Author: Matthew L.M. Fletcher

Forest County Potawatomi Complaint re: Denial of Class III Gaming Compact — And Commentary

Matthew L.M. Fletcher1 Comment

The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

  1. These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law.  The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.
  2.  The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts.  In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community.  Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.
  3. The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit.  This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.  
  4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
  5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter

SCOTUS Upholds Prisoner Religious Freedom Claim in Holt v. Hobbs

Matthew L.M. Fletcher1 Comment

Here is the opinion.
Here is the NYTs article describing the opinion.

NCAI and Huy filed briefs in this matter, here.

Of note, perhaps, Justice Sotomayor authored a separate concurring opinion quoting from two lower court decisions involving Indian or Indian-related claims, Yellowbear and Wilgus.

Western Sky-Related Debt Collector Successfully Compels Arbitration in Virginia Case

Matthew L.M. Fletcher2 Comments

Here are the materials in Hayes v. Delbert Services Corp. (E.D. Va.):

26 Delbert Motion

30 Opposition

31 Reply

38 DCT Order

An excerpt:

This matter cornes before the Court on the defendant’s motion [2]  to dismiss the amended complaint or, alternatively, to compel arbitration. (Dk. No. 30.) The plaintiffs, borrowers from internet payday lender Western Sky Financial, LLC, brought this action on behalf of themselves and others similarly situated against Delbert Services Corporation, a third-party debt collecter. The plaintiffs allege Delbert violated the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”) in the course of its collection efforts. Delbert moves to dismiss based on the Loan Agreements’ forum-selection clause or on the basis of the tribal exhaustion doctrine. Alternatively, Delbert moves to compel arbitration. 

The forum-selection clause does not reach third-party debt collectors such as Delbert, and the doctrine of tribal exhaustion does not apply under the facts of this case. The language of the arbitration agreement, however, covers disputes with third-party debt collectors.

Accordingly, the Court GRANTS the motion to compel arbitration under the terms of the Loan Agreement and DISMISSES the claim without prejudice.

NYTs Article on American Indians’ Negative Response to Father Serra’s Canonization

Matthew L.M. Fletcher

Here is “To Some Indians in California, Father Serra Is Far From a Saint.”

TalkPoverty: “Of Stereotypes and Slack Reporting Standards: The Economist’s Claim that Native American Gaming Leads to ‘Sloth'”

Matthew L.M. Fletcher

Here.

An excerpt:

But an article in this week’s The Economist is a reminder that we haven’t put the bad old days of racially distorted coverage of poverty beyond us. The article claims “cash from casinos makes Native Americans poorer.” According to the author, a particular problem is that tribes distribute part of the revenues directly to members—typically known as “per capita payments”—which encourages “sloth.” The article is accompanied by a photograph of an American Indian man in front of a slot machine, a grin on his face and his arm pumped in the air.

Given research like Gilens’ and the long history of stereotyping American Indians as lazy, The Economist should have been particularly careful to ensure that it had solid evidence to back up its claim. In lieu of such evidence, The Economist relied on a few anecdotes and a single article by a private attorney published in a student-run law review.

We took a closer look at the law review article that The Economist relied on and were not impressed. It purportedly shows that poverty was more likely to increase in certain Pacific Northwest tribes that distributed part of their gambling revenues to members than in those that did not. But there were only seven tribes (out of a total of 17 that the article focused on) that did not distribute gaming revenues directly to members. The total reported decline in poverty among these seven tribes amounted to only 364 people. The study contained no controls for any of the many factors that affect poverty rates, nor did it take into account size differences in the tribes, differences in the size and structure of the per capita payments, or other relevant factors. In short, the study is absolutely useless in terms of providing meaningful evidence to supportThe Economist’s claim.

Kate Fort & Peter Vicaire on Child Welfare and American Indian Active Duty Servicemembers and Veterans

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort and Peter S. Vicaire have posted “The Invisible Families: Child Welfare and American Indian Active Duty Servicemembers and Veterans,” forthcoming in the Federal Lawyer.

The abstract:

Child welfare issues as they involve Native military families are rarely discussed. In the recent case of Adoptive Couple v. Baby Girl, the Supreme Court erased them entirely. The federal government, tribes and states can address issues affecting Native military families in a number of ways discussed in this article, including:

• Kinship placement in contested adoptions put on hold due to deployment;

• Ensuring Memorandums of Understanding between military bases and states include reference to the Indian Child Welfare Act (ICWA);

• Identifying and educating attorneys — including Judge Advocates — on both ICWA and the Servicemembers Civil Relief Act;

• Training Veteran Treatment Court judges on issues specific to Native veterans;

• Modeling specialized state Indian Child Welfare Act dockets on Veteran Treatment Courts;

• Opening conversations between child welfare courts and veterans courts, and assigning one judge per family;

• Encouraging the development of tribal court veterans treatment dockets and engaging with the Veterans Administration (VA) through Veteran Justice Outreach Specialists (VJOs)

HEIDI NESBITT, PLSI DIRECTOR AND AILC ASSISTANT DIRECTOR, TO RECEIVE JUSTICE MARY WALTERS AWARD

Matthew L.M. Fletcher

Here is the American Indian Law Center’s Press Release.

