Friday, January 31, 2003

Second announcement:

On a trial basis I'm going to be blogging over at The Volokh Conspiracy for a month. Let me know what you think. Everything that's already here will remain here. (Remember, 'way back when, I speculated that group-blogs would someday triumph...) And I'll continue to update the blogroll to the left, including my reading list, links to my writings, etc as well as links to noteworthy blogs/

Bye for now...

Note: for those looking for posts about the Individual Indian Monies trust fund, look here and here.

UPDATE: You ought to be reading everything on the Volokh Conspiracy; it's good, smart stuff. But if you, my most faithful readers who are still coming to this site, want to be able to quickly look at just my Conspiracy posts as if they were a separate blog, click

UPDATED AGAIN: The Conspiracy has moved to My recent posts can be read at

Thursday, January 30, 2003


Because I complained about the omission of Boromir and Faramir's dream from the movie adaptation of LotR, people keep hitting this site from search engines when they're looking for the words of the prophecy. Those words haven't been here, but, hey, I'm eager to please.

Seek for the sword that was broken
In Imladris it dwells
There shall be counsels taken
Stronger than Morgul-spells
There shall be shown a token
That doom is near at hand
For Isildur's Bane shall waken,
and the halfling forth shall stand.
Around the web/ miscellany

Check out Eugene Volokh on whether a professor at a state university may refuse to write letters of recommendation for premed creationists; and this not at all nice but very funny Mark Kleiman post.

Everyone else has linked to them, too, but they're clearly the items of the day: the op-ed by the eight European leaders (complete round-up of coverage at Oxblog; and Josh Marshall's interview with Ken Pollack.

Following up on my TNR piece and on this post with further information on the Individual Indian Monies scandal.

Jonathan Adler, a law professor at Case Western, writes:

I enjoyed your TNR piece on the IIM trust issue -- as well as your hits
on the Interior Department's gross mismanagement on your blog. I agree
that this is an important story that the press has largely overlooked.

My one comment is that I think your conclusion is slightly unfair to many
in the conservative/libertarian/property rights crowd who have worked on
Native American issues for years. Not only are there some -- such as
Terry Anderson and the folks at PERC -- who have written on Indian issues
for a long time, but the conservative alternative is not allotment --
under which beneficial title remains in the hands of the federal
government -- but actual property rights. Allotment created a trust
relationship between the Indians and the government, so it did not
prevent the sort of mismangement and malfeasance which is endemic in the
management of Indian affairs. Actual property rights, however, would
remove BIA and the federal bureaucracy from the picture. While you are
right that many conservatives have been AWOL on this issue, the same
could be said of most liberals, and those conservatives who have
addressed the broader issues raised by federal mismanagement of Indian
affairs have proposed reforms far more meaningful than a replay of the
Dawes Act.

In any event, I'm glad to see that someone is giving this issue the
attention it deserves.

(PERC is the Political Economy Resource Center, which has indeed done a great deal of important and admirable work on Indian issues, especially property rights issues (including, Jonathan helpfully notes, this and this.)

All of which I basically agree with, and have written in support of myself elsewhere. But it remains true that even PERC has (as far as I can tell) said nothing about the IIM case; that Norton continues to be on the wrong side; and that there hasn't been much libertarian noise making the argument Jonathan described. I'm trying to get some noise started.

Note about the difference between alottment and real property rights, which Michael Carr also wrote in about: I didn't have space to go into this in the TNR column, but it's quite true that the kind of ownership created in 1887 was much short of freehold property. The individual Indians own the land in an incomplete sense, which is central to the problem. Not only are the resource rights held in trust by the federal government; the land cannot be sold to non-Indians. In addition, the semi-inalienable interest an Indian was given in these lands was divided equally among heirs, such that by now there are a vast number of fractional shares of the ownership of each such lot of land. This is a problem in its own right-- it means makes rational economic use ofthe land almost impossible. But it has also contributed to Interior's inability to manage the trust accounts, at the same time that it has become part of the profeered justification for trusteeship; keeping track of this complex pattern of fractional interests is absurdly complicated.

On a different note: in the TNR piece I said that Sam Donaldson and 60 Minutes had done extended segments on the Cobell case, but that otherwise television news had been almost entirely AWOL. My friend Todd Seavey reminded me that John Stossel's hour-long special "John Stossel Goes to Washington," had been intended to include a segment about the IIM accounts, but that when Stossel began questioning Bruce Babbitt about them, the then-Secretary of the Interior stormed off the set. (Therefore none of the relevant Nexis search words led me to Stossel-- in the actual event the special included only about two sentences about lost Indian money, followed by an extended on-camera "I'm going to fire whoever scheduled me to do this interview" bit from Babbitt..)
You remember Neal McCaleb, the former Assistant Secretary of the Interior for Indian Affairs I spoke so unkindly about just yesterday?

