Supreme Court Decides Brnovich v. DNC (voting rights)

On July 1, 2021, the U.S. Supreme Court released a decision in Brnovich v. DNC that upheld two Arizona voting policies that make it harder for people—and especially people of color and Native Americans—to vote.

BACKGROUND:
On March 2, the US Supreme Court heard arguments in Brnovich v. Democratic National Committee. The case looks at whether two issues of Arizona voting law—restricting out-of-precinct ballots and ballot collection—violate Section 2 of the Voting Rights Act. In 2016, Arizona lawmakers passed laws limiting ballot collection and out-of-precinct voting. Ballot collection is an essential tool that rural Native American communities use to make voting accessible to all eligible voters.

At about 17 minutes into the hearings, Justice Sotomayor addresses the voting burdens in Native communities. The points that Justice Sotomayor raises, echo those found in the National Congress of American Indians’ (NCAI) “friends of the court” amicus brief in the case. NCAI’s brief, which was filed by the Native American Rights Fund in January, explains how American Indian and Alaska Native voters face substantial obstacles and documented discrimination as they try to participate in the American democratic process.

Native Americans are entitled to full access to the political process, but failures rooted in devastating policies and discrimination create needless barriers to the ballot.  Services such as post offices and drivers’ license sites require hours of travel, postal delivery and residential addressing is insufficient or completely absent, poorly maintained dirt roads become impassable during November election season, lack of internet and cell phone coverage abound on reservation, and insufficient economic means and transportation make it impossible to access basic government services. There also have been instances of untrustworthy election officials capitalizing on these inequities to disenfranchise voters and undermine Native American political power.  Section 2 of the Voting Rights Act provides much needed protections against this type of systemic voter disenfranchisement.

Read more about the barriers that Native American voters face in the report, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters.

Montana Federal District Court Holds Crow Tribe Has Jurisdiction Over Electric Co-op

Previous post on this litigation here.

Oregon Court Affirms Klamath Tribes’ Water Rights

On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather.

Klamath Tribes Chairman Don Gentry responded to the order, “We are pleased that Judge Wogan upheld the rulings from the administrative phase of the KBA. He reaffirmed that the 1864 treaty entered into between the Klamath Tribes and the United States reserved to the Tribes sufficient water to keep our fisheries and other aquatic resources healthy so that we can protect our natural resources and cultural traditions.”

NARF Staff Attorney Sue Noe explained, “Judge Wogan correctly affirmed quantification of the Tribal water rights based on the habitat needs of the fish, wildlife, and plants. Although he ruled that opponents of the Tribal rights will have another chance to try to reduce the amounts by showing the Tribes don’t need all the water awarded by OWRD to meet their livelihood needs, Judge Wogan made clear in no uncertain terms that the amounts cannot be below what is necessary to provide healthy and productive habitat.”

Importantly, like all other courts that have considered the issue, Judge Wogan ruled that the Klamath Tribes’ water rights extend to Upper Klamath Lake. Upper Klamath Lake forms part of the border of the former Reservation and provides critical habitat for the endangered c’waam and koptu (Lost River and shortnose sucker fish), which are sacred fish species traditionally harvested by the Tribes.

Represented by NARF, the Klamath Tribes successfully achieved recognition of their treaty-reserved water rights in federal court litigation in the 1970s and 1980s in United States v. Adair, but the federal courts left quantification of the water rights to the state adjudication in the KBA. After the successful conclusion of the KBA’s 38-year administrative phase, the Tribes were able to begin enforcing their water rights for the first time in 2013. The administrative determinations are presently on review in the Klamath County Circuit Court and Judge Wogan’s ruling is the latest to come out of that process.

Amicus Brief of NCAI in Census Case

Here is the National Congress of American Indians’ (“NCAI”) Amicus Brief in Trump v. New York, which is being argued today and addresses whether unauthorized immigrants should now be excluded from the Census count.

From the brief:

Multiple amici argue, in effect, that unauthorized immigrants are not “persons” to be counted for purposes of apportionment. Because the United States once tried to argue that American Indians were not “persons” under the law, amicus NCAI is compelled to refute these arguments.

….

These arguments are inconsistent with the Constitution’s text and history. Worse still, in a nation where “all persons are created equal,” Matthews v. Lucas, 427 U.S. 495, 516 (1976) (Stevens, J., dissenting), see also Declaration of Independence ¶ 2 (“We hold these truths to be self-evident, that all men are created equal. . . .”), these attempts to deny the very personhood of unauthorized immigrants are morally bankrupt.

Cheyenne River Sioux Tribe v. Donald J. Trump

Here is the complaint in Cheyenne River Sioux Tribe v. Donald J. Trump, which relates to Cheyenne River’s Health Safety Checkpoints.

From the complaint:

The United States and the nation’s Native American tribes are in a state of emergency. COVID-19 is spreading rapidly throughout the country, infecting millions of people, including in South Dakota, which has had 6,353 confirmed cases and 83 deaths outside the boundaries of the Cheyenne River Sioux Reservation. Experts estimate that, for every confirmed COVID-19 case, there could be as many as eleven unconfirmed cases. “At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others.” S. Bay United Pentecostal Church v. Newsom, 590 U.S. —-, 140 S. Ct. 1613, 2020 WL 2813056 at *1 (May 29, 2020) (Roberts, C.J., concurring).

On April 2, 2020, in direct response to the COVID-19 pandemic, the Cheyenne River Sioux Tribe established a comprehensive COVID-19 response plan, including Health Safety checkpoints to monitor the entry of individuals onto the Tribe’s Reservation. These Health Safety Checkpoints have allowed the Tribe to effectively track individuals that have returned to the Reservation from hotspots throughout both the state of South Dakota and other off-Reservation locations and to keep the Tribe’s rate of infection significantly below the rate for South Dakota at large. To date, the Tribe has had no COVID-19 deaths.

News coverage here, and the press release can be seen here.

NDN Collective, Inc. (NDN) announces Request for Information (RFI) for Indigenous Contractors to Provide Support to Indigenous Communities Dealing with COVID-19.

RFI here.

More information here.

NDN Collective, Inc. (NDN) announces the release of a Request for Information (RFI) to collaboratively identify contractors and other technical assistance providers who can provide support to Indigenous communities bracing from economic impacts, stresses to public services due to COVID-19.  This team will specifically provide assistance in accessing federal stimulus resources for Native Nations, Indigenous-led organizations, and individuals, and other.  The RFI is designed to complement COVID-19 Response grants and loans that are offered by NDN to maximize the potential of these resources to solve current critical needs by building capacity to use these funds effectively.

NAICJA Webiner – McGirt v. Oklahoma Supreme Court Oral Arguments: An analysis of the History, Law, and Arguments of the Muscogee (Creek) Nation Reservation Case

McGirt Flier v2

Date & Time: Wednesday, June 3, 2020 from 12:30 pm-2:00 PM MST (90) minutes.

Webinar Narrative: The United States Supreme Court heard oral arguments on May 11, 2020 in McGirt v. Oklahoma, case #18-9526 (by telephone) involving the status of the Muscogee (Creek) Nation reservation. Last year, the Court heard arguments on a nearly identical case in the Murphy matter. This decision could have enormous impact for Indian law, positive or negative. Come join us for a FREE webinar to hear tribal perspective as to the surrounding Muscogee cultural history, the jurisprudence of Indian lands in Oklahoma and thoughts and analysis of the oral arguments from the Muscogee Nation’s Supreme Court amicus brief advocate Riyaz Kanji.

Register Here: https://us02web.zoom.us/webinar/register/WN_7CZVYSf8QMSxDtxHftI-Tg