota) has introduced a bill to address the epidemic of white-on-Indian crime in Indian Country. While far short of a full restoration of sovereignty, it does strengthen the power of tribal courts and tribal police and force some measure of accountability on the Department of Justice. It's a good start, but Congress needs to go further and repeal the odious Major Crimes Act outright and explicate overturn the Oliphant decision (which they can do since the case was based on a transparently false reading of Congressional intent or rather the lack thereof).

Wow, Never Saw THAT Coming!

SCOTUS, continuing a 200 year-long trend, again limits tribal jurisdiction. As Justice Ginsburg noted in dissent, "Resolving this case on a ground neither argued nor addressed below, the court holds that a tribe may not impose any regulation -- not even a nondiscrimination requirement -- on a bank's dealings with tribal members regarding on-reservation fee lands." Or, as Turtle Talk succinctly puts it, "The Supreme Court has essentially declared Indian tribes to be nothing more than glorified country clubs, with their authority 'confined to managing tribal land, protect[ing] tribal self-government, and control[ling] internal relations.' Just like your local country club, tribes can only determine who can come on the property, who can be a member, and who can be in charge." As I have often said, if there's one constant in American Indian Law, it's that Indians always lose; precedent, logic, history and the Constitution be damned.

Now, let's wait for the howls of outrage from the major presidential candidates...

(cue chirping crickets)

Supreme Court Does...Something?

The US Supreme Court may or may not have held, in a case arising in Texas, that persons who are arrested have the right to an attorney at their bond hearing (known as an Article 15.17 hearing). Having only skimmed the ruling itself and discussed it with several other lawyers and judges, we have no idea what the hell it means or what effect, if any, it will have on the way things are currently done. Thanks, Souter! Right now, in Johnson County anyway, arrestees are advised by the magistrate judge that they have the right to an attorney and one is appointed as soon as they ask for one. In other counties, including apparently Gillespie, the county in the Supreme Court case, lawyers aren't appointed until indictment. Further updates as events warrant.

UPDATE: More on Rothgery, again from Grits.

Supreme Court Accidentally Upholds Constitution

Apparently, there really is such a thing as habeas corpus after all. The talking heads seem happy, but I am left to ponder: is it really something to cheer about that the highest court in the land, by a 5-4 vote no less, has only grudgingly upheld what has been the fundamental basis of the rule of law since the Magna Carta? Is the bar really set that low now?
And to any Hillary Clinton supporters out there still contemplating either sitting this one out or supporting McBush, a point to consider: FIVE to FOUR.

Freedmen Case Before DC Circuit Court of Appeals

From Indianz.com, via Wampum who caught it before I did. I tend to agree with Judge Steven Russell (who comes from a long line of Cherokee Judges) that the panels' questions indicate they don't necessarily believe the Cherokee Nation has to be sued by the Freedmen in order for the Federal Gov't to enforce the Treaty of 1866. So, if that's really what the panel is thinking, does that mean the BIA would disallow the 2003 Constitution? Sever the government-to-government relationship with CN until the Freedmen are guaranteed citizenship? Both of the above? And, of course, we shouldn't get too excited that this will all be resolved anytime soon; whoever is on the losing end of the three judge panel's decision will move for a rehearing en banc (before the entire Court, including the virulently anti-Indian Judge Janice Rogers Brown); whoever loses that will likely appeal to the US Supreme Court. And if it gets into the hands of this Supreme Court, God help us all. If there's anyway for the Freedmen, CN AND tribal sovereignty to ALL lose, this Supreme Court will find it.

UPDATE: And speaking of threats to tribal sovereignty, the Smith Administration has succeeded in having the Delaware Tribe stripped of its Federal recognition (and funding), the first time this has happened since the end of the Termination Era.

It Could Always Get Worse

The case of Plains Commerce Bank v. Long Family Land & Cattle Co. doesn't sound too interesting or important on the face of it. Ultimately, though, it could have a devastating effect on tribal sovereignty if the US Supreme Court limits or eliminates tribal court jurisdiction over civil matters. So far, it doesn't look too promising, given Chief Justice Roberts' ignorant and mocking statements during oral arguments. Sadly, the one constant in Indian Law is that Federal courts in general and the Supreme Court in particular will always, almost without fail, adopt the construction that causes the Indians to lose, no matter how illogical, contradictory or tortured it might be.

