Author: Matthew L.M. Fletcher – Page 486

Respondents maintain that the Labor Management Relations Act (“LMRA”) does not apply to them because the statute does not expressly abrogate tribal sovereignty. This Court, however, need not determine whether the statute abrogates sovereignty, as Respondents have waived their sovereign immunity and consented to be sued in federal court. See Okla.Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.”) (emphasis added). The CBA-which, again, Respondents concede they agreed to—provides:

For the sole purpose of enabling a suit to compel arbitration or to confirm an arbitration award under this Agreement or the Employer’s Tribal Labor Relations Ordinance, the Employer agrees to a limited waiver of sovereign immunity and consents to be sued in federal court, without exhausting tribal remedies.

Pet., Exh. A at 17 (emphasis added). There is no indication that Respondents entered into this unequivocal waiver involuntarily. See White v. Univ. of Cal., 765 F.3d 1010, 1025–26 (9th Cir.2014) (“A voluntary waiver by a tribe must be unequivocally expressed.”) (internal quotation marks omitted).

Contrary to Respondents’ suggestion, the United States Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), does not compel a different result. In fact, that opinion reconfirmed that an Indian tribe may waive its sovereign immunity: “we have time and again treated the doctrine of tribal immunity as settled law and dismissed any suit against a tribe absent congressional authorization or a waiver.” 134 S.Ct. 2030–31 (internal quotation marks, brackets, and parentheses omitted); see also id. at 2035 (“[I]f a State really wants to sue a tribe for gaming outside Indian lands, the State need only bargain for a waiver of immunity.”).

SCOTUS Denies Cert in CashCall v. Inetianbor

April 6, 2015Matthew L.M. Fletcher

Here is the order list.

We posted the cert stage briefs here.

Lower court materials here.

District court materials here.

National Native American Bar Association Study Released

April 6, 2015Matthew L.M. Fletcher

WWW.NATIVEAMERICANBAR.ORG
For Immediate Release, April 6, 2015
Contact: Mary L. Smith (202) 236-0339

NNABA RELEASES HISTORIC RESEARCH STUDY OF
NATIVE AMERICAN ATTORNEYS

Phoenix, AZ. — Today, the National Native American Bar Association (NNABA) and NNABA Foundation released the results of the first-of-its-kind research study on Native American attorneys. This research is the only comprehensive research regarding Native American attorneys across all practice settings where each and every of the over 500 survey respondents identified as Native American.

One of the powerful findings of this study is that Native Americans often feel invisible and share an overarching perspective that their experiences are not valid or real. In addition to documenting the failure of traditional diversity and inclusion efforts to reach Native American attorneys, the study sheds light on unique challenges facing American Indians. Native Americans are clearly behind even other underrepresented groups in terms of inclusion, retention, and representation.

“This comprehensive research is not only the first – but the only – research that examines the experiences of Native American attorneys across all practice settings. It presents a stark portrait of an entire group of attorneys systematically excluded from the legal profession,” said Mary Smith, NNABA President. “It is clear that traditional diversity and inclusion programs are simply not working for Native American attorneys. NNABA hopes that this research will be used to build a more robust pipeline of Native American attorneys and to work toward the full inclusion of Native Americans in the legal profession.”

Highlights of the research include:

The survey captured information from 527 Native American attorneys, approximately 20% of the 2,640 Native American attorneys in the United States.
The most satisfied attorneys were working in the tribal sector, and the least satisfied attorneys were working for the federal/state government or law firms; however, tribal politics/cliques, overwhelming workloads, and not being able to make an impactful difference were cited as primary sources of dissatisfaction even in the context of being generally satisfied.
Over 40% of the attorneys overall in the study reported experiencing demeaning comments or other types of harassment based on their race, ethnicity, and/or tribal affiliation; and 33.63% reported experiencing one or more forms of discrimination based on their race, ethnicity, and/or tribal affiliation.
Women were more likely than men to report demeaning comments and/or harassment based on gender (38% to 3%); discrimination based on gender (35% to 4%); denial of advancement or promotional opportunities due to gender (21% to 3%); and denial of appropriate compensation due to gender (29% to 1%).
Over 76% of the attorneys in this study reported that more awareness and understanding of issues faced by Native Americans would have a positive impact on their careers. In comparison, only 60% of the attorneys felt that more effective implementation of diversity and inclusion policies in their workplace would have a positive impact on their careers. This is not surprising given the ways diversity and inclusion initiatives have largely ignored the issues and concerns of Native American attorneys.

For more information and to view the full report and the executive summary, go tohttp://www.nativeamericanbar.org/native-american-attorney-study/.

Founded in 1973, NNABA serves as the national association for American Indian, Alaska Native, and Native Hawaiian attorneys, judges, law professors and law students. NNABA strives for justice and effective legal representation for all American indigenous peoples; fosters the development of Native American lawyers and judges; and addresses social, cultural and legal issues affecting American Indians, Alaska Natives, and Native Hawaiians.

For more information contact 480-727-0420 or visit www.nativeamericanbar.org.

Michigan NALSA Event on Keystone XL Pipeline

April 3, 2015April 5, 2015Matthew L.M. Fletcher1 Comment

Colin Kavanaugh

The Michigan law school community

Leah Jurss on Creative Remedies for Tribes Extending Civil Infraction Systems over Non-Indians

April 3, 2015April 3, 2015Matthew L.M. Fletcher

Our own Leah Jurss (MSU Law ’15, MSU Law Review EIC, White Earth Ojibwe) has published “Halting the Slide Down the Sovereignty Slope: Creative Remedies for Tribes Extending Civil Infraction Systems over Non-Indians” in the Rutgers Race and The Law Review.

An excerpt:

The best option for tribes is to work towards building open communications with non-Indians residing on reservations, non-Indians visiting reservations, and state and local governments surrounding reservations. These communications can help to build trust between all parties and a base of empirical evidence showing the effectiveness of tribal civil infraction systems. It is imperative that tribal jurisdiction over non-Indians not be reduced any more than it currently is to ensure the continuing success and viability of tribal nations themselves. A tribal nation that does not have the ability to protect itself from harmful outside influences via its tribal courts has little ability to ensure the safety and security of its citizens, a priority of all sovereign nations.

Materials in Wrongful Death Action against Mississippi Choctaw

April 2, 2015April 2, 2015Matthew L.M. Fletcher1 Comment

Here are the briefs in Payne v. Mississippi Band of Choctaw Indians (S.D. Miss.):

12 Motion to Dismiss

15 Opposition

News coverage here.

Hopi Tribe Trust Breach Claim re: Safe Drinking Water Fails in Federal Circuit

April 2, 2015Matthew L.M. Fletcher

Here is the opinion in Hopi Tribe v. United States.

An excerpt:

The Hopi Tribe filed suit against the United States in the Court of Federal Claims seeking damages to cover the cost of providing safe drinking water on the Hopi Reservation. In order to invoke the trial court’s jurisdiction, the Hopi Tribe must identify a statute or regulation imposing a specific obligation on the United States to provide adequate drinking water that would give rise to a claim for money damages. Because the Court of Federal Claims properly concluded that the Hopi Tribe failed to identify any source for a money-mandating obligation, we affirm

Briefs:

Hopi Tribe Brief

US Answer Brief

Hopi Reply

Lower court materials here.