Sunday, April 22, 2018

Trump Administration challenges tribal sovereignty

As states begin to roll out work requirements for Medicaid recipients, tribal governments find themselves among the proverbial canaries in the coal mine. Tribal communities and reservations are the most economically disadvantaged areas in the country, with high unemployment rates and levels of poverty. Recognizing the economic hardships that they currently face, many tribes are seeking exemptions from these requirements, arguing that forcing work requirements on tribal citizens would result in them losing access to health care. The Trump Administration has however denied these requests, claiming that tribes are a separate race, not a government, and that granting an exemption would be an unallowable racial preference. This decision by the Trump Administration is sadly apart of a deplorable (no pun intended) pattern of treatment of tribal people by Donald J. Trump.

To anyone even vaguely familiar with Indian law, it should be clear that the Trump Administration is blatantly mistaken in its characterization of Native tribes. Article I, Section 8, Clause 3 of the United States Constitution plainly gives Congress the ability to regular commerce with foreign nations, among the states, and with Indian tribes. The separation of Native tribes from states and foreign nations represents the creation of a unique legal status, which was later clarified in Cherokee Nation v. Georgia as that of a "domestic dependent nation." The right of the United States government to consider this special relationship when making decisions was re-affirmed in Morton v. Mancari when it was held that a preference for hiring Natives to work in the Bureau of Indian Affairs was essentially akin to a Senator having a preference for hiring someone from their home state. In that case, the Court explicitly rejected the notion that a preference for Native people necessitated a race based preference but was instead a preference based on political status.

Based on established precedent, the Trump Administration could legally exempt an entire tribe from Medicaid work requirements imposed by states. By tying exemption from the work requirements to tribal membership, the Administration would be honoring tribal sovereignty and recognizing the existence of tribes as separate political entities. Tribes exist separately from the states and should not be forced to honor onerous requirements imposed upon them by entities under whose jurisdiction they generally do not fall. Tribes after all exist in a direct government to government relationship with the federal government. As mentioned above, it has also been consistently held that tribal preference is not a matter of race but political status and it is shameful that the Trump Administration is either ignorant of or completely unwilling to follow that precedent.

To anyone who has followed Donald Trump, this ignorance of tribal sovereignty should honestly be no surprise. As President, not only has he placed a portrait of Andrew Jackson in the Oval Office but he has also regularly attacked Senator Elizabeth Warren by calling her "Pocahontas."  In 1993, Trump directly attacked tribal sovereignty in testimony before the House Committee on Natural Resources by saying:
I listen about sovereign nation, the great sovereign nation, and yet $30 billion to all of the various programs was contributed to the sovereign nation for education, for welfare, for this, for that. I listened as to sovereign nation, and yet the sovereign nation and the people of the sovereign nation have the right to vote in our country. I listen as to sovereign nation, all of the medical, all of the other treaties. I want to know, can Indians sign treaties with foreign nations? Can they go and sign a treaty with Germany? The answer is no. How is it a sovereign nation?
In true Trumpian fashion, he later said, "Nobody is more for the Indians than Donald Trump."

A modern President's ignorance about tribal sovereignty is, sadly, not unprecedented. After all, in 2004, President George W. Bush was famously tripped up on a question about what tribal sovereignty means in the 21st century. What makes Bush different from Trump however is the intent behind the ignorance. In answering the question, Bush acknowledged that the relationship between the federal government and tribes is between two sovereign entities whereas Trump appears to question the entire basis of tribal sovereignty. Even though Bush appeared to lack an understanding of the intricacies of tribal sovereignty, he acknowledged and affirmed the notion that tribes exist in a government to government relationship with the federal government, a premise that Trump has repeatedly rejected.

You can argue that Donald Trump could have evolved on tribal sovereignty in the last 25 years, many people change their opinions as they learn more about a topic. However, the actions of his administration have only served to prove that Trump has remained consistent in his views of Native tribes and tribal citizens.

Monday, April 16, 2018

Assembling a SWAT team in rural South Carolina

Here is what the South Carolina Dept. of Corrections said about its 4-hour delay in responding to a prison riot in Bishopville, South Carolina on Sunday night.  Seven prisoners died and 17 were injured  in the melee.  Here's I'm quoting from the New York Times report by Richard Fausset: 
When the trouble started, Mr. Stirling [director of the South Carolina Department of Corrections] said later in a telephone interview, there were only two guards on duty in each of the three housing units, and they were armed only with pepper spray. Each housing unit holds about 250 inmates. 
Assembling an armed SWAT team in a rural area on a Sunday night takes time, he said.
Bishopville, population 3,238, is the county seat of Lee County, population 17,635, and is 40 miles from the state capital, Columbia. 

