Charlottesville Curriculum, via the University Press of Kansas

Acquisitions editors Kim Hogeland and Joyce Harrison have created a preliminary reading list of UPK titles related to the past week’s events in Charlottesville, race relations and civil rights.

Gospel According to the Klan: The KKK’s Appeal to Protestant America, 1915-1930 by Kelly J. Baker

This engrossing exposé looks closely at the Klan’s definition of Protestantism, its belief in a strong relationship between church and state, its notions of masculinity and femininity, and its views on Jews and African Americans. The book also examines in detail the Klan’s infamous 1924 anti-Catholic riot at Notre Dame University and draws alarming parallels between the Klan’s message of the 1920s and current posturing by some Tea Party members and their sympathizers.

 

Republicans and Race: The GOP’s Frayed Relationship with African Americans, 1945-1974 by  Timothy N. Thurber

But since 1964, no Republican presidential candidate has attracted more than 15 percent of the black electorate, and few GOP candidates for other offices have fared much better. No segment of the American electorate is more reliably Democratic than African Americans. The GOP, meanwhile, remains nearly an all-white party. In this path-breaking book, historian Timothy Thurber illuminates the deep roots of this gulf by exploring the contentious, and sometimes surprising, relationship between African Americans and the Republican Party from the end of World War II through Richard Nixons presidency. The GOP, he shows, shaped the modern civil rights movement, but the struggle for racial equality also transformed the GOP.

 

Honoring the Civil War Dead: Commemoration and the Problem of Reconciliation by John R. Neff

Neff contends that the significance of the Civil War dead has been largely overlooked and that the literature on the war has so far failed to note how commemorations of the dead provide a means for both expressing lingering animosities and discouraging reconciliation. Commemoration—from private mourning to the often extravagant public remembrances exemplified in cemeteries, monuments, and Memorial Day observances—provided Americans the quintessential forum for engaging the wars meaning.

 

The Cause Lost: Myths and Realities of the Confederacy by William C. Davis

Davis also illustrates why the cause of the war—a subject of long-standing controversy—boils down to the single issue of slavery; why Southerners, ninety percent of whom didn’t own slaves, were willing to join in the battle to defend their homeland; how the personalities, tactics, and styles of the armies in the turbulent West differed greatly from those in the East; what real or perceived turning points influenced Southern decision making; and how mythology and misinterpretations have been perpetuated through biography, history, literature, and film. Revealing the Confederacy’s myths for what they really are, Davis nevertheless illustrates how much those myths inform our understanding of the Civil War and its place in Southern and American culture.

 

Dred Scott and the Politics of Slavery by Earl M. Maltz

The slave Dred Scott claimed that his residence in a free state transformed him into a free man. His lawsuit took many twists and turns before making its way to the Supreme Court in 1856. But when the Court ruled against him, the ruling sent shock waves through the nation and helped lead to civil war.

 

Plessy v. Ferguson: Race and Inequality in Jim Crow America by Williamjames Hull Hoffer

Hoffer’s compelling reconstruction illuminates the controversies and impact of Plessy v. Ferguson for a new generation of students and other interested readers. It also pays tribute to a group of little known heroes from the Deep South who failed to hold back the tide of racial segregation but nevertheless laid the groundwork for a less divided America.

 

Race, Sex, and the Freedom to Marry: Loving v. Virginia by Peter Wallenstein

In 1958 Mildred Jeter and Richard Loving, two young lovers from Caroline County, Virginia, got married. Soon they were hauled out of their bedroom in the middle of the night and taken to jail. Their crime? Loving was white, Jeter was not, and in Virginia—as in twenty-three other states then—interracial marriage was illegal. Their experience reflected that of countless couples across America since colonial times. And in challenging the laws against their marriage, the Lovings closed the book on that very long chapter in the nation’s history. Race, Sex, and the Freedom to Marry tells the story of this couple and the case that forever changed the law of race and marriage in America.

 

Murder in Mississippi: United States v. Price and the Struggle for Civil Rights by Howard Ball

Howard Ball reminds us just how problematic the prosecution of the murderers—all members of the KKK—actually was. When the State of Mississippi failed to indict them, the U.S. tried to prosecute the case in federal district court. The judge there, however, ruled that the federal government had no jurisdiction and so dismissed the case. When the U.S. appealed, the Supreme Court unanimously overturned the lower court decision, claiming that federal authorities did indeed have the power to police civil rights violations in any state. United States v. Price (1967) thus produced a landmark decision that signaled a seismic shift in American legal history and race relations, for it meant that local authorities could no longer shield racist lawbreakers.

President Trump, Consider the Risks of Pardoning Yourself

The Trump administration’s unorthodox governing and use of social media has created a wealth of interest in many of our backlist titles. Jeffery Crouch’s 2009 release The Presidential Pardon Power has become one of our most popular books. Crouch was asked to write for The Hill. This is what he wrote:

 

The media is abuzz with speculation about President Trump’s clemency powers after the story broke that his lawyers are mulling options for himself and his family.

The president himself on Saturday seemed to confirm the report, asserting that he has “complete power” to pardon relatives, aides and possibly himself.

How does the clemency power work? Who could he pardon? Can he pardon himself? Should he?

The fact is, Trump can pardon any federal crime, ranging from moon-shining to treason. He may grant clemency as soon as an offense is committed: no need to wait for the offender to be sentenced, tried, or even charged with a crime. Overall, the courts have protected a broad, wide-ranging clemency power for the chief executive. Still, he may not pardon a future federal crime, excuse a state offense, or exercise clemency “in cases of impeachment,” as noted in Article II, Section 2, Clause 1 of the Constitution.

The remedy for an unpopular clemency decision comes from Congress. Members can hold hearings, subpoena documents, call witnesses, and otherwise raise the profile of the clemency decision.

