Author: Matthew L.M. Fletcher

Little River Band Ottawa Lake Sturgeon News

Matthew L.M. Fletcher

On Thursday 4/12/18, the Little River Band of Odawa Indians Natural Resources Department staff, led by Corey Jerome – Sturgeon Biologist, have recaptured a Lake Sturgeon from Manistee Lake that was raised and released in 2008 from our sturgeon Streamside Rearing Facility at Rainbow Bend on the Manistee River.  This is the first released sturgeon that has been documented returning into the Manistee River system from our rearing facility and is thought to be on its way up the Manistee River to spawn this spring.  Corey Jerome was able to confirm the identity of this sturgeon by using the unique identification number scanned from the PIT-Tag in the fish, this tag was implanted into this sturgeon before its release in 2008.  The sturgeon was released on September 20, 2008 and was 7.3 in., 0.05 lbs. and is now 10 years old and 45.27 in., 28 lbs. To our knowledge this is the first documented lake sturgeon from a Streamside Rearing Facility to return to its natal stream within the Great Lakes.  Corey Jerome began in the spring of 2017, and has continued in 2018 to look for adult lake sturgeon returning to the Manistee River from our Streamside Rearing Facility.  It is our plan to continue these efforts to look for returning sturgeon in the Manistee River that have been released from our Streamside Rearing Facility to evaluate the success of our efforts.  (Pictures Attached; Corey Jerome holding the returning sturgeon; Corey Jerome and Josh Beaulaurier taking ultrasound images to determine the sex of the sturgeon.)

Here:

LRBOI employee Corey Jerome Holding the returning SturgeonLRBOI Employees Corey Jerome and Josh Beaulaurier taking an ultrasound to determine the sex of the sturgeon

Update in Navajo Nation v. Dept. of the Interior (water rights case on remand)

Matthew L.M. Fletcher

Here:

2018-04-13 Doc 335 NN Mot Leave Intervene

2018-04-13 Doc 335-1 NN Memo in Support of Mot for Leave to Amend

2018-04-13 Doc 335-2 EX 1 – NN Proposed Third Amended Complaint

On remand from the Ninth Circuit, the Nation moves the district court for leave to file its third amended complaint, which restates the Nation’s claims for breach of trust (dismissal of the Nation’s NEPA claims was upheld). The appeals court gave short shrift to the argument by the US, adopted by the district court, that sovereign immunity barred the breach of trust claim, clarifying (consistent with the majority of circuits) that section 702 of the APA, as amended, is a broad waiver of that immunity for claims not seeking money damages.

While continuing to assert that the Secretary as water master for the mainstream of the Colorado River in the Lower Basin breached his fiduciary duties, including the duty of protection explicitly undertaken in the 1849 Treaty of Peace, in management decisions that failed to account for the needs and unquantified rights of the Navajo Nation for homeland purposes, the proposed amended complaint now focuses more particularly on the federal defendants’ historic failure to correct an omission in the Decree in Arizona v. California, omitting lands above Lake Mead, and inducing reliance on limited water supplies by others with rights junior to the Navajo Nation to the detriment of the Nation.

Aoki Tribal Justice Project Press Release and Photos

Matthew L.M. Fletcher

Here:

The Aoki Center for Critical Race and Nation Studies at King Hall, UC Davis Law School, is celebrating the launch of the Aoki Center Tribal Justice Project on Thursday, April 12, at noon in the courtyard of the law school. A collaborative effort with California tribal judges, lawyers, and leaders, the Tribal Justice Project seeks to enhance the capacity and sovereignty of tribes in California by providing culturally appropriate training for tribal judges and court personnel and establishing an intertribal appellate court at the law school.

By targeting the needs of tribes in California and other Public Law 280 states, the Project will be the first of its kind to fill a critical educational gap. In contrast to most other states, California and five other states are governed by Public Law 280, a federal law that allows the state to assume concurrent jurisdiction in certain criminal and civil matters over Indians on certain tribal lands. Historically this law has created significant challenges for tribes in California and other Public Law 280 states that wish to establish their own tribal courts.  Training will be provided in areas accessible to tribes throughout the state and at King Hall.  The first training is scheduled at the Yurok Tribe, California’s largest tribe, in late June.

