Author: Matthew L.M. Fletcher

Bethany C. Sullivan & Jennifer L. Turner on Carcieri

Matthew L.M. Fletcher

Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward. In addition, Carcieri has complicated, if not prevented altogether, trust acquisition for tribes who face difficulty in making the requisite jurisdictional showing. 

This Article provides the first comprehensive analysis of the last ten years of Indian law and policy that have unfurled from the Supreme Court’s decision. It describes how Carcieri has been weaponized by states, local governments, citizens’ groups, individuals, corporations, and even other tribes, to challenge the exercise of tribal sovereignty through the acquisition of tribal lands, and, at times, the very existence of Indian tribes. This Article details the litigation that has since ballooned, illustrating the dangerous scope creep of Carcieri, while categorizing and evaluating the underlying claims. It also looks to the future, and concludes that, while unlikely, a universal, clean congressional fix is the only real solution. The last ten years of litigation, hearings, and never-ending debate demonstrate that Carcieri is not a constructive or appropriate framework for resolving larger policy questions about the land-into-trust process. Finally, the Article ends by providing practice tips for tribes navigating the current Carcieri landscape.

California SCT & COA Materials in Huber Tax Case

Matthew L.M. Fletcher

Here are the materials in Huber v. People ex rel. Becerra (Cal.):

Huber-Navarro-Petition-for-Review-04-Apr-Apr-2019-STAMPED

And in People ex rel. Becerra v. Huber (Cal. Ct. App.) [we posted materials here]:

Navarro-Appellant’s-Opening-Supplemental-Brief-15-Nov-2018-FILE-STAMPED

Navarro-Appellant’s-Petition-for-Rehearing-09-Oct-2018-FILE-STAMPED

Navarro-Appellant’s-Supplemental-Reply-Brief-06-Dec-2018-FILE-STAMPED

Federal Court Excuses Insurance Company from Tribal Court Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Employers Mutual Casualty Company v. Branch (D. Ariz.):

1 Complaint

1-2 Coconino County Court Materials

15 EMCC MSJ

22 Navajo MSJ

25 EMCC Reply

28 Navajo Reply

32 DCT Order

Comanche Nation of Oklahoma v. Bernhardt Cert Petition [Chickasaw Gaming]

Matthew L.M. Fletcher

Here is the petition captioned Comanche Nation of Oklahoma v. Zinke [but presumably will switch to Comanche Nation of Oklahoma v. Bernhardt]:

Companche v Zinke Cert Petition

Question presented:

Whether the “former reservation” exception permitting lands acquired by the United States in trust for an Oklahoma Tribe after the effective date of the Indian Gaming Regulatory Act of 1988 to be devoted to gaming purposes, is applicable to lands not subject to Tribal jurisdiction prior to the acquisition.

Lower court materials here.

Materials in Pacheco v. Geisen [Kewa Pueblo; ICRA Habeas]

Matthew L.M. Fletcher

Here are the materials in Pacheco v. Geisen (D.N.M.):

1 Habeas Petition

15 Amended Petition

20 answer

22 Petitioner’s Response

25 Reply

28 Petitioner’s Surreply

30 Magistrate Order on 20

31 Order to Show Cause

34 Petitioner’s Response to 31

45 Order to Show Cause

47 Magistrate Report

48 DCT Order

Petoskey News-Review: “From Harbor to Austria: Odawa art survives, on display in museum”

Matthew L.M. Fletcher

Here.

NYTs: “‘As Native Americans, We Are in a Constant State of Mourning’”

Matthew L.M. Fletcher

Here.

Federal Lawyer Annual Indian Law Edition 2019

Matthew L.M. Fletcher

Here:

Tribes and Cannabis: Reaching New Highs in the Burgeoning Cannabis Marketplace
U.S. Sales of Legal cannabis reached $9.2 billion in 2017 – a 33 percent increase over 2016 – and are on track to reach $24.5 billion by 2021. 

Features

Pipleline to Tribal Soveignty: Celebrating the Pre-Law Summer Institute’s 50th Class
If you ask Native American attorneys how they prepared for law school, chances are they’ll tell you they attended the American Indian Law Center Inc.’s Pre-Law Summer Institute (PLSI).
The Violence Against Women Act of 2018: A Step in the Right Direction for Indian Children and Federal Indian Law
It is well-settled law that if a person who violates the laws of the United States is a resident of another country, that person falls within the criminal jurisdiction of the United States. Similarly, if a person crosses state lines and commits child abuse in another state, he or she falls under the jurisdiction of the state where the crime was committed.
Rethinking Administrative Advocacy: A Step-by-Step Approach from Former Government Insiders
In today’s political climate, with frequent changes in leadership positions and new policy agendas, there has never been a better time to develop or brush up your administration advocacy skills to better achieve success for your client.

UPDATE — Suquamish is the first tribe with a compact with a state… here.

