Here is the complaint in Hamrick v. GSA (C.D. Ill.):
Author: Matthew L.M. Fletcher
Federal Court Challenge to Santa Ynez Band of Chumash Indians Membership Decisions Dismissed
Here are the materials in Miranda v. Jewell (C.D. Cal.):
20 Miranda Motion for Summary J
An excerpt:
In the absence of a clear directive in the SYB Articles that blood degree of prospective members should be determined based only on the blood degree of an ancestor as listed on the 1940 Census, the Court declines to second guess the Bureau’s reasonable decision to apply SYB law in the same manner in which the Tribe applied it.
NYTs on Navajo Leadership Complication (No President)
Here is “Navajos Face Leadership Crisis as Lawmakers Take Office, Minus a New President.”
Who Won American Indian Law and Policy in 2014? The Tribal In-House Counsel Association (of course)
It pays to get organized. As you may know, MSU and TICA will be hosting the first Indian law conference (that I know) dedicated exclusively to issues involving in-house counsel for Indian nations. There’s still time to join TICA and answer the call for papers!
Runner Up
Tribal sovereign immunity — a huge winner in 2014, with the Supreme Court reaffirming its commitment to tribal immunity and to Congress’s prerogative when it comes to abrogating that immunity instead of the Supreme Court.
Final Four
Alaska Native tribes had a wild, up and down (mostly up) year. Justice Sotomayor continued her run of writing scholarly opinions in Supreme Court cases that articulated theories of Indian law rarely generated by Supreme Court Justices.
Fourth Round
Bay Mills Indian Community won a surprising Supreme Court victory — that victory could be said to be represented by three of the final eight (along with immunity and Justice Sotomayor). ICWA‘s omnipresence in terms of sheer number of cases, along with AG Holder’s statement of commitment to the enforcement of the statute, was a big deal this year. Judge Diane Humetewa became the first American Indian woman to sit as a federal judge. And crowd favorite 1491s advocacy against the Washington Football Team’s nickname raised their profile considerably.
Third Round
VAWA‘s tribal jurisdiction provisions being successfully implemented at the pilot project tribes, most notably Pascua Yaqui, and with Congress removing the Alaska exclusion, made the statute go fairly deep into the tournament. 2015 promises to be a much bigger year for VAWA. It was a pretty bad year for intra-tribal disputes, what with Chukchansi’s casino shutdown and armed unrest headlining all over. The Gun Lake Tribe‘s success in Congress, the Oneida Tribe of Wisconsin‘s success in the Supreme Court, and the Carcieri challengers‘ ongoing federal court efforts, all registered big this year. Two books made it this far, Structuring Sovereignty and the Cohen Handbook. But perhaps the biggest individual winner was Sarah Deer and her much-deserved award.
Second Round
Omaha Tribe, Cayuga Nation, Sault Tribe, and Lac Courte Oreilles all won important federal appellate victories. Indian country voting rights, Indian gaming, gray wolves, and tribal court exhaustion all had big litigation years. American Indian education, Bill Wood, Kevin Washburn, Frank Pommersheim, Keith Harper, Cobell settlement beneficiaries, the Supreme Court Project, and Adoptive Couple law reviews all burned out early.
First Round
Full of sound and fury but signifying nothing. Made the tournament field, and that means something, but that’s all: Tribal Law and Policy Institute, Native American Bar Association, Bay Mills law review articles, tribal sovereign (payday) lenders, Buena Vista Rancheria, Kialegee Tribal Town, Big Lagoon Rancheria, MHA Nation, Fond du Lac, Wind River, Cowlitz, Navajo, preemption, Rule 19, internet gaming, human trafficking, alternative energy, climate change, Indian criminal sentencing, Tribal General Welfare Exclusion Act, Kumeyaay Cultural Repatriation Committee, Dollar General, Neal Katyal, Eric Holder, McAllen Grace Brethren Church, Judge Canby, Chris Deschene, Rob Williams, Borough of Jim Thorpe, Indian country pot growers, Senate Committee on Indian Affairs, and the State of New Mexico.
Big Legal Battle Brewing over Colorado River Indian Tribes California-Side Reservation
From the L.A. Times, here is “Holdouts, tribes clash over border of Colorado River reservation.”
The materials so far in French v. Starr (D. Ariz.):
54 Tribal Motion for Summary J
76 French Response to US Amicus
NAHASDA Matter Involving Te-Moak Tribe; HUD Interpretation of 24 CFR 1000.318 Struck Down
Here are the materials in Housing Authority of the Te-Moak Tribe of Western Shoshone Indians v. HUD (D. Nev.):
Yale Law Journal Article: “Beyond the Indian Commerce Clause”`
Gregory Ablavsky has published “Beyond the Indian Commerce Clause” (PDF) in the Yale Law Journal.
Here is the abstract:
The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.
This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.
On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.
Harvard Law Review Comment on Dollar General v. Mississippi Band of Choctaw Indians
Eighth Circuit Affirms General Crimes Act Conviction
Here is the unpublished opinion in United States v. Bear Runner.
Mass. Appeals Court Affirms Gay Head Aquinnah Retain Easements on Martha’s Vineyard
For all you property profs out there….
Here is the opinion in Kitras v. Town of Aquinnah.
An excerpt:
From the earliest time, the members of the Wampanoag Tribe of Gay Head (now known as Aquinnah) in Martha’s Vineyard (Gay Head Tribe or Tribe), had a custom and practice of common access across the lands that are the subject of this appeal. For the reasons that follow, we conclude that the ancient origins of that common access—dating back before the late eighteenth century—establish the equivalent of a chain of title, with access rights that would not yield landlocked parcels. The late nineteenth century State statutory conveyance of large tracts of public common land in Aquinnah, including the subject lands, by the Legislature as grantor to the newly enfranchised Gay Head Tribe members as grantees, and the subsequent judicial partitioning of these governmentally conveyed lands did not, we determine, break these preexisting access rights. More specifically, the subsequent grantees of land tracts in the links of this chain of conveyances from the Gay Head Tribe members to the present plaintiffs were not divested of these long-held access rights flowing from the longstanding tribal custom and practice so as to leave the plaintiffs’ lots landlocked and bereft of easements.
It is so that a plumb line—with perfectly fit easements in the precise transverse of paths walked by and through the lands by the Gay Head Tribe members, in their custom and practice—would, in this present time, be most difficult to reconstruct by metes and bounds since property boundaries were not set in that manner in the statutory governmental conveyances and subsequent judicial partition that deeded the lots to the Gay Head Tribe members in severalty. But such precision, following the paths of the Gay Head Tribe’s custom and practice, is not required under the legal doctrine of easements by necessity which underlies the Restatement (Third) of Property (Servitudes) (Restatement) § 2.15 (2000) and Massachusetts common law. We remand to the Land Court to draw the necessary easement lines in accord with these legal doctrines—a practice well within the great skills of that court.
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