They can also delay funding for presidential priorities, drag their feet on his policy priorities, and refuse to confirm presidential nominees. In more extreme cases, they can pursue impeaching the president, or even try to amend the Constitution.

How likely it is Congress will take these actions, with Republicans in control, is another matter completely.

Who could he pardon?

It’s clear that President Trump could pardon anyone caught up in special counsel Robert Mueller’s investigation – today, if he wanted to do so. He could grant as many or as few pardons as he wished, would not have to specify the crimes they are being pardoned for, and could make the language of the pardon as broad or as narrow as he wanted. Whether the political context would support any of these moves is unclear, but there’s little question that Trump has the legal power to act.

Can he pardon himself?

Most tantalizing, could Trump pardon himself? Few presidents have actually considered a self-pardon, and none has actually tried. If Trump is the first to go through with it, he should know that legal scholars are divided on the question.

On one hand, it is clear that the sparse constitutional language on clemency says nothing about a self-pardon, and the courts have never directly confronted the question. To legal scholars Robert Nida and Rebecca L. Spiro, writing in 1999, the president should be able to self-pardon, largely because the Constitution does not say he is forbidden from doing so.

On the other hand, law professor Brian C. Kalt argued in 1996 that a self-pardon is not allowed by the Constitution. He writes, “a presidential self-pardon … would only be plunder to take home after a career-ending disgrace …” and that the president’s self-pardon would continue to benefit him even after leaving office, and even if he is impeached. Moreover, a self-pardon would be inconsistent with our separation of powers system.

Both sides offer compelling arguments. However, I lean in the direction of Nida and Spiro. The courts have usually given the president a lot of leeway on clemency questions. It’s likely that a self-pardon would end up in front of the Supreme Court. From there, they could find a self-pardon appropriate or not. In fact, it’s entirely possible that they could rule that a self-pardon is permissible, and point out that the remedy for abuse of clemency is what the framers of the Constitution intended for any abuse of power: impeachment.

Should he?

Whether or not Trump could pardon himself is a different question from whether he should, of course. Considerations related to impeachment play a role here, too, even if it may seem a remote possibility while the House of Representatives and the Senate remain under Republican control.

In 1915, the Supreme Court decided in Burdick v. United States that a pardon “carries an imputation of guilt and acceptance of a confession of it.” If President Trump indeed granted himself a self-pardon, it could be seen as a confession that he needed one. Though the pardon would wipe away his legal problems, he would be creating new political complications. The standard for impeachment, “treason, bribery, or other high crimes and misdemeanors” is not criminal, it’s political, so an acknowledgment of guilt made via a self-pardon could actually become a starting point for impeachment.

Thus, while legally speaking, President Trump has a green light to pardon others, he should carefully consider whether a self-pardon, for all of its obvious benefits, is really worth the risk.

D08_526_April_OS_Faculty nfs
Jeffrey Crouch, faculty, washington semester

 

Jeffrey Crouch is assistant professor of American government at American University and author of the book The Presidential Pardon Power. He is the reviews and book editor for AU’s Congress & the Presidency journal.

Why I Hate “The Wizard of Oz”

by Robert Rebein

Dodge City, Kansas native Robert Rebein recently released Headlights on the Prairie; Essays on Home. Below is the opening essay, Why I Hate The Wizard of Oz…

Imagine having the land of your birth, a place about which you have complex and wildly ambivalent feelings, reduced to a black-and-white cartoon. Someone asks you where you’re from, and when you reply “Kansas,” this well-meaning stranger grins and blurts out, “Where’s Toto? Oh, that’s right. We’re not in Kansas anymore!”

You get this in New York, Indiana, California. Even as far afield as Paris, you get it. “Kansoz! Ah, oui. Les munchkins!”

How to say you hail from a place uninhabited by tinmen and sweet little girls in pinafores, a demanding, starkly beautiful place with twenty-mile views, sunflowers as big as your head, and night skies so clear that you might believe yourself to have been born among stars? Where the wind blows without cease and flies bite like vampires and the stink of the slaughterhouse overhangs everything like a toxic cloud. Where it’s not unusual for a kid like you to receive his first shotgun at ten, drive a wheat truck at twelve, and solo in a Beechcraft

Debonair at fourteen or fifteen.

“Does that sound like Oz?” you want to ask.

But you don’t. Why bother?

When the tornado came and swept you away, as you knew all along it would, it was not to drop you into some Technicolor fantasy, but rather into the same world of Applebee’s and Best Buy the jokesters inhabit. That’s the context here; that’s the reason you refuse to join Dorothy’s fan club.

 

Rebein is a professor of English and chair of the Department of English at Indiana University Purdue University in Indianapolis. His books include Dragging Wyatt Earp: A Personal History of Dodge City and Hicks, Tribes, and Dirty Realists: American Fiction after Postmodernism. Rebein, along with various UPK staff members, will be at the Dodge City Days next Friday-Sunday.

Protecting Pesticides & Profits: What are the EPA’s priorities?

by Robin O’Sullivan, author of American Organic

What is the raison d’être of the Environmental Protection Agency? It’s not a trick question… at least, it shouldn’t be. The EPA’s mission is to “protect human health and the environment.” One of the agency’s primary purposes is ensuring that “national efforts to reduce environmental risk are based on the best available scientific information.”[1] Those words ought to be unequivocal. Like America’s rivers, however, they’ve become murky.

