The Michigan State Law Review Forum has published my short article, “Due Process and Equal Protection in Michigan Anishinaabe Courts.” Check it out.
Fletcher on Due Process and Equal Protection in Michigan Anishinaabe Courts
Author: Matthew L.M. Fletcher
Burt Lake Band Attempting to Re-open Federal Recognition Suit
Here are the new materials in Burt Lake Band of Ottawa and Chippewa Indians v. Haaland (D.D.C.):
Docket No. 64: MINUTE ORDER. Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Subject matter jurisdiction may not be waived, and “courts may raise the issue sua sponte.” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a federal court must raise the issue because it is “forbidden… from acting beyond [its] authority, and ‘no action of the parties can confer subject-matter jurisdiction upon a federal court.'” Id., quoting Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). In connection with the 63 Motion to Rule Upon Constitutional Claims and For Permanent Injunction, then, plaintiff must show cause by January 6, 2023 why the question of the validity of the proposed rule would be ripe at this time, and why the Court has subject matter jurisdiction to consider the constitutional issues when there is no live controversy before it. The 2015 rule has been vacated but its replacement has not yet been promulgated, so plaintiff must explain why it is not simply seeking an advisory opinion. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/23/2022. (lcabj2) (Entered: 12/23/2022)
Prior post here.
Emily Harwell on the Effects of McGirt
Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.
HIGHLY RECOMMENDED.
Here is the abstract:
Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.
In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.
Buena Vista Rancheria Brings Federal Common Law Nuisance Action against Surface Lands Strip Mining Company
Here is the complaint in Buena Vista Rancheria of the Me-Wuk Indians v. Pacific Coast Building Products Inc. (E.D. Cal.):
Korematsu Day Talk Today at UMLS
Second Circuit Allows Thruway Trespass Suit against New York to Proceed
Ninth Circuit Rejects Leadership Claims of Alturas Rancheria Faction
Here is the opinion in Alturas Indian Rancheria v. Bernhardt.
Briefs and lower court materials here.
Litigation in North Dakota Federal Court over Turtle Mountain TERO Power to Assess Nonmember Business on Trust Lands
Here are the materials so far in Hanson v. Parisien (D.N.D.):
United States Brings CERCLA Action Involving Lower Duwamish River on behalf of Muckleshoot and Suquamish and others
Fourth Circuit Affirms Certification of Class Action against Tribal Payday Lending Operation [that’s kinda what this case is now, kinda]
Here is the opinion in Williams v. Martorello.
An excerpt:
This class-action proceeding relates to a lending scheme allegedly designed to circumvent state usury laws. Matt Martorello appeals from three district court rulings that (1) reconsidered prior factual findings based on a new finding that Martorello made misrepresentations that substantially impacted the litigation, (2) found that the plaintiffs- appellees—Virginia citizens who took out loans (the “Borrowers”)—did not waive their right to participate in a class-action suit against him, and (3) granted class certification.
In particular, Martorello argues that the district court violated the mandate rule by making factual findings related to the misrepresentations that contradicted this Court’s holding in the prior appeal and then relying on those factual findings when granting class certification. He also contends that the Borrowers entered into enforceable loan agreements with lending entities in which they waived their right to bring class claims against him. In addition, he asserts that common issues do not predominate so as to permit class treatment in this case.
As explained below, we disagree with Martorello. We conclude that the district court did not violate the mandate rule and that the Borrowers did not waive the right to pursue the resolution of their dispute against him in a class-action proceeding. Finally, we conclude that the district court did not abuse its discretion in granting class certification because common issues predominate. Accordingly, we affirm the rulings of the district court.
Briefs here.
Lower court materials here.
Turtle Talk 
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