Author: Matthew L.M. Fletcher – Page 47

SHIPROCK, NAVAJO NATION—Following a full day of testimony, cross-examination, and oral argument on Thursday, Shiprock District Court Judge Genevieve Woody granted the Navajo Nation’s motion for a Temporary Restraining Order and Preliminary Injunction to immediately stop defendant Dineh Benally’s illegal hemp farming activities on Friday.

“We respect the ruling of the Shiprock District Court. The ruling allows our law enforcement officers to enforce the temporary restraining order and preliminary injunction to stop the production of hemp. We strongly urge everyone to respect the ruling of the court and move forward peacefully to ensure the safety of community members, police officers, and everyone in the impacted areas. Lastly, I commend the Navajo Nation Department of Justice and outside legal counsel for their commitment to this case,” said Navajo Nation President Jonathan Nez.

In granting the motion, Judge Woody found that the Navajo Nation had met its burden by demonstrating (1) a protected right or interest and a high likelihood of success on the merits; (2) that irreparable harm to that right is likely to occur unless a preliminary injunction is issued; (3) that harm is substantial in nature; and (4) that the moving party had no other adequate remedy at law.

In ruling from the bench, Judge Woody cited to the testimony offered on behalf of the Navajo Nation by both Navajo Nation government officials and the citizens and residents who have been directly impacted by Defendant Benally’s illegal hemp farming.

The Navajo Nation filed this lawsuit on June 12, 2020 seeking to stop the illegal and unregulated growth, production, transporting, licensing, and selling industrial hemp within the exterior boundaries of the Navajo Nation. Defendants in the case are Dineh Benally, in his personal and official capacity, the Native American Agricultural Company and Navajo Gold Company, which are both controlled by Benally.

Defendant Benally began growing hemp without Navajo Nation’s approval required by the 2018 Farm Bill and regulations of the United States Department of Agriculture. Despite his claims,

Defendant Benally also does not have the required approval of the USDA for his hemp cultivation activities. The expansion of his operation to hundreds of acres complete with “man camps” for workers, massive growth facilities that include hundreds of greenhouses has drained law enforcement resources, caused clear environmental damage, and has created substantial disharmony in the Shiprock and surrounding communities. Benally has also employed aggressive security guards that have intimidated and threatened elders, kids, and other Navajo community members. Benally has also been charged with Aggravated Assault.

“I personally experienced the intimidation and threats of Dineh Benally’s security in Shiprock while working in my official capacity in a clearly marked tribal vehicle, said Navajo Nation Attorney General Doreen N. McPaul. “I am incredibly pleased with the court’s decision today, and on behalf of the Navajo Nation, I would like to offer sincere gratitude to the Nation’s witnesses who came forward to testify in what an intense and confrontational case. We are also grateful to all the community members, neighbors, and farmers who reached out to share their own stories and information about the devastating impact of hemp cultivation activities on themselves, their families, and their property.”

The Court’s action makes clear what the Navajo Nation leadership has made clear each time hemp legislation has been considered – that it is illegal on the lands of the Navajo Nation unless specifically authorized and cultivated under a properly regulated system. To date, the Navajo Nation has not approved tribal regulations for hemp cultivation nor has it submitted a hemp production plan to the USDA for approval.

The Navajo Nation is represented in this case by Charlie Galbraith and Krystalyn Kinsel of Jenner & Block, both are enrolled members of the Navajo Nation.

New Mexico COA Certifies Tribal Gaming/Immunity Cases to New Mexico SCT

September 22, 2020Matthew L.M. Fletcher

Here is the order in Sipp v. Buffalo Thunder Inc.:

36924 and 38636 Certification Order (FINAL)

The question certified:

[W]hether the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721 (2018), permits tribes and states to contract in Tribal-State Class III Gaming Compacts to shift jurisdiction over certain matters to state courts.

Stanford Law Review Online Student Essay Competition

September 22, 2020Matthew L.M. Fletcher

The Stanford Law Review Online is excited to announce our student essay competition!

Two winners will each receive a $500 prize and publication of their up to 5,000 word essay. We encourage submissions from all current students (including LLMs) and recent graduates of any ABA-accredited American law school. We especially encourage submissions from those who have not yet published academic works.

Prompt:

Our theme this year is the ulterior or unintended effects of legal decisions. The law and those who practice it wield considerable power over the lives of the average person. It would be comforting to believe that those who make and interpret laws act with deliberate and benevolent purpose. But that is not always the case. Occasionally, perhaps even often, legal decisions have unintended or ulterior consequences. Sometimes those consequences can be humorous, such as a resident flaunting a Homeowner’s Association rule about paint color by plastering gaudy wallpaper on the outside of her home. Other times, those consequences can be much more tragic, as with exclusionary zoning laws that ensure an absence of affordable housing in affluent areas, exacerbating existing inequities and contributing to evictions and homelessness.

The Stanford Law Review invites current law students and recent alumni of any law school to discuss a legal instrument–including a contract clause, a court judgment, or a federal regulation–that had an unexpected or ulterior effect. We welcome submissions that apply this prompt to policing, the topic of SLR’s forthcoming symposium in coordination with Stanford BLSA.