Richard Nixon entered the White House when ecological awareness—like the Cuyahoga River—was aflame. Nixon acknowledged that “restoring nature to its natural state” was “a common cause of all the people of this country,” so he signed the enabling act that consolidated several federal agencies into the EPA.[2] Formally established on December 2, 1970, the Environmental Protection Agency was largely nonpartisan. Nobody wanted to assail clean air or clean water. The rationale for creating the EPA wasn’t radical. A bevy of pesticides were unregulated. Pollution was unchecked. Lead poisoning was a national scourge. The Santa Barbara oil spill galvanized eco-activists, and Earth Day—a festival born from fretfulness—was first celebrated. Evidence was incontrovertible: humans, plants, animals, soil, waterways, and the sky were imperiled. Former EPA administrator William Ruckelshaus, in an interview with the Public Integrity Project, said that environmental protection had enormous bipartisan support in the US during the 1970s.[3] Ahh, the halcyon days when science was scientific, facts were factual, and the Lorax wasn’t alone in speaking for the trees.

Here’s the predicament now. Under the Obama administration in 2016, the EPA decided to ban chlorpyrifos, an organophosphate insecticide found in dangerously high levels in drinking water. Organophosphates are banned in households but permitted for agricultural use. Researchers from universities, the National Marine Fisheries Service, and the Fish and Wildlife Service have revealed a litany of detrimental effects from chlorpyrifos and similar pesticides.[4] After extensive research directed by EPA chief Gina McCarthy, the EPA itself deemed chlorpyrifos to be unsafe to farmworkers, children, and any person coming into contact with the contaminated water. Then—rejecting its own decision—the EPA, under the Trump administration, did an about-face. New EPA chief Scott Pruitt claimed that the studies by his own agency were flawed and said that chlorpyrifos would not be banned. This reversal took place after Pruitt met privately with the CEO of Dow Chemical, Andrew Liveris.[5] Dow Chemical manufactures chlorpyrifos. American farms use 6 to 10 million pounds of chlorpyrifos on edible crops each year; meanwhile, studies have linked the chemical to autism, ADHD, and other neurodevelopmental problems in children.[6] Dow Chemical has extensive power in Washington. The mega-corporation spent over $13 million on lobbying efforts in 2016 and also wrote a $1 million-dollar check for Trump’s inaugural party.

Sure, science is not immutable. It changes when new evidence arises. However, it does not flip upside down immediately after ethically questionable cloistered meetings. Is the EPA confused about its own priorities? This could be a coincidence; but, if you were on the agency’s website in July 2017, reading its mission statement, you were invited to view the EPA’s priorities. However, when you clicked that hyperlink, you were directed to a page that said: “Page Not Found.”[7] Perplexing, yes…and vexing.

What’s worse than an EPA that’s not protecting human or environmental health? Well, no EPA at all…and that’s a sobering possibility. A recent report from the Environmental Data and Governance Initiative, an international network of academics and non-profit employees, concluded—based on confidential interviews with present and former EPA employees—that Pruitt’s ultimate goal is to eliminate the EPA entirely.[8] The Sierra Club has reported on the current president’s hostility to the EPA, asserting that “the Trump administration’s decision to not renew the appointments of 38 out of 49 advisers on the EPA’s Board of Scientific Counselors (BOSC) is a clear attempt to break up the independence and institutional memory of the agency.”[9]

What will change Scott Pruitt’s mind next? A burning river? Doubtful. A silent spring? Not likely. The American people? Perhaps. To get involved with EPA regulations, you can visit: https://www.epa.gov/laws-regulations/get-involved-epa-regulations. You might want to remind the EPA what its priorities are.

Dothan Campus head shots

Robin O’Sullivan, Ph.D., teaches U.S. history, environmental history, and cultural history at Troy University in Alabama. She is the author of American Organic: A Cultural History of Farming, Gardening, Shopping, and Eating (2015).

[1] United States Environmental Protection Agency. “Our Mission.” https://www.epa.gov/aboutepa/our-mission-and-what-we-do Accessed July 1, 2017
[2] Kovarik, Bill. “A green Nixon doesn’t wash.” http://environmentalhistory.org/2013/01/07/nixon/  Accessed July 1, 2017
[3] Kovarik, Bill. “Environment used to be bipartisan.” http://environmentalhistory.org/2015/04/11/environment-used-to-be-bipartisan/  Accessed July 1, 2017
[4] Nosowitz, Dan. “Dow Chemical Asks Trump’s EPA To Disregard Government Studies That Indicate Its Pesticide is Dangerous.” http://modernfarmer.com/2017/04/dow-chemical-asks-trumps-epa-disregard-government-studies-indicate-pesticides-dangerous/ Accessed July 5, 2017
[5]  Nosowitz, Dan. “EPA Chief Met With Dow’s CEO Before Deciding Not to Ban Dow’s Dangerous Pesticide.” http://modernfarmer.com/2017/06/epa-chief-met-dows-ceo-deciding-not-ban-dows-dangerous-pesticide/ Accessed July 1, 2017.
[6] Lerner, Sharon. “Poison Fruit: Dow Chemical Wants Farmers to Keep Using a Pesticide Linked to Autism and ADHD.” https://theintercept.com/2017/01/14/dow-chemical-wants-farmers-to-keep-using-a-pesticide-linked-to-autism-and-adhd/  Accessed July 5, 2017
[7] https://www.epa.gov/node/19701 Accessed July 1, 2017
[8]  Environmental Data & Governance Initiative. “The EPA Under Siege,” https://100days.envirodatagov.org/epa-under-siege.html  Accessed July 5, 2017.
[9] Smith, Heather. “Trump Administration is the Greatest Threat the EPA Has Ever Faced.” http://www.sierraclub.org/sierra/trump-administration-greatest-threat-epa-has-ever-faced Accessed July 5, 2017.

Introducing New Acquisition Editor David Congdon

UPK’s David Congdon has one major goal when acquiring books for the press.

