Author: Matthew L.M. Fletcher

The Nation is an indispensible party under Rule 19(b). As discussed above, a judgment in Comenout’s favor would prejudice the Nation’s contractual rights under the lease. Comenout also cannot be accorded complete relief in the Nation’s absence because any injunction would not be binding on the Nation. Further, the relief sought by Comenout cannot be shaped to lessen the potential prejudice to either Comenout or the Nation. Partial relief is also inadequate, because the Nation could still attempt to enforce its rights to use the property for commercial purposes as the lessee.

Federal Court Applies Sherrill Defenses, Tribal Immunity to Dismiss Wolfchild Statutory Land Claims

March 6, 2015Matthew L.M. Fletcher2 Comments

Here is the order in Wolfchild v. Redwood County (D. Minn.):

196 DCT Order Granting Motion to Dismiss

An excerpt:

The Court finds no basis upon which to distinguish this case from those asserted in Sherrill or Stockbridge. It is clear that Plaintiffs’ claims flow from the 1863 Act. It is also clear that the land at issue here was sold to third parties no later than 1895. See Wolfchild IX, 731 F.3d at 1293. Plaintiffs’ claims are thus like those described in Stockbridge: “Indian land claims asserted generations after an alleged dispossession that are inherently disruptive of state and local governance and the settled expectations of current landowners and are subject to dismissal on the basis of laches, acquiescence, and impossibility.” Id. 756 F.3d at 165.

There is no language in Sherrill or Stockbridge that would limit the holdings of those decisions to claims based on aboriginal title.

Based on the particular characteristics and history of the claims at issue here, the Court finds that Plaintiffs’ claims are equitably barred. Application of the equitable bar set forth inSherrill does not require a balancing of equities between the parties. Instead, the equitable bar focuses on Plaintiffs’ delay in seeking relief, and the disruption that would result to settled and justified expectations regarding land ownership. Sherrill, 544 U.S. at 216‐17, 221(finding that “the Oneidasʹ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate”).

Briefs are here.

NCAI Press Release: Tribal Governments Able to Take Criminal Action on Non-Indians

March 6, 2015Matthew L.M. Fletcher

Tribal Governments Able to Take Criminal Action on Non-Indians

Washington, DC- On March 7, 2015, Tribal governments may elect to begin exercising jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands.

“This is a major step forward to protect the safety of Native people, and we thank all Members of Congress for passing the Violence Against Women Act of 2013 and recognizing tribal authority,” said Brian Cladoosby, President of the National Congress of American Indians and Chairman of the Swinomish Tribe.

So far three Tribes, the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes have been able to exercise jurisdiction over non-Indians under a Pilot Project since February 6, 2014. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.

“I want to encourage all tribal governments to get this law on their books,” said Juana Majel, Chair of the NCAI Task Force on Violence Against Women. “The main goal is deterrence of domestic violence. On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries. They need to get the message. If they continue to assault our women we will prosecute and put them in jail.”

Violence against Native women has reached epidemic proportions. The root cause is a justice system that forced tribal governments to rely on distant federal — and in some cases, state —officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women. However, outside law enforcement has proven ineffective in addressing misdemeanor level reservation-based domestic violence. The Justice Department has found that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates. The 2013 VAWA Reauthorization authorizes tribal governments to investigate and prosecute all crimes of domestic and dating violence regardless of the race of the offender.

Tribes choosing to exercise Special Domestic Violence Criminal Jurisdiction must provide the same rights guaranteed under the Constitution as in state court. This includes the appointment of attorneys for indigent defendants and a jury drawn from the entire reservation community. “Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all. Just like county courts, tribal courts can contract for public defenders on a case-by-case basis,” encouraged President Cladoosby.

Key Statistics:

61% of American Indian and Alaska Native women (or 3 out of 5) have been assaulted in their lifetimes

34% of American Indian and Alaska Native women will be raped in their lifetimes

39% of American Indian and Alaska Native women will be subjected to violence by an intimate partner in their lifetimes

59% of assaults against Native women occur at or near a private residence

59% of American Indian women in 2010 were married to non-Native men

46% of people living on reservations in 2010 were non-Natives (single race)

US Attorneys declined to prosecute nearly 52% of violent crimes that occur in Indian country; and 67% of cases declined were sexual abuse related cases

On some reservations, Native women are murdered at more than ten times the national average

For an overview on tribal VAWA, and more information please see: http://www.ncai.org/tribal-vawa. The Tribal Law & Policy Institute has developed a Legal Code Resource for implementation at www.TLPI.org.

Fred Baker Interviews Justice Cavanagh

March 6, 2015Matthew L.M. Fletcher

Here.

An excerpt:

Rhode Island Supreme Court Rejects Narragansett’s Constitutional Challenge to 2011 Casino Act

March 5, 2015March 5, 2015Matthew L.M. Fletcher

Here is the opinion in Narragansett Indian Tribe v. State.

An excerpt:

The plaintiff, the Narragansett Indian Tribe (Tribe), appeals from the entry of partial summary judgment in the Superior Court in favor of the
defendant, the State of Rhode Island (state), and the intervenor defendant, UTGR, Inc. d/b/a
Twin River (UTGR), finding that the 2011 Casino Act, G.L. 1956 chapter 61.2 of title 42
(Casino Act or the act) is not facially unconstitutional. For the reasons set forth in this opinion,
we affirm the judgment of the Superior Court.

News coverage here.

New Scholarship on the Efficacy of Indigenous Community-Based Approaches to Restorative Justice in Alaska

March 5, 2015Matthew L.M. Fletcher

Brian Jarrett and Polly E. Hyslop have posted “Justice for All: An Indigenous Community-Based Approach to Restorative Justice in Alaska” on SSRN. Here is the abstract:

The current study reviews the comparative successes of two restorative justice programs in Alaska, namely, the Upper Tanana Wellness Program and the Circle Peacemaking Program in Kake, Alaska. In an analysis of the two case studies, the authors develop nine principles useful to those interested in developing restorative-justice programs. The authors recommend an Indigenous community-based approach consistent with practice in the field of Dispute Systems Design.