Author: Matthew L.M. Fletcher

Kirsten Carlson on Congress, Tribal Recognition, and Legislative-Administrative Multiplicity

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.

Here is the abstract:

For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.

Highly recommended.

 

Federal Court Dismisses (for third time) Prisoner Complaint against Navajo Police

Matthew L.M. Fletcher

Here are the orders in Francisco v. Navajo Nation Police Dept. (D. Ariz.):

18 DCT Order Granting IFP Status

20 DCT Order on First Amended Complaint

23 DCT Order on Second Amended Complaint

Federal Court Affirms Constitutionality of Gun Lake Trust Land Reaffirmation Act

Matthew L.M. Fletcher1 Comment

Here is the decision in Patchak v. Jewell (D. D.C.):

Patchak v Jewell – Gun Lake Tribe (Judge Leon Opinion)

Briefs:

78 Gun Lake Tribe Motion for Summary J

80-1 Patchak Motion for Summary J

85 US Opposition

86 Gun Lake Tribe Opposition

87 Patchak Opposition to Gun Lake Tribe Motion

88 Gun Lake Tribe Reply

90 Patchak Reply

The statute is here.

American Indian Prisoner Religious Freedom Complaint

Matthew L.M. Fletcher2 Comments

Here is the complaint in McCarter v. Beard (C.D. Cal.):

McCarter RLUIPA Amended Complaint

Federal Court Requires Financial Planning Company to Exhaust Tribal Remedies

Matthew L.M. Fletcher

Here are the materials in United Planners Financial Services of America LLP v. Sac and Fox Nation (W.D. Okla.):

13 Housing Authority Motion to Dismiss

17 Sac & Fox Nation Motion to Dismiss

18 Response to 13

19 Housing Authority Reply

20 Response to 17

21 Sac & Fox Nation Reply

22 DCT Order

The complaint is here.

Tribal court materials are here.

 

Tenth Circuit Sides with Ute Indian Tribe in Dispute with State and Counties over Indian Country Criminal Jurisdiction

Matthew L.M. Fletcher4 Comments

Here is the opinion in Ute Indian Tribe v. State of Utah:

14-4028

An excerpt:

In our layered system of trial and appellate courts everyone’s assured at least two chances to air a grievance. Add to this the possibility that a lawsuit might bounce back to the trial court on remand or even rebound its way to appeal yet again — or the possibility that an issue might win interlocutory review — and the opportunities to press a complaint grow abundantly. No doubt our complex and consuming litigation wringer has assumed the shape it has so courts might squeeze as much truth as possible out of the parties’ competing narratives. But sooner or later every case must come to an end. After all, that’s why people bring their disputes to court in the first place: because the legal system promises to resolve their differences without resort to violence and supply “peace and repose” at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For a legal system to meet this promise, of course, both sides must accept — or, if need be, they must be made to respect — the judgments it generates. Most people know and readily assent to all this. So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.

And:

A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already. Though we are mindful of the importance of comity and cooperative federalism and keenly sensitive to our duty to provide appropriate respect for and deference to state proceedings, we are equally aware of our obligation to defend the law’s promise of finality. And the case for finality here is overwhelming. The defendants may fervently believe that Ute V drew the wrong boundaries, but that case was resolved nearly twenty years ago, the Supreme Court declined to disturb its judgment, and the time has long since come for the parties to accept it.

Briefs here.

Prisoner Section 1983 Suit against Tribal Police and Judge Dismissed

Matthew L.M. Fletcher

Here is the order in Tramper v. Smith (W.D. N.C.):

2 DCT Order

An excerpt:

Plaintiff’s Complaint will be dismissed for failure to state a claim. Plaintiff purports to bring a civil action pursuant to 42 U.S.C. § 1983 against the tribal prosecutor and the tribal judge who participated in Plaintiff’s criminal action in tribal court for the Eastern Band of Cherokee Indians. Actions brought under 42 U.S.C. § 1983 must allege deprivation of constitutional rights under color of state law, as opposed to under color of tribal law. See R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 1983). Here, Plaintiff does not allege that Defendants were acting under color of state law; indeed, Plaintiff’s claim appears to arise from his criminal conviction in tribal court pursuant to tribal law. Thus, for this reason alone, Plaintiff’s action is subject to dismissal.

In addition, to the extent that Plaintiff purports to sue Defendants in their official capacities, Defendants enjoy sovereign immunity from suit. “Indian tribes are neither states, nor part of the federal government, nor subdivisions of either.” N.L.R.B. v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) (en banc). Unless Congress authorizes the suit or sovereign immunity has been waived, Indian tribes, tribal entities, and persons acting on tribes’ behalf in an official capacity enjoy sovereign immunity against suit. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (tribe); Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (tribal entity), Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479-80 (9th Cir.1985) (tribal officials).

 

Michigan Bar Journal Article on Tribal Court Peacemaking as a Model for State Courts

Matthew L.M. Fletcher

Here is “Tribal Court Peacemaking: A Model for the Michigan State Court System?” by Susan J. Butterwick, Hon. Timothy P. Connors, and Kathleen M. Howard:

Tribal Peacemaking

Students of Color (incl. Natives) Denied Intervention in Anti-Affirmative Action Suit Targeting Harvard

Matthew L.M. Fletcher

Here are the materials in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (D. Mass.):

31 Motion to Intervene

37 Opposition

38 Harvard Response

42 Reply

52 DCT Order on Intervention

Eastern Shoshone Tribe In-House Counsel Posting

Matthew L.M. Fletcher

Here:

Assistant Attorney General

Date Posted: 6/2/2015
Employer: Eastern Shoshone Tribe
Location: Ft. Washakie, WY
Job Type: Full-Time
Salary: DOE

The Eastern Shoshone Office of Attorney General is seeking an experienced attorney to serve as Assistant Attorney General. The Assistant Attorney General provides legal advice, representation, assistance and support to the Eastern Shoshone tribal government, its departments and enterprises. The job location offers an excellent quality of life including access to incredible outdoor opportunities in the Wind River Mountain range.

MINIMUM QUALIFICATIONS:

  1. Current active state bar licensure in any state is required, and expectation is that within one (1) year of hire the applicant will obtain licensure in the state of Wyoming; and
  2. Must be licensed or have the ability to be licensed in the Eastern Shoshone and Arapaho Tribal Court within ninety (90) days of hire; and
  3. Must possess knowledge of tribal, state, and federal law, regulations, and administrative procedures; and
  4. Federal Indian law knowledge or experience required; proven record of ability to work directly with tribal governments preferred; and
  5. Must have at least four (4) years legal experience.

This position requires compliance with all Eastern Shoshone Tribe employee policies and regulations. The Eastern Shoshone Tribe is a drug-free workplace. Indian preference applies. All qualified applicants will be considered.

Application Instructions:

Interested applicants should send a cover letter, resume, writing sample, and completed Eastern Shoshone Employment Application to Karen LaCroix, Human Resources Office, P.O. Box 538, Ft. Washakie, WY 82514. Call (307) 332-2005 for more information or to request an Eastern Shoshone Tribe Employment Application.