Author: Matthew L.M. Fletcher

Kirsten Carlson on Lobbying Congress for Federal Recognition of Indian Tribes

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted “Why Lobby Congress? Constitutive and Instrumental Influences on Indian Groups’ Strategies for Federal Recognition, 1977-2012” on SSRN. This paper is highly recommended.

Here is the abstract:

When and why do marginalized groups chose a particular institutional venue when pursuing their legal claims? This article combines theoretical and methodological insights from sociolegal and interest group studies to investigate why non-federally recognized Indian groups used legislative strategies for federal recognition from 1977 to 2012. It finds Indian groups employed legislative strategies both to increase their chances of success and for constitutive purposes, including educating the public and leveraging institutional tensions. The article’s emphasis on constitutive and instrumental motivations provides a more nuanced approach to understanding marginalized groups’ venue decisions.

California COA Affirms Authority of Governor to Concur in Two-Part Determination

Matthew L.M. Fletcher

Here is the opinion in United Auburn Indian Community v. Brown.

Here is the unpublished opinion in Citizens for a Better Way v. Brown.

Wolfchild v. Redwood County Cert Stage Briefs

Matthew L.M. Fletcher1 Comment

Here:

Wolfchild Cert Petition

Lower Sioux Cert Opp

Lower court briefs here.

Eighth Circuit Rejects Employment Discrimination Claim against Shakopee

Matthew L.M. Fletcher

Here is the unpublished order in Nawls v. Shakopee Mdewakanton Sioux Community Gaming Enterprise – Mystic Lake Casino.

Briefs here:

nawls-brief

shakopee-brief

reply-brief

National Indian Law Library Bulletin (10/10/2016)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 10/10/16.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2016-2017update.html
Petition for Certiorari was granted in Lee v. Tam  (Trademarks)
Petition for certiorari was denied in these four cases:
Flute v. U.S. (Fiduciary Duty)
Jones v. Norton (Bad man clause)
Kelsey v. Bailey (Tribal Jurisdiction; Indian Civil Rights Act)
Pro-Football v. Blackhorse, et al. (Trademarks)

U.S. Courts of Appeals Bulletin
http://www.narf.org/nill/bulletins/cta/2016cta.html
Standing Rock Sioux Tribe v. United States Army Corps of Engineers

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Land & Water section, we feature a story about a law passed by Congress to restore land to several tribes in Nevada.

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
A.D. v. Washburn (Indian Child Welfare Act)
Sisseton-Washington Oyate of the Lake Traverse Reservation v. U.S. Corps of Engineers (Sacred Places; National Historic Preservation Act; Clean Water Act)

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
These articles were added:
Who’s in and who’s out: Congressional power over individuals under the Indian Commerce Clause.
Indigenous identity, cultural harm, and the politics of cultural production: a commentary on Riley and Carpenter’s “Owning Red.”
Making resources, making management.

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
The Environmental Protection Agency has issued proposed rules on federal baseline water quality standards for Indian reservations.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/114_uslegislation.html
One bill became law:
H.R.2733: Nevada Native Nations Land Act.
One bill was added:
H.R.3682: Reducing Employer Burdens, Unleashing Innovation, and Labor Development Act of 2015.

Linda Hogan: “Why We Are Singing for Water—In Front of Men With Guns and Surveillance Helicopters”

Matthew L.M. Fletcher1 Comment

From Yes! Magazine, here.

Nooksack Tribal Court TRO Against Northwest Intertribal Court System; Nooksack Forms Tribal Supreme Court

Matthew L.M. Fletcher2 Comments

Here is the order in Nooksack Indian Tribe v. Northwest Intertribal Court System (Nooksack Tribal Court):

order-granting-nit-tro-against-nics

Prior posts in this matter here and here.

Here are pleadings in a matter captioned In re Orders Entered by Nooksack Tribal Court of Appeals after May 30, 2015 (Nooksack Supreme Court):

in-re-orders-entered-by-nooksack-tribal-court-of-appeals-declaration-of-service-petition-for-review-and-motion-for-accelerated-review

in-re-orders-entered-by-nooksack-tribal-court-of-appeals-nooksack-indian-tribes-motion-for-accelerated-review-and-vacation-of-void-orders-of-the-court-of-appeals

in-re-orders-entered-by-nooksack-tribal-court-of-appeals-order-accepting-nooksack-indian-tribes-petiton-for-expedited-review-of-nooksack-tribal-court-orders

in-re-orders-entered-by-nooksack-tribal-court-of-appeals-plaintiff-nooksack-tribes-petition-for-review

 

Univ. of Washington NALSA Stop DAPL Project

Matthew L.M. Fletcher

Call for Submissions:Dear Turtle Talk Community, 

The University of Washington Native American Law Student Association (NALSA) is asking for photos (digital or print) documenting the myriad of ways & moments during which native people gathered in direct action opposing the DAPL protest. As law students, we hope one day to advance causes for Indian Country in the courtroom, but today we want to celebrate and feature the strength and character shown at the “Stop DAPL” encampment through a photography exhibition. 

On the first floor of our Law building, there exists a common space that rotates art each 3 to 6 months. The NALSA of the University of Washington will select 7 to 10 of the submissions for display (printing them if not already printed) to recognize the ongoing effort to protect Native American sacred space. The print will be in this art space for the next 3 to 6 months with acknowledgement to the photographer.

Once the “Stop DAPL” encampment exhibition is complete, NALSA will return the printed piece to the contributor as a token of our appreciation. Or in the alternative, the contributor could donate it to our student Association for auction at our annual dinner in Feb. 2017.

With heartfelt thanks,

University of Washington Native Law Students.

Contact, Tony Aronica, aronicat@uw.edu

“Perils of Indigenous People’s Day”

Matthew L.M. Fletcher3 Comments

From the San Francisco Chronicle.

An excerpt:

So when Penn State social studies Professor Sarah Shear examined state history standards around the country in 2014, she found that 87 percent of references to Native Americans in the standards addressed their history before 1900. And not a single state included content about present-day native peoples.

When Shear asked her undergraduate students what they knew about Native Americans, unsurprisingly, they referred only to the woes that native peoples had endured. “They were coming to college believing that all Indians are dead,” Shear noted.

Cert Petition Filed by Foster Parents in the Alexandria P. Case

Matthew L.M. Fletcher

Petition here.

Previous coverage and case documents here.

After the California Court of Appeals upheld Alexandria’s placement with her family in Utah, the foster parents appealed to the California Supreme Court. The California Supreme Court decided against review. Though there is no written opinion from that decision, the foster parents can petition the Supreme Court for cert at this point.

The questions presented are:
(1) Whether ICWA applies where the child has not been removed from an Indian family or community.

(2) Whether ICWA’s adoptive placement preferences, 25 U.S.C. § 1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the Adoptive placement preferences contained in 1915(a).

(3) Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence”–contrary to the text and structure of the statute and the decision of at least one other state court of last resort–or otherwise erred in their interpretation of “good cause.”

The likelihood of the Court granting this petition is relatively slim. However, the attorney representing the foster parents is the same attorney who represented the birth mother in Adoptive Couple v. Baby Girl. Indian Country should expect no less of an onslaught of media from this case than what happened in that one. The foster parents in this case have used the exact same media strategy. This article in the October ABA Journal Magazine leaves no doubt. None of this should be a surprise to those following the cases filed in the past year, but Indian Country is going to have to find the support for the type of media strategy Choctaw Nation will need to counter the attacks that will come.

There is an alternative summary of the facts that is rooted in the lower court decisions (and reflects the reality that all of the parties except this couple agreed that this little girl’s current placement with her relatives is in her best interests) here.