Saturday, April 14, 2018

Small-town government run amok (Part VI): Lake Arthur, New Mexico makes billionaire Robert Mercer a law enforcement officer

Bloomberg news reported this week on quite a little scandal out of Lake Arthur, New Mexico, population 436, on the state line abutting far west Texas.  It seems the tiny police department of tiny Lake Arthur has been been making reserve law enforcement officers of folks like Robert Mercer, the conservative billionaire, so that these folks are authorized to carry a concealed weapon anywhere in the United States.

Zachary Mider's story for Bloomberg begins with a firmly tongue-in-cheek description of the place and its law enforcement needs, along with the terms of Mercer's engagement there as a reserve officer:
If Mercer’s trips to Lake Arthur resembled my recent visit, he might’ve climbed into the passenger seat of [Police Chief] Norwood’s police truck, whose black-and-white paint job is fading in the wind-whipped sand. He and Norwood might’ve rolled past the house where someone reported spotting a stolen car—a false alarm, it turns out. While monitoring radio chatter, the plutocrat and the chief might have jawed about the latest news in a town so small it has no stores: the recent pursuit of a motorist across half the county; the record of the high school’s six-man football team; reports of stolen pecans. Pulling up a chair at an Italian restaurant in nearby Hagerman, the chief might’ve urged Mercer to try the lasagna. 
For most of the past six years, as Mercer became one of the country’s political kingmakers, he was also periodically policing Lake Arthur, according to the department. If he followed Norwood’s protocols—and Norwood insists no volunteers get special treatment—he would’ve patrolled at least six days a year. He would’ve paid for travel and room and board, and supplied his own body armor and weapon.
After the Bloomberg story was featured on WBUR on Mondaythe program--which apparently had 150 reserve officers at its peak--was abruptly ended on Tuesday.  (Read more here, too) The mayor of Lake Arthur put Chief Norwood on administrative leave, and his credentials were recalled.

Don't miss Mider's full report on the Lake Arthur program, with lots of details on Mercer's politics, too.  Turns out Mercer is quite the gun enthusiast, and getting this concealed carry opportunity through the back door circumvented his inability to get a concealed carry permit on Long Island, where he lives.  What Mercer is best known for, of course, is bankrolling Breitbart and being a king-maker vis a vis Donald Trump.   

Tuesday, April 10, 2018

During this week 5 years ago - New York Times highlights rural lawyer shortage

Facebook's On This Day feature is often a treasure trove of old memories and items that you thought important to share at one point in your life. Today as I looked through my memories, I found that I shared this article from the New York Times five years ago. At the time, I was a 1L at Michigan State University and incredibly excited to see that the Times had opted to cover an issue that I considered very important. Many of the issues addressed in this article have been expanded upon in this space on various occasions but I still think that it is important to share again because it highlighted, for a mass audience, so many of the issues that many of us care about. This also seems like a great opportunity to reflect on this issue, why it's important, and how it connects to other issues of rurality. I recommend this article to anyone who needs a primer on why this issue is important but may be unfamiliar with the underlying issues.

There's a quote in the article that I cite frequently when I discuss this issue with people who are unfamiliar with why we should care about rural legal inequalities, "[a] hospital will not last long with no doctors, and a courthouse and judicial system with no lawyers faces the same grim future[.]" This quote from South Dakota chief justice David Gilbertson epitomizes why this issue is important and why we should continue to work until we have come up with a way to solve it. The ability to access justice is paramount for the survival of any community. When justice is inaccessible, the most vulnerable in our societies suffer the most and the bonds of cohesion that ties small towns together begin to weaken.

When trying to address the shortage, it is important to remember that this is also an incredibly complex issue that demands an interdisciplinary approach. The rural lawyer shortage is an outgrowth of many of the other issues affecting rural communities. To begin to study the issue, we need an understanding of:

  • The role of economic development in the growth of a regional legal market, which requires an understanding of economics. 
  • The general social structure of rural spaces, which requires an understanding of sociology. In fact, Thomas Barnett Jr., the Executive Director of the State Bar of South Dakota, noted in the linked article that rural lawyers serve not just in the official capacity as lawyers but, because of their status as lawyers, also serve other roles within rural communities. If you are going to understand the rural lawyer shortage, you need to understand the unique role that rural lawyers play in their communities.
  • That lawyers are also important political actors in rural communities so we need an understanding of political science. Even if a lawyer is not a politician, they still need to understand the local political dynamics in order to be change agents for their clients. In small towns, all politics are local. An organization could not just put a lawyer into a rural space without ensuring that they understand the local political dynamics and how to maximize their effectiveness.
  • The role of changing demographics in shaping America, particularly the affects of out-migration and the brain drain on making rural America older and less educated than other areas of the country. 
  • The law, particularly an understanding of the right to counsel in criminal cases and the disastrous effects of being pro bono in civil litigation

We have seen great progress on this issue over the past five years and other states have joined the call to address the rural lawyer shortage. I am currently working on a project that seeks to create greater awareness of this issue and work with public officials to address it. It was great re-reading this article, particularly because of its importance to my work and its role in bringing greater attention to this issue more broadly.