Month: April 2010

Sovereignty Symposium 2010 — Agenda

Matthew L.M. Fletcher

Sovereignty Symposium 2010

AS LONG AS THE GRASS GROWS AND THE RIVERS FLOW

June 2 – June 3, 2010

Skirvin – Hilton Hotel

Oklahoma City, Oklahoma

__16__ hours of CLE credit for lawyers will be awarded, including __1_ hour of ethics.

The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment.  The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.

Wednesday, June 2, 2010

a.m.   4.5 CLE credits / 1 ethics included

p.m. 3 CLE credits / 0 ethics included

9:30 – 12:00       PANEL A:

THE YEAR OF THE HORSE

MODERATOR:  HONORABLE TOM COLBERT, Justice, Supreme Court of Oklahoma, Tulsa, Oklahoma.

Madeleine Pickens, Help Save America’s Wild Horses, Dallas, Texas.

Honorable Gregory E.  Pyle, Chief, Choctaw Nation, Durant, Oklahoma.

Honorable Kelly Haney, Seminole, Oklahoma.

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Ezra Rosser Book Review of Ray Austin’s Book on Navajo Common Law

Matthew L.M. Fletcher

Ezra Rosser has posted Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1591153, forthcoming 35 Am. Indian L. Rev. __ (2010) to SSRN.  The abstract is below:

Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council is a brief article framed as a book review of RAYMOND D. AUSTIN, NAVAJO COURTS AND NAVAJO COMMON LAW: A TRADITION OF TRIBAL SELF-GOVERNANCE (2009). Raymond Austin is a former Justice of the Navajo Supreme Court and his book is an important contribution to Indian law and tribal law scholarship that should be of interest to general readers. Austin shows the origins of Navajo customary law norms and how the Navajo court system has incorporated those norms into Navajo common law. Although the majority of the article is dedicated to reviewing NAVAJO COURTS AND NAVAJO COMMON LAW, I also discuss the an ongoing tribal power struggle and the related effort of the Navajo Tribal Council to block the Navajo courts from using customary law.

Two Indian Law Cases are “Petitions to Watch”

Matthew L.M. Fletcher1 Comment

Keep an eye out for Monday’s announcement of new orders in pending petitions, and expect at least one Indian law case to be granted. My money’s on the Tohono O’odham case.

From SCOTUS Blog:

Title: United States v. Tohono O’odham Nation
Docket: 09-846
Issue: Whether 28 U.S.C. § 1500 — which precludes jurisdiction by the Court of Federal Claims (CFC) over ”any claim for or in respect to which the plaintiff has any suit or process against the United States” or its agents “pending in any other court” – deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

Title: Wolfchild v. United States; Zephier v. United States
Docket: 09-579; 09-580
Issues: (1) Whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 Indian Reorganization Act or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved; (2) whether the Federal Circuit’s holding of “statutory use restrictions” in congressional appropriation acts establishing statutory obligations on the United States, but no “trust,” departs from applicable statutory interpretation and trust principles; and (3) whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust was impermissible given that the court failed to consider the 1934 IRA’s extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the “clear and unambiguous requirement” for a trust termination act.

Keepseagle Settlement Deadline Extended

Matthew L.M. Fletcher

From BLT:

U.S. District Judge Emmet Sullivan yesterday agreed to continue a delay in a multi-billion-dollar lawsuit by Native American farmers and ranchers against the U.S. Department of Agriculture in order to allow more time for settlement negotiations.

“At the request of the USDA, the plaintiffs agreed to request a brief additional stay of the litigation in the hope that the additional time will permit the parties to make real progress in establishing a basis for settlement,” said lead counsel Joseph Sellers, partner in Washington’s Cohen Milstein Sellers & Toll.

Sullivan extended the settlement negotiation to May 26, with a status report due on May 20.

In their motion to the court, Sellers and Department of Justice attorneys said, “The length of this stay is reasonable in light of the many considerations involved in settling a class action lawsuit of this size and scope.”

The class action, Keepseagle v. Vilsack, was filed in the U.S. District Court for the District of Columbia in November 1999. The suit accuses the Agriculture department of denying thousands of Native American farmers and ranchers the same opportunity to obtain farm loans that it routinely gave to white farmers. The discrimination allegedly caused the loss of billions of dollars in credit over a 25-year period. The suit also charges the department with failure to accept and investigate many civil rights complaints filed by those farmers and ranchers.

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More News Coverage of Ed DuMont’s Nomination to the Federal Circuit

Matthew L.M. Fletcher

I like him more every day.

From How Appealing:

“Breaking Barriers: Edward DuMont, praised by colleagues as ‘brilliant,’ would be the first openly gay federal appellate judge in the country.” Chris Geidner has this article online at the web site of Metro Weekly, Washington, DC’s gay & lesbian news magazine.

Detroit News on a Possible Granholm SCT Nomination

Matthew L.M. Fletcher

From the Det. News:

Gov. Jennifer Granholm is apparently on the short list for the U.S. Supreme Court, to fill the vacancy of retiring Justice John Paul Stevens. Her nomination would be an interesting, unusual choice.

Granholm is included along with more conventional candidates such as U.S. Solicitor General Elena Kagan, former dean of Harvard’s law school and several federal appellate court judges. The other political figure prominently mentioned as a candidate is Homeland Security Secretary Janet Napolitano, former governor of Arizona.

If Granholm is nominated, it will break at least one pattern: all of the current justices are former federal appellate court judges.

It would mark a return to a previous style in nominations, in which political figures were named to the court, such as former California Gov. Earl Warren and former Michigan Gov. Frank Murphy. Murphy distinguished himself in the high court’s history by being one of the few justices to dissent from a now embarrassing Supreme Court ruling during World War II approving the West Coast round-up and removal to remote camps of Americans of Japanese descent.

Granholm would bring to the court political experience as a former governor and state attorney general, albeit one whose gubernatorial record, including a brief government shutdown and a controversial tax hike, has been a disappointment, though she did win a second term against a novice but well-funded opponent.

As one court watcher, Russell Wheeler of the Brookings Institution, told The News, a Granholm strength is that she would “bring empathy as the governor of a state that has had such high unemployment.”

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Student Note on the UN Declaration of Rights of Indigenous Peoples

Matthew L.M. Fletcher

David Fautsch has published “An Analysis of Article 28 of the United Nations Declaration on the Rights of Indigenous Peoples, and Proposals for Reform” in the Michigan Journal of International Law.

ABA Report on Diversity in the Legal Profession

Matthew L.M. Fletcher

Here.

Worth a look since it mentions PLSI, Indian criminal jurisdiction, and the lack of American Indians on the federal bench.

Federal Court Declines to Dismiss Charges in Indian Artifact Theft Case

Matthew L.M. Fletcher

Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.

An excerpt:

Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.

However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.

Muscogee Tax Dispute Remanded to State Court

Matthew L.M. Fletcher

Here is the opinion in Oklahoma ex rel. Edmundson v. Larkin (N.D. Okla.): DCT Order Remanding to State Court