Author: Matthew L.M. Fletcher

Rebecca Webster on cooperative land use planning on the Oneida Reservation

Matthew L.M. Fletcher

Rebecca Webster has published “This land can sustain us: cooperative land use planning on the Oneida Reservation” in Planning Theory & Practice.

Here is the abstract:

Land use planning in indigenous communities often takes place within state-based planning initiatives, leaving indigenous governments to serve as token participants. Through these initiatives, state-based governments have the ability to wield their power and control the planning process to the detriment of indigenous governments. This study sets forth an alternative option involving cooperative land use planning practices where neither government controls the planning process. Drawing upon a case study of the Oneida Reservation in Wisconsin, USA, this study explores ways to increase cooperative land use planning relationships between indigenous and state-based governments. As one of the few empirical studies to apply critical planning theory to advocate for increased cooperative land use planning, this paper proposes a series of recommendations that can help indigenous and state-based governments avoid conflicts and work toward cooperative relationships.

Colorado River Indian Tribes Associate Judge Posting

Matthew L.M. Fletcher

Here:

ASSOCIATE.JUDGE.ANNOUNCEMENT

Federal Court Decides Quiet Title Act Matter

Matthew L.M. Fletcher1 Comment

Here are the materials in Northern New Mexicans Protecting Land Water and Rights v. United States (D. N.M.):

22 US Motion to Dismiss

30 Response

31 Reply

33 DCT Order

Federal Court Allows Agua Caliente Possessory Tax Challenge to Proceed

Matthew L.M. Fletcher

Here is the opinion in Agua Caliente Band of Cahuilla Indians v. Riverside County (C.D. Cal.):

DCT Order

Briefs here.

John LaVelle on United States v. Bryant

Matthew L.M. Fletcher

Here is “‘Uncounseled’ convictions a threat to Indians.”

Federal Court Holds Tribe and Council are Subject to Discover in FTCA Suit against US

Matthew L.M. Fletcher

Here are the materials in Matt v. United States (D. Mont.):

37 Motion to Quash

40-1 Opposition

42 Reply

45 DCT Order Granting Motion to Quash

An excerpt:

Matt seeks documents in the possession of the Fort Belknap Community Council. (Doc. 26-1 at 2.) In order to satisfy Matt’s request, Council would be required to take affirmative action to produce tribal documents. (Doc. 37 at 3.) If the Court granted Matt’s request the judgment would “interfere with public administration” of the tribe and would “compel [the sovereign] to act.” Maxwell, 708 F.3d at 1087-90. The recovery sought in this case would operate against the tribe. Matt should not be allowed to “circumvent tribal immunity” by addressing the Subpoena Duces Tecum to Mark Azure instead of to the tribe.

54 Motion to Compel

55 DCT Order

An excerpt:

The Council entered into an ISDEAA contract for the maintenance of the roads on Matt’s property. The Council and its tribal members should be deemed part of the BIA and subject to the FTCA. The Council and its tribal members should be subject to discovery related to the construction and maintenance of the roads covered by the ISDEAA contract.

 

United States v. Bryant Background Materials

Matthew L.M. Fletcher4 Comments

Merits Stage Briefs:

Brief for the United States

NCAI Amicus Brief

NIWRC Amicus Brief

Former US Attys Amicus Brief

Respondent’s Brief

Brief of Amici Curiae Criminal Justice Organizations and Scholars

Brief Amici Curiae of Professor Barbara L. Creel and the Tribal Defender Network

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Experienced Tribal Court Criminal Litigators

Cert Stage Briefs:

Cert Petition

NCAI Amicus Brief in Support

Opposition Brief

US Cert Stage Reply

Lower court briefs (en banc stage):

CA9 Order Denying En Banc Petition + Opinions

US En Banc Petition

NCAI Amicus Brief

Bryant Response

Lower court briefs (panel):

CA9 opinion in United States v. Bryant

Bryant Opening Brief

US Brief

Bryant Reply Brief

Bryant Supplemental Brief

US Supplemental Brief

Noah Feldman on the Impact of Western Sky-Inspired Litigation on Tribal Sovereignty

Matthew L.M. Fletcher

Noah Feldman has posted “Tribes Don’t Get a Pass on Federal Law” on Bloomberg. HT How Appealing.

Despite the title (oh those editors!), tribal sovereignty isn’t mentioned until the last two paragraphs:

[Judge] Wilkinson tried to duck the deepest question in the case: Would it be all right to take federal law out of the picture altogether if Indian law applied instead? In this case, in practice, the recourse to tribal law would’ve been empty. But what if the Cheyenne River Sioux did have a robust arbitration mechanism in place or rules to guide an arbitration?

Under the decision, that shouldn’t matter: The court held that any agreement that rejects the application of federal law can’t be enforced. At the margin, this decision may actually reduce Indian tribes’ sovereignty. Whether it will help protect consumers from predatory lenders will depend on how other courts cite it.

These are good points. They could be tempered with a couple minor quibbles, mostly that the Cheyenne River Sioux Tribe, as I understand it, had nothing to do with Western Sky’s dispute resolution strategies. Perhaps anything the court said about that’s tribes sovereignty has to be dicta, and my reading of the opinion didn’t see anything like that (unlike the Seventh Circuit’s decision in Jackson).

This will be good fodder for consideration at the ASU e-Commerce meeting later this week….

 

Mescalero Apache Public Defender RFP

Matthew L.M. Fletcher

Here:

Proposal Request for Public Defender Services The Mescalero Apache Tribe is seeking proposals to provide Public Defender Services to the Mescalero Tribal Court for criminal cases. SUMMARY: The Mescalero Apache Tribal Court is a court of general jurisdiction addressing crimes under the Mescalero Apache Law and Order Code. All crimes do not exceed one year sentencing. Attorneys licensed and in good standing with the State of New Mexico Bar is required; Proposed fees may be based on an hourly rate or a flat rate; Proposed fees may NOT exceed $50,000.00 per budget year; Final terms of submitted proposals are negotiable. SUBMIT PROPOSALS TO THE MESCALERO TRIBAL ADMINISTRATOR: DUANE DUFFY, MESCALERO APACHE TRIBE, MESCALERO, NM 88340; 575-464-4494 EXT. 211

“Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation”

Matthew L.M. Fletcher

The University of Colorado Indian Law Clinic has posted “Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation” on SSRN.

Here is the abstract:

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks of oil development on American Indian reservations like Fort Berthold are distinct from development in other areas in the United States. The complex and shifting nature of federal Indian law presents legal and practical challenges to law enforcement in civil and criminal contexts. Further, the historical exploitation of Indian lands and people informs current social and economic conditions that contribute to increased sex trafficking of Native women and children.

This paper begins by describing the intersection of sex trafficking and oil and gas development on the Fort Berthold reservation. Next, the paper describes the jurisdictional regime within federal Indian law and other barriers to law enforcement that have created a situation ripe for trafficking and other crime on the Fort Berthold reservation. Third, the paper will examine strategies to address this complex issue including: corporate engagement of relevant companies; tribal capacity and coalition building; and remedies contained in the Violence Against Women Act of 2014. This paper asserts that all of the stakeholders involved in oil development on the Fort Berthold reservation – federal, state, tribal, and public and private companies – must work cooperatively to decisively eliminate sex trafficking of Native women and children.