Author: Matthew L.M. Fletcher

Native American Law Library Bulletin (7/29/2016)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 7/29/16.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2015-2016update.html
Petition for certiorari was filed on 7/7/16 in Kelsey v. Bailey (Indian Civil Rights Act – Due Process)

In addition, see the Tribal Supreme Court Update Memoranda of July 14, 2016.

U.S. Courts of Appeals Bulletin
http://www.narf.org/nill/bulletins/cta/2016cta.html
Mackinac Tribe v. Jewell (Tribal Federal Recognition)
Patchak v. Jewell (Land into Trust)
Poarch Band of Creek Indians, Plaintiff-Counter Defendant-Appellee, v.
James Hildreth, Jr., in his official capacity as Tax Assessor of Escambia County, Alabama, Defendant-Counter Claimant-Appellant (Indian Lands – Taxation)
United States v. Barnett (Embezzling Funds from Indian Tribe)

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
Renteria v. Shingle Springs Band of Miwok Indians (Child Custody – Tribal Court Jurisdiction)
United States of America vs. Tawnya Bearcomesout (Double Jeopardy)
Green v. Director/Secretary, California Department of Corrections and Rehabilitation (Prisoners – Religious Freedom)

State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2016state.html
In re Abbigail A. (Indian Child Welfare Act – Application of)
In re Alexandria P. (Indian Child Welfare Act – Placement)
In re Isaiah W. (Indian Child Welfare Act – Notice)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Intergovernmental section, we feature some articles about national Republican and Democrat positions relating to Native Americans.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/114_uslegislation.html
Seven new bills were added:
S.3234: Indian Community Economic Enhancement Act of 2016.
S.3261: A bill to establish a business incubators program within the Department of the Interior to promote economic development in Indian reservation communities.
S.3273: A bill to make technical corrections to the Alaska Native Claims Settlement Act, and for other purposes.
H.R.5909: To ensure equitable treatment of Shee Atika, Incorporated under the Alaska Native Claims Settlement Act by facilitating the transfer of land on Admiralty Island, Alaska and for other purposes.
S.3216: A bill to repeal the Act entitled “An Act to confer jurisdiction on the State of Iowa over offenses committed by or against Indians on the Sac and Fox Indian Reservation.”
H.R.5811: To authorize the Secretary of the Interior to assess sanitation and safety conditions at Bureau of Indian Affairs facilities that were constructed to provide treaty tribes access to traditional fishing grounds and expend funds on construction of facilities and structures to improve those conditions, and for other purposes.
H.R.5854: To amend title 18, United States Code, to enhance protections of Native American cultural objects, and for other purposes.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
These articles were added:
The place of the First Peoples in the international sphere: a logical starting point for the demand for justice by Indigenous Peoples.
Commentary: federal treaty and trust obligations, and ocean acidification.
Practical reasoning and the application of general federal regulatory laws to Indian Nations.
Plenary power, political questions, and sovereignty in Indian affairs.

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
The Department of the Interior, Bureau of Indian Affairs, provided a notice of training sessions on the new Indian Child Welfare Act regulations.

California Appellate Court Finds Waiver of Tribal Immunity in Dispute over Authority of Council to Waive Immunity

Matthew L.M. Fletcher1 Comment

Here is the opinion in Findleton v. Coyote Valley Band of Pomo Indians (Cal. Ct. App.).

An excerpt:

This appeal requires us to determine whether a Native American tribe known as the Coyote Valley Band of Pomo Indians (the Tribe) validly waived its sovereign immunity for purposes of the enforcement by construction contractor Robert Findleton (Findleton) of arbitration provisions in contracts between them. Findleton claims the Tribe waived its sovereign immunity when its Tribal Council entered into, and then amended, contracts with Findleton containing arbitration clauses and also adopted a resolution expressly waiving sovereign immunity to allow arbitration of disputes under the contracts. The Tribe disagrees, arguing the Tribal Council lacked authority to waive the Tribe’s immunity and therefore any such waivers were invalid, because the power to waive the Tribe’s immunity had not been properly delegated to the Tribal Council in accordance with the procedures specified by the Tribe’s constitution. The superior court agreed with the Tribe and held that it lacked jurisdiction over Findleton’s claims because there had been no valid waiver of the Tribe’s sovereign immunity. Findleton appealed.

 

D.C Circuit Affirms Interior Trust Acquisition for Cowlitz

Matthew L.M. Fletcher1 Comment

Here is the opinion in Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell:

Confederated Tribes of Grand Ronde Community v. Jewell DC Cir 7-19-16

Briefs here.

