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Tribal Court Administrator, closes 7.17
Author: Matthew L.M. Fletcher
Amici Press Release in Support of Sac & Fox Nation Cert Petition
Key Groups File Amicus Briefs in Support of Supreme Court Petition
To Bring Jim Thorpe Home
Members of Congress, Religious Organizations, NCAI Weigh In to Support Petition by Sac and Fox Nation and Thorpe’s Sons to Return His Remains to Oklahoma
WASHINGTON – A number of groups – including current and former Members of Congress – are expected to file amicus briefs today urging the Supreme Court to hear a case that could significantly impact the civil and human rights of the more than five million Native Americans across the country.
The case centers on the decades-long struggle by Sac and Fox Nation and the sons of American sport legend Jim Thorpe to bring his remains home to Oklahoma for proper burial on his native lands.
The sons and Sac and Fox petitioned the Supreme Court last month to hear the case. They are seeking to uphold a District Court’s ruling that a 1990 law designed to protect Native American remains and artifacts applied in their bid to return the remains of Jim Thorpe to his tribal lands in Oklahoma.
The briefs filed today were submitted by current and former Members of Congress; the National Congress of American Indians (NCAI); a group of leading religious organizations; and a group of preeminent law school professors.
The current and former Members of Congress include an original sponsor of the law cited in this case – the Native American Graves Protection and Repatriation Act (NAGPRA). This law, sponsored by Senator Ben Nighthorse Campbell and passed by Congress in 1990, states that institutions receiving federal funds must return the remains and sacred objects of Native Americans to their descendants and tribes. The brief makes clear that the Third Circuit’s ruling violates both the text of the law and Congress’ intent in passing it and would have significant negative legal implications for Native Americans across the country.
“NAGPRA is one of the most critical pieces of Native American human rights legislation ever passed by Congress; it protects that which is most sacred to all of humanity: the right to be buried in accordance with your own religion and under the same soil as your relatives. The Third Circuit’s refusal to enforce the plain language of the statute is very concerning,” said Senator Ben Nighthorse Campbell, one of the signers of the amicus briefs filed today by Members of Congress.
The family’s efforts to bring Jim Thorpe home began shortly after his third wife interrupted his burial ceremony on the Sac and Fox Nation in 1953 and took his body. She toured the nation for a year seeking the highest bidder for his remains until two small former coal-mining towns in Pennsylvania offered $500 and a promise to establish the Borough of Jim Thorpe. Despite having no connection to the Pennsylvania towns during his lifetime, Mr. Thorpe continues to be buried there and exploited for tourism – a blatant example of historical and ongoing disregard for Native American traditions and culture in modern American society.
“Since when does a court get to decide that someone’s religious beliefs are absurd?” said Stephanie Barclay, Counsel at the Becket Fund for Religious Liberty. “No American’s faith should be mocked by our courts. Jim Thorpe said he wanted to be buried with his family and his tribe, and that should have been the end of it. Especially given the history of mistreatment of Native Americans by government officials, there should be particular care taken to protect their religious practices.”
“By ruling that NAGPRA’s protections for religious beliefs in the case were absurd, the Third Circuit opened the door for judges across the country to decide, like Goldilocks, what religious beliefs are ‘just right,’” added Barclay. “Judges have no business making those determinations in our diverse American society.”
In 2013, three years after the Sac and Fox Nation and the Thorpe sons first filed their case, a federal District Court agreed that the Pennsylvania borough is an entity covered by NAGPRA because the town’s operations were subsidized by the federal government. NAGPRA routinely applies to other state and local governments, and so the ruling was not remarkable. However, in 2014, the Third Circuit Court of Appeals invoked a seldom-applied legal theory called the “absurdity doctrine” to overturn the District Court’s decision – a ruling that even the Circuit Court acknowledged contradicted a plain reading of the law. The case raises significant legal concerns about the power of federal courts to disregard the plainly stated intent of laws enacted by Congress.
“In substituting its own views and judicially creating exceptions and requirements, the Third Circuit threatens Native American culture by limiting the process Native Americans utilized to regain sacred cultural items. This Court should grant certiorari to review and reverse that decision,” wrote the National Congress of American Indians (NCAI) in their amicus brief filed today.
In their brief, NCAI also underscored this case’s exceptional importance to the 566 federally-recognized Indian tribes, the 5.2 million individual Native Americans and Alaska Natives, and the 1.2 million Native Hawaiians across America, saying “the Third Circuit establishes dangerous precedent that could have substantial impacts on tribal cultures throughout the nation.”
