Matthew L.M. Fletcher

NYTs on the Auction of Little Thunder’s Shirt

December 28, 2013Matthew L.M. Fletcher1 Comment

Here is the article “Indian Family Sees Its History in a Shirt.”

An excerpt:

Cultural property claims can be complex: The competing interests of good-faith collectors and plundered civilizations have to be adjudicated among complications like the passage of time, the disappearance of records and the evolution of law.

Douglas Diehl, director of the American Indian and ethnographic art department at the auction house, would not discuss the matter when reached by phone, but released a statement saying that Skinner “is committed to the highest standards of research and due diligence” and is “particularly sensitive to Native American artifacts.”

The collector who consigned the item for sale, Charles E. Derby, said that he had good title to the shirt. He bought it, according to his lawyer, William H. Fry, from another collector in the early 1980s and has a bill of sale. Mr. Fry said his client could track the shirt, which has been shown in museums, back to 1955, when it was displayed, and later sold, by a bookstore in Cambridge, Mass.

A lawyer for the Little Thunder family, Robert P. Gough, said that a collector would need a lengthier provenance for the shirt to claim good title.

Wind Energy Blog Commentary on New Eagle Permit Rule

December 28, 2013December 20, 2013Matthew L.M. Fletcher

Here.

Ninth Circuit Rejects Another Matheson Objection to Tribal-State Tax Compact

December 27, 2013Matthew L.M. Fletcher

Here are the materials in Matheson v. Smith:

CA9 Unpublished Memorandum

Matheson Opening Brief

Washington Brief

Matheson Reply Brief

Lower court materials here.

Ninth Circuit Affirms Injunction against BIA in San Pasqual Band of Mission Indians Membership Dispute

December 27, 2013December 27, 2013Matthew L.M. Fletcher2 Comments

Here are the materials in Alto v. Black:

CA9 Opinion

San Pasqual Band of Mission Indians Brief

Alto Answer Brief

Federal Appellee Brief

San Pasqual Band of Mission Indians Reply Brief

An excerpt:

In an appeal from the district court’s orders denying a motion to dissolve a preliminary injunction and denying motions to dismiss in an action concerning a dispute over membership in an Indian tribe, the panel affirmed in part, dismissed in part, and remanded. The San Pasqual Band of Mission Indians’ governing documents vested the United States Department of Interior, Bureau of Indian Affairs, with ultimate authority over membership. The panel held that the district court had jurisdiction to enjoin preliminarily the enforcement of the Bureau of Indian Affairs’ order upholding the Band’s decision to disenroll descendants of Marcus Alto, Sr. from the Band, and that the Band was not a required party, because the claims underlying the preliminary injunction concern solely the propriety of final agency action. Accordingly, the panel affirmed the district court’s denial of the Band’s motion to dismiss the claims on which the injunction rests and the district court’s consequent refusal to dissolve the preliminary injunction. The panel remanded to allow the district court to clarify its order. Finally, the panel held that it lacked jurisdiction to review on interlocutory appeal the Band’s motion to dismiss the Altos’ other claims, on which the district court expressly deferred ruling.

Lower court materials here and here.

American Public Media “Marketplace” Shows on Crow and Lummi Coal News

December 27, 2013December 20, 2013Matthew L.M. Fletcher1 Comment

Thanks to D.L.:

The American Public Media show “Marketplace” is doing a series on coal, and two of their stories have focused on Indian tribes. The first, about coal mining on the Crow Reservation, is more about the tribal economy; but the second, about a proposed coal shipping terminal in Washington state, has some legal issues (whether treaty fishing rights might be used to defeat the proposed coal terminal).

Both stories can be found at http://www.marketplace.org/topics/sustainability/coal-play

Katherine Florey on Tribal Court Jurisdiction

December 24, 2013December 20, 2013Matthew L.M. Fletcher

Katherine Florey has published “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction” (PDF) in the California Law Review. The abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades, if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated that, for many tribes, uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts-even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and nontribal land.

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and the Court’s failure to recognize this commonality limits and distorts its analysis. Indeed, no good reason exists why current personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum. For these reasons, this Article argues that limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of federal and state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.

Wisconsin Tribes Lose Effort to Undo Ban on Night Hunting of White Tail Deer

December 23, 2013Matthew L.M. Fletcher3 Comments

Here are the materials in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin (W.D. Wis.):

336 Tribal Trial Brief

337 Wisconsin Trial Brief

373 Tribal Post Trial Brief

375 Wisconsin Post Trial Brief

376 Tribal Reply

377 DCT Order Denying Tribal Motion

Prior order here.

NAICJA 2014 Symposium Request for Proposals

December 23, 2013Matthew L.M. Fletcher

2014 National Tribal Judicial and Court Clerks’ Conference and

Request for Presentation Proposals

The National American Indian Court Judges Association (NAICJA) invites presentation proposals for the 44^th Annual National Tribal Judicial and Court Clerks’ Conference which will be held on October 8-10, 2014 at the Cherokee Nation’s Hard Rock Hotel and Casino in Tulsa, Oklahoma. NAICJA’s Annual Conference offers innovative and timely information through high quality presentations by knowledgeable speakers. In 2014, the theme of the conference is “Celebrating Tribal Justice Innovations and Success.” NAICJA is presenting topics that highlight the broad spectrum of innovative and creative American Indian, Alaska Native, Native Hawaiian and First Nation tribal justice system approaches utilized in addressing crime and resolving disputes. For tribal court clerks, NAICJA is providing information on best court administration practices and emerging court technology necessary to support the tribal justice system.

This is your opportunity to share your expertise and display your creativity by developing an original program for presentation. Proposals specifically tailored to meet the needs of the NAICJA audience are strongly preferred. Proposals are due on or before February 28, 2014.

More details here:

NAICJA 2014 Presentation RFP

WaPo: BIA/IHS Fail to Pay Contract Support Costs

December 23, 2013December 23, 2013Matthew L.M. Fletcher