Author: Matthew L.M. Fletcher

NARF: “The impact of Holt v. Hobbs on Native American inmates”

Matthew L.M. Fletcher

Here. An excerpt:

Holt holds that this approach is wrong.  Much like Knight, the Arkansas prison officials in Holtfeared safety and security issues and ignored the successful measures taken by the vast majority of prison systems to safely accommodate religious beards.  The Holt opinion makes clear that these successful, widespread accommodations are indeed relevant and indicate that Arkansas was not utilizing the “least restrictive means.”  Additionally, the Supreme Court emphasized that judges cannot simply defer to the opinions of prison officials as a means of practicing “unquestioning acceptance,” thereby abdicating judicial responsibility to apply RLUIPA’s very rigorous standard.  Courts must demand persuasive proof that denial of an exemption to a specific person is the least restrictive means of furthering compelling penological interests.  Like the prison officials in Holt, the officials in Knight failed to meet this standard, and the court applied an unquestioning acceptance of their opinions.  It is an error that has plagued the cases of several Native American inmates through several decades of litigation, and we believe that Holt provides the clarity necessary to remedy this persistent issue.

The Holt opinion changes a fundamental aspect of how certain prison systems deal with Native Americans and their religious practices.  For those Natives who reside in the darkest corners of U.S. penal systems, it is no longer the rule that they cannot engage in their traditional religious practices merely because their jailors say so.  Courts will demand more, just as Congress intended when it enacted RLUIPA.

NCAI/NCJA Webinar Announcement: “Improving Tribal Access to Victim Services: Lessons from National, State, and Tribal Perspectives”

Matthew L.M. Fletcher

Improving Tribal Access to Victim Services: Lessons from National, State, and Tribal Perspectives

January 29th, 2015

3:00-4:30 PM EST

REGISTER NOW

With high rates of crime and victimization, tribal communities suffer disproportionately from the long-lasting and multi-generational impacts of exposure to violence.   By restoring tribal court jurisdiction over non-Indians who commit acts of dating and domestic violence on tribal lands, the 2013 reauthorization of the Violence Against Women Act (VAWA) renewed the focus on domestic violence in Indian country and the needs of tribal victims. Improving Tribal Access to Victim Services: Lessons from National, State, and Tribal Perspectives will highlight practical approaches to ensuring tribal access to victims funding, compensation, and services. In addition, this webinar will highlight collaborative state, local, and tribal efforts aimed at providing a variety of services to meet the needs of tribal victims.

Presenters:

Dianne Barker Harrold, Attorney & Indian Country Consultant, Member of Cherokee Nation of Oklahoma
Brian Hendrix, Victims of Crime Tribal Liaison for State of Oklahoma, Member of Muscogee Creek Nation
Nikki Finkbonner, Coordinator at Lummi Nation Victims of Crime Program

Moderator:

Steve Siegel, Director, Special Program Unit, Denver District Attorney and Board Member of Unified Solutions and NCJA

Registration Link: https://ncja.webex.com/ncja/k2/j.php?MTID=t5efb68c2c4ffc3a880cba980eb2dc139

NAICJA Announcement: “Developing Tribal Justice Systems in a Public Law 280 State”

Matthew L.M. Fletcher

Join the National American Indian Court Judges Association and the American Indian Law Center for the second in a series of four upcoming webinars on Emerging Practices in Civil Legal Assistance and Criminal Indigent Defense.  The goal of these webinars is to share four emerging practices that incorporate the philosophy, values, and characteristics of successful and effective legal assistance practices. These webinars will also share and highlight multiple programs that are currently implementing these practices.

 

Webinar 2 – “Developing Tribal Justice Systems in a Public Law 280 State” Continue reading →

Forest County Potawatomi Complaint re: Denial of Class III Gaming Compact — And Commentary

Matthew L.M. Fletcher1 Comment

The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

  1. These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law.  The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.
  2.  The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts.  In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community.  Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.
  3. The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit.  This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.  
  4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
  5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter

SCOTUS Upholds Prisoner Religious Freedom Claim in Holt v. Hobbs

Matthew L.M. Fletcher1 Comment

Here is the opinion.
Here is the NYTs article describing the opinion.

NCAI and Huy filed briefs in this matter, here.

Of note, perhaps, Justice Sotomayor authored a separate concurring opinion quoting from two lower court decisions involving Indian or Indian-related claims, Yellowbear and Wilgus.