“This is a critically important case,” said Joshua Segal, Partner at Jenner and Block. “In dismissing the NAGPRA suit brought by Jim Thorpe’s sons, the Third Circuit misused the ‘absurdity doctrine’ and ignored other tools of statutory construction. The Court of Appeals’ decision is dangerous for this vital civil rights statute and warrants the Supreme Court’s review.”
Jim Thorpe, given his Indian name Wa-tha-huk (Light after the Lightning or Bright Path) by the Thunder Clan of Black Hawk, was voted Greatest Athlete of the 20th Century in ABC’s Wide World of Sports poll held in 2000, beating out 14 other athletes including Muhammad Ali, Babe Ruth, Jack Nicklaus and Michael Jordan. His remarkable performance at the 1912 Olympic Summer Games, winning gold medals in the decathlon and pentathlon, was matched by his skills in professional baseball (1913-19) and professional football (1917-29). In 1920, Jim Thorpe was selected as the first president of the American Professional Football Association (APFA), which became the National Football League (NFL) in 1922. Thorpe is a member of ten halls of fame, including the College Football Hall of Fame and the Professional Football Hall of Fame, of which he was an inaugural inductee. In his lifetime, Jim Thorpe also worked to obtain recognition for the rights of Indians and tribes.
The Sac and Fox Nation, Jim Thorpe’s sons and other supporters also launched the “Bring Jim Thorpe Home” campaign last month, which calls for his remains to be returned from the Borough of Jim Thorpe in eastern Pennsylvania to his tribal homelands in Oklahoma, where he wished to be buried. The campaign launched with an event in Oklahoma City in June, and will also include events in St. Paul, Minn., and Washington, D.C., over the coming weeks. More information about the campaign can be found at http://www.narf.org/cases/bring-jim-thorpe-home/; on Twitter at www.Twitter.com/BringThorpeHome and #BringJimThorpeHome; and on Facebook at www.Facebook.com/BringJimThorpeHome.
Crow Allottees Challenge to Crow Water Compact Dismissed on Federal Immunity Grounds
Here are the materials in Crow Allottees Association v. Bureau of Indian Affairs (D. Mont.):
Amicus Briefs in Support of Cert Petition in Sac & Fox Nation v. Borough of Jim Thorpe
Dollar General v. Mississippi Band of Choctaw Indians Background Materials
In anticipation of the briefing of Dollar General v. Mississippi Band of Choctaw Indians, the Supreme Court’s next foray in tribal civil jurisdiction, we provide some background materials on the cases and tribal civil jurisdiction in general.
Split Sixth Circuit Panel Affirms NLRB Jurisdiction over Saginaw Chippewa’s Soaring Eagle Casino
American Indian Law Journal Call for Papers
The American Indian Law Journal, published by the Seattle University School of Law, is currently accepting submissions for potential publication in the fall 2015 issue. The American Indian Law Journal serves as a vital online resource providing high quality articles on issues relevant to Indian law practitioners and scholars across the country. The deadline for submissions for the fall issue is July 20, 2015. The editing process for publication begins soon after this date.
The American Indian Law Journal accepts articles and abstracts for consideration from students, practitioners, and law school faculty members. For more information or to submit an article, please contact Grace Chu, Content Editor, at chug@seattleu.edu.
Ninth Circuit Allows Suit by “Advantage Gamblers” against Tribal Casino Officials under Maxwell Precedent
Here is the opinion in Pistor v. Garcia:
From the court’s syllabus:
The panel affirmed the district court’s denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants’ motion to dismiss the action.
The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court’s denial of defendants’ motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe.
The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.
Briefs and lower court materials here.
TCAP Tribal Courts Conference Protecting Indian Children August 20-21, 2015
Basic Court Clerk Certification August 19-21, 2015
SAVE THE DATE
* August 19 – 21, 2015
Radisson By Mall of America in Bloomington, Minnesota
This Basic Clerk Training is a certification that will provide court clerks with the basic skills to use in their role within the tribal court.
Registration is now open, apply early as scholarships are limited.
For more information & updates on this event please visit our website http://law.und.edu/tji/
Contact Lynnette Morin if you have any questions at 701-777-6306 or email lynnette.morin@law.und.edu
Hotel information: Radisson by Mall of America, Bloomington, MN
We are finalizing the rooming block and that information will
be forwarded to you.
This project was supported by Grant No. 2011-IC-BX-KO36 awarded by the Bureau of Justice Assistance (BJA).The Bureau of Justice Assistances
a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, the Community Capacity Development Office, and the Office of Sex Offender Sentencing, Monitoring, Apprehending. Registering and Tracking. Points of View or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.
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