Destroyed documents.

Wednesday, January 29, 2003

Around the web and miscellany

Over at TAP, Richard Just has one of the best pieces on the State of the Union address. I think the following is exactly right:

President George W. Bush delivered two State of the Union
addresses last night: an unconvincing recitation of platitudes
about supply-side economics followed by a compelling -- even
grand -- articulation of America's role in the world... [I]t wasn't
just the policies of the first half of the speech that were unsatisfying --
so was the delivery, not to mention the prose itself. This was
the kind of speechmaking at which President Clinton excelled;
he made laundry lists of policy proposals come alive. Bush
doesn't have that gift... But then came Bush's transition
sentence -- "The qualities of courage and compassion that we s
trive for in America also determine our conduct abroad" -- and I
suspect that even the president's most skeptical critics would
agree that from that point on, he was masterful...It is not irrelevant
that Bush succeeded last night where Clinton had the most trouble
as a speechmaker. Clinton could make a bulleted policy list sound
inspiring, but when he tried to deal in broad themes and big visions,
his rhetoric sometimes felt flat, even empty.

I suspect that I agree with more of Bush's domestic agenda than Just does; but I agree entirely with this commentary on the style and feel of the speech. On the other hand, Just also says that Locke's

rebuttal was the finest opposition response in years to a State of
the Union... Someone should take note and put Locke on the fast
track to bigger and better things in the Democratic Party.

Locke struck me as a bland, inoffensive nice guy, giving a speech for student council president. The need to paper over Democratic divisions on the war of course hurt him. But the grandson-of-an-indentured-servant thing seemed appropriate for a personal campaign ad, not for the moment when Locke was supposed to be speaking on behalf of the party as a whole. The symbolism of having a governor speak this year was terrible. And the domestic agenda was reeeally uninspiring. Just and I watched the same SotU, but apparently not the same Democratic response.

Over at The Conspiracy: check out David Post on "the reverse tinkerbell effect." I wonder whether there's not a much more general kind of case at work in everyday market economics-- not just the specialized case of the efficient capital market hypothesis. The more people who think there's a killing to be made in x area of economic activity, the more will enter it-- gradually driving economic profits to zero. Crowdedness doesn't only apply to libraries and beaches; it applies to markets, too. That's basic to how markets work; from the system's perspective it's a feature, not a bug. It looks different from the perspective of the individual producer. And it looks very different if the market in question takes some time and preparation to enter. The more early-stage graduate students who think that there's room in the literature to make a striking contribution on a particular topic, the more books there will be trying to occupy that intellectual space 3-6 years hence, and the less of a splash any one of them will make. Kieran Healy notes that the idea of the self-defeating prophecy has a long history.

Mark Kleiman, Ted Barlow, and Kieran Healy, among others, are blogging actual empirical matters-- you know, the kind with numbers. How much does wealth (as distinct from income) contribute to the black-white education gap?
Hi there!

I’d like to offer a welcome to those visiting the site for the first time via TNR. Like many blogs, mine is a combination of writings about: stuff I can claim some expertise in (political philosphy, political science, multiculturalism, the rights of ethnic minorities, freedom of association), stuff I care passionately about (academic freedom and academic governance), stuff that I find fun (Lord of the Rings, science fiction), and stuff about which I don't necessarily know any more than any other news addict, though sometimes my poli sci/ political theory background means I have an idiosyncratic take on it (i.e. everything else).

Here's the basic story o' me.

My first TNR column is on something I can claim expertise in: the law, politics, and justice of indigenous rights, in this case the rights of American Indians. (My other writings on indigenous rights include two chapters in my book The Multiculturalism of Fear, one of which also appears in Kymlicka and Norman, eds., Citizenship in Diverse Societies; and a chapter on "Indians in Madison's Constitutional Order" in Samples, ed.,
James Madison and the Future of Limited Government

To expand on a few points from the column:

Trusteeship, in the case of Individual Indian Money accountholders, is supposed to refer to the straightforward fiduciary-responsibility concept. This is also true when the landowner is a tribe. But "trusteeship" also refers to something more general and amorphous as the underpinning of the federal government's relationship to tribes. Both are paternalistic in their origin. But the tribes have an interest in not doing away with the idea of a trustee relationship, since it underlies the federal government's commitment (such as it is) to act in the interest of the tribes. Back before the Eleventh Amendment turn in federalism jurisprudence, it also solidified the federal commitment to protect tribes against the states when necessary. This understanding of trusteeship-- which predates the Revolution, and can also be found in the other Anglo-settler states of Canada, Australia, and New Zealand-- is notoriously difficult to pin a precise legal meaning to. The duties it imposes aren't nearly as well-specified as the duties of an ordinary financial trustee. But a reluctance to jeopardize the idea of trusteeship has, I think, some effect on how the tribes view the Cobell litigation. If the plaintiffs were to propose terminating the trust relationship over the IIM accounts altogether (rather than placing them into a receivership with a different trustee) the tribes might be more worried still. I nonetheless think that such a termination is the right thing to do. The federal government has no business posing as the trustee of Indians' money, when it is itself the greatest threat to that money.