Justice Ginsburg Corrected Minor Error in Bryant Decision

Matthew L.M. Fletcher

Here is the NYTs article discussing post-decision amendments and corrections in Supreme Court opinions more generally.

An excerpt:

On the last day of June, for instance, a deputy solicitor general Michael R. Dreeben, wrote a letter to the court saying there had been a mistake in a decision issued a few weeks before. He asked the court to fix the error, and, a week later, it did.

Writing for the majority in a case about domestic assault on Indian reservations, Justice Ruth Bader Ginsburg had said a federal law applied to some serious crimes “when both perpetrator and victim are Indians.” But what the law itself actually said, quite clearly, was that it applied to all victims, Indians or not.
 

When Mr. Dreeben’s letter arrived, the court promptly sent it to reporters. When the court amended the decision to adopt the revised language Mr. Dreeben had suggested, its website noted the change.

Seminole Tribes Prevails in Sovereign Immunity Dispute with Slip and Fall Plaintiffs

Matthew L.M. Fletcher

Here is the opinion in Seminole Tribe of Florida v. Schinnler (Fla. Ct. App.).

An excerpt:

Here, the tribe established that no resolution, ordinance or compact including a waiver of immunity was enforceable in 2009 when the plaintiff’s claim arose. The resolution (No. C–195–06) passed by the Tribal Council authorized the tribe to enter into the 2007 compact. While the 2007 compact provided a limited waiver of immunity, our supreme court held the compact invalid. Crist, 999 So.2d at 616. The tribe also provided an affidavit attesting that no waiver of sovereign immunity was in effect when the claim arose. The plaintiff did not rebut this affidavit, nor could she have done so.
There is no factual dispute. The trial court departed from the essential requirements of law when it denied the tribe’s motion to dismiss. This harm is irreparable if immunity is not given its intended effect.

Interior Loses Mashpee Wampanoag Trust Acquisition Challenge

Matthew L.M. Fletcher

Here are the materials in Littlefield v. Dept. of Interior (D. Mass.):

56 Interior Motion for Summary J

59 Plaintiffs Motion for Summary J

69 City of Taunton Amicus Brief

81 DOI Supplemental Brief

82 Plaintiffs Supplemental Brief

83 USET Amicus Brief

86 Plaintiffs Response to 83

87 DCT Order

Sho Ban Tribe – Water Summit (August 11, 2016)

Matthew L.M. Fletcher

Here is the brochure: TribalWaterWorkshop_ver2

Website here.

 

Second Circuit Affirms Dismissal of Federal Court Challenge to Onondaga Nation’s ICWA Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Pitre v. Shenandoah:

Pitre2ndCir2-18-16

Appellant Brief

Onondaga Brief

Onondaga County Brief

Oswego County Brief

Reply Brief

2016 National Intertribal Tax Alliance Conference (Sept. 13-15, 2016)

Matthew L.M. Fletcher1 Comment

Details here.

Kevin Washburn is the keynote speaker.

As always, NITA is one the premier Indian law conferences of the year.

Conference-Brochure_Page_01

Indian Law Scholarship Update (7/28/2016)

Matthew L.M. Fletcher

Periodically, we’ll put together a package of links to recent Indian law articles, mostly from SSRN, and therefore mostly yet-to-be published. Here’s the first dispatch:

Incl. Electronic Paper Locked Up: Fear, Racism, Prison Economics, and the Incarceration of Native Youth
40 Am. Indian Culture & Research J. 55, 2016
Addie Rolnick
University of Nevada, Las Vegas, William S. Boyd School of Law

Incl. Electronic Paper Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration
Michael C. Blumm
Lewis & Clark Law School

Incl. Electronic Paper Who Owns Our Ancestors’ Voices? Tribal Claims to Pre-1972 Sound Recordings
Trevor G Reed
Columbia University, Law School, Students

Incl. Electronic Paper VAWA 2013’s Right to Appointed Counsel in Tribal Court Proceedings – A Rising Tide That Lifts All Boats or a Procedural Windfall for Non-Indian Defendants?
Case Western Reserve Law Review, Forthcoming
Jordan Gross
University of Montana School of Law

Incl. Electronic Paper Let the Jury Fit the Crime: Increasing Native American Jury Pool Representation in Federal Judicial Districts with Indian Country Criminal Jurisdiction
Montana Law Review, Forthcoming
Jordan Gross
University of Montana School of Law

Incl. Electronic Paper Federal Treaty and Trust Obligations, and Ocean Acidification
Washington Journal of Environmental Law & Policy, Vol. 6, No. 2, Pp. 474-95 (2016), University of Washington School of Law Research Paper 2016-17
Robert T. Anderson
University of Washington School of Law