An excerpt:

The Women’s Law Caucus (WLC) at the University of New Mexico School of Law announced that Heidi Nesbitt, the Director of the Pre-Law Summer Institute (PLSI) and Assistant Director of the American Indian Law Center, Inc. (AILC), has been named a recipient of the 2015 Justice Mary Walters Award. The WLC presents the annual award to outstanding women in the New Mexico legal community in honor of former Justice Mary Walters, who was the first woman appointed to the New Mexico Supreme Court. Recipients of the award demonstrate courage, strong ethics, leadership and mentorship in the legal field.

Penn Museum Press Release: Controversy over Remains of Native American Athlete Jim Thorpe Subject of Play Reading, Panel Discussion February 12

Matthew L.M. Fletcher

Here:

Renowned Native American Writers and Activists Suzan Harjo, Mary Kathryn Nagle
Join with Theater Director Matt Pfeiffer to Present My Father’s Bones at the Penn Museum

JimThorpe-smPHILADELPHIA, PA January 20, 2015—The Penn Museum hosts a staged reading of My Father’s Bones, a short play by nationally renowned Native American writers and activists Suzan Shown Harjo and Mary Kathryn Nagle, Thursday, February 12, 5:30 pm. The play recounts the ongoing struggle of three sons to recover the remains of their father—the unmatched Olympian Jim Thorpe—from the Borough of Jim Thorpe, Pennsylvania, for reburial with his relatives on Sac and Fox Nation land in Oklahoma. The free program, sponsored by the Penn Cultural Heritage Center of the Penn Museum and presented in conjunction with the Museum’s Native American Voices exhibition, concludes with a panel discussion and reception.

The first version of My Father’s Bones was selected as a finalist for the 2013 Von Marie Atchley Excellence in Playwriting Award and performed at the Autry Center of the American West in Los Angeles. This revision is staged by Philadelphia-based director Matt Pfeiffer, recently nominated for the 2014 Barrymore Award for Outstanding Direction of Play for his direction of Down Past Passyunk, at InterAct Theater Company in Philadelphia.

Following the play, the Penn Cultural Heritage Center and the Museum host a panel discussion about repatriation and the use of the Native American Graves Protection and Repatriation Act (NAGPRA) as the legal basis to return Jim Thorpe’s remains to his ancestral home. Representatives of the Borough of Jim Thorpe and the Sac and Fox Nation have been invited to attend. To date, panelists include tribal representatives of the Sac and Fox Nation; Attorney John Echohawk, Director of the Native American Rights Fund; and Suzan Shown Harjo, President of the Morningstar Institute. Penn Cultural Heritage Center Director Richard Leventhal moderates.

For those unable to attend in Philadelphia, the play will be viewable online via HowlRound’s livestream on its global, commons-based peer produced HowlRound TV network at http://howlround.com/tv.

To participate in the talk back following the performance, use Twitter hashtag #newplay, #MyFathersBones and/or#JimThorpe and direct your questions @HowlRound.

Background to the Story

On October 23, 2014, the United States Court of Appeals, Third Circuit Court of Appeals in Philadelphia determined that NAGPRA does not apply to the requested repatriation of Jim Thorpe’s remains. As a result, Sac and Fox Nation, Jim Thorpe’s sons Bill and Richard Thorpe, the National Congress of American Indians (NCAI), and Senator Ben Nighthorse Campbell have all petitioned the Court, requesting that the Third Circuit reconsider the case en banc. Their petitions remain pending.

Jim Thorpe was an enrolled citizen of the Sac and Fox Nation and winner of several Olympic gold medals. He passed away in 1953 and the Sac and Fox Nation honored him with a traditional Sac and Fox burial, in accordance with his last wishes. Ordinarily, these ceremonies last four days. However, on the fourth day, his third wife, Patsy, who was not Native American, interrupted the returning-the-name ceremony, which is the last step before burial in the territory of the Sac and Fox Nation.

“Researching the play, we learned that Patsy burst into the funeral and, with the assistance of an Oklahoma State Trooper, removed his body,” noted Ms. Harjo. “She then proceeded to sell Jim Thorpe’s body for a few thousand dollars to a town in Pennsylvania that hoped to use his body to attract tourism and enhance its local economy. This town, originally comprised of East and West Chunk, re-named itself after the human body it purchased as the Borough of Jim Thorpe, Pennsylvania.”

