Matthew L.M. Fletcher

Tribal Disruption and Federalism
This paper is prepared for the 2014 Honorable James R. Browning Symposium hosted by the Montana Law Review (2015 Forthcoming)
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

The very presence of Indian nations within the borders of the United States and its territories has always been, from the Founding, disruptive. Indian nations are disruptive, but as I will argue, they are disruptive in the best possible manner. This paper will describe several ongoing tribal-state disputes throughout the nation, acknowledging that the tribal claims are disruptive, but that tribal disruption is not inherently harmful.

Native Voting Rights
This short paper is prepared for the University of Texas/Mexican Electoral Tribunal Workshop (September 5-6, 2014).
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

American Indians’ status as citizens of federal, state, and tribal nations has been riddled with ambiguity since the Founding of the American Republic. This short paper surveys the history and law of Native political rights in the American constitutional structure before concluding with a discussion about special problems in tribal elections.

Rights Without Remedies
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

In Michigan v. Bay Mills Indian Community, the Supreme Court issued a critically important decision on tribal sovereign immunity denying Michigan a forum to enforce its alleged rights under the Indian Gaming Regulatory Act and under state law. The decision reminds me of Oklahoma Tax Commission v. Citizen Potawatomi Nation, where the Court held that Oklahoma could tax tribal smokeshops, but could not sue the tribe to force remittance of the tax revenue. And so for the second time in recent decades, the Court issued a decision that a state had a right under federal Indian law that was unenforceable against an Indian tribe due to sovereign immunity – in other words, a right without a remedy.

The Supreme Court’s primary reasoning in the Bay Mills matter directly focuses the resolution of these kinds of disputes on Congress. Bay Mills did not simply reaffirm tribal immunity – the Court strongly reaffirmed something known as the clear statement rule. The reaffirmation of the clear statement rule could impact many areas of tribal governance beyond tribal sovereign immunity, including labor relations, treaty rights, tribal court jurisdiction, and of course Indian taxation. This paper parses out where the clear statement rule can by utilized by tribal interests for maximum effect, and where reliance upon the rule could generate signals to Congress.

I conclude by identifying the logical outcome of reliance upon the clear statement rule – Congressional reconsideration of tribal immunities. Indian country’s focus on litigation may be forced to give way to the legislative arena. There, tribal interests may be confronted with the rhetoric of rights without remedies.

Ninth Circuit Briefs in Quechan Tribe v. United States — IHS Clinic Dispute

August 28, 2014August 28, 2014Matthew L.M. Fletcher1 Comment

Here:

Quechan Opening Brief

US Appellee Brief

Reply TK

Lower court materials here.

Heather Kendall-Miller & Lloyd Miller: GOP candidate a threat to Native rights

August 27, 2014Matthew L.M. Fletcher2 Comments

From Indianz:

Now that the primary is over and Dan Sullivan is the Republican nominee running against Alaska Senator Mark Begich, it’s time to closely examine his record on issues of import to Alaska Natives. The Native community has long assessed political candidates based on their positions on subsistence, tribal sovereignty, Indian child welfare, and voting rights. In each of these areas, Dan Sullivan’s record is clear: he is a staunch opponent of Native rights.

Perhaps no issue is of greater importance to Alaska Native people than the right to hunt and fish according to ancient customary and traditional practices, and to pass on the subsistence way of life to future generations. Dan Sullivan has aggressively opposed subsistence interests through litigation, legislative initiatives, and support for state policies that marginalize tribal voices.

As Governor Sarah Palin’s Attorney General, Sullivan waged war on subsistence rights by carrying on the Katie John litigation and seeking to overturn a prior court decision affirming the federal government’s retained authority to manage subsistence fisheries in Alaska. As most Alaskans know, Katie John was a revered Ahtna elder who fought tenaciously to protect her right to subsistence fish on her Native allotment in the Wrangell-St. Elias National Park and Preserve.

Attorney General Sullivan joined the ranks of past Indian fighters who argued that the subsistence protections established under the Alaska National Interest Lands Conservation Act should be narrowed to exclude vast stretches of Alaska waters from subsistence fishing, in favor of sport and commercial fishing. Had it been successful, the appeal would have dismantled the Federal Subsistence Board’s authority to prioritize subsistence fishing over other uses when resources become limited. Fortunately, both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court rejected the state’s attack.

Sullivan’s hostility to Native interests continued when Governor Sean Parnell moved Sullivan over to be the Commissioner of the Alaska Department of Natural Resources. As Commissioner, Sullivan led the charge in adopting a new Bristol Bay Area Plan which reclassified land use planning for state land at the Pebble Mine deposit as solely mineral land, omitting any land use for subsistence hunting and fishing purposes in an area central to subsistence in southwest Alaska.

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Split Ninth Circuit Panel Affirms Dismissal of Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

August 27, 2014Matthew L.M. Fletcher2 Comments

Here is the opinion in White v. University of California.

From the court’s syllabus:

The panel affirmed the district court’s dismissal of an action under the Native Graves Protection and Repatriation Act on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action.

The action concerned the “La Jolla remains,” two human skeletons discovered during an archaeological excavation on the property of the Chancellor’s official residence at the University of California-San Diego. The tribes claimed the right to compel repatriation of the La Jolla remains to one of the Kumeyaay Nation’s member tribes. Repatriation was opposed by the plaintiffs, University of California professors who wished to study the remains. The professors sought a declaration that the remains were not “Native American” within the meaning of NAGPRA, which provides a framework for establishing ownership and control of newly discovered Native American remains and funerary objects, as well as cultural items already held by certain federally funded museums and educational institutions.

The panel held that the plaintiffs had Article III standing to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly traceable to the challenged action. In addition, this injury was likely to be redressed by a favorable decision.

The panel held that NAGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. The panel held that the “Repatriation Committee,” a tribal organization, was entitled to tribal sovereign immunity as an “arm of the tribe.” In addition, the Repatriation Committee did not waive its sovereign immunity by filing a separate lawsuit against the University or by incorporating under California law.

The panel held that the tribes and the Repatriation Committee were necessary parties under Federal Rule of Civil Procedure 19(a)(1) and were indispensable under Rule 19(b). In addition, the “public rights” exception to Rule 19 did not apply. Accordingly, the district court properly dismissed the action.

Dissenting, Judge Murguia agreed with the majority that the plaintiffs had Article III standing, that NAGPRA did not abrogate the sovereign immunity of the tribes, and that the Repatriation Committee was entitled to sovereign immunity. She would hold, however, that the Committee was not a necessary and indispensable party because it was neither necessary nor indispensable to resolution of the question whether the University properly determined that the La Jolla remains were Native American within the meaning of NAGPRA.

Briefs are here.

Mille Lacs Ojibwe Seeks Judge

August 27, 2014Matthew L.M. Fletcher

Here (District Court Judge).

The District Court Judge presides over the District Court of the Mille Lacs Band of Ojibwe Indians and exercises judicial authority over cases in law and equity for the specific purposes of promoting the general welfare, preserving and maintaining justice, and protecting the rights of all persons under the jurisdiction of the Non-removable Mille Lacs Band of Ojibwe. This is a six-year term.