Politics & Religion

From the Washington Post, Texas now appears determined to argue that the FLDS Religion, in and of itself, is harmful to children and therefore warrants termination, a strategy that has failed miserably in Arizona and Utah. Now think about that a minute. Indians are used to this sort of attack; US Army fears of Wovoka and his Ghost Dance led to the assassination of Sitting Bull and the Wounded Knee Massacre. But what about the rest of the country? Do you really want the government deciding whether or not your religion is good or bad for your children? Think carefully before you answer. Again, I'm not arguing that child abusers shouldn't be punished. They should. But this kind of standard, having the government judge your religious beliefs, ought to scare Hell out of anybody.

The Latest from Eldorado

Grits and I have been arguing for some time that the warrant used to justify raiding YFZ Ranch had some problems. Apparently, we were right. In fact, it seems to me that the original warrant strains the "good faith exception" into "deliberate and willful ignorance," i.e., "we can confirm that Dale Barlow is a convicted sex offender but we were shocked, shocked and appalled to discover he was in Arizona at the time!" However, given the current climate in Texas criminal appellate law ("the only error is harmless error"), I'd say the chances are good this warrant would hold up, assuming we even get to the stage of holding criminal trials. Right now, we don't even have any alleged perpetrators named (other than Barlow, of course), much less any arrests. And, of course, the warrant is meaningless for purposes of removal, since DFPS doesn't need a warrant, valid or otherwise, to remove children.

And from the Common Room, excerpts from an interview with the Schleicher County Sheriff. This bit...

Mankin: That’s a big operation to put together in three days, surely law enforcement must have had a preliminary plan in place ready to deal with this kind of eventuality?

(Sheriff) Doran: Let’s just say that law enforcement was and is prepared to answer a cry for help at the YFZ Ranch.

...tends to confirm my suspicion that this was a law enforcement operation with a CPS removal attached, and not the other way around.

Bloggers on Eldorado Raid

Although I think Cicero lists them in his link farm, I'd like to single out Guy Murray at Messenger & Advocate, a Mormon blog, for his excellent coverage and thoughtful commentary on this issue. Also, Headmistress/Zoo-keeper over at the Common Room, a home schooling blog, who has been analyzing the case from the perspective of homeschoolers.

And to all you liberal hooligans who normally hang out here, both of these bloggers are nice people and rather conservative, so be on your best behavior; i.e., wipe your feet, say "please" and "thank you" and don't start calling people "fascist theocrats."

UPDATE: From Grits, so just how many kids are there, anyway?

Eldorado Round Up

My ideological evil twin brother, Cicero at Red State, has shown typical conservative thoroughness (no doubt due to the invisble hand of the free market, unencumbered by burdensome regulations) in providing a link farm on this developing story.

As for the removal being granted, no one who has experience with CPS cases is surprised. Typical Removal hearings are held so quickly (it used to be within 24 hours) that there is very rarely any reliable evidence for the judge to hang a ruling on. As a result, much like with applications for protective orders, judges tend to err on the side of caution, knowing that he or she will have several opportunities in the future to return the kids if the agency still hasn't managed to dredge up anything. In fact, in nearly ten years of CPS cases, I have only seen a judge deny a removal petition exactly once, and that was only after I (as ad litem for the children) demonstrated that the CPS caseworkers (who were from out of county and declined to even show up for the hearing) had committed perjury in their affidavits. In this case, the Removal hearing took longer to set up, but the sheer overwhelming numbers made it extremely difficult to get any straight answers, especially when CPS insists on calling "expert" witnesses who freely admit on cross-examination that everything they know about the case in general and the FLDS in particular comes from watching television. Stay tuned.