The Aoki Center hopes that the variety of curricular offerings in Federal Indian Law and Tribal Justice as well as extra-curricular programs and opportunities for service to tribes will encourage more Native students to become lawyers and to attract students to King Hall who are interested in providing legal services to California tribes.

Hon. Christine Williams, a member of the Yurok Tribe and the Chair of the California Tribal Judges Association, is the Director of the Aoki Center Tribal Justice Project.  Certified in Indian law, Judge Williams has spent her legal career focused on representing Tribes in a broad spectrum of legal matters such as tribal court development, Indian child welfare and cultural resource protection.  She currently serves as the Chief Judge for the Shingle Springs Band of Miwok Indians in El Dorado County.  Previously, she assisted in the formation of and development of the Northern California Intertribal Court System, a consortium court serving four tribes in Mendocino County, California, where she also served as its Chief Judge.  Judge Williams has a long history of providing training and education on various areas of Indian law and Indian Child Welfare law and history. She serves as an appointee to the Tribal Court State Court Forum.

Jennifer R. Leal, a descendant of the Washoe and Mono Lake Paiute communities from northern California, is the Project’s Program Administrator. She brings to the project extensive experience in the areas of tribal relations, tribal court administration and judicial education. Previously, Ms. Leal worked for the National Judicial College – National Tribal Judicial Center in Reno, Nevada as the Program Manager. Therein she utilized her prior role as the Tribal Court Administrator for the Washoe Tribe of Nevada & California – Washoe Tribal Court in Gardnerville, Nevada to inform her work. While working at a national level, she developed distance-learning curricula and facilitated discussions on problem solving tribal court administration challenges. Ms. Leal also contributed to the early idea and design of the Judicial Council of California’s Court Toolkit for Tribal/State/Federal Administrators and Clerks. She became faculty in 2013 and provided education on court administration to Alaska tribal court administrators and clerks using David Kolb’s Learning Style Inventory for adult learners. Since leaving the National Tribal Judicial Center and retuning to California, Ms. Leal served as the Executive Assistant to the Morongo Band of Mission Indians’ Tribal Chairman, Robert Martin, who was also Chairman in 1987 and represented the Tribe during the landmark U.S. Supreme Court case California v. Cabazon Band of Mission Indians and Morongo Band of Mission Indians.  Ms. Leal earned both her Bachelor of Arts and Master of Arts degrees in American Indian Studies from UCLA. Her graduate research concentrated on history and law and primarily focused on tribal courts.

Professor Mary Louise Frampton, Director of the Aoki Center for Critical Race and Nation Studies at King Hall, will provide oversight and faculty support for the Tribal Justice Project.  Professor Frampton introduced a new course in Tribal Justice in Fall 2017 in consultation with Judge Williams. That course added to the curricular offerings at King Hall by the preeminent Federal Indian Law scholar, Professor Katherine Florey. She is particularly interested in the extraterritorial application of law, theories of jurisdiction, and the powers of tribal courts.

This Project was created with support from the Yurok Tribe of Northern California and the Bureau of Indian Affairs.

https://law.ucdavis.edu/centers/critical-race/tribal-justice/

NYTs: “Senate Bill to Curtail Labor Rights on Tribal Land Falls Short”

Matthew L.M. Fletcher

Here.

FLOW Comments on Enbridge Line 5

Matthew L.M. Fletcher

Here:

Final FLOW letter to MPSC and DEQ

Excerpt:

Dear Chairwoman Talberg and MPSC Commissioners Cadwell, Rittenhouse, Saari, and Eubanks, Director Grether, Mr. Graf, and Mr. Matousek:

It is the consensus view of federal and state agencies, experts, and interested parties, including Enbridge, that a failure of Line 5 along its length, but particularly under the Straits of Mackinac and the St. Clair River, would result in catastrophic economic and environmental harm. 

FLOW’s attached comments request a comprehensive evaluation of feasible and prudent alternatives to Line 5 in its entirety, including, but not limited to Line 5 near, in, across or under the public trust bottomlands and/or waters of the Straits of Mackinac, and Line 5 near, in, across, or under the St. Clair River at Marysville, and across the other 245 public trust water crossings in the state. For the reasons described in the letter, the Department of Environmental Quality (“DEQ”), Michigan Public Service Commission (“MPSC”), and State of Michigan have a legally and state constitutionally required duty to conduct such a comprehensive analysis of the feasible and prudent alternatives to Line 5 in its entirety, including both the Straits and St. Clair River.

