Author: Matthew L.M. Fletcher

Ninth Circuit Allows Suit by “Advantage Gamblers” against Tribal Casino Officials under Maxwell Precedent

June 30, 2015Matthew L.M. Fletcher1 Comment

Here is the opinion in Pistor v. Garcia:

From the court’s syllabus:

The panel affirmed the district court’s denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants’ motion to dismiss the action.

The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court’s denial of defendants’ motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe.

The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.

Briefs and lower court materials here.

TCAP Tribal Courts Conference Protecting Indian Children August 20-21, 2015

June 30, 2015Matthew L.M. Fletcher

Here:

August–TCAP conference save the date

Basic Court Clerk Certification August 19-21, 2015

June 30, 2015June 30, 2015Matthew L.M. Fletcher

SAVE THE DATE

* August 19 – 21, 2015

Radisson By Mall of America in Bloomington, Minnesota

This Basic Clerk Training is a certification that will provide court clerks with the basic skills to use in their role within the tribal court.

Registration is now open, apply early as scholarships are limited.

For more information & updates on this event please visit our website http://law.und.edu/tji/

Contact Lynnette Morin if you have any questions at 701-777-6306 or email lynnette.morin@law.und.edu

Hotel information: Radisson by Mall of America, Bloomington, MN

We are finalizing the rooming block and that information will

be forwarded to you.

This project was supported by Grant No. 2011-IC-BX-KO36 awarded by the Bureau of Justice Assistance (BJA).The Bureau of Justice Assistances
a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, the Community Capacity Development Office, and the Office of Sex Offender Sentencing, Monitoring, Apprehending. Registering and Tracking. Points of View or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

SCOTUS Grants Cert in Menominee Tribe v. United States

June 30, 2015Matthew L.M. Fletcher

Here is the order list. From the order list:

The petition for a writ of certiorari is granted limited to the following question: Whether the D. C. Circuit misapplied this Court’s Holland decision when it ruled that the Tribe was not entitled to equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act?

Cert stage briefs are here and here.

Ninth Circuit (Largely) Rejects Alaska Eskimo Whaling Commission Challenge to Oil & Gas Exploration Permits

June 29, 2015Matthew L.M. Fletcher2 Comments

Here is the opinion in Alaska Eskimo Whaling Commission v. EPA:

13-70633

From the court’s syllabus:

The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.

The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of noncontact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because
of the effect of such discharge on bowhead whales, including deflection from their migratory paths.

The panel denied the petition in all other respects because the EPA’s issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.

New Federal Acknowledgment Process Regs

June 29, 2015June 29, 2015Matthew L.M. Fletcher1 Comment

Department of the Interior Announces Final Federal Recognition Process to Acknowledge Indian Tribes
Initiative Reforms a Process Long Criticized as “Broken,” Increases Transparency in Important Review of Tribal Recognition Status

WASHINGTON – U.S. Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn today released a final rule to reform the regulatory process by which the Department of the Interior officially recognizes Indian tribes. The updated rule promotes a more transparent, timely and consistent process that is flexible enough to account for the unique histories of tribal communities, while maintaining the rigor and integrity of the criteria that have been in place for nearly 40 years.

“Since the beginning of President Obama’s Administration, the Department has worked with tribal and government leaders on improving the federal acknowledgment process, which has been criticized as inconsistent, slow and expensive,” Secretary Jewell said. “This Administration takes very seriously its important trust and treaty responsibilities to Native Americans and Alaska Natives. This updated process for important tribal recognition makes good on a promise to clarify, expedite and honor a meaningful process for federal acknowledgement to our First Americans.”

“This updated rule is the product of extraordinary input from tribal leaders, states, local governments and the public,” said Assistant Secretary Washburn. “We have a responsibility to recognize those tribes that have maintained their identity and self-governance despite previous federal policies expressly aimed at destroying tribes. This new process remains rigorous, but it promotes timely decision-making through expedited processes and increases transparency by posting all publically available petition materials online so that stakeholders are well-informed at each stage of the process. Many of these improvements came from public comments by stakeholders and we are grateful for their guidance.”

To maintain the substantive rigor and integrity of the current regulatory process (described in Part 83, Title 25 – Code of Federal Regulations), the final rule carries forward the current standard of proof and seven mandatory criteria that petitioners must meet to substantiate their claim to tribal identification, community and political authority. To promote fairness and consistent implementation, the new process provides that prior decisions, which found evidence or methodology sufficient to satisfy a particular criterion for a previous petitioner, are sufficient to satisfy that criterion for a present petitioner. The final rule further promotes consistent application by establishing a uniform evaluation period of more than a century, from 1900 to the present, to satisfy the seven mandatory criteria.

Key features of the final rule promote transparency by:

Increasing public access to petition documents for Federal Acknowledgment;
Expanding distribution of notices of petitions to include local governments; and
Increasing due process by providing for an administrative judge to conduct a comprehensive hearing and issue a recommended decision for proposed negative findings.

In a separate action, Assistant Secretary Washburn issued a policy statement explaining that the Department intends to rely on the newly reformed Part 83 process as the sole administrative avenue for acknowledgment as a tribe as long as the new rule is in effect and being implemented.

To build public trust in the Federal Acknowledgement process, the Department has been working to reform the Part 83 process since the beginning of the Obama Administration. At that time in 2009, Interior initiated its own review. In 2012, the Department identified guiding principles of the reform effort. In recognition of the high level of interest, the Department used a transparent rulemaking approach and significant outreach effort. Before beginning the formal rulemaking initiative, Interior issued a discussion draft in 2013 to facilitate public input on how to improve the process.

Through the discussion draft and ensuing tribal consultations and public meetings, the Department obtained substantial feedback. In total, more than 2,800 commenters provided input on the discussion draft. The Department issued a proposed rule in May of 2014 and extended the public comment period on that proposal in response to requests from tribes, state and local governments, members of Congress and the public. In total, more than 330 unique comments were submitted on the proposed rule. The final rule reflects substantial changes to the discussion draft and the proposed rule in response to public comments.

Federal acknowledgment establishes the U.S. Government as the trustee for Tribal lands and resources and makes Tribal members and governments eligible for federal budget assistance and program services. Since 1978, of the 566 federally recognized tribes, 17 have been recognized through the Part 83 process under Title 25 of the Code of Federal Regulations, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. The Department has denied acknowledgment to 34 other petitioning groups.

Though far more tribes have been recognized through Executive or Congressional action, the Part 83 process is an important mechanism because it allows deliberative consideration of petitions by a staff of federal experts in anthropology, genealogy and history and ultimately allows for a decision by the Assistant Secretary-Indian Affairs. When petitioning groups that meet the criteria are officially “acknowledged” as Indian tribes, the U.S. Government accepts trusteeship of Tribal lands and natural resources. Tribal governments and members then become eligible to receive federal health, education, housing and other program and technical assistance.

The final rule and other information is online here.

Federal Court Dismisses Appeal to Tribal Court Child Support Order

June 29, 2015Matthew L.M. Fletcher

Here is the federal court order in In re Maney (W.D. N.C.):

3 DCT Order

Turtle Talk