Author: Matthew L.M. Fletcher

26th Annual NNALSA Moot Court Competition

Matthew L.M. Fletcher1 Comment

 

NNALSA Moot Court 2018National NALSA Moot Court Competition
March 2-4, 2018
Beus Center for Law and Society
111 E. Taylor Street, Phoenix, AZ 85004

Each year, hundreds of law students from across the country take on the challenge of writing and arguing on the most compelling federal Indian law and tribal governance issues. The Native American Law Students Association (NALSA) at Arizona State University (ASU) is proud to partner with the Indian Legal Program at ASU’s Sandra Day O’Connor College of Law and the National Native American Law Student Association (NNALSA) on hosting the 2018 NNALSA Moot Court Competition.

Hosted by: ASU’s Indian Legal Program, Native American Law Students Association, and National NALSA

ASU NNALSA Moot Court website includes the problem, team registration, NNALSA Moot Court rules, agenda and more at: law.asu.edu/nnalsamootcourt

Questions? Contact Sarah Crawford at nnalsa.vicepresident@gmail.com

Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers

Matthew L.M. Fletcher

Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)

An excerpt:

Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased. 

Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.

Differing Scholarly Opinions on the Ethics of Representing Tribes Engaged in Disenrollments

Matthew L.M. Fletcher

Here is George K. Komnenos, Tribal Advocates as Ministers of Justice: A Potentially Problematic Concept, 29 Geo. J. Legal Ethics 1079 (2016): GeorgeKKomnenosTribalAdvo

An excerpt:

In June 2015, the National Native American Bar Association (NNABA) adopted its first Ethics Opinion entitled Formal Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment (“Opinion”). The Opinion is not intended to prescribe an overarching code of professional conduct for tribal advocates. On the contrary, the Opinion serves as a reminder to attorneys and Indian bar associations that “lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.” The Opinion puts forward the notion that tribal advocates have a dual duty: they are bound not only to their individual clients, but to the Native American community at large. According to the Opinion, “[t]he responsibility of a tribal advocate differs from that of the usual advocate; his or her duty is to further justice in the greater Native American community, not merely to win his or her case.” Though this statement is made in the context of encouraging lawyers to be vigilant in defending their clients’ constitutional rights, it bears grave dangers.

And here is Nicole Russell, “To Further Justice in the Greater Native American Community”: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes, 30 Geo. J. Legal Ethics 911 (2017):

TO FURTHER JUSTICE IN THE GREATER NATIVE AMERICAN COMMUNITY ETHICAL RESPONSIBI

An excerpt:

This Note will explore the ethical challenges faced by attorneys when representing member clients in two contexts. Part I will examine the generally heightened ethical obligations facing attorneys in their representations of tribal clients. This section will provide an analysis of procedural and ethical requirements, detail their variances, and point to recent attempts by tribal coalitions to develop a more coordinated code to guide nonmember representation. The discussion will necessarily involve the Model Rules of Professional Conduct(Model Rules) and their state derivations because many tribes have used these codes as the foundation for their own standards. Part II will examine what has been termed the tribal “disenrollment epidemic” and interrogate the premise that tribal advocates have a duty to distance themselves from disenrollment proceedings. Ultimately, this Note posits that not only are tribal advocates held to more– and sometimes higher–ethical standards than those put forth in the Model Rules, but that they are barred from representing tribes in many of the ongoing disenrollment proceedings which take place without the trappings of due process.

 

 

Presidential Proclamation on National Native American Heritage Month

Matthew L.M. Fletcher

Here.

Columbia Law School Indigenous Law Conference

Matthew L.M. Fletcher

Walter Echo-Hawk keynote address
Shawn Watts Introducing Walter
Oren Lyons leading discussion

Federal Court Dismisses Challenge to Tulalip Land Use Ordinances for Lack of Ripeness

Matthew L.M. Fletcher

Here are the materials in Mitchell v. Tulalip Tribes of Washington (W.D. Wash.):

6 motion to dismiss

7 response

11 reply

12 dct order

Interior Delays Tribal Consulation on Proposed Revisions to 25 CFR Part 151 to 2018

Matthew L.M. Fletcher

Here.

California COA Affirms Tribal Official Immunity in Disenrollment Challenge at Elem Colony

Matthew L.M. Fletcher

Here is the opinion in Brown v. Garcia. PDF

An excerpt:

This case is different. As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.”

Supreme Court of Canada Rejects First Nation’s Religious Exercise Claims

Matthew L.M. Fletcher

Here is the 7-2 opinion in Ktunaxa Nation Council v. Minister of Forests:

Ktunaxa_en

An excerpt:

The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought government approval to build a year-round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. After efforts to continue consultation failed, the respondent Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion, and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision.

2017 DC Fed Bar: Indian Law BINGO

Matthew L.M. Fletcher

Use these to certify your participation in your continuing legal education to your licensing jurisdiction.

3C148CE3-F562-470E-A08C-184BE5A1D715F91266FA-960F-4DEB-BF73-511B8891786E1584B776-C2D0-4774-8A72-47D57A1969B3