Author: Matthew L.M. Fletcher

Hopi Member Claim of IHS Administrative Negligence under FTCA Survives Motion to Dismiss

Matthew L.M. Fletcher

Here are the materials in Shortman v. Robideaux (D. Ariz.):

14 IHS Motion to Dismiss

17 Shortman Opposition

24 IHA Reply

28 DCT Order

An excerpt:

In August 2012, Shortman still had not heard from IHS. Walgreens and the Trustees again agreed to cover the cost of Shortman’s medications while IHS completed its eligibility evaluation. Id. By the end of September, Shortman still had not heard from IHS;  Walgreens and the Trustees were growing concerned with continuing to fund her medications. Id. at 10-11. On September 27, 2012, Shortman turned to the White House for help. Id. Representatives from the White House [4]  contacted IHS concerning Shortman’s application for medication. Id. That day, IHS completed the eligibility review process and determined that Shortman was eligible for her medication. Id. By that point, Walgreens, unaware of the decision at IHS, had advanced a month’s supply of medicine for delivery at the Hopi clinic. Id.

Ninth Circuit Decides Redding Rancheria v. Jewell (Affirming Section 20 Regulations)

Matthew L.M. Fletcher

Here is the opinion. The court’s summary:

The panel affirmed the district court’s judgment in favor of the federal government insofar as it upheld the Secretary of the Interior’s denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe’s proposal to close its existing Tribal gaming operation upon construction of a new facility.

The Secretary denied the Tribe’s request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe’s application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation. 

The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary’s denial of the Tribe’s application was not inconsistent with prior agency practice, and was not arbitrary and capricious. 

The panel held that the agency should have considered the Tribe’s alternative offer to move all gaming to the new casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address the issue.

Judge Callahan concurred in parts I, II, and III of the majority’s opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.

Briefs and other panel materials here.

Lower court materials here and here.

Debate on JURIST re: NAGPRA and the Jim Thorpe Case

Matthew L.M. Fletcher

Here is Walter Olson’s post “NAGPRA, Indian Burials, and the Unquiet Grave.”

Here is Elizabeth C. Varner, Diane Penneys Edelman and Leila Amineddoleh’s “NAGPRA and Congress’s Foresight.”

H/T Pechanga.

The Third Circuit materials are here (en banc petition pending).

Two Indian Law Articles in Newest Volume of Arizona State Law Journal

Matthew L.M. Fletcher

Here:

Reid Peyton Chambers’ Canby Lecture, “REFLECTIONS ON THE CHANGES IN INDIAN LAW, FEDERAL INDIAN POLICIES AND CONDITIONS ON INDIAN RESERVATIONS SINCE THE LATE 1960s,” is available in pdf here.

And Matthew L.M. Fletcher’s “A UNIFYING THEORY OF TRIBAL CIVIL JURISDICTION” is available in pdf here and here.

Aeon: “The invasion of America”

Matthew L.M. Fletcher

Here is “The invasion of America: The story of Native American dispossession is too easily swept aside, but new visualisations should make it unforgettable.” H/T propertyprofblog.

Includes a nice map depicting Indian land cessions (or what it calls seizures). Linked here:

NYTs Op-Ed on Gray Wolves

Matthew L.M. Fletcher

Here is “High Noon for the Gray Wolf.”

Colville Confederated Tribes Seeks In-House Attorneys

Matthew L.M. Fletcher

Here:

The Confederated Tribes of the Colville Reservation, Office of the Reservation Attorney, seeks attorneys with experience and expertise in Indian Law and in working for a tribal government. Expertise in issues related to Tribal Governmental Law and Policy,  Water/Natural Resources Law, Economic Development Law, and/or Employment Law. Strong research and writing skills are required. Candidates with litigation experience and experience working with Indian Tribes are particularly encouraged to apply. The Colville Reservation headquarters are located in Nespelem, Wash., and the Reservation contains over 1.4 million acres and provides attorneys the opportunity to work on a variety of important Tribal and Indian Law matters. The Office of Reservation Attorneys is one of the oldest on-reservation tribal government Law Offices, with a strong tradition of excellence.

