Matthew L.M. Fletcher

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian interest, that trend is generally weak with considerable variance from Justice to Justice. Finally, the article then creates a logistic regression model in order to try to predict whether a pro-Indian outcome is likely to prevail at the Court. It finds six potential variables to be statistically significant. It uses quantitative analysis to prove that the Indian interest is more likely to prevail when the Tribe is the appellant, when the issue is framed as a jurisdictional contest, and when the case arises from certain regions of the country. It suggests that Indian law advocates may use these insights to help influence litigation strategies in the future.

Recommended, not only because MJRL is a premier journal.

Seneca County v. Cayuga Indian Nation Cert Petition

March 5, 2021Matthew L.M. Fletcher

Here:

2021-02-17 Seneca County Petition Final

Lower court materials here.

Question presented:

This Court has twice granted certiorari to decide whether tribal sovereign immunity bars lawsuits concerning rights to property that a tribe acquires on the open market. See Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018); Madison Cty. v. Oneida Indian Nation of N.Y., 562 U.S. 960 (2010) (mem.). Both times, however, subsequent developments prevented the Court from definitively answering the question. This case presents an opportunity to definitively answer that important and recurring question. In the decision below, the Second Circuit doubled down on the holding that this Court granted certiorari to review in Madison County, and again robbed this Court’s decision in City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), of practical effect by holding that if an Indian tribe purchases land on the open market and refuses to pay property taxes, there is nothing a local jurisdiction can do about it. That decision cannot be reconciled with Sherrill, and it effectively grants tribes a super immunity by rejecting the “uniform authority in support of the view that” the “immovable property” exception would preclude any sovereign’s efforts to invoke sovereign immunity in these circumstances. Upper Skagit, 138 S.Ct. at 1657 (Thomas, J., dissenting).

The question presented is:

Whether tribal sovereign immunity bars local tax authorities from collecting lawfully imposed property taxes by foreclosing on real property that a tribe has acquired on the open market.

Sixth Circuit Enforces Tribal Sovereign Lending Arbitration Clause

March 4, 2021Matthew L.M. Fletcher

Here is the opinion in Swiger v. Rosette.

Briefs here.

N.Y. Appellate Division Recognizes Unkechaug Nation Land Assignment

March 4, 2021Matthew L.M. Fletcher

Here is the opinion in Unkechaug Indian Nation v. Treadwell.

An excerpt:

When acting within its territorial boundaries and with respect to internal matters, an Indian Nation retains the sovereignty it enjoyed prior to the adoption of the United States Constitution except to the extent that its sovereignty has been abrogated or curtailed by Congress (see Montana v United States, 450 US 544, 564; United States v Kagama, 118 US 375, 381-382; Cayuga Nation v Campbell, 34 NY3d 282, 291, 293). As such, “tribes possess the common-law immunity traditionally enjoyed by sovereign powers” (Oneida Indian Nation v Phillips, 981 F3d 157, 170 [2d Cir]). As the Supreme Court correctly determined in the May 1, 2019 order, in seeking a declaration with respect to Curtis’s right to occupy the disputed portion of the subject property, the Nation waived its sovereign immunity as to that issue (see Rupp v Omaha Indian Tribe, 45 F3d 1241, 1244 [8th Cir] ; Cayuga Indian Nation of New York v Seneca County, New York, 260 F Supp 3d 290, 299 [WD NY]). However, “a waiver of sovereign immunity cannot, on its own, extend a court’s subject matter jurisdiction” (Oneida Indian Nation v Phillips, 981 F3d at 171), and “[w]aivers of [sovereignty] are to be strictly construed in favor of the Tribe” (Wells Fargo Bank, N.A. v Chukchansi Economic Dev. Auth., 118 AD3d 550, 551 [internal quotation marks omitted]; see Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 AD3d 1203, 1204).
Because of the retained sovereignty of Indian Nations, the subject matter jurisdiction of state courts “must be predicated on explicit authorization from Congress to address matters of tribal self-government” (Cayuga Nation v Campbell, 34 NY3d at 292). Moreover, the courts of this State have rejected the “paternalistic view” that Indian Nations within its borders are “disadvantaged” by their “inability to rely on New York courts” to determine internal disputes, since “the use of dispute resolution mechanisms other than courts is itself an exercise of the right to self-govern in a manner consistent with tribal traditions and oral law” (id. at 296; see Cayuga Nation v Tanner, 824 F3d 321, 327 [2d Cir]). Thus, “‘when it comes to Indian affairs, state courts are courts of limited jurisdiction'” (Cayuga Nation v Campbell, 34 NY3d at 296, quoting Bowen v Doyle, 880 FSupp 99, 114 [WD NY], affd 230 F3d 525 [2d Cir]).

NYTs: “Wisconsin Hunters Kill Over 200 Wolves in Less Than 3 Days”

March 3, 2021Matthew L.M. Fletcher

Here.

A shocking excerpt:

The state had set a quota of 200 wolves, with 119 for hunters who applied for permits with the department and 81 set aside to the Ojibwe Tribes under their treaty rights.
“The notion that there was this wide divergence between the outcome of the hunt and the number of the wolves that could be hunted simply doesn’t bear up to analysis,” Mr. Esenberg said.
But the tribes consider wolves to be sacred and made a deliberate decision not to hunt them, said Dylan Jennings, a spokesman for the Great Lakes Indian Fish and Wildlife Commission, which represents the tribes.