Author: Matthew L.M. Fletcher

Goldwater Institute to File a Class Action Lawsuit Against ICWA

Kate Fort7 Comments

This should be a call to arms for Indian country. This is presumably a well funded organization with a litigation, scholarly, and public relations strategy. Indian country lost Adoptive Couple v. Baby Girl because the adoption industry won the PR battle before Indian country even noticed. It’s time to act.

From the press release we received. This will become the third ongoing federal lawsuit challenging ICWA:


Goldwater Institute to File Class Action Lawsuit Against Indian Child Welfare Act

Institute launching Equal Protection for Indian Children Project to reform federal and state laws that discriminate against abused and neglected Native American children

 Contact: Starlee Coleman, (602) 758-9162

 Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.

 “When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”

 On July 7, the Goldwater Institute will file a federal class action lawsuit to challenge the constitutionality of core provisions of the federal Indian Child Welfare Act. The same day, the Institute will release an investigative report that documents how federal law leaves Native American children with fewer protections under the law than all other American children, and the serious consequences that have resulted from this unequal treatment. Recommendations for changes to state and federal law will also be announced.

 Two weeks ago both the House and Senate passed the Native American Child Protection Act that for the first time requires prospective adoptive and foster parents to be fingerprinted. The Bureau of Indian Affairs is currently considering turning recent guidelines into formal federal rules that would further entrench the legal discrimination against Native American children.

 Clint Bolick, the vice president of litigation at the Goldwater Institute, litigated a class action in Texas in 1995 that was the impetus behind the federal Multi-ethnic Placement Act, which outlawed delays or denials in foster care or adoption placements on the basis of the race, color, or national origin of the child or the adults involved.

 Media is invited to watch via live stream a press event that will formally announce the details of the lawsuit, release the investigation, and policy recommendations, and screen an original 8-minute documentary film. The briefing will feature Dr. William B. Allen, the former chairman of the U.S. Commission on Civil Rights.

 What:              Press conference announcing the Equal Protection for Indian Children Project and federal class action lawsuit

When:             Tuesday, July 7, 2015, 9:00 a.m. Pacific time

Where:           https://www.youtube.com/user/GoldwaterInstitute

Who:               Press event will feature Darcy Olsen, president of the Goldwater Institute; Clint Bolick, the Institute’s vice president of litigation; Mark Flatten, the author of the Institute’s investigative report to be released; Dr. William Allen

 Please contact Starlee Coleman at scoleman@goldwaterinstitute or (602) 758-9162 with questions.

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Torres v. Santa Ynez Band of Chumash Indians Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Cert Petition

Questions presented:

1. Was Petitioner denied due process of law when the Indian Tribal Chairman Armenta filed a false claim in Bankruptcy as part of a long pattern and campaign of harassment against Petitioner and the Bankruptcy Court refused to impose sanctions, simply because she believed she could not find grounds for sanctions because much of the pattern of the ultra vires conduct of Chairman Armenta did not occur in her court?
2. Has the recent decisions of this court in Bay Mills Indian Community, 572 U.S. ___, 134 S.Ct. 2024 and the Ninth Circuit court of appeals recent case in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribes sovereign immunity to evade liability?
3. Even though the sanction motion had to be brought on its face, against the tribe (who waived tribal immunity in the bankruptcy case), the court was authorized in its inherent jurisdiction to impose sanctions against the improper actions of chairman Armenta even though claimed to have been done on behalf of the tribe.

Ninth Circuit materials:

CA9 Memorandum Order

Answer Brief

Torres Opening Brief

Torres Reply

Tulalip Associate Judge Position

Matthew L.M. Fletcher

Here:

Tulalip Associate Judge Job Announcement

Puyallup Court Administrator Job Posting

Matthew L.M. Fletcher

Here:

Tribal Court Administrator, closes 7.17

Amici Press Release in Support of Sac & Fox Nation Cert Petition

Matthew L.M. Fletcher1 Comment
Key Groups File Amicus Briefs in Support of Supreme Court Petition
To Bring Jim Thorpe Home
Members of Congress, Religious Organizations, NCAI Weigh In to Support Petition by Sac and Fox Nation and Thorpe’s Sons to Return His Remains to Oklahoma
 
WASHINGTON – A number of groups – including current and former Members of Congress – are expected to file amicus briefs today urging the Supreme Court to hear a case that could significantly impact the civil and human rights of the more than five million Native Americans across the country.
 
