Here are the materials in United States v. Michigan (W.D. Mich.):
Proposed U.S. v. Michigan Consent Decree on Great Lakes Fishing
Author: Matthew L.M. Fletcher
Split Ninth Circuit Reinstates Suit against School District that Banned Beaded Graduation Cap
SCOTUS Denies Cert in Tribal Jurisdiction Case
Here is today’s order list.
The denied petition is Big Horn County Electric Cooperative Inc. v. Big Man.
Neoshia Roemer on Un-Erasing American Indians and the Indian Child Welfare Act from Family Law
Neoshia Roemer has posted “Un-Erasing American Indians and the Indian Child Welfare Act from Family Law,” forthcoming in the Family Law Quarterly, on SSRN.
Here is the abstract:
In 1978, Congress enacted the Indian Child Welfare Act (ICWA) as a remedial measure to correct centuries-old policies that removed Indian children from their families and tribal communities at alarming rates. Since 1978, courts presiding over child custody matters around the country have applied ICWA. Over the last few decades, state legislatures, along with tribal community partners and advocates, have drafted and enacted state ICWA laws that bolster the federal ICWA laws. Despite four decades of ICWA, trends in child welfare demonstrate that Indian children are still vastly overrepresented in the child welfare system. Because tribal communities, advocates, community partnerships, and scholars work tirelessly to both ensure and improve ICWA compliance, ICWA still provides some of the best outcomes for Indian children through both family reunification and/or placement within their tribal communities.
However, family law often minimizes or mischaracterizes what the Act does. While ICWA is a complex law and even an entire semester may not fully provide justice to the breadth of the Act, this characterization of ICWA creates a stigma around the law. Family law scholars and practitioners can no longer overlook ICWA in conversations and teachings. Stigmatizing ICWA in the classroom contributes to the erasure of American Indians from our society at large and from our classrooms. This allows legitimized racism against this community to seep into both the classroom and the practice area.
Accordingly, this article discusses how family law classrooms can incorporate ICWA into conversations on family law as a step in eliminating bias in the legal academy and in the profession against American Indians. This article describes some of the history around ICWA, how family law feeds into the erasure of American Indians in the legal field, some misconceptions about ICWA, and how we can tie ICWA and other issues impacting American Indians into our classroom teachings on family law.
Fletcher on the Dark Matter of Federal Indian Law
Please check out “The Dark Matter of Federal Indian Law: The Duty of Protection,” a draft of which is now available on SSRN.
Here is the abstract:
The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, a doctrine under international customary law in which a larger, stronger sovereign agrees to “protect” the small, weaker sovereign. The larger sovereign agrees to this duty of protection, in the American case anyway, in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns, in this case, tribal nations, typically received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection.
What tribal nations have received so far in exchange for their lands and resources and sovereignty is a pittance compared to the value of that consideration. Justice Gorsuch noted in a recent case that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something.
I call those promises the dark matter of federal Indian law.
The duty of protection owed by the United States to tribal nations is much like dark matter. The duty of protection was left undefined in Indian treaties. Yes, the treaties and other agreements that established a sovereign-to-sovereign relationship did provide for specific details about that relationship, most famously hunting and fishing rights or criminal jurisdiction. But most treaties and agreements are sparse, leaving open most of the details about that relationship. That’s the dark matter of Indian law.
This essay argues that the duty of protection between tribal nations and the federal government is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The essay begins by describing the duty of protection as understood by tribal nations at the time of the origination of the duty and now. The essay then turns to how Congress and the Department of the Interior understands the duty of protection, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the essay explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the essay shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection.
This essay is an invited submission to the Maine Law Review Indian law symposium.
This paper was also the subject of the 2022 Rennard Strickland lecture at the University of Oregon Law School:
Three New (and Fascinating — Read: Lots of Anishinaabe Jurisprudence) Appellate Court Opinions from Sault Tribe COA
Payment v. Election Committee
Hoffman v. Sault Ste. Marie Tribe of Chippewa Indians Board of Directors
MacLeod v. Sault Ste. Marie Tribe of Chippewa Indians
Pawnee Nation Endorses Declaration on Rights of Indigenous Persons
California COA Briefs in Corrales v. California Tribal Gambling Commission [California Miwok, Attorney Fees]
Sauk-Suiattle Sues State over Taxes
Interior Proposes New Fee-to-Trust Regs and New Class III Compact Process Regs, Parts 151 and 293
Here.
From the notice:
The Department of the Interior (Department) invites Tribal Leaders to consult on the Notice of Proposed Rulemaking (NPRM) for the Department’s Land Acquisition regulations, 25 CFR Part 151, and the NPRM for the Department’s Class III Tribal State Gaming Compact Process, 25 CFR Part 293.
25 CFR Part 151, Land Acquisition
Since the Department first promulgated these regulations in 1980, it has developed extensive experience in the fee-to-trust acquisition process. Relying on that experience and input from Tribes, this proposed rule seeks to make the fee-to-trust process more efficient, simpler, and less expensive to support restoration of Tribal homelands.
- The proposed Part 151 rule published in the Federal Register at the following link on December 5, 2022: https://www.govinfo.gov/content/pkg/FR-2022-12-05/pdf/2022-25735.pdf
- The current regulations can also be found at: https://www.govinfo.gov/content/pkg/CFR-2021-title25-vol1/pdf/CFR-2021-title25-vol1-part151.pdf
25 CFR Part 293, Class III Tribal State Gaming Compact Process
The Department is developing proposed updates to Part 293 to provide clear guidance regarding the Secretary’s review and evaluation process for Tribal-State class III gaming compacts. The current regulations do not identify the factors the Department considers; rather, those factors are contained in a series of decision letters issued by the Department since the enactment of the Indian Gaming Regulatory Act in 1988. Recent and ongoing litigation highlights the need for the Department to clarify how it will review or analyze gaming compacts to determine whether they comply with federal law.
- The proposed Part 293 rule will be published in the Federal Register on December 6, 2022, and is currently on public inspection at the following link: https://public-inspection.federalregister.gov/2022-25741.pdf
- The current regulations can also be found at: https://www.govinfo.gov/content/pkg/CFR-2021-title25-vol1/pdf/CFR-2021-title25-vol1-part293.pdf
Tribal Consultation
The Department will conduct two virtual consultation sessions and one in-person consultation to obtain further Tribal input on the Part 151 NPRM and the Part 293 NPRM. The consultation sessions will be open to Tribal leadership and representatives of federally recognized Indian Tribes and Alaska Native Corporations. Please join us at one or more of the following consultations sessions.
If you would like to provide written comments, please email them to consultation@bia.gov by 11:59 p.m. EST on Wednesday, March 1, 2023.
Turtle Talk 
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