2009 American Indian Law Deskbook Supplement

Chapter 2 Indian, Indian Tribe, and Indian Country

 Indian, Indian Tribe, and Indian Country  P.49, n.6. Delete “see also” in line 3 of the footnote and add the following after the semi-colon: Kirsty Gover, Geneology as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance in the United States, 33 Am. Indian L. Rev. 243, 247 (2008–2009) (examination of 322 tribal constitutions indicates , inter alia, that “[t]ribes are increasingly likely to use lineal descent and blood-quantum rules after 1970, in place of the parental-enrollment or residency rules that were dominant in constitutions adopted in the 1930s” and thus “increasingly use tribe-specific measures of blood quantum, in contrast to the pan-tribal concept of Indian blood quantum used in federal policy”); Add the following to line 7 of the footnote after “see also”: Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA L. Rev. 591, 633, 636 (2009) (contrasting forms of racism experienced by American Indians and African-Americans; during the Assimilation Era, for example, “[d]espite the color prejudice many Indians experienced, individual Indian integration was publicly celebrated as another symbol of the triumph of European-­American civilization over savagery” and “[p]olicymakers . . . explicitly support[ed] intermarriage with Indians as an assimilation tool”); P.51, n.20. Add the following to the end of the footnote: The requisite degree of “Indian blood,” as Justice Breyer’s observation suggests , appears indefinite but, in any event, demands some measure of particularized attention not always given. In United States v. Ramirez, 537 F.3d 1075 (9th Cir. 2008), the panel deemed “‘some’ Indian blood” to be “generally sufficient” at least when conjoined with evidence that a “‘parent, grandparent , or great-grandparent’” is “‘clearly identified as an Indian.’” Id. at 1082. However, a great-grandparent could have possessed—as an illustration—1/4 “Indian blood” and thus conferred, in the absence of any intervening new “Indian blood,” only a 1/32 quantum upon the descendant. Chapter 2 Indian, Indian Tribe, and Indian Country 10 2009 Supplement—American Indian Law Deskbook, Fourth Edition P.52, n.28. Add the following to line two of the footnote after “see also”: United States v. Cruz, 554 F.3d 840, 851 n.17 (9th Cir. 2009); United States v. Ramirez, 537 F.3d 1075, 1082 (9th Cir. 2008); P.53. Delete the first sentence of second full paragraph and the associated footnote, and replace the deletion with the following: In Carcieri v. Salazar,33 the Supreme Court interpreted the phrase “tribe now under Federal jurisdiction” as in section 19 to encompass tribes under such jurisdiction at the date of the IRA’s enactment.33.1 The term “Indian” includes, under the first definitional prong, only those individuals who were members of tribes federally recognized as of the IRA’s effective date—June 18, 1934. 33 129 S. Ct. 1058 (2009). 33.1 Id. at 1068; see generally G. William Rice, The Indian Reorganization Act, the Declaration on the Rights of Indigenous Peoples, and a Proposed Carcieri “Fix”: Updating the Trust Land Acquisition Process, 45 Idaho L. Rev. 575, 594–608 (2009) (contending that Carcieri “will create a cloud upon the trust title of every tribe first recognized by Congress or the executive branch after 1934, every tribe terminated in the termination era that has since been restored, and every tribe that adopted the IRA or [Oklahoma Indian Welfare Act] and changed its name or organizational structure since 1934[,]” and proposing statutory amendments that not only would modify the IRA’s definition of “Indian” and add definitions of “Indian tribe” and “Indian reservation” but also would alter various aspects of trust land acquisition, management and taxability). P.53, n.34. Delete the text of the footnote and replace it with the following: Although the First Circuit’s decision in Carcieri indicated in dictum that the second prong of the “Indian” definition “covered those people of Indian descent then [in 1934] living on a reservation, that phrase more likely refers not to “descendants” but to the immediately antecedent “members.” Carcieri v. Kempthorne, 497 F.3d 15, 30 (1st Cir. 2007) (en banc), rev’d on other grounds, 129 S. Ct. 1058 (2009). The First Circuit’s construction, if accepted, creates an apparent conflict with the definition’s first prong unless the term “members” means only those persons possessing membership in an otherwise qualifying tribe as of the IRA’s effective date; i.e., it would be impossible for an individual to be a “descendant[]” residing...