Author: Matthew L.M. Fletcher

Blumm on Salmon and Climate Change

Matthew L.M. Fletcher

Michael C. Blumm has posted “Salmon, Climate Change, and the Future,” forthcoming in the Environmental Law Reporter, on SSRN.

Here is the abstract:

This article examines salmon law and policy in the context of ongoing climate change. The article examines the nature of the threats that climate change poses and will continue to pose for salmon recovery, as well as possible legal responses to combat these threats. It also considers the future prospects of Pacific salmon in a world that will include significant climate change and other threats to preserving and equitably apportioning the salmon resource, whose environmental sensitivity and expansive life cycle will continue to pose substantial challenges for the foreseeable future. The Article is excerpted from “Pacific Salmon Law and the Environment: Treaties, Endangered Species, Dam Removal, Climate Change, and Beyond” (ELI Press 2022).

Wisconsin Court of Appeals Briefs in Matter Involving Taxation of Menominee Trust Land

Matthew L.M. Fletcher

Here are the briefs in Legend Lake Properties Owners Association Inc. v. Keshena:

Opening Brief.pdfDownload
Answer Brief.pdfDownload

Nevada Federal Court Declines to Enjoin Winnemucca Housing Eviction Action

Matthew L.M. Fletcher

Here are updated materials in Brown v. Haaland (D. Nev.):

74 Federal Motion to Dismiss.pdfDownload
84 Brown Motion for PI.pdfDownload
87 Tribe Response to Motion for PI.pdfDownload
88 Federal Response.pdfDownload
89 Reply.pdfDownload
96 DCT Order.pdfDownload

Prior post here.

Merits Stage Briefs in Arizona v. Navajo Nation/Dept. of the Interior v. Navajo Nation

Matthew L.M. Fletcher

Here:

All this water is Navajo.
Interior Brief.pdfDownload
Arizona Merits Brief.pdfDownload
Colorado Merits Brief.pdfDownload
Western Water Users Amicus.pdfDownload

Department of Justice Civil Rights Division Publishes Damning Report on Alaska’s Child Welfare System Violates the Americans With Disabilities Act

Matthew L.M. Fletcher

Here is the report.

2022.12.15_alaska_findings_report_0.pdfDownload

From the press release:

The Department of Justice announced today that it found reasonable cause to believe that the State of Alaska violates the Americans with Disabilities Act (ADA) by failing to provide community-based services to children with behavioral health disabilities, relying instead on segregated, institutional settings — specifically, psychiatric hospitals and psychiatric residential treatment facilities. This finding comes at the conclusion of the department’s investigation into whether Alaska subjects children with behavioral health disabilities to unnecessary institutionalization in violation of Title II of the ADA.

“Each year, hundreds of children, including Alaska Native children in significant number, are isolated in institutional settings often far from their communities,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Most of these children could remain in family homes if provided appropriate community-based services. We look forward to working with Alaska to bring the State into compliance with federal law and prevent the unnecessary institutionalization of children.”

Children who are segregated in psychiatric residential treatment facilities commonly stay there longer than six months, and some of them are sent to states as distant as Texas and Missouri, thousands of miles from their families.

The department’s investigation found that Alaska’s system of care is heavily reliant on institutions and that key community-based services and supports needed to serve children with behavioral health disabilities in family homes, such as home-based family treatment, crisis services and therapeutic treatment home services, are often unavailable. As a result, many children with behavioral health disabilities, including a substantial number of Alaska Native children, are forced to endure unnecessary and unduly long admissions to psychiatric hospitals and psychiatric residential treatment facilities both within Alaska and in states across the country. 

With today’s announcement, the department has concluded its third investigation in 2022 involving the unnecessary institutionalization of children with behavioral health disabilities.

New Scholarship on Tribal-State Tax Agreements

Matthew L.M. Fletcher

Pippa Browde has published “Sacrificing Sovereignty: How Tribal-State Tax Compacts Impact Economic Development in Indian Country” in the Hastings Law Journal (PDF).

Abstract:

Economic development is a critical component of tribal sovereignty. When a state asserts taxing authority within Indian Country, there is potential for overlapping, or juridical, taxation over the same transaction. Actual or even potential juridical taxation threatens economic development opportunities for tribes. For many years, tribes and states have entered into intergovernmental agreements called tax compacts to reduce or eliminate juridical taxation. Existing literature has done little more than mention tax compacts with cursory cost-benefit analyses of the agreements. This is the first Article to critically examine the role tax compacts serve in promoting tribes’ economic development.

