Author: Matthew L.M. Fletcher

Idaho SCT Decides ICWA Active Efforts Case

Matthew L.M. Fletcher

Here is the opinion for In re Jane Doe.

An excerpt:

Jane Doe appeals from an order terminating her parental rights to her son, TSD. Because TSD is an “Indian child” as that term is defined by the Indian Child Welfare Act, the magistrate court was required to make findings in addition to those required by Idaho law. Among other findings, the Department of Health and Welfare (“DHW”) was required to satisfy the court that it made “active efforts” to “prevent the breakup of the Indian family.” On appeal, Doe argues that the magistrate court erred in finding that DHW made such efforts and erred in failing to make that finding by clear and convincing evidence.

And:

25 U.S.C. section 1912(d) requires that a party seeking termination of parental rights with respect to an Indian child “shall satisfy” the court that active efforts to prevent the breakup of the family have been made, not that the party show by clear and convincing evidence that such efforts have been made. The magistrate court stated that it was satisfied that DHW made active efforts to prevent the breakup of the family. In doing so, it made the finding required by 25 U.S.C. section 1912(d).

Atlantic: “Genetic Testing and Tribal Identity”

Matthew L.M. Fletcher

Here.

An excerpt:

But figuring out where your ancestors came from becomes complicated when it entails a legacy of exclusion of displacement. Tribes each have important cultural histories, that include their origin stories. Many of their histories say that the tribe came from the land, that they arose there and have always lived there. And many of them have more modern histories that include white settlers challenging their right to live where they did. So to many tribal people, having a scientist come in from the outside looking to tell them where they’re “really” from is not only uninteresting, but threatening. “We know who we are as a people, as an indigenous people, why would we be so interested in where scientists think our genetic ancestors came from?” asks Kim Tallbear, a researcher at the University of Texas at Austin, the author of Native American DNA: Tribal Belonging and the False Promise of Genetic Science, and a member of the Sisseton-Wahpeton Oyate tribe.

Tallbear says that from her perspective, researchers offering to tell tribes where they’re from doesn’t look any different than the Christians who came in to tell them what their religion should be. “Those look like very similarly invasive projects to us,” she said. Tribes haven’t forgotten the history of scientists whogathered native skulls to prove that native people were less intelligent, and thus less entitled to the land they lived on than the white settlers. To them, these genetic questions of origin look pretty similar.

Ninth Circuit Rules (Preliminarily) in Favor of Black Mesa Water Coalition in Attorney Fees Dispute

Matthew L.M. Fletcher

Here is the opinion in Black Mesa Water Coalition v. Jewell. From the court’s summary:

The panel reversed in part, and vacated in part, the district court’s judgment in an action for costs and expenses brought by a plaintiff group of environmental and community organizations against the federal Office of Surface Mining Reclamation and Enforcement after plaintiff participated in a successful challenge to OSM’s grant of a coal mining permit revision.

Plaintiff petitioned the agency under the Surface Mining Control and Reclamation Act’s administrative fee-award provision to recover costs and expenses from OSM. The administrative law judge dismissed the fee petition based on the conclusion that plaintiff was not “eligible,” and was not “entitled” to costs and expenses, under 43 C.F.R. § 4.1294(b).

The panel held that its review of the agency’s “eligibility” determination was de novo, and its review of the “entitlement” determination was for substantial evidence. The panel concluded that plaintiff was “eligible” for fees because it showed some degree of success on the merits, and the agency’s contrary conclusion was error as a matter of law. The panel vacated the portion of the district court’s decision as related to the question of entitlement. The panel declined to reach the issue whether plaintiff was “entitled” to fees, and remanded for the agency to consider the issue. Finally, the panel rejected plaintiff’s argument that the Secretary of the Interior had waived a challenge to the reasonableness of any award amount that the agency might grant on remand for costs and expenses reasonably incurred for plaintiff’s participation in the proceedings at the agency level.

And the briefs:

Black Mesa Opening Brief

Interior Appellee Brief

Black Mesa Reply

Black Mesa Supplemental Brief

Interior Supplemental Brief

Black Mesa Supplemental Reply Brief

Oral argument audio here.

 

SCOTUS GVRs Knight v. Thompson — A Native Prisoner Matter — in Light of Holt v. Hobbs

Matthew L.M. Fletcher3 Comments

Here is the order.

BTW, a GVR stands for “grant vacate remand.” It usually means, as I believe it does here, that the Supreme Court has decided a matter that will affect the disposition of another matter pending before the Court at the time. Here, the Court granted cert to review Holt v. Hobbs. and decided that matter last week. Also pending was a cert petition in Knight v. Thompson involving a challenge by a Native prisoner to his warden’s order to cut his hair. the Court held the Native petition while it decided the other petition, which involved a Muslim man’s challenge to his warden’s order to shave his beard.

Now the Knight case will return to the Eleventh Circuit where the court will review the case in light of the decision in Holt.

