Matthew L.M. Fletcher

Indian treaty fishing rights scored an important judicial victory recently when an equally divided U.S. Supreme Court affirmed the Ninth Circuit’s decision in the so-called “culverts case,” which decided that the Stevens Treaties of the 1850s give the tribes a right to protect salmon migration obstructed by barrier road culverts. The implications of that decision on other habitat damaging activities have yet to be ascertained, but even prior to the resolution of the culverts case there were significant indications that federal, state, and local administrative agencies were acting to protect treaty fishing rights from the adverse effects of large fossil-fuel export projects proposed throughout the Pacific Northwest. After briefly explaining the culverts decision, this article examines five recent examples of agencies denying permits for fossil-fuel developments at least in part of treaty rights grounds. We draw some lessons from these examples concerning the importance of tribal participation in administrative processes and explore some knotty evidentiary issues that tribal efforts to protect their historic fishing sites may entail. We conclude that safeguarding their treaty rights in the 21st century will require tribes to be as vigilant about the administrative process as they have been about seeking judicial protection.

Federal Court Dismisses First Nations Business Constitutional Claims re: Connecticut Tobacco Directory

September 27, 2018September 27, 2018Matthew L.M. Fletcher

Here are the materials in Grand River Enterprises Six Nations LTD v. Sullivan (D. Conn.):

74 Second Amended Complaint

82-1 Connecticut Motion to Dismiss

US Sentencing Commission Seeking Member for Tribal Issues Advisory Group

September 27, 2018Matthew L.M. Fletcher

The notice can be found at: https://www.gpo.gov/fdsys/pkg/FR-2018-09-19/pdf/2018-20311.pdf

Federal Court Accepts Cherokee Nation’s Voluntary Dismissal of Tribal Court Opioid Case

September 27, 2018Matthew L.M. Fletcher

Here are the materials in McKesson Corp. v. Hembree (N.D. Okla.):

139 Hembree Motion to Dismiss

141 Opposition

145 Reply

146 DCT Order

Prior post here.

New Mexico COA Decides Navajo Nation Water Rights Issue

September 27, 2018September 27, 2018Matthew L.M. Fletcher

Here is the opinion in State of New Mexico ex rel. State Engineer v. United States:

NM v US re Navajo Nation (NMApp 2018)

Federal Court Allows US Employment Discrimination Suit to Proceed against South Dakota DSS

September 27, 2018September 27, 2018Matthew L.M. Fletcher

Here are the materials in United States v. South Dakota Department of Social Services (D.S.D.):

26 Amended Complaint

43 South Dakota Motion for Summary Judgment

46 US Motion for Summary Judgment

52 South Dakota Opposition

53 US Opposition

56 US Reply

57 South Dakota Reply

59 DCT Order

An excerpt:

The following additional undisputed material facts specifically relate to plaintiff’s motion for partial summary judgment. All of the following statistical data relates to the DSS Pine Ridge Office for the 2007 through 2013 time period, unless otherwise specified. For the 35 requisitions, Native American applicants submitted 213 (44.5%) complete applications and white applicants submitted 265 (55.5%) complete applications. (Docket 47 ¶ 42). One hundred eighty-six Native American applicants and 228 white applicants submitted complete applications and did not withdraw from the hiring process. Id. ¶ 45. DSS offered interviews to 117 (46.1%) Native American applicants and 137 (53.9%) white applicants. Id. ¶ 46. DSS conducted interviews with 90 Native Americans and 100 white applicants. Id. ¶ 47. DSS offered Specialist jobs to 22 interviewees, 20 of whom (90.9%) were white and only two of whom (9.1%) were Native American. Id. ¶ 48.

DSS offered to hire zero Native Americans in 2007 through 2010, and 2012, despite seeking to hire Specialists on 22 separate occasions. Id. ¶ 49. During 2007 through 2010, DSS offered to hire zero Native Americans while offering to hire 12 white applicants as Specialists. Id. ¶ 50. In 2011, DSS offered to hire one Specialist who was Native American and two white applicants as Specialists. Id. ¶ 51. In 2012, DSS offered to hire zero Native Americans while offering to hire three white applicants as Specialists. Id. ¶ 52. In 2013, DSS offered to hire one Specialist who was Native American and three Specialists who were white. Id. ¶ 53.