Author: Matthew L.M. Fletcher

NIJ Report: “Violence Against American Indian and Alaska Native Women and Men”

Matthew L.M. Fletcher4 Comments

Here:

Violence Against American Indian and Alaska Native Women and Men_NNIJ_20…

The NIJ released new survey results this week, and things are as bad as they’ve ever been.  The results say that 4 out of 5 women and men are victims of violence:

More than 4 in 5 American Indian and Alaska Native women (84.3 percent) have experienced violence in their lifetime. This includes —

■■ 56.1 percent who have experienced sexual violence.

■■ 55.5 percent who have experienced physical violence by an intimate partner.

■■ 48.8 percent who have experienced stalking.

■■ 66.4 percent who have experienced psychological aggression by an intimate partner.

Overall, more than 1.5 million American Indian and Alaska Native women have experienced violence in their lifetime.

More than 4 in 5 American Indian and Alaska Native men (81.6 percent) have experienced violence in their lifetime. This includes —

■■ 27.5 percent who have experienced sexual violence.

■■ 43.2 percent who have experienced physical violence by an intimate partner.

■■ 18.6 percent who have experienced stalking.

■■ 73.0 percent who have experienced psychological aggression by an intimate partner.

Overall, more than 1.4 million American Indian and Alaska Native men have experienced violence in their lifetime.

News Profile of Elem Pomo Disenrollments/Banishments; Attorney Withdraws Representation

Matthew L.M. Fletcher1 Comment

Here is “Elem Pomo File Federal Suit Against Banishment.”

Here is the complaint in John et. al. v. Garcia et. al., 16-cv-02368 (N.D. Cali.)

An excerpt:

At this time it is unclear who will be defending the federal suit, Boland said. Last week, the Elem Colony Executive Committee’s longtime general counsel, Tony Cohen, publicly stated that he withdrew his representation in a blog post.

He said that in his 35 years practicing Indian law, “I have always worked to improve the lives of tribal members and have never helped tribal governments to be oppressors.”

News Profile of Cert Denial in Knight v. Thompson 

Matthew L.M. Fletcher

Here is “Why Native American Inmates Can’t Wear Their Hair Long in Alabama.”

News Profile of Nooksack Firing of Tribal Judge

Matthew L.M. Fletcher

Here is “Nooksacks Sack Judge After She Ruled against Tribal Council.“

New Student Scholarship on Indian Sports Mascots and Nicknames

Matthew L.M. Fletcher1 Comment

The BYU Education and Law Journal has published “Between a Tomahawk and a Hard Place: Indian mascots and the NCAA” by Stephanie Jade Bollinger. [pdf]

An excerpt::

Thus, a reviewing court should find that agreements between Native American tribes and Universities granting approval for the use of Indian names as mascots should be void as against public policy. If the approval is found to be void, the NCAA would have a harder time basing approval as the primary factor for exemptions from its own mascot policy at championship games. Without the mascot exemption, more universities may decide to eliminate their use of Indian mascots and, in doing so, discontinue the harmful effects from their use of Indian mascots.

New Student Scholarship on Tribal Internet Gaming

Matthew L.M. Fletcher

The Jurimetrics Journal at ASU Law has published “A New Formula for Tribal Internet Gaming” by Racheal White Hawk. [pdf]

The abstract:

Tribal gaming is an industry that generates more than $27 billion a year. It comprises forty percent of all gaming in the United States, and has provided more than 628,000 jobs for Native and local communities. While tribal brick-and-mortar casinos contribute numerous economic, cultural, and social benefits to Native communities, Internet gaming profits are a potential boon. Internet gaming is well positioned for rapid growth because tens of millions of Americans use computers, cell phones, and tablets for shopping, games, and entertainment. Furthermore, with the advent of increasingly accurate geolocation technology, filtering, and blocking systems, the age and location of gamblers can be monitored, thus facilitating legal Internet gaming within state borders. Moreover, the potential for tax and licensing revenue from Internet gaming is immense, and states may enter into revenue-sharing agreements with tribes while offering exclusivity for tribal operators. For instance, in California, tribes contributed $467 million to state revenue in 2012 from brick and mortar casinos. States such as Delaware and New Jersey have legalized intrastate Internet gaming to reap tax revenue. California, however, has not yet legalized intrastate Internet gaming. Rather than wait for states to legalize intrastate Internet gaming, some tribes are launching their own online poker and bingo rooms to accept bets from players not located on Indian lands, asserting that doing so is legal under the Indian Gaming Regulatory Act (IGRA). However, some states disagree that it is legal under IGRA. To prevent impending expensive and time-consuming litigation and to support tribal economic development, Congress should reform the current regulatory patchwork of federal Internet gaming legislation by legalizing interstate Internet gaming, allowing states to opt out of the federal interstate Internet gaming scheme, and adding a new category specifically for Internet gaming to IGRA.

Federal Court Affirms Cancellation of Tribal Members Group’s Federal Grazing Permits

Matthew L.M. Fletcher

Here are the materials in South Fork Livestock Partnership v. United States (D. Nev.):

35 US Motion to Dismiss

41 Tybo Motion to Dismiss

42 Response to 35

43 Response to 41

44 US Reply

47 Tybo Reply

57 Mose-Temoke Motion to Dismiss

60 Response to 57

66 Mose-Temoke Reply

67 DCT Order

Snarky News Commentary about Pro-Football Inc.’s Cert Petition

Matthew L.M. Fletcher

Hey it’s Friday! 🙂

From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”

An excerpt:

As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:

“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”

The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.

If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.

Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.

Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?

Amicus Brief in Support of Shinnecock Indian Nation Land Claims Cert Petition

Matthew L.M. Fletcher

Here:

15-1215acFederalIndianLawProfessors

Petition here.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.