Matthew L.M. Fletcher

Samish Indian Nation v. Washington Cert Petition

February 17, 2022Matthew L.M. Fletcher

Here:

samish-cert-petition Download

Appendix

Questions presented:

Whether Eleventh Amendment sovereign immunity and tribal sovereign immunity deprived the lower courts of subject-matter jurisdiction over the Snoqualmie Indian Tribe’s claim, requiring dismissal on that ground under United States Supreme Court precedent including Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1996).
Whether, under United States Supreme Court precedent including Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) and Sinochem Int’l Co. v. Malaysia Intern. Shipping Corp., 549 U.S. 422 (2007), an issue preclusion dismissal is a merits dismissal and excluded from the threshold grounds among which a federal court may choose to dismiss a case before establishing its subject-matter jurisdiction.
Whether, under United States Supreme Court precedent including Sinochem Int’l Co. v. Malaysia Intern. Shipping Corp., 549 U.S. 422 (2007), jurisdictional issues in this case were not “arduous” or “difficult to determine” because the lower courts could readily determine that they lacked jurisdiction, such that those courts committed reversible error in bypassing determination of their subject-matter jurisdiction and proceeding to dismiss the case instead with prejudice on issue preclusion grounds.

“Siwash” Indians Harvesting Hops at Snoqualmie

Lower court materials here.

Interior IG Report on Ryan Zinke

February 17, 2022Matthew L.M. Fletcher

Here:

oig-report-on-zinke Download

Pippa Browde on State Taxation in Indian Country in a Pandemic Economy

February 17, 2022February 17, 2022Matthew L.M. Fletcher

Pippa Browde has published “From Zero-Sum to Economic Partners: Reframing State Tax Policies in Indian Country in the Post-COVID Economy” in the New Mexico Law Review.

Here is the abstract:

The disparate impact COVID-19 has had on Indian Country reveals problems centuries in the making from the legacy of colonialism. One of those problems is state encroachment in Indian Country, including attempts to assert taxing authority within Indian Country. The issue of the reaches of state taxing authority in Indian Country has resulted in law that is both uncertain and highly complex, chilling both outside investment and economic development for tribes. As the United States emerges from COVID-19, to focus only on the toll exacted on tribes and their peoples ignores the tremendous opportunities for states to right these historical wrongs. Buoyed by federal COVID-relief funds, state and local governments are in a financial position to reframe their tax policies to promote tribal sovereignty and support economic development in Indian Country. This article argues for states to make diplomatic, responsible state and local tax policies that will create healthier intergovernmental relationships and an environment that in turn creates broader economic growth for tribes and states alike. Through policies requiring state governments to consult with tribes to make joint decisions on tax policy and by refraining from exercising taxing authority in Indian Country, states can move from a zero-sum game. Instead of competing for precious tax revenue, state and local governments can partner with tribes to expand the total amount of available revenue streams. Doing so will not just right the historical wrongs of colonialism—it could also help prevent future crises, such as the COVID-19 pandemic, from having such a disparate impact on tribes again.