Western Sky-Related Debt Collector Successfully Compels Arbitration in Virginia Case

Matthew L.M. Fletcher2 Comments

Here are the materials in Hayes v. Delbert Services Corp. (E.D. Va.):

26 Delbert Motion

30 Opposition

31 Reply

38 DCT Order

An excerpt:

This matter cornes before the Court on the defendant’s motion [2]  to dismiss the amended complaint or, alternatively, to compel arbitration. (Dk. No. 30.) The plaintiffs, borrowers from internet payday lender Western Sky Financial, LLC, brought this action on behalf of themselves and others similarly situated against Delbert Services Corporation, a third-party debt collecter. The plaintiffs allege Delbert violated the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”) in the course of its collection efforts. Delbert moves to dismiss based on the Loan Agreements’ forum-selection clause or on the basis of the tribal exhaustion doctrine. Alternatively, Delbert moves to compel arbitration. 

The forum-selection clause does not reach third-party debt collectors such as Delbert, and the doctrine of tribal exhaustion does not apply under the facts of this case. The language of the arbitration agreement, however, covers disputes with third-party debt collectors.

Accordingly, the Court GRANTS the motion to compel arbitration under the terms of the Loan Agreement and DISMISSES the claim without prejudice.

NYTs Article on American Indians’ Negative Response to Father Serra’s Canonization

Matthew L.M. Fletcher

Here is “To Some Indians in California, Father Serra Is Far From a Saint.”

TalkPoverty: “Of Stereotypes and Slack Reporting Standards: The Economist’s Claim that Native American Gaming Leads to ‘Sloth'”

Matthew L.M. Fletcher

Here.

An excerpt:

But an article in this week’s The Economist is a reminder that we haven’t put the bad old days of racially distorted coverage of poverty beyond us. The article claims “cash from casinos makes Native Americans poorer.” According to the author, a particular problem is that tribes distribute part of the revenues directly to members—typically known as “per capita payments”—which encourages “sloth.” The article is accompanied by a photograph of an American Indian man in front of a slot machine, a grin on his face and his arm pumped in the air.

Given research like Gilens’ and the long history of stereotyping American Indians as lazy, The Economist should have been particularly careful to ensure that it had solid evidence to back up its claim. In lieu of such evidence, The Economist relied on a few anecdotes and a single article by a private attorney published in a student-run law review.

We took a closer look at the law review article that The Economist relied on and were not impressed. It purportedly shows that poverty was more likely to increase in certain Pacific Northwest tribes that distributed part of their gambling revenues to members than in those that did not. But there were only seven tribes (out of a total of 17 that the article focused on) that did not distribute gaming revenues directly to members. The total reported decline in poverty among these seven tribes amounted to only 364 people. The study contained no controls for any of the many factors that affect poverty rates, nor did it take into account size differences in the tribes, differences in the size and structure of the per capita payments, or other relevant factors. In short, the study is absolutely useless in terms of providing meaningful evidence to supportThe Economist’s claim.

Kate Fort & Peter Vicaire on Child Welfare and American Indian Active Duty Servicemembers and Veterans

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort and Peter S. Vicaire have posted “The Invisible Families: Child Welfare and American Indian Active Duty Servicemembers and Veterans,” forthcoming in the Federal Lawyer.

The abstract:

Child welfare issues as they involve Native military families are rarely discussed. In the recent case of Adoptive Couple v. Baby Girl, the Supreme Court erased them entirely. The federal government, tribes and states can address issues affecting Native military families in a number of ways discussed in this article, including:

• Kinship placement in contested adoptions put on hold due to deployment;

• Ensuring Memorandums of Understanding between military bases and states include reference to the Indian Child Welfare Act (ICWA);

• Identifying and educating attorneys — including Judge Advocates — on both ICWA and the Servicemembers Civil Relief Act;

• Training Veteran Treatment Court judges on issues specific to Native veterans;

• Modeling specialized state Indian Child Welfare Act dockets on Veteran Treatment Courts;

• Opening conversations between child welfare courts and veterans courts, and assigning one judge per family;

• Encouraging the development of tribal court veterans treatment dockets and engaging with the Veterans Administration (VA) through Veteran Justice Outreach Specialists (VJOs)

HEIDI NESBITT, PLSI DIRECTOR AND AILC ASSISTANT DIRECTOR, TO RECEIVE JUSTICE MARY WALTERS AWARD

Matthew L.M. Fletcher

Here is the American Indian Law Center’s Press Release.

An excerpt:

The Women’s Law Caucus (WLC) at the University of New Mexico School of Law announced that Heidi Nesbitt, the Director of the Pre-Law Summer Institute (PLSI) and Assistant Director of the American Indian Law Center, Inc. (AILC), has been named a recipient of the 2015 Justice Mary Walters Award. The WLC presents the annual award to outstanding women in the New Mexico legal community in honor of former Justice Mary Walters, who was the first woman appointed to the New Mexico Supreme Court. Recipients of the award demonstrate courage, strong ethics, leadership and mentorship in the legal field.