Matthew L.M. Fletcher

Briefs:

Opening Brief

Answer Brief

Lower court opinion here:

40 DCT Order

ABA SEER Native American Resources Committee Upcoming Webinars on Indian Law

March 30, 2021Matthew L.M. Fletcher

ABA SEER’s Native American Resources Committee is co-sponsoring, in which Turtle Talk readers might be interested:

April 1, 12–1:30 pm EDT: Environmental Law Institute, “Restoring Land: Fee-to-Trust and Native Sovereignty” https://www.eli.org/events/restoring-land-fee-trust-and-native-sovereignty. Includes the following speakers:
1. Cynthia Harris, ELI (Moderator)
2. Melody McCoy, NARF
3. James Meggesto, Holland & Knight
4. Richard Peterson, President, Central Council of Tlingit & Haida Indian Tribes of Alaska
5. Sharlene Round Face, Chief, Division of Real Estate Services, Bureau of Indian Affairs, Department of the Interior
6. Martha Saenz, Senior Policy Specialist, Institute for State Tribal Relations, National Conference of State Legislatures (NCSL)
7. David Weeden, Tribal Councilman, and Tribal Historic Preservation Officer, Mashpee Wampanoag Tribe

April 13, 12–2 pm EDT: DC Bar, “Indian Claims Commission Act at 75: A Look Back and a Look Forward” https://dcbar.inreachce.com/Details/Information/461c4a99-380d-44a5-b7a5-c86d8683d249. Includes the following speakers:
- Reid Chambers, Sonosky Chambers Sachse Endreson & Perry LLP
- Sam Hirsch, Partner, Jenner & Block LLP
- Melody L. McCoy, Staff Attorney, Native American Rights Fund
- Hilary Tompkins, Partner, Hogan Lovells
- Kenneth Dalton, Administrative Judge, Interior Board of Indian Appeals (Moderator)

Alex Skibine on Textualism and the Indian Canons of Statutory Construction

March 30, 2021Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.

Here is the abstract:

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One requires clear intent to interfere with tribal sovereign rights, the other requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Highly recommended!

Laguna and Jemez Pueblos Sue EPA over Clean Water Act Rules

March 30, 2021Matthew L.M. Fletcher

Here is the complaint in Pueblo of Laguna v. Regan (D.N.M.):

1 Complaint

An excerpt:

13. The Agencies repealed the 2015 Clean Water Rule and then reversed their longstanding policy by promulgating a new, much narrower interpretation of the “waters of the United States.” Definition of “Waters of the United States” — Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) [hereinafter the 2019 Repeal Rule]; The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) [hereinafter the 2020 Navigable Waters Rule]. The 2020 Navigable Waters Rule follows the directive of Executive Order 13,778, but without due regard for established law.
14. The 2019 Repeal Rule and 2020 Navigable Waters Rule are inconsistent with both the CWA’s objective of “maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” and the Rapanos significant nexus test.
15. The 2019 Repeal Rule and the 2020 Navigable Waters Rule harm the Pueblos by removing federal CWA water pollution protections from many of the ephemeral streams and other waterbodies that sustain the Pueblos. These rules remove CWA protections from 79% to 97% of stream miles in the Pueblo of Laguna. These rules remove CWA protections from 94% of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands.
16. Where a waterbody is not determined to be a “water of the United States,” the Pueblos alone are left to establish and administer water pollution control programs at their own expense.

17. However, the Pueblos rely on the Agencies to implement nearly all of the CWA’s pollution programs on their behalf and do not have the financial or administrative resources or capacity to administer these programs themselves.

18. Further, both Pueblos rely on the federal jurisdiction of the CWA to protect themselves from upstream pollution.
19. For the Pueblos, high water quality is essential to day-to-day life, as well as
cultural and religious practices.

20. The removal of federal jurisdiction creates the imminent risk of the degradation and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as cultural and religious practices.

D.C. Circuit Briefs in Mdewakanton Sioux Indians of Minnesota v. Haaland

March 30, 2021Matthew L.M. Fletcher

Here:

Appellant Brief

Federal Answer Brief

Lower court materials here.

United States Capitol Historical Society Event — “Toward a More Perfect Union: Tribal Sovereignty” — April 1, 2021, 12 Noon Eastern

March 29, 2021Matthew L.M. Fletcher

Featuring Fletcher and Patty Ferguson-Bohnee.

2021 FBA [Virtual] Indian Law Conference — April 8-9, 2021

March 29, 2021March 28, 2021Matthew L.M. Fletcher

Details here.

Agenda

Thursday, April 8

11:30 am – 1:00 pm ET | Opening Session

Opening Prayer & Invocation
- Whitney Gravelle, Bay Mills Indian Community Chairwoman
Welcome Remarks
- W. West Allen, Federal Bar Association President
- Ann Tweedy, Indian Law Section Chair
Keynote Presentation
- Rep. Sharice Davids, U.S. Congress – 3rd District of Kansas
Lawrence R. Baca Lifetime Achievement Awards Presentation

1:30 – 3:00 pm ET | Concurrent Panels

Sports Betting: Exploring a New Landscape in Tribal Gaming
This panel will discuss recent developments in tribal sports betting, highlighting key regulatory and business considerations. Attendees will learn about sports betting across different jurisdictions, including what tribes have done to work with state legislatures to legalize and implement sports betting, and what is and isn’t permitted in different jurisdictions. Attendees will also learn about the financial outlook for sports betting.