Another concern from the tribes' perspective-- and this is inference on my part, not based on anything that has been said in public-- is budgetary. In principle, the IIM mess should be entirely separate from other Indian affairs, just like the IIM accounts should be separate from other governmental outlays and revenues. But, politically, if the Cobell suit results in billions or tens of billions of dollars in (what looks like) new spending to compensate for past misappropriation, the separation probably won't be so clean. The squeeze will probably be put onto appropriations for other BIA functions, for tribal colleges, and for the rest of the federal government's Indian activities.

So, altogether, one wouldn't expect tribes to expend too much of their finite lobbying capital on forcing a fair, speedy, generous settlement. Tribal organizations have been supportive, and have filed amicus briefs on Cobell's side, but they just don't have much incentive to make it a top priority of their relationship with Congress or the BIA. And, as I've said, there are aspects of trusteeship and the relationship with the BIA that they're understandably more interested in protecting than the Cobell plaintiffs are.

Gale Norton has no such excuse for betraying her alleged commitment to the rights of property-owners...

Shortly after Lamberth held Assistant Secretary for Indian Affairs Neal A. McCaleb in contempt, the latter announced his retirement, complaining that "the litigation has taken first priority in too many activities, thus distracting attention from the other important goals that could provide more long-term benefits for Indian Country." As I've blogged previously, I don't have a lot of sympathy for this complaint. Coming into compliance with Interior's fiduciary obligations, and ensuring that individual Indian property-owners get the full value of their resources, would do more for Indian self-reliance than would coming up with another BIA program. Being reminded that the department wasn't fulfilling its obligations apparently took all the fun out of it.

If the lawsuit is so unpleasant and time-consuming, then Interior ought to quit dragging its feet.

UPDATE: Resigning hasn't freed McCaleb from the lawsuit entirely; he can still get in trouble for having destroyed documents.

I should note that a few Republicans in Congress-- including John McCain and Ben Nighthorse Campbell-- have been on the right side here, and have treated the issue seriously.


Some links:

Complete information on Cobell v. Norton can be found at The Department of Justice maintains its own site on the case here.

The Harvard Project on American Indian Economic Development is an indispensable resource for information on tribal governments, and the problems tribes confront from two directions: external limits on self-government, and internal institutional failures, violations of the rule of law and separation of powers, and obstructions to economic development.

The National Council of American Indians is the most important tribal lobbying group. The Native American Rights Fund is involved in the Cobell litigation.

The BIA website "as well as the BIA mail servers have been made temporarily unavailable due to the Cobell Litigation. Please continue to check from time to time. We have no estimate on when authorization will be given to reactivate these sites." The story: at one point Interior slapped together a new computer system to handle the IIM accounts. Lamberth found that the system was woefully insecure and prone to hacking. Interior took it down-- and, in a fit of spite, stopped issuing all checks to IIM account-holders for months, saying that they couldn't do without the new computer system what they had always done without the new computer system. This was more than a year ago. I'm pretty sure that Lamberth's order didn't require BIA to take down its public webpage with contact information and the like.

UPDATE: See this follow-up post above.
Announcement time

Sometime today, my first monthly online-only column at The New Republic website will go up. Another scholar-blogger will be writing with the same frequency, offset by two weeks; but I'll let him or her reveal his or her identity in due course. UPDATE: It's up.
Around the web/ miscellany

Joseph Epstein has a lovely essay in Commentary on his teaching career.
Mickey Kaus says, of the Think Group's World Trade Center proposal:

(So what if every suicidal teen with a pilot's license is going to try to
hang his Cessna from the latticework? They can mount AA guns on
the top! It'll be quite a show.)

This reminds me of something Jonah Goldberg wrote just days after September 11. It doesn't come across so well anymore, I guess, but it stuck with me like nothing else Goldberg's ever written-- jokey but in a distinctively defiant fashion that was much needed at the time. The column as a whole is, I think, one of his best; but this sentence in particular lodged itself in my brain and replays there every time I read or think about the design of the restored site.

But if we must have a shrine or monument for
our remorse, let's put it on the 200th floor, right
next to the antiaircraft guns.

I don't, finally, agree, but it's still always the first thought in my mind when WTC questions come up.

Tuesday, January 28, 2003

Via Brian Doherty: Virginia Heinlein has died.
My old colleague at WBRU news (95.5 FM in Providence), Aaron Schatz, has a piece telling the Democratic presidential contenders to stop trying to be John McCain, over at the American Prospect.
Stay tuned; the first of those two big announcements I mentioned last week is coming up in the next 24 hours.