Rules:

Our competition is open to current law students, LLMs, and graduates of the classes of 2020, 2019, and 2018 from ABA-accredited American law schools. Submissions are limited to one essay of up to 5,000 words (inclusive of footnotes) per person.

Submissions must be unpublished and exclusively submitted to this competition during the competition window, lasting from date of submission to date of final publication decision.

We will begin accepting pieces immediately and will close the submission window on January 4, 2021 at 11:59 PM. We aim to notify all applicants of publication decisions by January 18, 2021.

Please submit your essay as a Word document attachment in an email to Carly Grimes at cgrimes1@stanford.edu. This word document must be blinded. Your name must not appear in the document and you must follow instructions for removing identifying metadata available here: https://tinyurl.com/blindingessay

Direct any questions about the competition to Carly Grimes, cgrimes1@stanford.edu

Justice Ginsburg’s Indian Law Record

September 21, 2020September 21, 2020Matthew L.M. Fletcher

Justice Ruth Bader Ginsburg’s passing offers an opportunity for reflection on her Indian law legacy. As many of you know, we keep a list of modern era Supreme Court cases here. RBG was on the court nearly 30 years, and her record is extensive. It is also, from the point of view of tribal interests, checkered. But if her replacement had a similar record, it wouldn’t be a disaster for Indian country.

Overall, RBG voted in 51 cases in which the Court issued an opinion. She voted with tribal interests 23 1/2 times, against tribal interests 26 1/2 times, and 1 time voted with individual Indians against federal and tribal interests. She wrote 10 majority opinions (nearly 20 percent of those cases!), 3 1/2 favoring tribes (and 1 favoring individual Indians), and 6 1/2 against. Out of these 51 cases, tribes won 19 1/2 cases and lost 32 1/2 (33 1/2, if you count the 1 case involving individual Indians). She voted with tribal interests more often than the Court, but not by much. There are also two cases that were 4-4 ties (tribes won both), but we don’t know where she voted. [there are going to be errors in this post, I did it quickly, so chillax]

Incidentally, tribes have prevailed in 11 out of 13 cases since 2014 (!!!!).

Here are her majority opinions in reverse chronological order:

U.S. v. Bryant (2016)

Decision favoring federal court enhanced sentence under 18 U.S.C. § 117 of habitual D.V. offender with several (dozens?) of uncounseled tribal court convictions.

Sherrill v. Oneida Indian Nation (2005)

Terrible. Some say RBG regretted this decision. Led to the summary evisceration of the New York Haudenosaunee land claims.

Inyo County v. Bishop Paiute (2003)

Held tribes are not “persons” under 42 U.S.C. § 1983, and cannot sue states for violations of federal laws.

United States v. Navajo Nation (2003)

Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.

C&L Enters v. Citizen Potawatomi (2001)

Found an implied waiver of tribal immunity in a boilerplate construction contract. RBG routinely voted against assertions of tribal, state, and federal immunuiy.

Arizona v. California (2000)

Allowed Quechan Tribes water rights claims to proceed.

Montana v. Crow Tribe (1998)

Excused state from having to repay taxes illegally collected from tribe.

Strate v. A-1 (1997)

Held against tribal jurisdiction over a car wreck on a state highway running on trust lands within a reservation.

Babbitt v. Youpee (1997)

Struck down the Indian Land Consolidation Act’s escheatment provision in favor of individual Indian interests.

Oklahoma Tax Commission v. Chickasaw Nation (1995)

Adopted incidence of tax analysis to strike state tax of motor fuels but to allow collection of state income tax of off-reservation income of tribal members.

RBG also wrote important concurrences and dissents. Here is a sampling:

Patchak v. Zinke (2018)

Wrote concurrence affirming constitutionality of Gun Lake Trust Lands Act in 5-4 case.

Lewis v. Clarke (2017)

Wrote concurrence against tribal interests in tribal employee immunity case.

Nevada v. Hicks (2001)

Wrote concurrence, apparently trying to stop the extension of her opinion in Strate.

Here is where I called Donald Trump an asshole for predicting RBG’s death. He remains an asshole.

There is a lot more to say, but this is it for now.

Emory to Host Panel on McGirt

September 20, 2020September 18, 2020Matthew L.M. Fletcher

Monday, October 12 | 4 PM | ZOOM
McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America

In celebration of Indigenous Peoples’ Day, Emory University Professor of English Craig Womack (Creek) chairs a panel discussion titled McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America.

Sarah Deer (Creek), University of Kansas Department of Women’s, Gender, and Sexuality Studies; Barbara Creel (Jemez Pueblo), University of New Mexico School of Law; and Andrew Adams III (Creek), Muscogee Creek Nation Supreme Court; and Professor Womack will explore the implications of the decision regarding the Creek Nation for Oklahoma tribal nations and other parts of Indian Country.

ZOOM registration link for this webinar: https://emory.zoom.us/webinar/register/WN_fY3DxgwFTw-SDJDB_owEbA

This lecture is made possible through the generous financial support of the Hightower Lecture Fund and is co-sponsored by the Native American and Indigenous Students Initiative, the Michael C. Carlos Museum, and the School of Law Health Law, Policy & Ethics Project.

Katherine Florey on Regulatory Sovereignty in the Pandemic

September 19, 2020September 18, 2020Matthew L.M. Fletcher

Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:

The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.