“I want to help further the intellectual conversation,” he says. “I’m excited to start working with authors and helping them through the process of publishing their work.”

Congdon is the new acquisition editor at the press, focusing on political science and law titles. He comes to Kansas after 5 years at InterVarsity Press.

“I’m excited to be here,” Congdon says. “I have a lot of respect for the work that the press has done and look forward to adding to the legacy while working to increase works by minorities and women.”

Joyce Harrison, UPK Editor-in-Chief, says Congdon stood out among candidates.

“David impressed the search committee with the level of his acquisitions experience, and with his energy and enthusiasm,” Harrison says. “It was clear to us that he was someone who would hit the ground running, and that’s what we needed. David has a passion for scholarly publishing, and he’s articulate, intelligent, and confident. Most of our authors and prospective authors in political science and law are academics, and we know that they’ll appreciate David’s appreciation for what they do. We were especially pleased with David’s eagerness to bring new ideas and voices to our publishing program.”

Congdon was raised in Portland, Oregon and earned his bachelor’s degree from Wheaton College in Illinois. He jokes that his choice of college was a bit predetermined.

“I’m a 6th generation Wheaton alum,” he laughs. “My family traces back to the founding of the school.”

After Wheaton, Congdon earned his Masters and Ph. D from Princeton Theological Seminary before entering the publishing world.

In addition to being an experienced editor, Congdon is an accomplished author. He has published three books, co-edited another and has four works under contract.

David and his wife, Amy, have a son and daughter.

Donald Trump: Bullying Role Model for Children

by Yale Magrass & Charles Derber, authors of Bully Nation. Written in response to this article.

In Bully Nation, we challenge the widespread idea that children are the main perpetrators or victims of bullying. Rather, we argue that kids who bully are mirroring behavior they see all around them in the adult world. Kids naturally mimic adults, whether it be their parents, their teachers or the President of the United States. In our corporate, militarized society, adults have to bully to get ahead or just survive. So our kids are exposed all the time to adults who are unwittingly teaching them the way to treat others.

President Trump is the most visible adult on the planet. And it is hard for anybody – whether child or adult – not to take notice. As President, he legitimates almost any conduct he does, including brutal bullying. As shown in our book and in our many subsequent op-eds, we know from numerous documented reports by teachers that school kids taunt their minority peers saying “The President is going to deport you – go home.” Or “Trump is going to build a wall to keep you out” and then they wall off the targets from playing with them or joining their play group. Or they make fun of disabled kids, the way Trump mocked a disabled reporter.

American children not only live in capitalism, but in the world’s dominant militaristic empire. Although Trump may be particularly blatant, as commander-in-chief, all presidents have the duty to be bully-in-chief. Even a softer president like Obama, who did not have an instinctive bullying personality, did not change this requirement.

Trump is under investigation and may face impeachment for his possible collaboration with another bully, Russian President Vladimir Putin, in interfering with the recent American election. While what Putin allegedly did may not be defensible, he is hardly alone. Israeli Prime Minister Benjamin Netanyahu more directly intervened in the American election process when he addressed Congress, hoping to rally support for Republicans.

American Presidents have a long history of bullying other countries, interfering with their democratic elections, and overthrowing leaders who dared to act contrary to American interests. When Columbia would not permit the United States to build a canal connecting the oceans to expedite corporate trade, President Theodore Roosevelt orchestrated a revolution and created a new country, Panama. In 1953, after the democratically elected Prime Minister of Iran Mohammad Mossaddegh nationalized Iran’s oil industry, the American CIA staged a coop which resulted in the restoration of Shah Mohammad Reza Pahlavi. The following year, President Eisenhower prevented an election in South Vietnam when he was told “a possible 80 per cent of the population would have voted for the communist Ho Chi Minh as their leader.” When, in 1973, democratically elected President Salvador Allende of Chile tried to nationalize mines owned by American corporations Kennecott and Anaconda Copper, the CIA had him overthrown and replaced by General Augusto Pinochet.

Yes, Trump is a bully who may inspire children to bully and it is essential to get him out of the White House. However, only a fundamental reorientation of American society, from top to bottom, will reduce bullying.

Charles Derber is professor in the Department of Sociology at Boston College.
Yale R. Magrass is Chancellor professor in the Department of Sociology/Anthropology at the University of Massachusetts-Dartmouth.

J Edgar Hoover’s Oversteps: Why FBI Directors are Forbidden from Getting Cozy with Presidents

By: Douglas Charles, author of Hoover’s War on Gays & The FBI’s Obscene File. (Article originally published by The Conversation.)

How are U.S. presidents and FBI directors supposed to communicate?

A new FBI director has recently been nominated, former Assistant Attorney General Christopher Wray. He will certainly be thinking carefully about this question as he awaits confirmation.

Former FBI Director James Comey’s relationship with President Donald Trump was strained at best. Comey was concerned that Trump had approached him on nine different occasions in two months. In his testimony to Congress, Comey stated that under President Barack Obama, he had spoken with the president only twice in three years.

Comey expressed concern about this to colleagues, and tried to distance himself from the president. He tried to tell Trump the proper procedures for communicating with the FBI. These policies have been enmeshed in Justice Department guidelines. And for good reason.

FBI historians like myself know that, since the 1970s, bureau directors try to maintain a discrete distance from the president. This tradition grew out of reforms that followed the often questionable behavior of former FBI Director J. Edgar Hoover, who served from 1924 to 1972.

Over this long period, Hoover’s relationships with six different presidents often became dangerously close, crossing ethical and legal lines. This history can help us understand Comey’s concerns about Trump and help put his testimony into larger context.

As the nation’s chief law enforcement arm, the FBI today is tasked with three main responsibilities: investigating violations of federal law, pursuing counterterrorism cases and disrupting the work of foreign intelligence operatives. Anything beyond these raises serious ethical questions.

