Author: Matthew L.M. Fletcher – Page 225

Lummi Tribe v. United States Cert Petition [HUD Funding]

April 16, 2018August 30, 2018Matthew L.M. Fletcher

Here is the petition:

Questions presented:

Does 28 U.S.C. § 1491 grant the court of federal claims jurisdiction over an action to recover grant-in-aid funds unlawfully recouped by the United States or is the action one for specific relief which must be brought under the Administrative Procedure Act, 5 U.S.C. § 702?

Does the court of federal claims have jurisdiction to enter a judgment on an illegal exaction claim when the United States had previously awarded money to a recipient under a grant-in-aid statute and then unlawfully recouped the funds?

Where a grant-in-aid statute mandates that the United States pay grant funds to a plaintiff, does the court of federal claims have jurisdiction to enter a money judgment for the failure to pay the grant funds even if there are conditions on the use of the grant funds after they are awarded?

Lower court materials here.

UPDATE:

us cert opp

Cert Petition Filed over Ione Band of Miwok Indians Trust Land Acquisition

April 16, 2018August 17, 2018Matthew L.M. Fletcher

Here is the petition in County of Amador v. Dept. of the Interior:

Cert Petition

UPDATE: Cert Opp

Questions presented:

1. Whether Congress intended the phrase “under Federal jurisdiction,” as used in the 1934 Act, to encompass a tribe that, as of June 18, 1934, had no land held on its behalf by the federal government, either in trust or as allotments; was not a party to any treaty with the United States; did not receive services or benefits from the federal government; did not have members enrolled with the Indian Office; and which was not invited to organize under the IRA in 1934 by the Secretary like other recognized tribes in Amador County; but for whom the federal government had unsuccessfully attempted to purchase land pursuant to a generic appropriation authorizing the purchase of land for unspecified “landless Indians” in California?

2. Whether the Secretary’s authority to take land into trust for “members of any recognized Indian tribe now under Federal jurisdiction” requires that the tribe have been “recognized” in 1934, in addition to being “under Federaljurisdiction” at that time, or whether such “recognition” can come decades after the statute’s enactment?

3. Whether the Secretary, having explicitly concluded that in enacting the Indian Gaming Regulatory Act Congress intended that Indian tribes “restored to Federal recognition” refers only to tribes that are “restored” pursuant to (a) congressional legislation, (b) a judgment or settlement agreement in a federal court case to which the United States is a party, or (c) “through the administrative Federal Acknowledgment Process under [25 C.F.R. § 83.8],” and having embodied that conclusion in a formal regulation, 25 C.F.R. § 292.10, can then act contrary to Congress’s intention by “grandfathering in” a preliminary (i.e., non-final) agency action treating Indians who do not meet the regulatory definition as “restored”?

Lower court materials here.

Kathryn Isom-Clause Guest Post: “Tribal Gaming Can Help to Fight Human Trafficking”

April 16, 2018April 11, 2018Matthew L.M. Fletcher

Tribal Gaming Can Help to Fight Human Trafficking

Kathryn Isom-Clause

Often “hidden in plain sight,” millions of people are exploited for criminal profit every year. These people are victims of human trafficking, or modern-day slavery. Human trafficking occurs across the globe and in our own tribal communities. To help combat this epidemic, many tribal gaming facilities are using their unique positions and tools to become an active part of the solution. Confronting human trafficking takes a comprehensive and collaborative approach, starting with awareness of the problem.

Federal law defines human trafficking as the crime of recruiting, harboring, transporting, providing, obtaining, patronizing, or soliciting labor or commercial sex acts through the use of force, fraud, or coercion.[1] The scale of this crime is shocking. It is estimated that many millions of people are trafficked each year, generating billions of dollars in illegal profits. Human trafficking is second only to drug trafficking as the largest criminal enterprise worldwide.