Hopi Tribe Effort to Stop Shutdown of Navajo Generating Station Fails

Matthew L.M. Fletcher

Here are the materials in Hopi Tribe v. Central Arizona Water Conservation District (D. Ariz.):

1 Complaint

22 Motion to Dismiss

23 Motion for Judicial Notice

36 Gila River Indian Tribe MTD

40 Hopi Response to 23

41 Hope Response to 22

46 Reply in Support of 22

46 Reply in Support of 23

47 Gila River Reply in Support of 36

49 DCT Order

National Indian Law Library Bulletin (4/3/2019)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 4/3/19.

U.S. Supreme Court Bulletin 
http://www.narf.org/nill/bulletins/sct/2018-2019update.html
Petitions for certiorari were filed in these cases: 
Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa (Bankruptcy; Tribal Sovereign Immunity) 
Oglala Sioux Tribe, et al. v. Fleming (Indian Child Welfare Act) 

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2019.html
Chemehuevi Indian Tribe v. Newsom  (Indian Gaming Regulatory Act – Duration Provision)
United States v. Cooley  (Fourth Amendment; Indian Civil Rights Act)
Seminole Tribe of Florida v. Azar  (Indian Self-Determination and Education Assistance Act – Health Services)
LaBatte v. United States (Class Action Settlement Agreement)
Peggy Fontenot v. Mike Hunter  (Oklahoma’s American Indian Arts and Crafts Sales Act)
City of Council Bluffs, Iowa v. United States Department of Interior (Gaming – Tribal Service Area)
Gibbs v. Haynes Investments, LLC  (Lending Operations)
United States of America v. State of Washington  (Fishing Rights – Usual and Customary Areas)
Bay Mills Indian Community v. Snyder  (Jurisdiction, Land Title)

Tribal Courts Bulletin
http://www.narf.org/nill/bulletins/tribal/2019.html
John & Jean Letarte v. Mashantucket Pequot Gaming Enterprise  (Personal Injuries; Negligence) 
Wilding v. Mashantucket Pequot Gaming Enterprise  (Employment Termination)

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article) 
https://www.narf.org/nill/bulletins/lawreviews/2019.html

  • Alaska Native perspectives on the Alaska constitution. 
  • Banishment of non-Natives by Alaska Native tribes: A response to alcoholism and drug addiction. 
  • Traditional jurisprudence and protection of our society: A jurisgenerative tail. 
  • Trust lands for the Native Hawaiian Nation: Lessons from federal Indian law precedents.
  • Indigenous peoples, the international trend toward legal personhood for nature, and the United States.
  • Foundations of Sand: Justice Thomas’s critique of the Indian Plenary Power Doctrine.
  • Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District: A tribe’s successful fight for federally reserved water rights.
  • Extending tribal criminal jurisdiction outside of Indian Country: Kelsey v. Pope. 
  • “Dramatically altered the legal landscape?” City of Sherrill v. Oneida Indian Nation in the lower courts.
  • A watershed moment in the education of American Indians: A judicial strategy to mandate the state of New Mexico to meet the unique cultural and linguistic needs of American Indians in New Mexico public schools.
  • Democratizing treaty fishing rights: Denying fossil-fuel exports in the Pacific Northwest.
  • Roe on the Rez: The case for expanding abortion access on tribal land. 
  • Tribal lending under CFPB enforcement: Tribal sovereign immunity and the “true lender” distinction.
  • Na Mo’o O Ko’olau: The water guardians of Ko’olau weaving and welding collective memory in the war for East Maui water. 
  • The wild west re-lived: Oil pipelines threaten Native American tribal lands. 
  • A presidential power of monumental proportions: Does the Antiquities Act permit the review and revision of national monuments or can the president steal your land? 

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
In the Health and Welfare section, we feature articles about a new book and current legal action relating to adoption and the Indian Child Welfare Act.

U.S. Legislation Bulletin 
https://www.narf.org/nill/bulletins/legislation/116_uslegislation.html
The following bills were added: 

  • H.R.1937: To amend the Native American Business Development, Trade Promotion, and Tourism Act of 2000, the Buy Indian Act, and the Native American Programs Act of 1974 to provide industry and economic development opportunities to Indian communities. 
  • H.R.2017: To amend the Internal Revenue Code of 1986 to make permanent the Indian employment credit. 
  • S.954: A bill to provide grants to State, local, territorial, and Tribal law enforcement agencies to purchase chemical screening devices and train personnel to use chemical screening devices in order to enhance law enforcement efficiency and protect law enforcement officers. 
  • H.Res.278: Expressing the sense of the House of Representatives to recognize the crisis of violence against Native women. 
  • H.R.1964: To provide for the recognition of the Lumbee Tribe of North Carolina, and for other purposes. 

Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2019.html
A notice of the Bureau of Indian Affairs, under the HEARTH Act, announces approval of a tribal ordinance authorizing the Fond du Lac Band to enter into leases for agricultural, residential, business, wind and solar, wind energy evaluation, and other authorized purposes without further BIA approval.