From FDR to Nixon

When Franklin Roosevelt became president in 1933, Hoover worked hard to develop a close working relationship with the president. Roosevelt helped promote Hoover’s crime control program and expand FBI authority. Hoover grew the FBI from a small, relatively limited agency into a large and influential one. He then provided the president with information on his critics, and even some foreign intelligence, all while ingratiating himself with FDR to retain his job.

President Harry Truman didn’t much like Hoover, and thought his FBI was a potential “citizen spy system.”

Hoover found President Dwight Eisenhower to be an ideological ally with an interest in expanding FBI surveillance. This led to increased FBI use of illegal microphones and wiretaps. The president looked the other way as the FBI carried out its sometimes questionable investigations.

But when John F. Kennedy became president in 1961, Hoover’s relationship with the president faced a challenge. JFK’s brother, Robert Kennedy, was made attorney general. Given JFK’s close relationship with his brother, Hoover could no longer bypass his boss and deal directly with the president, as he so often did in the past. Not seeing eye to eye with the Kennedys, Hoover cut back on volunteering political intelligence reports to the White House. Instead, he only responded to requests, while collecting information on JFK’s extramarital affairs.

By contrast, President Lyndon Johnson had a voracious appetite for FBI political intelligence reports. Under his presidency, the FBI became a direct vehicle for servicing the president’s political interests. LBJ issued an executive order exempting Hoover from mandatory retirement at the time, when the FBI director reached age 70. Owing his job to LBJ, Hoover designated a top FBI official, FBI Assistant Director Cartha “Deke” DeLoach, as the official FBI liaison to the president.

The FBI monitored the Democratic National Convention at LBJ’s request. When Johnson’s aide, Walter Jenkins, was caught soliciting gay sex in a YMCA, Deke DeLoach worked directly with the president in dealing with the backlash.

One might think that when Richard Nixon ascended to the presidency in 1968, he would have found an ally in Hoover, given their shared anti-Communism. Hoover continued to provide a wealth of political intelligence to Nixon through a formal program called INLET. However, Hoover also felt vulnerable given intensified public protest due to the Vietnam War and public focus on his actions at the FBI.

Hoover held back in using intrusive surveillance such as wiretaps, microphones and break-ins as he had in the past. He resisted Nixon’s attempts to centralize intelligence coordination in the White House, especially when Nixon asked that the FBI use intrusive surveillance to find White House leaks. Not satisfied, the Nixon administration created its own leak-stopping unit: the White House plumbers – which ended in the Watergate scandal.

Not until after Hoover’s death did Americans learn of his abuses of authority. Reform followed.

In 1976, Congress mandated a 10-year term for FBI directors. The Justice Department later issued guidelines on how the FBI director was to deal with the White House and the president, and how to conduct investigations. These guidelines have been reaffirmed, revised and reissued by subsequent attorneys general, most recently in 2009. The guidelines state, for example: “Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General.”

These rules were intended to ensure the integrity of criminal investigations, avoid political influence and protect both the Justice Department and president. If Trump attempted to bypass these guidelines and woo Comey, that would represent a potentially dangerous return to the past.

Cabazon at 30: Do the Canons of Construction of Federal Indian Law Remain Viable?

by Ralph A. Rossum, author of The Supreme Court and Tribal Gaming

This spring marks the thirtieth anniversary of the United State Supreme Court’s decision in California v. Cabazon Band of Mission Indians (1987), the landmark decision that gave the nation tribal gaming. The most recent statistics available from the National Indian Gaming Commission show what an enormous impact Cabazon (along with the Indian Gaming Regulatory Act [IGRA] of 1988) has had:  In 2015, 238 gaming tribes with 474 gaming facilities operating in 28 states generated $29.9 billion in gross revenues. These revenues have helped to promote tribal economic development and self-sufficiency and to fund strong tribal governments.

The Court ruled on behalf of the Cabazon Band because it employed long-established canons of construction of federal Indian law; it construed ambiguous language in Public Law 280 to the tribe’s benefit and held that California could not exercise civil-regulatory jurisdiction in Indian County. But, perhaps because of the financial success of the gaming tribes and their aggressive use of casino profits to influence the political process, advance tribal interests, and negotiate more favorable state-tribal gaming compacts (through lobbying, campaign contributions, endorsement of candidates, and political organization), the Supreme Court since Cabazon has become decidedly less inclined to employ these canons to the tribes’ advantage. With one exception, the Court has handed the tribes one defeat after another.

The one exception is United States v. Lara (2004). In Duro v. Reina (1990), the Supreme Court held that an Indian tribe lacked sovereign authority to prosecute Indians who were not members of that tribe. Disagreeing with that decision, Congress the next year amended the Indian Civil Rights Act of 1968 in order to “recognize and affirm” the “inherent power” of Indian tribes to exercise criminal jurisdiction over “all Indians.” In Lara, the Court held that this congressional recognition was a relaxation of previous restrictions that Congress had placed on the exercise of the tribes’ inherent sovereign authority and not a delegation of federal prosecutorial power to them, and that, therefore, a federal prosecution of Billy Jo Lara for assaulting a federal police officer did not violate the Double Jeopardy Clause of the Federal Constitution’s Fifth Amendment, where he had previously been prosecuted for and convicted of “violence to a policeman” under the law of an Indian tribe of which he was not a member. The Court’s decision was, from the tribes’ point-of-view, a gratifying re-affirmation of the concept of inherent tribal sovereignty.