After years of attempts to convince the Borough to permit the repatriation of Jim Thorpe to his Sac and Fox homeland, his sons (former Chairman Jack Thorpe and Bill and Richard Thorpe) filed suit, along with the Sac and Fox Nation. The District Court concluded that NAGPRA does apply to the Borough’s possession of Jim Thorpe, but the Court of Appeals for the Third Circuit overturned the lower court’s decision.

About the Playwrights and Panelists

John Echohawk (Pawnee), one of the panelists, is the Executive Director of the Native American Rights Fund. He was the first graduate of the University of New Mexico’s special program to train Indian lawyers, and was a founding member of the American Indian Law Students Association while in law school. John has been with NARF since its inception in 1970, having served continuously as Executive Director since 1977. He has been recognized as one of the 100 most influential lawyers in America by the National Law Journal and has received numerous service awards and other recognition for his leadership in the Indian law field. He serves on the Boards of the American Indian Resources Institute, the Association on American Indian Affairs, the Indigenous Language Institute, and the Native American Rights Fund (August 1970 to present), among others.

Suzan Shown Harjo (Cheyenne and Hodulgee Moscogee) and Mary Kathryn Nagle (Cherokee) have collaborated to create a provocative play that documents the conflict. Dr. Harjo, one of the principal consultants for Native American Voices, is president of The Morning Star Institute in Washington, DC, and has helped Native Peoples protect sacred places and recover more than one million acres of land. President Obama awarded her with a 2014 Presidential Medal of Freedom for her work on American Indian civil, human, and treaty rights. Over the past five decades, she has developed key laws to promote and protect Native nations, sovereignty, children, arts, cultures and languages, including the American Indian Religious Freedom Act, National Museum of the American Indian Act and Native American Graves Protection and Repatriation Act. Formerly the executive director of the National Congress of American Indians, she served as Legislative Liaison for the Native American Rights Fund and in the Carter Administration, and was lead plaintiff in Harjo et al v. Pro Football, Inc. (1992-2009), the landmark lawsuit against the name of the Washington professional football franchise. She is a Founding Trustee of the National Museum of the American Indian and is the first Native woman to receive an Honorary Doctorate of Humanities from the Institute of American Indian Arts. Prior to moving to Washington, D.C., she had a long career in broadcasting and theater in New York City.

Oklahoma City-native Mary Kathryn Nagle studied theater at Georgetown University and graduated summa cum laude from Tulane Law School, where she received the Judge John Minor Wisdom Award. Her plays have been performed from Oklahoma to New York. She is a member of the 2013 Emerging Writers Group at the Public Theater, where her latest play, MANAHATTA, was performed as part of the PUBLIC’s new PUBLIC STUDIO series.

Dr. Richard M. Leventhal, moderator for the program, is Executive Director of the Penn Cultural Heritage Center at the Penn Museum, a Professor in the University of Pennsylvania Department of Anthropology, and Curator in the American Section of the Penn Museum. He is also the former Director of the Penn Museum, President and CEO of the School of American Research in Santa Fe, Director of the Cotsen Institute of Archaeology and Associate Professor in the Department of Anthropology at UCLA, and Director of the Institute for Mesoamerican Studies at SUNY-Albany. Dr. Leventhal lectures and writes extensively on the preservation of cultural properties and cultural sites, on the need to prevent the looting of global heritage resources, and on the acquisition policies of museums.

The Penn Museum (the University of Pennsylvania Museum of Archaeology and Anthropology) is dedicated to the study and understanding of human history and diversity. Founded in 1887, the Museum has sent more than 300 archaeological and anthropological expeditions to all the inhabited continents of the world. With an active exhibition schedule and educational programming for children and adults, the Museum offers the public an opportunity to share in the ongoing discovery of humankind’s collective heritage.

The Penn Cultural Heritage Center is dedicated to expanding both scholarly and public awareness and promoting discussion and debate about the complex issues surrounding the world’s rich—and endangered—cultural heritage.

Photo: Jim Thorpe at the 1912 Summer Olympics in Stockholm, Sweden. Public domain image.

Third Amended Complaint and Answer in Stand Up For California v. Dept. of Interior

Matthew L.M. Fletcher

Here:

103 Third Amended Complaint

105 Interior Answer

Prior posts here, here, here, and here.

Tenth Circuit Briefs in Harvey v. Ute Indian Tribe (Federal Removal; Tribal Jurisdiction)

Matthew L.M. Fletcher1 Comment

Here:

Appellant Brief

Appellee Brief

Reply Brief

Lower court materials here.