Here is today’s order list.
The cert petition is here.
SCOTUS Denies Cert in Yakama Indian Nation v. McKenna
Here is today’s order list.
The cert petition is here.
Author: Matthew L.M. Fletcher
Osley Bird Saunooke Jr. Walked On
Obituary:
Osley Bird Saunooke Jr. 71, died March 2, 2015 with his loving bride of 50 years sitting by his side.
Osley, affectionately known by his friends as “Butch”, was born in Jacksonville, Fla. on April 6, 1943. He was the son of the Chief of the Eastern Band of Cherokee Indians. His mother was the first woman member of the Eastern Band of Cherokee Indians Tribal Council. From them, he learned how to build and serve his Native American family. Butch grew up in western North Carolina on the Eastern Cherokee reservation where he attended and graduated from Swain County High School. An all-around athlete, Butch was a standout in every sport which ultimately led him to attend Brigham Young University where he was a place kicker for the BYU football team.
Butch served in the United States Navy and was honorably discharged shortly after the untimely death of his father Chief Saunooke. Shortly thereafter, he traveled west to Provo where he attended BYU under a scholarship from the American Indian program. While at BYU, Butch met the love of his life – an Australian beauty named Elizabeth Anne Hodson. They married in 1964 and began a wonderful life together which resulted in six children, 24 grandchildren, and three great grandchildren. A member of the Church of Jesus Christ of Latter Day Saints (“LDS”), Butch served in every capacity within the church as Home Teacher, President, Bishop, Teacher and Temple Worker.
Butch attended the University of New Mexico School of Law graduating in two years. He moved his family to Florida becoming the first director of the newly created United Southern and Eastern Tribes in Sarasota, Fla.. He continued in that position assisting tribes throughout the southeast including the Seminole, Miccosukee, Cherokee, Poarch Creek and Mississippi Choctaw. His efforts led to new economic development that helped pull the Tribes out of poverty and into self-determination and their own economic success. Butch began planting seeds of financial independence that spread throughout Indian Country resulting in the successful casino, manufacturing plants, agro business and energy resources now a permanent fixture with Tribes.
Butch helped create the Florida Governor’s council on Indian Affairs with then Governor Rueben Askew and was its first Director. He served as First Vice President of the National Congress of American Indians, was nominated for Assistant Secretary of the Interior, received numerous honors and awards throughout the Native American community and spent his entire life working to help improve the lives of Native Americans throughout the United States. Just prior to his passing, the United Southern and Eastern Tribes honored Saunooke with its highest honor, the “Earl Barbry Lifetime Achievement Award”.
Butch loved life and, most importantly, loved his children, grandchildren, and great grandchildren. When not working tirelessly for Native Americans, he spent every free minute spending time with them teaching them the importance of serving others and making the world a better place. His love for life and his people were evident in his spirit and example as a true Native American Warrior
Services will be held in Sarasota, Fla. with a viewing on March 13 from 6-8pm at Toale Brothers Funeral Home, 6903 South Tamiami Trail, Sarasota, FL. Services will be March 14 at 10am at the Church of Jesus Christ of Latter Day Saints 7001 Beneva Road, Sarasota, FL. A fund has been set up through the American Indian Graduate Center in his name. At his request, donations in his honor may be made to the American Indian Graduate Center, Inc. 3701 San Mateo Blvd., NE #200, Albuquerque, NM 87110 or by going to www.aigcs.org, 505-881-4584
Congrats to Steve and Amy!
Best brief, third place
Congrats to Team Anishinaabe at the NNALSA Moot Court!
Oklahoma Court of Civil Appeals Affirms Tribal Immunity
Here are the opinions in First Bank and Trust v. Cheyenne and Arapaho Tribes:
Here are the briefs:
2-13-13 Motion for Leave to Supplement the Appeal Record
10-2-13 Special Appearance Joint Notice of Supplemental Authority
10-30-12 Special Appearance, Joint Brief-in-Chief of the Tribes and the Executive Branch
11-21-12 First Bank and Trust Company’s Answer Brief and Brief-in-Chief on Counter-Appeal
12-7-12 Special Appearance, Joint Reply Brief and Answer Brief to Brief-in-Chief on Counter-Appeal
12-13-12 Joint Motion to Supplement the Record on Appeal
12-19-12 First Bank and Trust Company’s Waiver of Right to File Reply Brief
12-24-13 Special Appearance Notice of Supplemental Authority
Federal Court Dismisses Challenge to Quinault Lease under Rule 19, Sovereign Immunity
Here are the materials in Comenout v. Whitener (W.D. Wash.):
25 DCT Order Dismissing Complaint
An excerpt:
The Nation is an indispensible party under Rule 19(b). As discussed above, a judgment in Comenout’s favor would prejudice the Nation’s contractual rights under the lease. Comenout also cannot be accorded complete relief in the Nation’s absence because any injunction would not be binding on the Nation. Further, the relief sought by Comenout cannot be shaped to lessen the potential prejudice to either Comenout or the Nation. Partial relief is also inadequate, because the Nation could still attempt to enforce its rights to use the property for commercial purposes as the lessee.