Lara dealt with the criminal jurisdiction of tribal courts. Four years later in Plains Commerce Bank v. Long Family Land and Cattle Company (2008), the Supreme Court addressed the civil jurisdiction of tribal courts, and, by then, its turn against the tribes was clearly apparent. Plains Commerce Bank, a non-Indian bank, sold land it owned in fee simple on the Cheyenne River Sioux Indian Reservation to non-Indians. The Longs, an Indian couple who had been leasing the land with an option to purchase, claimed the bank discriminated against them by selling the parcel to non-Indians on terms more favorable than the bank offered to sell it to them. The couple sued in tribal court, claiming discrimination, breach of contract, and bad faith. Over the objection of the Plains Commerce Bank, the tribal court concluded that it had jurisdiction and an Indian jury ruled against the bank. The court awarded the Longs damages plus interest and also gave the Longs an option to purchase that portion of the fee land they still occupied, nullifying the bank’s sale of the land to non-Indians. In a 5–4 decision, Chief Justice Roberts emphasized how limited the Court’s understanding of tribal sovereignty was; he underscored that “tribes do not, as a general matter, possess authority over non-Indians who come within their borders,” and pronounced that “this general rule . . . is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians.”  He noted that “our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.” On that basis, he held that the “Tribal Court lacks jurisdiction to hear the Longs’ discrimination claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land.”

In the spring of 2008, I attended a conference on tribal sovereignty at the Columbus School of Law at the Catholic University of America; the Plains Commerce Bank case was about to be argued before the Supreme Court, and several tribal leaders and their attorneys were present. I learned from their commentaries that parties filing amicus briefs on behalf of the Long Family were admonished to avoid using the term, tribal sovereignty, for fear that the Court’s reaction to its use would be negative.

In Carcieri v. Salazar (2009), the Court was called upon to interpret the provision of the Indian Reorganization Act of 1934 (IRA) authorizing the secretary of the interior to acquire land and hold it in trust “for the purpose of providing land for Indians.”  The IRA defines Indian to “include all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.” The Narragansett Tribe in Rhode Island, which lost federal recognition in 1880 but regained it in 1983, asked the secretary of the interior to accept land into federal trust to reestablish its reservation, and the secretary complied. The tribe asserted that it would use the land to build apartments, but the State of Rhode Island worried that the Narragansett might also use it to build a casino and that it would lose real estate taxes if the land were placed in trust. Consequently, Rhode Island sued, arguing that the secretary lacked the authority to acquire the land in question because the phrase now under Federal jurisdiction meant under jurisdiction in 1934 when the act was passed. The lower federal courts concluded that the meaning of now was ambiguous (because now could mean currently) and that under the canons of construction customarily applied under federal Indian law, the IRA was to be liberally construed in favor of the Indians, with all ambiguities resolved in their favor, and with tribal property rights and sovereignty preserved unless Congress’s intent to the contrary was clear and unambiguous. The Supreme Court, however, reversed. Justice Thomas declined to apply the canons and held for a six-member majority that “the phrase ‘now under Federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment.” Interestingly, Justice Stevens, who dissented in Cabazon in which the canons of construction were applied, dissented here because they were not: “The Court ignores the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘statutes are to be construed liberally in favor of the Indians.’ See Cohen[‘s Handbook of Federal Indian Law] §2.02(1), p. 119 (‘The basic Indian law canons of construction require that treaties, agreements, statutes, and executive orders be liberally construed in favor of the Indians.’).”

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchack (2012), the Court continued to complicate efforts by tribes to bring land into federal trust for gaming purposes The band, an Indian tribe federally recognized in 1999, requested that the secretary take into trust on its behalf a tract of land in Wayland Township, Michigan, which it intended to use “for gaming purposes.” The secretary took title to the property in 2009, one month before the Carcieri decision. David Patchak, who lived nearby, filed suit in federal district court asserting that the IRA did not authorize the secretary to acquire the property because the band was not a federally recognized tribe when the IRA was enacted. Alleging a variety of economic, environmental, and aesthetic harms as a result of the band’s proposed use of the property to operate a casino, he requested injunctive and declaratory relief reversing the secretary’s decision to take title to the land. Without reaching the merits, the district court dismissed his suit, ruling that he lacked standing to sue, only to be reversed by the Court of Appeals for the District of Columbia Circuit. In an 8–1 vote, the Supreme Court affirmed the appellate court and held that Patchak had standing to challenge the secretary’s acquisition of the land. Speaking for the Court, Justice Kagan argued that the IRA requires the secretary to acquire land with its eventual use in mind, after assessing the potential conflicts that use might create. And, she continued, because the IRA encompasses the land’s use, neighbors to that use (like Patchak) are reasonable challengers of the secretary’s decisions, and their interests, whether economic, environmental, or aesthetic, come within the IRA’s regulatory ambit.

In Michigan v. Bay Mills Indian Community (2014), Justice Kagan held for a five-member majority that tribal sovereignty prevented Michigan from suing the tribe in question for operating a casino located outside of Indian country because Congress in IGRA had not delegated to the states that power.  That would seem to be a victory for the tribes, and a reemergence of a more sympathetic Court, but the tribe’s victory was pyrrhic, for Justice Kagan went on to make clear that Michigan could “resort to other mechanisms, including legal actions against the responsible [tribal] individuals” who were operating the casino.

And, finally, in Adoptive Couple v. Baby Girl (2015), Justice Alito for a five-member majority refused to construe liberally the Indian Child Welfare Act of 1978, enacted to help preserve the cultural identity and heritage of Indian tribes, and thereby prevent a non-Indian family, proceeding under state law, from adopting an Indian child. To do otherwise, as Justice Thomas pointed out in his concurrence, would oblige the Court to accept an unconstitutional law: “The Constitution does not grant Congress power to override state law whenever that law happens to be applied to an Indian.”