Brie Coyle Jones, Partner, Miller Nash Graham & Dunn LLP
Kathryn Isom-Clause, Vice Chair, National Indian Gaming Commission*
Jeremy Patterson, Partner, Patterson Earnhart Real Bird & Wilson LLP
Aaron Payment, Chairperson, Sault Ste. Marie Tribe of Chippewa Indians

The Path to the Bench
In the history of the United States, only four Native Americans have been appointed to the federal bench which includes only one Native American woman. As a new administration seeks out candidates to fill vacancies in the federal courts, Native American practitioners must seek out these opportunities to increase the Native American perspective and presence in the judiciary. This panel will explore the importance of racial diversity on the federal bench, the path to appointment, and the measures and resources available to candidates.

Lawrence Baca, Former Deputy Director, Office of Tribal Justice, U.S. Department of Justice
Hon. Diane Humetewa, United States District Court for the District of Arizona
Rion Ramirez, CEO, Port Madison Enterprises
Forrest Tahdooahnippah, Partner, Dorsey & Whitney LLP

3:30 – 5:00 pm ET | Concurrent Panels

Tribes, Public Lands, and Environmental Issues
This panel will discuss current and future challenges for tribes relating to public lands and environmental issues, including regulatory changes under the prior administration and outlook for the future.

Amy Cordalis, Principal, Ridges to Riffles Conservation Fund
Nada Culver, Deputy Director, Policy and Programs, Bureau of Land Management, U.S. Department of the Interior*
Michael-Corey F. Hinton, Attorney, Drummond Woodsum
Gussie Lord, Managing Attorney of Tribal Partnerships, Earth Justice

McGirt: The Aftermath
This panel will discuss developments in Oklahoma and in Washington, D.C., following the Supreme Court’s historic decision in McGirt v. Oklahoma. Attendees will learn about what the Muscogee (Creek) Nation has experienced since the decision, including hearing from Muscogee (Creek) Nation Principal Chief David Hill himself (a “Time 100” most influential person for 2020!). This panel will discuss topics of great import to all Indian law attorneys – self-governance, VAWA, MMIP, and inter-sovereign relations.

Jonodev Chaudhuri, Partner & Practice Chair, Quarels & Brady LLP; Ambassador, Muscogee (Creek) Nation
David Hill, Principal Chief, Muscogee (Creek) Nation
Mary Katherine Nagle, Partner, Pipestem & Nagle, P.C.
Trent Shores, Former U.S. Attorney, Northern District of Oklahoma*

Friday, April 9

11:30 am – 1:00 pm ET | Ethics Session
Attendees will learn about the ethical rules guiding who is their client and obligations, if any, to other, related parties. Attendees will also receive guidance on what the no contact rule is and its implications for the practice of Indian law. Finally, following competition of this panel, attendees will be familiar with the professional rules guiding legal advice given under time pressure. While the panel is targeted toward lawyers working for tribal governments or with tribal clients, all lawyers will receive helpful ethical guidance on the general practice of law.

Bree R. Black Horse, Attorney, Kilpatrick Townsend
Dean Elizabeth Kronk Warner, S.J. Quinney School of Law, University of Utah
Alex Pearl, Professor, University of Oklahoma College of Law
Rachel B. Saimons, Attorney, Kilpatrick Townsend

1:30 – 3:00 pm ET | Concurrent Panels

Civil Rights – Protections for Our LGBTQ2S Communities
The civil rights of LGBTQ2S Native Americans are in need of recognition and protection. This panel examines the development of legislation and policy for these communities at the tribal, state, and federal level.

Delegate Nathaniel Brown, Navajo Nation
Kori Cordero, Associate General Counsel, Yurok Tribe
Felipa De Leon & Monique “Muffie” Mousseau, Spirit Community Members, Oglala Sioux Tribe
Red Dawn Foster, 27th District, South Dakota State Senate

COVID Lessons Learned
This panel will discuss lessons learned from COVID from the tribal court perspective and general tribal governance perspective.

Ethel Branch, Member, Kanji & Katzen PLLC
Martina Gast, Attorney, Pipestone Law
Hon. Allie Maldonado, Chief Judge, Little Traverse Bay Bands of Odawa Tribal Court
Daniel Press, Senior Counsel, Van Ness Feldman LLP
Kaighn Smith, Attorney, Drummond Woodsum

3:30 – 5:00 pm ET | Concurrent Panels

Developments in Criminal Law
This panel will discuss recent developments in criminal jurisdiction in Indian Country, including the United States v. Cooley and Nobles v. State, and will also discuss implications for MMIP.

Troy A. Eid, Shareholder, Greenberg Traurig
Krystalyn Kinsel, Associate, Jenner & Block
Colette Routel, Professor of Law, Mitchell Hamline School of Law
April Youpee-Roll, Associate, Munger Tolles & Olson LLP

Toward a Brighter Future?
The Biden/Harris Administration: Priorities, Opportunities, and Challenges. What does the historic election of President Joseph R. Biden and Vice-President Kamala Harris mean for the next four years and beyond?

Ann Marie Bledsoe Downes, Deputy Solicitor, Indian Affairs, U.S. Department of the Interior*
Brian Newland, Principal Deputy Assistant Secretary, Indian Affairs, U.S. Department of the Interior*
Raina Thiele, Founder & CEO, Thiele Strategies

*Pending Office Approval