Author: Matthew L.M. Fletcher

Arizona COA Restores Hopi Suit against Arizona Snowbowl

March 8, 2018Matthew L.M. Fletcher

It’s was a month ago, but here goes:

1 CA-CV 16-0521 Hopi v. AZ Snowbowl

Thanks to D.C. for sending this along.

Briefs here.

Osage Wind LLC v. Osage Minerals Council Cert Petition

March 8, 2018December 20, 2018Matthew L.M. Fletcher1 Comment

Here:

Petition for a Writ of Certiorari

Questions presented:

1. Whether the court of appeals had jurisdiction over the appeal filed by a nonparty when the nonparty did not participate in any capacity in the district court proceedings.

2. Whether the Tenth Circuit improperly invoked the Indian canon of construction to deprive surface-estate owners who are members or successors-in-interest to Indian tribe members of important property rights by overriding clear regulatory language for the express purpose of favoring the economic interests of an Indian tribe without examining congressional intent.

Lower court materials here.

UPDATES:

Osage Minerals Council BIO

SG Brief [Osage]

Petitioner Supplemental Brief

Interior OIG Report: Ethics Violation by Senior DOI Official

March 7, 2018March 7, 2018Matthew L.M. Fletcher

Here:

Report

From the report:

We investigated allegations that a senior U.S. Department of the Interior (DOI) official expressed to other DOI employees his intent to assist two American Indian tribes he had worked with before becoming a DOI employee. In addition, we learned during our investigation that the senior DOI official may have encouraged the hiring of former business associates involved in the guarantee of a DOI loan to another Indian tribe; the senior official himself had been involved in issuing the loan before he started working at the DOI, and the tribe had defaulted on it. The senior official allegedly suggested that a subordinate needed to approve payment of the loan guarantee even though the DOI had already decided not to pay it. He also allegedly asked a DOI employee to hire one of his relatives.
We found that in the short time he worked for the DOI, the senior official made several comments that created an appearance to other DOI employees that he was planning to give preferential treatment to entities he had relationships with. We confirmed that soon after he began working for the DOI, he told three DOI employees that he intended to continue assisting two tribes that he had worked with before coming to the DOI. We found that he assisted the tribes as a DOI employee only once, when he volunteered to schedule meetings between the tribes and Interior Secretary Ryan Zinke. The senior DOI official also spoke to his subordinates about hiring his former business associates and paying the guarantee on the loan he was associated with; although this did not violate regulations, his statements made his subordinates uncomfortable. In addition, we confirmed that he asked a DOI employee to hire his relative, but he claimed that he had been joking when he made the request.
The senior official left the DOI after we began our investigation. We provided this report to the Deputy Secretary of the Interior for any action deemed appropriate.

NCAI Summer 2018 Legal Internship – Domestic Violence

March 7, 2018Matthew L.M. Fletcher

NCAI Summer 2018 Legal Internship – Domestic Violence

NCAI is hiring a summer intern to assist us in our work concerning domestic violence in Indian Country. Students must have completed at least one year of law school by the start of the internship. Intern applicants must be able to serve a minimum of 16 hours per week, for a minimum of six weeks. The internship is based in our Washington, DC office. Internships are unpaid, but many schools will offer college credit or financial assistance, and some tribes may be willing to sponsor NCAI interns from their tribe. NCAI will be glad to provide information to your school or tribe to assist in securing credit or financial support for your internship.

The intern will work directly with a team of NCAI staff to plan and coordinate NCAI’s outreach and advocacy work concerning Domestic Violence, specifically NCAI’s projects on VAWA 2013 expanded criminal jurisdiction and on mapping domestic violence resources throughout Indian Country. Responsibilities include legal research, drafting legal memos, helping organize the summer 2018 meeting of the Inter-Tribal Working Group, helping assess gaps in domestic violence services, and organizing webinars on legal topics.

Applications will be accepted on a rolling basis until a candidate is selected. Applicants are encouraged to apply as soon as possible.

Interested applicants should apply by emailing ereese@ncai.org a resume, law school grade sheet, writing sample, and cover letter that includes a brief explanation of your interest in the position, tribal affiliation (if any), and two references.

Here is the abstract:

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific interest.” Unlike every other monument since the passage of the Antiquities Act, however, Bears Ears was proposed by a coalition of American Indian Tribes. The Bears Ears Inter-Tribal Coalition, which submitted the proposal to protect Bears Ears, included representatives from the Hopi Tribe, Navajo Nation, Ute Mountain Ute, Uintah and Ouray Ute, and Zuni tribal governments.

Historically, the Antiquities Act and other federal conservation laws played very different roles in the lives of Native people. Conservation laws divested Tribes of their lands and cultural heritage in the name of preserving these resources for others. Moreover, federal laws and policies designed to destroy tribal political structures were at their apex during the same period that early conservation policy was formed. Together, and complemented by laws that privatized vast swathes of the federal public domain, conservation law and federal Indian law effected a joint project of Indian elimination. This Article explores that dark side of conservation history, and describes the very different process that led to the Bears Ears designation. It argues that by restoring tribal connections to the landscape, Bears Ears National Monument serves as a partial act of reparations.

Today, Bears Ears National Monument is under threat. President Trump reduced the Monument to a small fraction of its size and divided it into two parcels. The Tribes, along with conservation groups, have sued, arguing that the Antiquities Act authorizes the President only to create monuments, not to eliminate or shrink them unilaterally. As that legal battle plays out, the story of Bears Ears remains worth telling. Its saga explores the intertwined histories of the development of racial attitudes and environmental thought, and fills in an important chapter in the larger story of Indian appropriation. The inter-tribal effort to establish Bears Ears will leave its mark on public lands and conservation law, regardless of the ebbs and flows of current legal disputes.