Author: Matthew L.M. Fletcher

Kekek Stark on Anishinaabe Rights of Nature Cases

Matthew L.M. Fletcher

Kekek Jason Stark has published “Bezhigwan Ji-Izhi-Ganawaabandiyang: The Rights of Nature and its Jurisdictional Application for Anishinaabe Territories” in the Montana Law Review.

An excerpt:

This article examines the tribal law acknowledging the Rights of Na- ture as a deeply embedded traditional Anishinaabe law principle. This traditional law principle acknowledging the rights of nature is crucial for sustaining the Anishinaabe Nations’ relationship with their territorial lands and natural resources. What does it mean to recognize the rights of ma- noomin (wild rice) to “exist, flourish, regenerate, and evolve” or to be pro- tected in its traditional forms, natural diversity, and original integrity? This article then delineates the various ways that the White Earth Band of Ojibwe has codified their relationship with their territorial lands and natural resources into tribal law. While the rights of manoomin and similar laws have been widely touted in the press as important victories for tribal sover- eignty, this article more deeply evaluates the practical effects and applica- tions of this tribal law to determine whether this law can serve as a frame- work for other Tribal Nations or is merely a symbolic gesture. Moving beyond symbolic gestures is essential for tribes to implement legal regimes more protective than those provided by states that may otherwise permit development activities by non-Indian parties within treaty territories.

HIGHLY, HIGHLY recommended.

A Little More Hype for the Castro-Huerta Argument Today—Greg Ablavsky’s “Oklahoma’s Bizarro Nineteenth Century in Castro-Huerta”

Matthew L.M. Fletcher

Here.

Yeah, I doubt Greg was thinking of this Bizarro, but the reverse-Superman Bizarro is too creepy.

Proposed Settlement Agreement in Class Action Suit against Tribal Lending Businesses Formed by Habematolel Pomo of Upper Lake,

Matthew L.M. Fletcher

Here is the motion to approve the settlement in Hengle v. Asner (E.D. Va.):

Hengle- Motion for Preliminary Approval[8].pdfDownload

Preview of Tomorrow’s Argument in Oklahoma v. Castro-Huerta

Matthew L.M. Fletcher

Background materials on the case here.

SCOTUSBlog preview (by Fletcher): “In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country“

Atlantic (by Rebecca Nagle and Allison Herrera): “Where Is Oklahoma Getting Its Numbers From in Its Supreme Court Case?“

NonDoc: “SCOTUS to hear state’s McGirt challenge in Oklahoma v. Castro-Huerta“

Boston Review (by Mary Kathryn Nagle and Emma Lower): “What Will It Take to End Violence Against Native Women?“

Yes, Spirit is set to argue for the defense. . . .

Arizona SCT Holds State Can Tax Nonmember Lessees of Federal Land Held in Trust for Indian Tribes

Matthew L.M. Fletcher

Here is the opinion in South Point Energy Center LLC v. Arizona Dept. of Revenue:

CV210130PR.pdfDownload

Briefs here.

Sixth Circuit (again) Rules in Favor of Saginaw Chippewa in Beef with Blue Cross

Matthew L.M. Fletcher

Here is the opinion in Saginaw Chippewa Indian Tribe v. Blue Cross Blue Shield of Michigan.

An excerpt:

The Saginaw Chippewa Indian Tribe and its Benefit Plan brought federal and common law claims against Blue Cross Blue Shield of Michigan (BCBSM or Blue Cross) for failing to fulfill its fiduciary duties in administering tribal health insurance plans. When we first encountered this dispute three years ago, we reversed the district court’s dismissal of the Tribe’s claims based on Blue Cross’s alleged failure to insist on “Medicare-like rates” for care authorized by the Tribe’s Contract Health Services1 program and provided to tribal members by Medicare-participating hospitals. On remand, the district court granted summary judgment to Blue Cross, concluding that the Tribe’s payments for qualified CHS care through the Blue Cross plans were not eligible for Medicare-like rates. The district court interpreted the relevant federal regulations as limiting the requirement of Medicare-like rates to payments for care that was authorized by CHS, provided to tribal members by Medicare- participating hospitals, and directly paid for with CHS funds. Based on the plain wording of the applicable regulations, we REVERSE and REMAND the case to the district court for further proceedings consistent with this opinion.

Briefs:

Saginaw Chippewa Opening Brief.pdfDownload
Tribal Amicus Brief.pdfDownload
Blue Cross Brief.pdfDownload
Saginaw Reply.pdfDownload

Lower court materials here.

SCOTUS Denies Cert in Two Indian Fishing Cases

Matthew L.M. Fletcher

Here is today’s order list.

The court denied cert in Scudero v. Alaska (cert stage materials) and Snoqualmie v. Washington (cert stage materials).

Where cert petitions go to die — U.S. Supreme Court interiors. Corridor, U.S. Supreme Court

Michael Olivas Walks On

Matthew L.M. Fletcher

I learned late last week as the second restatement symposium was wrapping up that Michael Olivas had died (see also Ediberto Román’s moving post). Without Michael, there would have been no Indian law restatement (or it would have looked a lot different).

In 2010, Michael reached out to me and asked me if I wanted to be a member of the American Law Institute. I had never met the man, but he wanted to enable junior scholars from underprivileged backgrounds to become a part of the ALI. Barely knowing what the ALI was, I agreed. Within the next couple years, Wenona Singel and I were spearheading a restatement project and dragging along people like Venus Prince and Keith Harper to help us.

Over the years, Michael continued to elevate my work. When he became President of the American Association of Law Schools, he asked me to join the empirical research committee.

Michael added me to his rock and roll posse, where he discussed rock music and the law amongst friends. His emails were always a welcome respite from work, though they were frighteningly incisive on the law. Another time, he hosted me and our son Owen in Santa Fe for dinner, remarking that he could tell Owen’s parents were both lawyers; as a small boy, he already knew how use lawyer words like “actually” and how to hedge his opinions.

In 2020, when the Indigenous Law and Policy Center won the M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers, Michael gave us the award and spoke about the restatement project. He was far too kind, generous, and inspirational.

2020 SALT awards ceremony

Michael was such a good guy. It’s amazing how gracious and generous people can be. I’m glad I could get it together to wish him a good journey in time.