While victims may be of any gender, age, race, or socioeconomic background, traffickers target the most vulnerable members of society. The United States’ Trafficking in Persons Report identifies American Indians and Alaska Natives as particularly vulnerable.[2] Since the colonial era, indigenous people have been subjected to sale and exploitation.[3] Policies such as the prohibition of traditional culture and language, assimilation, relocation, and removal of children further contributed to Native people’s continued trauma and exploitation. Native women still experience more physical and sexual violence than other racial and ethnic groups.[4] The effects of historical trauma are deeply felt in Native communities, families, and individuals. [5] These and other factors contribute to the disproportionate impact of human trafficking on Native people.

Nonetheless, many are fighting back against this crime in Indian Country. Tribes across the country are taking steps to prevent or stop human trafficking from occurring on tribal lands or to tribal citizens, often through task forces and partnerships with law enforcement and victim services organizations. Several tribes have also adopted laws against the crime of human trafficking.[6] Additionally, numerous governmental and private entities have partnered to raise awareness and provide recovery support to victims and survivors.

While this issue cannot be addressed without government leadership, law enforcement, and social services at the forefront, the Indian gaming industry is uniquely positioned to play a role in helping to stop human trafficking. Tribal gaming facilities are at the intersection of governmental entities, the tribal community, law enforcement, and the public. Rather than ignoring the threat, a growing number of casinos already provide anti-human trafficking trainings. Some casinos have implemented employee guidance and protocols to better enable their teams to identify possible victims and alert authorities. Anti-human trafficking signs and posters, currently seen in airports, hotels, and hospitals, could similarly be displayed in gaming facilities, which also welcome a diverse cross-section of the community. In short, the tribal gaming industry is uniquely situated to foster partnerships to tackle human trafficking within Indian Country. These initiatives will build safeguards for tribal citizens, casino patrons, and nearby communities.

At the National Indian Gaming Commission, we have partnered with the Bureau of Indian Affairs to offer human trafficking training as part of our annual regional training courses. We are also in regular contact with other agencies and groups to help raise awareness and share resources with our tribal partners. Our purpose is to help equip those in the tribal gaming industry with resources to fight back against human trafficking as they see fit.

Tribal gaming plays an important part in strengthening not only tribal nations but the well-being of individual tribal citizens. We are well-positioned to partner with other stakeholders and utilize our resources to support prevention efforts. Armed with this knowledge and tools, we can work together to help victims and stop this horrific crime.

To request help or report suspected human trafficking, call the National Human Trafficking Hotline at 1-888-373-7888, or text HELP or INFO to BeFree (233733). Native Americans affected by domestic violence, intimate partner violence, sexual assault, or human trafficking may also call the StrongHearts Native Helpline at 1-800-799-7233.

[1] See Trafficking Victims Protection Act, 22 U.S.C. § 7102 (2015).

[2] U.S. Dep’ t of State, Trafficking in Persons Report (2016).

[3] Alexandra (Sandi) Pierce & Suzanne Koepplinger, National Online Resource Center on Violence Against Women, New Language, Old Problem: Sex Trafficking of American Indian Women and Children (2011), http://www.vawnet.org (last visited April 3, 2018).

[4] Patricia Tjaden & Nancy Thoennes, National Institute of Justice, Extent, Nature, and Consequences of Rape Victimization: Findings from the National Violence Against Women Survey (2006), https://www.ncjrs.gov/pdffiles1/nij/210346.pdf (last visited April 3, 2018).

[5] T. Evans-Campbell, “Historical Trauma in American Indian/Native Alaska Communities: A Multi-level Frame-work for Exploring Impacts on Individuals, Families, and Communities,” Journal of Interpersonal Violence 23 (3) (2008).

[6] National Congress of American Indians Policy Research Center, “Human and Sex Trafficking: Trends and Responses across Indian Country” (Spring 2016), available at http://www.ncai.org/policy-research-center/research-data/prc-publications/TraffickingBrief.pdf (includes Tribal Code examples from Snoqualmie, Swinomish, Tulalip, and Eastern Band of Cherokee Indians).