The case centers on the decades-long struggle by Sac and Fox Nation and the sons of American sport legend Jim Thorpe to bring his remains home to Oklahoma for proper burial on his native lands. 
 
The sons and Sac and Fox petitioned the Supreme Court last month to hear the case. They are seeking to uphold a District Court’s ruling that a 1990 law designed to protect Native American remains and artifacts applied in their bid to return the remains of Jim Thorpe to his tribal lands in Oklahoma.
 
The briefs filed today were submitted by current and former Members of Congress; the National Congress of American Indians (NCAI); a group of leading religious organizations; and a group of preeminent law school professors.
 
The current and former Members of Congress include an original sponsor of the law cited in this case – the Native American Graves Protection and Repatriation Act (NAGPRA). This law, sponsored by Senator Ben Nighthorse Campbell and passed by Congress in 1990, states that institutions receiving federal funds must return the remains and sacred objects of Native Americans to their descendants and tribes. The brief makes clear that the Third Circuit’s ruling violates both the text of the law and Congress’ intent in passing it and would have significant negative legal implications for Native Americans across the country.
 
“NAGPRA is one of the most critical pieces of Native American human rights legislation ever passed by Congress; it protects that which is most sacred to all of humanity: the right to be buried in accordance with your own religion and under the same soil as your relatives. The Third Circuit’s refusal to enforce the plain language of the statute is very concerning,” said Senator Ben Nighthorse Campbell, one of the signers of the amicus briefs filed today by Members of Congress.
 
The family’s efforts to bring Jim Thorpe home began shortly after his third wife interrupted his burial ceremony on the Sac and Fox Nation in 1953 and took his body. She toured the nation for a year seeking the highest bidder for his remains until two small former coal-mining towns in Pennsylvania offered $500 and a promise to establish the Borough of Jim Thorpe. Despite having no connection to the Pennsylvania towns during his lifetime, Mr. Thorpe continues to be buried there and exploited for tourism – a blatant example of historical and ongoing disregard for Native American traditions and culture in modern American society.
 
“Since when does a court get to decide that someone’s religious beliefs are absurd?” said Stephanie Barclay, Counsel at the Becket Fund for Religious Liberty. “No American’s faith should be mocked by our courts. Jim Thorpe said he wanted to be buried with his family and his tribe, and that should have been the end of it. Especially given the history of mistreatment of Native Americans by government officials, there should be particular care taken to protect their religious practices.”
 
“By ruling that NAGPRA’s protections for religious beliefs in the case were absurd, the Third Circuit opened the door for judges across the country to decide, like Goldilocks, what religious beliefs are ‘just right,’” added Barclay. “Judges have no business making those determinations in our diverse American society.”
 
In 2013, three years after the Sac and Fox Nation and the Thorpe sons first filed their case, a federal District Court agreed that the Pennsylvania borough is an entity covered by NAGPRA because the town’s operations were subsidized by the federal government. NAGPRA routinely applies to other state and local governments, and so the ruling was not remarkable.  However, in 2014, the Third Circuit Court of Appeals invoked a seldom-applied legal theory called the “absurdity doctrine” to overturn the District Court’s decision – a ruling that even the Circuit Court acknowledged contradicted a plain reading of the law. The case raises significant legal concerns about the power of federal courts to disregard the plainly stated intent of laws enacted by Congress.
 
“In substituting its own views and judicially creating exceptions and requirements, the Third Circuit threatens Native American culture by limiting the process Native Americans utilized to regain sacred cultural items. This Court should grant certiorari to review and reverse that decision,” wrote the National Congress of American Indians (NCAI) in their amicus brief filed today.
 
In their brief, NCAI also underscored this case’s exceptional importance to the 566 federally-recognized Indian tribes, the 5.2 million individual Native Americans and Alaska Natives, and the 1.2 million Native Hawaiians across America, saying “the Third Circuit establishes dangerous precedent that could have substantial impacts on tribal cultures throughout the nation.”
 