Federal Court Applies Sherrill Defenses, Tribal Immunity to Dismiss Wolfchild Statutory Land Claims
Here is the order in Wolfchild v. Redwood County (D. Minn.):
196 DCT Order Granting Motion to Dismiss
An excerpt:
The Court finds no basis upon which to distinguish this case from those asserted in Sherrill or Stockbridge. It is clear that Plaintiffs’ claims flow from the 1863 Act. It is also clear that the land at issue here was sold to third parties no later than 1895. See Wolfchild IX, 731 F.3d at 1293. Plaintiffs’ claims are thus like those described in Stockbridge: “Indian land claims asserted generations after an alleged dispossession that are inherently disruptive of state and local governance and the settled expectations of current landowners and are subject to dismissal on the basis of laches, acquiescence, and impossibility.” Id. 756 F.3d at 165.
There is no language in Sherrill or Stockbridge that would limit the holdings of those decisions to claims based on aboriginal title.
Based on the particular characteristics and history of the claims at issue here, the Court finds that Plaintiffs’ claims are equitably barred. Application of the equitable bar set forth inSherrill does not require a balancing of equities between the parties. Instead, the equitable bar focuses on Plaintiffs’ delay in seeking relief, and the disruption that would result to settled and justified expectations regarding land ownership. Sherrill, 544 U.S. at 216‐17, 221(finding that “the Oneidasʹ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate”).
Briefs are here.
NCAI Press Release: Tribal Governments Able to Take Criminal Action on Non-Indians
Tribal Governments Able to Take Criminal Action on Non-Indians
Washington, DC- On March 7, 2015, Tribal governments may elect to begin exercising jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands.
“This is a major step forward to protect the safety of Native people, and we thank all Members of Congress for passing the Violence Against Women Act of 2013 and recognizing tribal authority,” said Brian Cladoosby, President of the National Congress of American Indians and Chairman of the Swinomish Tribe.
So far three Tribes, the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes have been able to exercise jurisdiction over non-Indians under a Pilot Project since February 6, 2014. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.
“I want to encourage all tribal governments to get this law on their books,” said Juana Majel, Chair of the NCAI Task Force on Violence Against Women. “The main goal is deterrence of domestic violence. On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries. They need to get the message. If they continue to assault our women we will prosecute and put them in jail.”
Violence against Native women has reached epidemic proportions. The root cause is a justice system that forced tribal governments to rely on distant federal — and in some cases, state —officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women. However, outside law enforcement has proven ineffective in addressing misdemeanor level reservation-based domestic violence. The Justice Department has found that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates. The 2013 VAWA Reauthorization authorizes tribal governments to investigate and prosecute all crimes of domestic and dating violence regardless of the race of the offender.
Tribes choosing to exercise Special Domestic Violence Criminal Jurisdiction must provide the same rights guaranteed under the Constitution as in state court. This includes the appointment of attorneys for indigent defendants and a jury drawn from the entire reservation community. “Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all. Just like county courts, tribal courts can contract for public defenders on a case-by-case basis,” encouraged President Cladoosby.
Key Statistics:
34% of American Indian and Alaska Native women will be raped in their lifetimes
59% of assaults against Native women occur at or near a private residence
59% of American Indian women in 2010 were married to non-Native men
46% of people living on reservations in 2010 were non-Natives (single race)
On some reservations, Native women are murdered at more than ten times the national average
For an overview on tribal VAWA, and more information please see: http://www.ncai.org/tribal-vawa. The Tribal Law & Policy Institute has developed a Legal Code Resource for implementation at www.TLPI.org.
Fred Baker Interviews Justice Cavanagh
Here.
An excerpt:
Rhode Island Supreme Court Rejects Narragansett’s Constitutional Challenge to 2011 Casino Act
Here is the opinion in Narragansett Indian Tribe v. State.
An excerpt:
The plaintiff, the Narragansett Indian Tribe (Tribe), appeals from the entry of partial summary judgment in the Superior Court in favor of the
defendant, the State of Rhode Island (state), and the intervenor defendant, UTGR, Inc. d/b/a
Twin River (UTGR), finding that the 2011 Casino Act, G.L. 1956 chapter 61.2 of title 42
(Casino Act or the act) is not facially unconstitutional. For the reasons set forth in this opinion,
we affirm the judgment of the Superior Court.
News coverage here.
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