Fiasco in Eldorado

From Grits for Breakfast, a comprehensive round-up of stories and issues surrounding CPS' raid on the FLDS compound in Schleicher County. The sheer level of incompetence displayed here by the State continues to flabbergast and enrage me. Who the hell was in charge of planning this disaster? Who signed off on warehousing babies in a 140 year old cavalry fort? Why did no one even bother to check if the guy named in the warrant was even in Texas (he wasn't; he's in prison in Arizona)? Why did CPS let some of the mothers go with their children (almost unheard of in a removal case), then strip them of their cell phones, and now kick them out (after they complained to the Governor) unless they have children under four? Did it not occur to anyone to see if there were even enough lawyers in a five-county radius to represent all these children (there aren't)? Did anyone check to see if it was feasible to have one district judge (responsible for five counties) shut down all her operations just to deal with one case? Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel.

UPDATE: Grits has more from today's hearings, including links to other coverage and other perspectives. Unsurprisingly, several aspects of the story that were conveniently linked to the media (such as accusation of wide-spread "child bride" arrangements) are coming up short of supporting evidence. The tragedy here is that the State's ham-handedness, and the flagrant scramble for publicity (by, among others, Greg Abbott, who really needs to stay off television until he learns at least the basics of the Texas Family Code) is liable to torpedo any criminal prosecutions of child abusers in this case.

Wal-Mart: The Focus of Evil In the Modern World, Part 2

Wal-Mart caves, thanks to, among others, Keith Olbermann.

Wal-Mart, however, and until further notice, still sucks.

UPDATE: Glenn Beck, still a clueless asshole.

Mukasey: Like Gonzales, Only Worse

At least Alberto Gonzales could manage to keep a straight face while lying out his ass.

Wal-Mart: The Focus of Evil in the Modern World

Welcome to free-market health care solutions! A woman is catastrophically injured and wins a modest judgment in a personal injury case to pay for the lifetime of healthcare she will require. Her former employer WAL-MART THEN SUES HER FOR MORE THAN THE TOTAL JUDGMENT in order to recoup what it paid out in health-care expenses (expenses that were paid through a policy which she herself contributed to during her period of employment). Meanwhile, one of her sons has been killed in Iraq and her husband has been forced to divorce her in order to qualify her for public assistance with her medical bills. The only thing worse than Wal-Mart's despicable (though entirely legal) actions in this case is the cosmic insanity of a health-care system where something like this can occur. And occur to PEOPLE WITH HEALTH INSURANCE.

UPDATE: Great minds think alike. And it's even worse than I originally thought; the poor woman's brain injuries are such that she has virtually no long-term memory. Thus, every single time she asks about her son and is told he is dead, it is as though she is experiencing the wrenching grief for the very first time.

Latest Freedmen News

The DC Circuit Court of Appeals will hear arguments on whether or not the Freedmen can sue the Cherokee Nation in federal court without the Nation's consent. Federal District Judge Henry Kennedy previously ruled that the Nation's sovereign immunity was waived by the Treaty of 1866 and the 13th Amendment. Hard to predict how this will go; Federal courts have been notoriously unsympathetic to tribal sovereignty.

Why So Angry?

While drug crime is OVERprosecuted among blacks, violent crime is UNDERprosecuted. Though Drum rightly critiques the article for taking an obliviously narrow definition of "white racism," the statistics are stomach-churning. The whole thing reminds me rather uncomfortably of the situation regarding white-on-Indian crime in Indian Country, only on a much larger scale.

Bush Administration Backs Indians!

No, seriously! And against Big Banks even! There's got to be some angle here I'm missing, some way in which supporting the jursidiction of tribal courts somehow makes torture legal or something...

Supreme Court Poised to Screw Over Indians Yet Again

Try to contain your shock. The stakes in this case (pardon the gaming metaphor) are much higher than just Rhode Island. If the Indian Reorganization Act (the basis for land-into-trust applications) is held to apply only to tribes that were federally recognized as of 1934, then all the tribes who struggled for decades to obtain recognition after that year, and those who are still struggling, will have practically no chance to obtain a viable, economically-sustainable land base, particularly in light of the Oneida case, where the courts ruled that even though it was undisputed that Oneida land was illegally stolen by the State of New York, the only way they could get it back was through land-into-trust.

*Eyeroll*

Greg Abbott, ladies and gentlemen!
It's a cake topper! Honest!