On behalf of FLOW, our supporters, and the people of Michigan, we ask you to implement this request immediately.

Alaska SCT Decides Alaska Native Regional Corporation Shareholder Action

Matthew L.M. Fletcher

Here is the opinion in Pedersen v. Arctic Slope Regional Corp.:

Opinion

Ted Widmer Op-Ed: “Why Robert Kennedy Went to Pine Ridge”

Matthew L.M. Fletcher

From the NYTs, here.

Lummi Tribe v. United States Cert Petition [HUD Funding]

Matthew L.M. Fletcher

Here is the petition:

Cert Petition

Questions presented:

Does 28 U.S.C. § 1491 grant the court of federal claims jurisdiction over an action to recover grant-in-aid funds unlawfully recouped by the United States or is the action one for specific relief which must be brought under the Administrative Procedure Act, 5 U.S.C. § 702?
Does the court of federal claims have jurisdiction to enter a judgment on an illegal exaction claim when the United States had previously awarded money to a recipient under a grant-in-aid statute and then unlawfully recouped the funds?
Where a grant-in-aid statute mandates that the United States pay grant funds to a plaintiff, does the court of federal claims have jurisdiction to enter a money judgment for the failure to pay the grant funds even if there are conditions on the use of the grant funds after they are awarded?

Lower court materials here.

UPDATE:

us cert opp

Reply

Cert Petition Filed over Ione Band of Miwok Indians Trust Land Acquisition

Matthew L.M. Fletcher

Here is the petition in County of Amador v. Dept. of the Interior:

Cert Petition

UPDATE: Cert Opp

Questions presented:

1. Whether Congress intended the phrase “under Federal jurisdiction,” as used in the 1934 Act, to encompass a tribe that, as of June 18, 1934, had no land held on its behalf by the federal government, either in trust or as allotments; was not a party to any treaty with the United States; did not receive services or benefits from the federal government; did not have members enrolled with the Indian Office; and which was not invited to organize under the IRA in 1934 by the Secretary like other recognized tribes in Amador County; but for whom the federal government had unsuccessfully attempted to purchase land pursuant to a generic appropriation authorizing the purchase of land for unspecified “landless Indians” in California?
2. Whether the Secretary’s authority to take land into trust for “members of any recognized Indian tribe now under Federal jurisdiction” requires that the tribe have been “recognized” in 1934, in addition to being “under Federaljurisdiction” at that time, or whether such “recognition” can come decades after the statute’s enactment?
3. Whether the Secretary, having explicitly concluded that in enacting the Indian Gaming Regulatory Act Congress intended that Indian tribes “restored to Federal recognition” refers only to tribes that are “restored” pursuant to (a) congressional legislation, (b) a judgment or settlement agreement in a federal court case to which the United States is a party, or (c) “through the administrative Federal Acknowledgment Process under [25 C.F.R. § 83.8],” and having embodied that conclusion in a formal regulation, 25 C.F.R. § 292.10, can then act contrary to Congress’s intention by “grandfathering in” a preliminary (i.e., non-final) agency action treating Indians who do not meet the regulatory definition as “restored”?
Lower court materials here.

Kathryn Isom-Clause Guest Post: “Tribal Gaming Can Help to Fight Human Trafficking”

Matthew L.M. Fletcher

Tribal Gaming Can Help to Fight Human Trafficking

Kathryn Isom-Clause

Often “hidden in plain sight,” millions of people are exploited for criminal profit every year. These people are victims of human trafficking, or modern-day slavery. Human trafficking occurs across the globe and in our own tribal communities. To help combat this epidemic, many tribal gaming facilities are using their unique positions and tools to become an active part of the solution. Confronting human trafficking takes a comprehensive and collaborative approach, starting with awareness of the problem.

Federal law defines human trafficking as the crime of recruiting, harboring, transporting, providing, obtaining, patronizing, or soliciting labor or commercial sex acts through the use of force, fraud, or coercion.[1] The scale of this crime is shocking. It is estimated that many millions of people are trafficked each year, generating billions of dollars in illegal profits. Human trafficking is second only to drug trafficking as the largest criminal enterprise worldwide.