As a result of its rulings in Plains Commerce Bank, Carcieri, Match-E-Be-Nash-She-Wish, Bay Mills, and Adoptive Couple, tribal leaders now seek to keep cases from reaching the Supreme Court, believing that it is better to accept adverse decisions by lower courts, where the impact is geographically limited, than risk having those adverse decisions affirmed by the Supreme Court and applied nationally.

In Cherokee Nation v. Georgia (1831), Chief Justice Marshall described the tribes as being in “a state of pupilage.” Because not grown up, they needed the Court’s solicitude and the protection of what developed into the canons of construction of federal Indian law. Cabazon allowed the tribes (or at least the gaming tribes) to grow up. The political muscle these tribes now exercise seems to have convinced the Court that they no longer need the Court’s (or the canons’) protection. Thirty years ago, tribal leaders celebrated Cabazon as a great victory; it was, but its legacy has proven to be more complex and challenging than they imagined at the time.


 

Ralph A. Rossum is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of multiple UPK titles, including Antonin Scalia’s Jurisprudence, Understanding Clarence Thomas & Text and Tradition.

 

Making, and Un-Making, Environmental Law: Earth Day’s Uncertain Dawn

By Karl Boyd Brooks, author of Before Earth Day; The Origins of American Environmental Law, 1945-1970

President Donald Trump is about as subtle as a claw hammer. Two weeks ago, he went to Environmental Protection Agency headquarters in Washington, D.C., to announce his disdain for nearly everything the agency had been doing during the Obama Administration. The presidential criticism amounted to a stunning rebuke of an agency that has, for over 45 years, earned solid marks from Americans for using law to safeguard their lives, communities, and future opportunities.

Presidents usually visit EPA to highlight some new initiative to take care of our environmental resources: the air, land, and water on which our lives, and our American prosperity and liberty, depend. President Trump went instead to lash the agency, demean its staff, and challenge the bipartisan legal legacy that has made Americans more prosperous and free by protecting their public health.  Picture the Trump/EPA moment as the President of the United States flashing his big, fat middle finger at the agency.

Those of us who have worked for EPA, and know first-hand about its people’s dedication and professionalism, found Trump’s symbolism telling:  there the president was — in the Rachel Carson Room, for gosh sakes — signing executive orders to speed up coal mining, roll back air quality protections, and undermine this nation’s signal effort to mitigate the grievous impacts of climate change. For good measure, President Trump paraded a handful of sheepish coal miners in front of his EPA ceremony to buttress his campaign pledge to “make coal great again.”

This month marks the 48th Earth Day. Throughout April, in events large and small, choreographed and spontaneous, Americans join their fellow passengers on Spaceship Earth to salute what Apollo 8’s astronauts, on Christmas Eve 1968, fondly called “our good earth.”  Now that the President of the United States has publicly trashed EPA, our premier environmental law enforcement agency, we should think a little harder about how our lives, our communities, and our legacy depend on environmental law.

EPA began in 1970. A very different kind of Republican president, Richard M. Nixon, created this new agency by welding pieces of other, older federal agencies into a single force combining environmental science, education, lawmaking, and enforcement. Of course, that was big news. And those were very different times than today. But we should widen our focus on EPA and 1970 a little to get the full story about the agency, to understand how radically disruptive and destructive President Trump’s environmental actions appear, and to appreciate how hard they will be to carry out. A little history about environmental law in America will put 1970 in perspective, situate EPA in a long and proud governmental tradition, and link today’s environmental challenges to those our grandparents faced after World War II.

A decade ago, I began writing Before Earth Day: The Origins of American Environmental Law. I wrote the book to answer a simple, but surprisingly elusive, question: where did American environmental law come from? I’d taught the subject at the University of Kansas (KU), to both undergrads and law students, for a number of years. I’d studied the American legal system and American environment systematically since beginning my history PhD work at KU in 1996.  And I’d spent much of my adult life working in and around law and the environment as a lawyer, elected legislator, and citizen activist in my home state of Idaho. And yet, despite some three decades of immersing myself in the challenges we create by living on this earth, I had no more clear idea about environmental law’s back-story than on the day I started law school in 1980.

Even if you’re not a lawyer, and even if you don’t put yourself in the “environmentalist” camp, you probably know a little about the famous federal laws that help keep us healthy and productive: the 1970 Clean Air Act, the 1972 Clean Water Act, and President Nixon’s 1970 pen-stroke that created the United Environmental Protection Agency. My book took a look at the “environmental decade” of the 1970s and found some important precursors to all those important laws. In fact, the more I looked into American environmental law’s “origin story,” the less I believed 1970 was the be-all end-all of the story. My book didn’t mean to diminish the hard-working, creative, and determined Americans who took up the fight against pollution and waste and injustice as the Seventies dawned. What Before Earth Day did is actually make those pioneers more traditional and less revolutionary, and their many accomplishments therefore more durable and defensible.

Law doesn’t just “happen.” Rules don’t appear spontaneously. Systems don’t come from nowhere. Environmental law, like environmentalism itself, emerged somewhat slowly after 1946. And like the ideas, imagery, and rhetoric of environmentalism, the principles and practices of environmental law have one foot planted in cautious tradition and one foot planted in bold reform. In fact, one reason why environmental law has stuck around so long is its very distinguished pedigree. Some of our most important environmental law principles date back to the early 20th century. Others emerged during the New Deal’s darkest days and the postwar era’s bright promise.