“This is a critically important case,” said Joshua Segal, Partner at Jenner and Block. “In dismissing the NAGPRA suit brought by Jim Thorpe’s sons, the Third Circuit misused the ‘absurdity doctrine’ and ignored other tools of statutory construction. The Court of Appeals’ decision is dangerous for this vital civil rights statute and warrants the Supreme Court’s review.”
 
Jim Thorpe, given his Indian name Wa-tha-huk (Light after the Lightning or Bright Path) by the Thunder Clan of Black Hawk, was voted Greatest Athlete of the 20th Century in ABC’s Wide World of Sports poll held in 2000, beating out 14 other athletes including Muhammad Ali, Babe Ruth, Jack Nicklaus and Michael Jordan. His remarkable performance at the 1912 Olympic Summer Games, winning gold medals in the decathlon and pentathlon, was matched by his skills in professional baseball (1913-19) and professional football (1917-29). In 1920, Jim Thorpe was selected as the first president of the American Professional Football Association (APFA), which became the National Football League (NFL) in 1922. Thorpe is a member of ten halls of fame, including the College Football Hall of Fame and the Professional Football Hall of Fame, of which he was an inaugural inductee. In his lifetime, Jim Thorpe also worked to obtain recognition for the rights of Indians and tribes.
 
The Sac and Fox Nation, Jim Thorpe’s sons and other supporters also launched the “Bring Jim Thorpe Home” campaign last month, which calls for his remains to be returned from the Borough of Jim Thorpe in eastern Pennsylvania to his tribal homelands in Oklahoma, where he wished to be buried. The campaign launched with an event in Oklahoma City in June, and will also include events in St. Paul, Minn., and Washington, D.C., over the coming weeks. More information about the campaign can be found at http://www.narf.org/cases/bring-jim-thorpe-home/; on Twitter at www.Twitter.com/BringThorpeHome and #BringJimThorpeHome; and on Facebook at www.Facebook.com/BringJimThorpeHome.

 

Crow Allottees Challenge to Crow Water Compact Dismissed on Federal Immunity Grounds

Matthew L.M. Fletcher4 Comments

Here are the materials in Crow Allottees Association v. Bureau of Indian Affairs (D. Mont.):

35 BIA Motion for Judgment on the Pleadings

38 Response

42 BIA Reply

59 DCT Order

Amicus Briefs in Support of Cert Petition in Sac & Fox Nation v. Borough of Jim Thorpe

Matthew L.M. Fletcher

Here:

15-07-01 Members of Congress Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

NCAI Amicus Brief

15-07-02 Religious Groups Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

15-07-02 Scholars Amicus Brief (Sac & Fox Nation v. Borough of Jim Thorpe, No. 14-1419)

Petition is here.

Dollar General v. Mississippi Band of Choctaw Indians Background Materials

Matthew L.M. Fletcher9 Comments

In anticipation of the briefing of Dollar General v. Mississippi Band of Choctaw Indians, the Supreme Court’s next foray in tribal civil jurisdiction, we provide some background materials on the cases and tribal civil jurisdiction in general.

Continue reading →

Split Sixth Circuit Panel Affirms NLRB Jurisdiction over Saginaw Chippewa’s Soaring Eagle Casino

Matthew L.M. Fletcher2 Comments

Here is the opinion:

2015-07-01 Soaring Eagle Decision

Briefs here.

American Indian Law Journal Call for Papers

Matthew L.M. Fletcher1 Comment

The American Indian Law Journal, published by the Seattle University School of Law, is currently accepting submissions for potential publication in the fall 2015 issue.  The American Indian Law Journal serves as a vital online resource providing high quality articles on issues relevant to Indian law practitioners and scholars across the country. The deadline for submissions for the fall issue is July 20, 2015. The editing process for publication begins soon after this date.

 

The American Indian Law Journal accepts articles and abstracts for consideration from students, practitioners, and law school faculty members.  For more information or to submit an article, please contact Grace Chu, Content Editor, at chug@seattleu.edu.