This Article analyzes economic development activities in Indian Country as two types of transactions: when the tribe or tribal enterprise is engaging as a retailer, and when a tribe or tribal enterprise is working with non-tribal entities in joint ventures. Using these categories of transactions as a framework, and looking to existing compacts between various tribes and states as examples, the analysis focuses on the impact compacts have on economic development in Indian Country. This Article argues that compacts do not live up to the promise of resolving juridical taxation in a manner that fosters economic development opportunities for tribes.

Greg Bigler on Euchee Legal Traditions

Matthew L.M. Fletcher

Gregory Bigler has posted “7000 Dzo-Gaw-law (Ancestors)” on SSRN. Here is the abstract:

I read Stories from the Euchee Reservation on a plane. I read it cover to cover, I was as if emerging from a dream in which animals and humans understand one another and spirits come to visit over a cup of coffee.

Judge Bigler is a Euchee tribal citizen and a member of Polecat Ceremonial Grounds, a Harvard Law School graduate, longtime district court judge at the Muscogee (Creek) Nation. He co-counselled Indian law cases to the U.S. Supreme Court, mentored generations of Indian law attorneys, published law review articles.

Yet as Judge Bigler’s stories make clear, Indian people are keeping their traditions alive, listening to their chiefs, speaking Indigenous languages, and navigating contemporary circumstances: sending gossipy texts at the stomp grounds, wolf eating tofu in the forest, or teasing academics about their decolonizing methodologies. Shaw-jane, Mr. Rabbit, remains popular even after many years on the Indian story circuit.

This is a world, real life, for the people who keep the fire, the towns, the ballgames, and dances alive day in and day out, carrying out the ways of their people. These are cultural traditions handed down from generation to generation, suppressed for hundreds of years, still surviving today. Even if only with maybe a few hundred traditional practitioners.

The U.S. Supreme Court decided in the 2020 case of Jimcy McGirt v. State of Oklahoma that the Muscogee (Creek) Nation remains a reservation, “Indian Country” for purposes of federal criminal jurisdiction. The McGirt decision, means the Muscogee (Creek) Nation government has jurisdiction over a significant portion of northeast Oklahoma.

What law now applies in the reservation? Federal and tribal law, perhaps state law by agreement or statute? What is tribal law exactly? The United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of tribes to exist as distinct peoples with their own “laws, customs, and traditions.” It recognizes their rights to maintain their religious sites, indigenous languages, sacred plants, traditional medicines – or as Natives put it, the Declaration recognizes the rights of Indigenous Peoples to maintain their “ways.”

The ways of the Muscogee and Euchee people are carried on at the stomp grounds. These ways can be understood as the laws, customs, and traditions of the Muscogee and Euchee people, are highly complex, deeply embedded, and alive. Following the directions of their chiefs, carrying out ceremonial rules, honoring the spirit world, maintaining peace and order, caring for children while teaching them proper ways of behavior, and so on. These laws, customs, and traditions, structure Euchee society in Stories from the Euchee Reservation. These laws are challenged by many things – the history of conquest and colonization, generations of social and economic deprivation, and the temptations of contemporary society – yet they remain alive to this day.

Eighth Circuit Briefs in Nygaard v. Taylor [Parental Kidnapping Protection Act]

Matthew L.M. Fletcher

Here:

Nygaard Brief.pdfDownload
State Brief.pdfDownload
Reply.pdfDownload

Lower court materials here.

Tom Bell on the Catawba Special Economic Zone

Matthew L.M. Fletcher

Tom Bell has posted “The Catawba Digital Economic Zone: A Native American SEZ,” published in the Journal of Special Jurisdictions, on SSRN.

The abstract:

The Catawba Indian Nation recently announced the launch of a new kind of special economic zone (SEZ) on its reservation lands in the Carolinas piedmont region. The Catawba Digital Economic Zone (CDEZ) aims to provide “A Jurisdiction Built for the Fintech and Digital Asset Industry.” Federal and state law affirms that the Nation has original and exclusive jurisdiction over two categories of disputes: those arising from contracts to which the Nation or its members are a party and those arising under any civil code that the Nation issues for the conduct of businesses and individuals on its reservation. Together, these give the Nation sovereign authority over commerce, real or virtual, that takes place on Catawba lands. The Nation has invoked this power to create the CDEZ. The Catawba General Council, a democratic assembly of tribe members, recently enacted the a civil ordinance creating a legal framework specially designed to support e-banking, cryptocurrency, non-fungible tokens, and other fintech and digital asset industries. This paper, written by one of a team of coders who worked on it, describes the origins, legal foundation, and basic structure of the CDEZ, the latest and most advanced example of a special jurisdiction focused on digital assets.

Ninth Circuit Briefs in State of Alaska v. Federal Subsistence Board

Matthew L.M. Fletcher

Here:

Alaska Opening Brief

Federal Answer Brief

Kake Answer Brief

Reply

Lower court materials here.