Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”
Author: Matthew L.M. Fletcher
NYTs: “A Push to Move the Golf Course Atop a Native American ‘Stonehenge’”
Here.
WaPo: “This land is sacred to the Apache, and they are fighting to save it”
Here.
Wisconsin Federal Court Holds Tax Immunities Do Not Apply to Reacquired Reservation Land
Here are the relevant materials in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers (W.D. Wis.):
153 State Motion for Summary J
171 Towns and Assessors Motion for Summary J
172 Tribe Motion for Summary J
223 State Reply in Support of 153
228 Towns and Assessors Reply in Support of 171
232 Tribe Reply in Support of 172
Prior post here.
New Yorker Profile of Mary Kathryn Nagle
Here.
Traverse City Record-Eagle: “Tribal leaders denounce Enbridge for ‘manipulative’ video about Indigenous peacemaking”
Montana Indian Law Section CLE (April 23 and May 7, 021)
Registration for Friday, 04/23, Day 1: Health Care Issues and Negotiating 638 Contracts; The Federal Tribal Recognition Process: Successes & Challenges, https://www.montanabar.org/events/EventDetails.aspx?id=1497435&group=
Friday, 05/07, Day 2: The Death Penalty in State & Federal Court; Holistic Responses in the Tribal Justice Systems, https://www.montanabar.org/events/EventDetails.aspx?id=1497436
Tribal Court Lay Advocates can join the Indian Law Section as an associate member here: https://www.montanabar.org/page/ILSassociatemembership (not required to attend CLE).
Indian Law Section CLE
Presented by the Indian Law Section, State Bar of Montana;
With the Criminal Law Section, State Bar of Montana
Friday, April 23, 2021 & Friday, May 7, 2021
(all times MST)
Day 1: Friday, April 23, 2021
12:45 – 1:00: Opening (Lillian Alvernaz, Indian Law Section Chair & Sam Alpert, State Bar of MT)
1:00 – 2:45: Health Care Issues and Negotiating 638 Contracts
- Panelists:
- Monte Mills, Associate Professor & Director of Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana
- Annette Brown, Attorney at Confederated Salish & Kootenai Tribes
- Session Moderator: Maylinn Smith, Civil Prosecutor for the Confederated Salish & Kootenai Tribes
- Session Overview: Health care in Indian Country combines treaty rights, federal statutory requirements and tribal sovereignty principles. The panelists will examine the history and foundational concepts supporting Indian health care, the challenges in meeting the current health care needs of Indian people and tribal communities, and the opportunities available to tribal governments when creating health care systems.
2:45 – 3:00: Break
3:00 – 4:45: The Federal Tribal Recognition Process: Successes & Challenges.
- Panelists:
- Josh Clause (Mohawk Nation), Owner of Clause Law, PLLC
- Chairman Gerald Gray (Montana Little Shell Chippewa Tribe), Chairman of Montana Little Shell Chippewa Tribe
- Rebekah Salguero (Ocotillo Law and Policy Partners), General Counsel to Mashpee Wampanoag Tribe
- Session Moderator: Lillian Alvernaz, Chair, Indian Law Section
- Session Overview: This presentation will provide an overview of the tribal federal recognition process through congress and executive action. This panel will discuss both successes in obtaining recognition, and address the weighty federal oversight. Specifically, the panel will explore the Little Shell’s journey to become federally recognized and the Mashpee Wampanoag’s recent fight to remain legitimate in the eyes of the federal government.
4:45 – 5:00: Closing
Day 2: (presented with the Criminal Law Section, State of Montana)
Friday, May 7, 2021
12:45 – 1:00: Opening (Lillian Alvernaz, Indian Law Section Chair; James Taylor, Criminal Law Section Chair; Sam Alpert, State Bar of Montana)
1:00 – 2:45: The Death Penalty in State & Federal Courts
- Panelists:
- Michael Donahoe, Deputy Federal Defender, Federal Defenders of Montana
- SK Rossi, Owner, Central House Strategies
- Gary Mitchell, Attorney, ACLU of New Mexico
- Session Moderator: James Taylor, Managing Attorney, Tribal Prosecutors Office, Confederated Salish & Kootenai Tribes
- Session Overview: The panel will present an overview of the federal death penalty and the ethical issues in representing someone facing a possible death sentence; the history of the death penalty in Montana with an emphasis on recent changes in the state system; and an in-depth discussion of United States v. Lezmond Mitchell.
2:45 – 3:00: Break
3:00 – 4:45: Holistic Responses in the Tribal Justice System
- Panelists:
- Dr. Sarah Deer, Professor, University of Kansas
- Kathleen Littleleaf, Billings Urban Indian Health & Wellness Center
- Session Moderators: Robin Turner (ILS Section Member) & Lillian Alvernaz
- Session Overview: This panel will discuss the impacts of over-policing and incarceration of Native American people and how Tribal justice systems can work to holistically support individuals involved in the criminal justice system. The presenters will also explore the disproportionate victimology of the Native American population and how abiding by non-Indian systems of justice fails Native American people.
4:45 – 5:00: Closing
OMB Withdraws Sale of Seattle National Archives For Want of Tribal Consultation
Here are new materials in State of Washington v. Fairweather:
OMB Memo_Withdrawing Approval for Sale of Seattle NARA Building
Prior post here.
New Scholarship on Substantial Burdens on Native Religious Exercise
Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:
Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.
The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.
This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.
The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.
New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems
Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.
The abstract:
Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.
Turtle Talk 
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