Matthew L.M. Fletcher

Native American Law Library Bulletin (6/3/2021)

June 4, 2021Matthew L.M. Fletcher

Here:

We have scoured the web. Here are some of the latest materials related to Indian Law. Find all of the latest updates at https://narf.org/nill/bulletins/

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2020-2021update.html
One case was decided this week on 6/1/21:

United States v. Cooley (Indian Civil Rights Act; Tribal Police; Exclusionary Rule)

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2021.html

Kalispel Tribe of Indians v. Department of the Interior (Trust Responsibilities; IGRA)
Chemehuevi Indian Tribe v. United States (Bureau of Indian Affairs; 638 Contract)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2021.html

Makah Indian Tribe v. Commissioner of Public Lands (Treaty Rights)

U.S. Legislation – 117th Congress Bulletin
https://narf.org/nill/bulletins/legislation/117_uslegislation.html

S.1868 – A bill to amend the Child Abuse Prevention and Treatment Act to require that equitable distribution of assistance include equitable distribution to Indian Tribes and Tribal organizations, to increase amounts reserved for allotment to Indian Tribes and Tribal organizations under certain circumstances, and to reserve amounts for migrant programs under certain circumstances, and to provide for a Government Accountability Office report on child abuse and neglect in American Indian Tribal communities.
S.1880/S.1897 – A bill to direct the Federal Trade Commission to submit to Congress a report on unfair or deceptive acts or practices targeted at Indian Tribes or members of Indian Tribes, and for other purposes.
S.1895 – A bill to require the Secretary of Health and Human Services to award additional funding through the Sanitation Facilities Construction Program of the Indian Health Service, and for other purposes.
S.1901 – A bill to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian Tribes, and for other purposes.
S.1911 – A bill to provide for the settlement of the water rights claims of the Fort Belknap Indian Community, and for other purposes.
S.1951 – A bill to make additional Federal public land available for selection under the Alaska Native Vietnam era veterans land allotment program, and for other purposes.
S.1957 – A bill to establish digital services in State, county, local, and Tribal governments, and for other purposes.
H.R.3587 – To prescribe procedures for effective consultation and coordination by Federal agencies with federally recognized Tribal Governments regarding Federal Government actions that impact Tribal lands and interests to ensure that meaningful Tribal input is an integral part of the Federal decision-making process.
H.R.3649 – To extend Federal recognition to the Mono Lake Kutzadikaa Tribe, and for other purposes.

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2021.html

Cultural competency and the law: Productive justice for American Indians.
Mitigating disparities in access to healthcare among Native American communities through telehealth.
The reasonable Indigenous youth standard.
Indiana’s Indian laws: Indigenous erasure and racism in the land of the Indians.

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
This week, in brief:

Court unanimously holds that Indian tribes retain the inherent power to police non-Indians
President’s 2022 budget includes increases in funding for Indian Country, including a 36% increase for Indian Health Service
Choctaw Nation taking first steps to grant citizenship to Freedmen
San Carlos Apache Tribe nearly halts spread of coronavirus
Treaties offer new aid in environmental fights
Vaccine information available in Native languages
Chair Grijalva introduces RESPECT Act to establish and require government-to-government consultation between federal agencies, tribal leaders
The Karuk used fire to manage the forest for centuries. Now they want to do that again
Freedmen’s effect on Black Wall Street
Diné historian strengthens history of traditional matriarchal leadership

Tenth Circuit Issues Decision Favoring US in 2016 Dog Head Fire at Isleta Pueblo

June 4, 2021Matthew L.M. Fletcher

Here is the opinion in Ohlsen v. United States.

Briefs:

Opening Brief

US Brief

An excerpt:

In the summer of 2016, a large fire, later known as the Dog Head Fire, engulfed Isleta Pueblo and United States Forest Service land in the Manzano Mountains of New Mexico. By the time it was extinguished, the fire had burned several thousand acres of land. The fire resulted from forest-thinning work performed by Pueblo crewmembers under an agreement with the Forest Service. The partnership to thin the forest arose after numerous fires had beset the surrounding areas.
Insurance companies and several owners of destroyed property (collectively, “Appellants”) sued the government, alleging negligence under the Federal Tort Claims Act (“FTCA”). Their negligence claims fell into two categories: the government’s own negligence arising from acts of Forest Service employees, and the government’s negligence arising from acts of the Pueblo crewmembers. The government moved to dismiss, arguing that the court lacked jurisdiction and, alternatively, for summary judgment on that same basis. The district court granted the government summary judgment. First, the court concluded that the Pueblo crewmembers had acted as independent contractors of the government, and thus, the government wasn’t subject to FTCA liability based on the Pueblo crewmembers’ negligence. Additionally, the court barred these claims under the FTCA’s administrative-exhaustion requirement. Second, the court barred Appellants’ claims premised on the Forest Service employees’ own negligence, under the FTCA’s discretionary-function exception.
On appeal, Appellants contend that the district court erred in ruling that the FTCA jurisdictionally barred their claims. We disagree. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Ninth Circuit Issues Decision in US v. Washington Subproceeding 11-02 [Lummi U&A]

June 4, 2021Matthew L.M. Fletcher

Here.

Briefs here.

NYTs: “The Promise and Pressures of Deb Haaland, the First Native American Cabinet Secretary”

June 2, 2021Matthew L.M. Fletcher

Here.

Liz Reese Commentary on Cooley Decision

June 1, 2021Matthew L.M. Fletcher

From SCOTUSBlog, here is “Court unanimously holds that Indian tribes retain the inherent power to police non-Indians.”

Decision and materials here.

Ninth Circuit Decides Kalispel Tribe of Indians v. Dept. of the Interior

June 1, 2021Matthew L.M. Fletcher

Here.

Briefs here.

SCOTUS Reverses in United States v. Cooley

June 1, 2021June 1, 2021Matthew L.M. Fletcher

Here is the unanimous opinion from Justice Breyer.

An excerpt:

The question presented is whether an Indian tribe’s police officer has authority to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation. The search and detention, we assume, took place based on a potential violation of state or federal law prior to the suspect’s transport to the proper nontribal authorities for prosecution.
We have previously noted that a tribe retains inherent sovereign authority to address “conduct [that] threatens or has some direct effect on . . . the health or welfare of the tribe.” Montana v. United States, 450 U. S. 544, 566 (1981); see also Strate v. A–1 Contractors, 520 U. S. 438, 456, n. 11 (1997). We believe this statement of law governs here. And we hold the tribal officer possesses the authority at issue.

Another excerpt:

More broadly, cross-deputization agreements are difficult to reach, and they often require negotiation between other authorities and the tribes over such matters as training, reciprocal authority to arrest, the “geographical reach of the agreements, the jurisdiction of the parties, liability of officers performing under the agreements, and sovereign immunity.” Fletcher, Fort, & Singel, Indian Country Law Enforcement and Cooperative Public Safety Agreements, 89 Mich. Bar J. 42, 44 (2010).

Here are the briefs and other background materials.