Fredericks Peebles Seeks Experienced Transactional Attorney

Matthew L.M. Fletcher

The Sacramento, California office of Fredericks Peebles & Morgan LLP has an immediate need for an ambitious and experienced attorney to join its national Indian law practice. Qualified candidates should have a minimum of 5 years of experience working on sophisticated business transactions, including the preparation and negotiation of definitive agreements, engagement letters, term sheets, letters of intent, promissory notes, and credit facilities. Additionally, candidates should be a member of the California Bar, have excellent drafting and negotiations skills, superior academic background and a desire for team-work, significant responsibility and client interaction. To be considered, please provide a cover letter, resume and a writing sample to:

 

Ann Hacker, Director of Human Resources

ahacker@ndnlaw.com

3610 North 163rd Plaza

Omaha, NE 68116

 

Accepting applications until February 20, 2015

Miccosukee Tribe and Bernardo Roman Sanctioned $1M by Federal Court in Claims against Billy Cypress, Lewis Tein LLC, and Dexter Lehtinen

Matthew L.M. Fletcher1 Comment

Here are the materials in Miccosukee Tribe v. Cypress (S.D. Fla.):

38 Defendants Notice of Filing Motion for Sanctions

380 Lewis Tein Trial Brief re Rule 11 Motion

394 Lehtinen Supp Brief

395 Lewis Tein Supp Brief

396 Miccosukee Brief

419 DCT Order

An excerpt:

For the aforementioned reasons, it is hereby ORDERED and ADJUGDED that Defendant Lewis Tein’s Motion for Rule 11 Sanctions and Defendant Dexter Lehtinen’s Motion for Rule 11 Sanctions are GRANTED in part and DENIED in part. Plaintiff Miccosukee Tribe of Indians of Florida, Counsel Bernardo Roman, Esq., and the Law Offices of Bernardo Roman III are SANCTIONED in the amount of $975,750.00 owing to Lewis Tein and in the amount of $95,640.00 owing to Dexter Lehtinen, which represent the attorney’s fees and costs incurred in this matter, including those accrued for bringing and [50]  prosecuting the sanctions motions. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1298 (11th Cir. 2010) (“[A] district court may include costs arising from the sanctions proceedings in the sanctions award.”); Mike Ousley Prods., Inc. v. WJBF-TV, 952 F.2d 380, 383-84 (11th Cir. 1992) (“This Court has clearly held that a party can collect the expense of pursuing a Rule 11 claim.”).

I recognize the monetary sanctions imposed are sizable. However, considering that upon a finding that a party filed a pleading that has no reasonable factual basis, which unreasonably and vexatiously multiplied the proceeding, an appropriate sanction may be the compensation of attorney’s fees incurred in combating the wrongful conduct. Here, the wrongful conduct is the filing of the complaints with no reasonable factual basis to support their allegations. Following a review of the Lewis Tein’s Sealed Statement of Attorney’s Fees (ECF No. 400, SEALED) and Defendant Lehtinen’s Filing of Legal Fees and Expenses Pursuant to Court Order (ECF No. 404, SEALED), it is difficult to parse out — given the sweeping nature of the Tribe’s allegations, i.e. Defendants Lewis Tein created their law firm “for the main purpose of advancing and perfecting the plundering of the Miccosukee Tribe,” Defendants Lewis Tein devised a money laundering/kickback scheme whereby Defendants [51]  Lewis Tein “would charge exorbitant fees for fictitious, unnecessary, inflated, substandard and exaggerated legal work to funnel a part thereof to Defendant Cypress,” and Defendant Lehtinen “through a pattern of criminal activity. . .maintained control of the affairs of the [Tribe] . . . resulting in a loss of millions of dollars” — which, if any, of the legal fees incurred were not warranted by the allegations.

Materials in Miccosukee’s failed effort to disqualify the judge are here.

Materials on the underlying merits of the claim are here and here.

RICA Suit against Payday Lenders Tangentially Involving Tribal Sovereign Lending

Matthew L.M. Fletcher1 Comment

Here is the complaint in Bynon v. Mansfield (E.D. Pa.):

1 Complaint

An excerpt:

The defendants in this case are conspirators in a usury scam. The defendants charged plaintiff Breanda Bynon interest at the rate of 182.02% A.P.R. on a $5,000 loan. Ms. Bynon paid defendants about $15,000, but defendants applied all of the money to usurious interest and then repossessed her vehicle claiming nonpayment. Ms. Bynon files this complaint for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Pennsylvania Loan Interest and Protection Law (“Act 6”), 41 P.S. § 201 et seq., and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c),

Another:

Sovereign Lending Solutions, LLC (“Sovereign”), is a loan company wholly owned by the Lac Vieu Desert Bank of Lake Superior Chippewa Indian Tribe (”Tribe”), and incorporated under tribal law. Sovereign originated the loan to Ms. Bynon, but is not named as a party because it is protected from liability under the doctrine of tribal immunity.