Materials on Alleged Extortion by Ute TERO Office

Matthew L.M. Fletcher

Here are the relevant materials submitted in Ute Indian Tribe v. State of Utah (D. Utah):

238 Duschene Cty Counterclaim

271 Ute Motion to Dismiss Counterclaim

294 Duschene Cty Opposition to Motion to Dismiss

306 Ute Reply in Support of Motion to Dismiss

417 Ute Motion for Summary J

470 Duschene Cty Response to Motion for Summary J

481 DCT Order on Motion to Dismiss

The order:

At a hearing on January 10, 2013, with all parties present, this matter came before the Court on a Rule 12(b) motion filed by the Ute Indian Tribe of the Uintah and Ouray Reservation, Dkt. 271, to dismiss the counterclaims filed by Duchesne County, Dkt. 239. The Court, having considered the parties’ briefs and oral arguments, rules that Count 1 of the counter-complaint is dismissed with leave to Duchesne County to file an amended pleading within 20 days; the racketeering claims under Count 2 are dismissed for being facially deficient and failing to state a cause of action; and the Court denies the motion to dismiss the remaining claims under Counts 2 through 5 of the counterclaim.

713 Duschene Cty Supplement

771 Duschene Cty Supplement

My sense is that Judge Jenkins is waiting for the Tenth Circuit to decide other matters to make a decision on the tribe’s motion for summary judgment on Duchesne County’s counterclaim. That appeal involves the tribe’s claim that the state and counties are illegally prosecuting tribal members under state law.

In the motion for summary judgment, the tribe is arguing that Article III courts have no jurisdiction, or in the alternative the county must first exhaust tribal remedies.

Tulalip Tribal Court Dismisses State Law-Based Tort Claim against Tribal Business

Matthew L.M. Fletcher

Here is the opinion in Jackson v. Tulalip Tribes of Washington (Tulalip Tribal Court):

Jackson v v Tulalip

Complaint in Atlantic Richfield Co. v. United States over Uranium Mining Remediation on Pueblo of Laguna Lands

Matthew L.M. Fletcher2 Comments

Here is the complaint in Atlantic Richfield Co. v. United States (D. N.M.):

1-1 Complaint

An excerpt:

1. Atlantic Richfield seeks a declaration of its rights and other relief to prevent the United States from imposing upon Atlantic Richfield responsibility for funding or performing any environmental reclamation or remediation work at the Jackpile-Paguate Uranium Mine (the “Jackpile Site” or the “Site”), because Atlantic Richfield paid $43,600,000 to the Laguna and the United States in 1986 for a comprehensive settlement and release of Atlantic Richfield’s environmental liability for the Site.

2. The Jackpile Site is located within the Pueblo of Laguna Reservation in Cibola County, New Mexico. Before, during, and after mining operations at the Site by Atlantic Richfield’s predecessor, the United States held legal title to some or all of the land within the Site. The United States currently holds legal title to some or all of the land within the Site. At all relevant times, the federal trust doctrine imposed, and continues to impose, fiduciary duties upon the United States with regard to all of the land within the Jackpile Site.

3. The United States promoted and encouraged uranium exploration and mining on the Pueblo of Laguna Reservation, including at the Jackpile Site. Beginning in the 1940s, the United States implemented a decades-long program to locate, acquire, and process uranium ore and to purchase uranium ore and uranium concentrate for military purposes. The United States’ uranium procurement program ultimately included the Jackpile Site. Until the late 1960s, the United States was the sole purchaser of all the uranium produced from domestic uranium mines, including from the Jackpile-Paguate Uranium Mine. During this period, the United States exercised pervasive control over the domestic uranium industry, including all aspects of uranium exploration, production, processing, and marketing.

Otoe-Missouria Tribal Lender Appeals Connecticut Dept. of Banking Fines

Matthew L.M. Fletcher2 Comments

Here are the materials in Great Plains Lending LLC v. Connecticut Dept. of Banking (Conn. Super.):

Complaint

Motion for TRO

News coverage here: “Oklahoma tribe appeals $1.5 million in payday lending fines.”

News Profile: “Tribal Payday Lenders Get Comeuppance”

Matthew L.M. Fletcher1 Comment

Here.

From the FTC press release:

Two payday lending companies have settled Federal Trade Commission charges that they violated the law by charging consumers undisclosed and inflated fees. Under the proposed settlement, AMG Services, Inc. and MNE Services, Inc. will pay $21 million – the largest FTC recovery in a payday lending case – and will waive another $285 million in charges that were assessed but not collected.

The Federal Trade Commission’s website on this matter is here.

The stipulated judgment is here.

Wisconsin Gov. Walker Refuses to Concur in Menominee Milwaukee Casino Proposal

Matthew L.M. Fletcher

Here.

Of note, the Wisconsin Department of Administration’s report on the proposal is here.