We should appreciate American environmental law for the careful, thoughtful, incremental advance it represents over the earliest American attitudes toward the natural world. At the origin of the American Republic, most laws encouraged people to own, use, and waste natural resources and systems. As late as 1900, few laws restrained factory-owners from pouring their waste into the air, water, and landscape. Even in the 1950s, government agencies – federal, state, and local – could plow a roadway through a wetland, or pour chemicals onto a forest, without telling neighbors, sharing the basis for their decision, or accepting constructive criticism. By 1970, though, even “Before Earth Day,” all those older ways of doing business (and damage) to the natural world had been replaced or substantially modified by the legal system we know today. President Trump may complain that dredging a wetland takes too long and emitting air pollutants has gotten too expensive. But that’s what environmental law has gained for us: breathing space, health benefits, and public participation.

President Trump and EPA Administrator Pruitt have announced drastic plans to shear off many key environmental law principles and to slash EPA’s capacity to make and enforce environmental law. What may restrain them as much as public outrage and business indifference (just check out how the energy industry has voted with its investment dollars against coal and for wind) is history and tradition. EPA may be only 47 years old, and it may have appeared when men tended their sideburns and women tottered on their platform shoes (not so different than today), but the underlying legal rules, principles, and precedents are far older. With roots that run so deep in American legal, cultural, and political soil, POTUS and Pruitt will find it harder than they imagine to tear up our environmental law system.

 

 

Karl Boyd Brooks is a Clinical Professor and Program Director, LBJ School of Public Affairs, University of Texas-Austin and former associate professor of history and environmental studies, and courtesy professor of law, University of Kansas; and U.S. Environmental Protection Agency Regional Administrator and acting Assistant Administrator

Yamashita’s Ghost Inspires PBS Special

Allan Ryan had no plans to write a book about Japanese General Yamashita.

“I was planning on writing about the Nuremberg Trials,” Ryan says. “The more I researched the trials, however, the more I realized there was little new to say.”

While on vacation in Vermont, Ryan had an idea.

“I was on a bike ride on a particularly challenging hill and for some reason I thought of General Yamashita” Ryan says. “I did some research and realized that , other than a 1947 book by his lawyer, there had been no thorough analysis of his case. So I started to dig in.”

UPK published Ryan’s Yamashita’s Ghost; War Crimes, MacArthur’s Justice, and Command Accountability in 2014.

In 1946 General Tomoyuki Yamashita, Japan’s most accomplished military commander, was tried, convicted and executed for war crimes.

The atrocities of 1944 and 1945 in the Philippines—rape, murder, torture, beheadings, and starvation, the victims often women and children—were horrific. They were committed by Japanese troops as General Douglas MacArthur’s army tried to recapture the islands. Yamashita commanded Japan’s dispersed and besieged Philippine forces in that final year of the war. But the prosecution conceded that he had neither ordered nor committed these crimes. MacArthur charged him, instead, with the crime—if it was one—of having “failed to control” his troops, and convened a military commission of five American generals, none of them trained in the law. It was the first prosecution in history of a military commander on such a charge.

In a turbulent and disturbing trial marked by disregard of the Army’s own rules, the generals delivered the verdict they knew MacArthur wanted. Yamashita’s lawyers appealed to the U.S. Supreme Court, whose controversial decision upheld the conviction over the passionate dissents of two justices who invoked, for the first time in U.S. legal history, the concept of international human rights.

“I think the 2 dissenting opinions are fascinating,” Ryan says. “They both address the efforts of Yamashita to control his soldiers while attacks from US forces made it nearly impossible.”

Ryan’s 2014 book, Yamashita’s Ghost, draws from the tribunal’s transcripts and Ryan vividly chronicles this tragic tale and its personalities. His trenchant analysis of the case’s lingering question—should a commander be held accountable for the crimes of his troops, even if he has no knowledge of them—has profound implications for all military commanders.

“I was struck by how atypical Yamashita was,” Ryan says. “He was a poet and he had a very strong understanding of the Laws of War. In fact, he punished soldiers under his command who had committed crimes against civilians or prisoners of war. That was unheard of in the Japanese military.”

Yamashita’s Ghost serves as the basis for the first hour of PBS’s new three-hour special Dead Reckoning: War, Crime, and Justice from WWII to The War on Terror, which premiers March 28. The program follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious war criminals. The principles, legal doctrine and tactics that emerged from those pursuits now inform the effort to expose, prosecute, and punish present day human rights violators.

The film begins with vengeance: U.S. General Douglas MacArthur’s 1945 military trial of Japan’s General Tomoyuki Yamashita for horrific atrocities in the Philippines. Despite the lack of any evidence that Yamashita ordered or even knew about the atrocities, he was condemned to death, raising the question: Are commanders responsible for crimes their troops commit?

“I had worked with Emmy-award winning writer and director Jonathan Silvers previously on a PBS documentary about Nazi war criminals in the post-war years,” says Ryan, who is credited as a co-producer on Dead Reckoning. “When we finished that project he asked ‘What’s next?’ I said “How about General Yamashita?” and that got the ball rolling. Jonathan has a profound commitment to examining war crimes and atrocities and asking, ‘why?’ and ‘how” and ‘who is responsible?”” So it’s  exciting to see the work we put into this finally come to bear. It’s disturbing, but these questions are disturbing. We’ve just tried to bring some clarity to them.”

Allan A. Ryan was Director of the Office of Special Investigations in the Criminal Division of the US Department of Justice, responsible for the investigation and prosecution of Nazi war criminals in the United States. He has also served as an advisor on war crimes prosecutions to the Government of Rwanda, and has taught the law of war and genocide at Boston College Law School since 1990 and at Harvard University since 1997.

His books include Yamashita’s Ghost: War Crimes, MacArthur’s Justice and Command Accountability, (University Press of Kansas 2012); The 9/11 Terror Cases: Constitutional Challenges in the War Against al-Qaeda, (University Press of Kansas 2015) and Quiet Neighbors: Prosecuting Nazi War Criminals in America (Harcourt Brace Jovanovich 1984)