While victims may be of any gender, age, race, or socioeconomic background, traffickers target the most vulnerable members of society. The United States’ Trafficking in Persons Report identifies American Indians and Alaska Natives as particularly vulnerable.[2] Since the colonial era, indigenous people have been subjected to sale and exploitation.[3] Policies such as the prohibition of traditional culture and language, assimilation, relocation, and removal of children further contributed to Native people’s continued trauma and exploitation. Native women still experience more physical and sexual violence than other racial and ethnic groups.[4] The effects of historical trauma are deeply felt in Native communities, families, and individuals. [5] These and other factors contribute to the disproportionate impact of human trafficking on Native people.

Nonetheless, many are fighting back against this crime in Indian Country. Tribes across the country are taking steps to prevent or stop human trafficking from occurring on tribal lands or to tribal citizens, often through task forces and partnerships with law enforcement and victim services organizations. Several tribes have also adopted laws against the crime of human trafficking.[6] Additionally, numerous governmental and private entities have partnered to raise awareness and provide recovery support to victims and survivors.

While this issue cannot be addressed without government leadership, law enforcement, and social services at the forefront, the Indian gaming industry is uniquely positioned to play a role in helping to stop human trafficking. Tribal gaming facilities are at the intersection of governmental entities, the tribal community, law enforcement, and the public. Rather than ignoring the threat, a growing number of casinos already provide anti-human trafficking trainings. Some casinos have implemented employee guidance and protocols to better enable their teams to identify possible victims and alert authorities. Anti-human trafficking signs and posters, currently seen in airports, hotels, and hospitals, could similarly be displayed in gaming facilities, which also welcome a diverse cross-section of the community. In short, the tribal gaming industry is uniquely situated to foster partnerships to tackle human trafficking within Indian Country. These initiatives will build safeguards for tribal citizens, casino patrons, and nearby communities.

At the National Indian Gaming Commission, we have partnered with the Bureau of Indian Affairs to offer human trafficking training as part of our annual regional training courses. We are also in regular contact with other agencies and groups to help raise awareness and share resources with our tribal partners. Our purpose is to help equip those in the tribal gaming industry with resources to fight back against human trafficking as they see fit.

Tribal gaming plays an important part in strengthening not only tribal nations but the well-being of individual tribal citizens. We are well-positioned to partner with other stakeholders and utilize our resources to support prevention efforts. Armed with this knowledge and tools, we can work together to help victims and stop this horrific crime.

To request help or report suspected human trafficking, call the National Human Trafficking Hotline at 1-888-373-7888, or text HELP or INFO to BeFree (233733). Native Americans affected by domestic violence, intimate partner violence, sexual assault, or human trafficking may also call the StrongHearts Native Helpline at 1-800-799-7233.

[1] See Trafficking Victims Protection Act, 22 U.S.C. § 7102 (2015).

[2] U.S. Dep’ t of State, Trafficking in Persons Report (2016).

[3] Alexandra (Sandi) Pierce & Suzanne Koepplinger, National Online Resource Center on Violence Against Women, New Language, Old Problem: Sex Trafficking of American Indian Women and Children (2011), http://www.vawnet.org (last visited April 3, 2018).

[4] Patricia Tjaden & Nancy Thoennes, National Institute of Justice, Extent, Nature, and Consequences of Rape Victimization: Findings from the National Violence Against Women Survey (2006), https://www.ncjrs.gov/pdffiles1/nij/210346.pdf (last visited April 3, 2018).

[5] T. Evans-Campbell, “Historical Trauma in American Indian/Native Alaska Communities: A Multi-level Frame-work for Exploring Impacts on Individuals, Families, and Communities,” Journal of Interpersonal Violence 23 (3) (2008).

[6] National Congress of American Indians Policy Research Center, “Human and Sex Trafficking: Trends and Responses across Indian Country” (Spring 2016), available at http://www.ncai.org/policy-research-center/research-data/prc-publications/TraffickingBrief.pdf (includes Tribal Code examples from Snoqualmie, Swinomish, Tulalip, and Eastern Band of Cherokee Indians).