Author: Matthew L.M. Fletcher

New Papers on Tribal Federalism, Native Voting Rights, and Bay Mills

Matthew L.M. Fletcher

Please take a look:

Tribal Disruption and Federalism
This paper is prepared for the 2014 Honorable James R. Browning Symposium hosted by the Montana Law Review (2015 Forthcoming)
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

The very presence of Indian nations within the borders of the United States and its territories has always been, from the Founding, disruptive. Indian nations are disruptive, but as I will argue, they are disruptive in the best possible manner. This paper will describe several ongoing tribal-state disputes throughout the nation, acknowledging that the tribal claims are disruptive, but that tribal disruption is not inherently harmful.

Native Voting Rights
This short paper is prepared for the University of Texas/Mexican Electoral Tribunal Workshop (September 5-6, 2014).
 Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

American Indians’ status as citizens of federal, state, and tribal nations has been riddled with ambiguity since the Founding of the American Republic. This short paper surveys the history and law of Native political rights in the American constitutional structure before concluding with a discussion about special problems in tribal elections.

Rights Without Remedies
 Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

In Michigan v. Bay Mills Indian Community, the Supreme Court issued a critically important decision on tribal sovereign immunity denying Michigan a forum to enforce its alleged rights under the Indian Gaming Regulatory Act and under state law. The decision reminds me of Oklahoma Tax Commission v. Citizen Potawatomi Nation, where the Court held that Oklahoma could tax tribal smokeshops, but could not sue the tribe to force remittance of the tax revenue. And so for the second time in recent decades, the Court issued a decision that a state had a right under federal Indian law that was unenforceable against an Indian tribe due to sovereign immunity – in other words, a right without a remedy.

The Supreme Court’s primary reasoning in the Bay Mills matter directly focuses the resolution of these kinds of disputes on Congress. Bay Mills did not simply reaffirm tribal immunity – the Court strongly reaffirmed something known as the clear statement rule. The reaffirmation of the clear statement rule could impact many areas of tribal governance beyond tribal sovereign immunity, including labor relations, treaty rights, tribal court jurisdiction, and of course Indian taxation. This paper parses out where the clear statement rule can by utilized by tribal interests for maximum effect, and where reliance upon the rule could generate signals to Congress.

I conclude by identifying the logical outcome of reliance upon the clear statement rule – Congressional reconsideration of tribal immunities. Indian country’s focus on litigation may be forced to give way to the legislative arena. There, tribal interests may be confronted with the rhetoric of rights without remedies.

Ninth Circuit Briefs in Quechan Tribe v. United States — IHS Clinic Dispute

Matthew L.M. Fletcher1 Comment

Here:

Quechan Opening Brief

US Appellee Brief

Reply TK

Lower court materials here.

Heather Kendall-Miller & Lloyd Miller: GOP candidate a threat to Native rights

Matthew L.M. Fletcher2 Comments

From Indianz:

Now that the primary is over and Dan Sullivan is the Republican nominee running against Alaska Senator Mark Begich, it’s time to closely examine his record on issues of import to Alaska Natives. The Native community has long assessed political candidates based on their positions on subsistence, tribal sovereignty, Indian child welfare, and voting rights. In each of these areas, Dan Sullivan’s record is clear: he is a staunch opponent of Native rights.

Perhaps no issue is of greater importance to Alaska Native people than the right to hunt and fish according to ancient customary and traditional practices, and to pass on the subsistence way of life to future generations. Dan Sullivan has aggressively opposed subsistence interests through litigation, legislative initiatives, and support for state policies that marginalize tribal voices.

As Governor Sarah Palin’s Attorney General, Sullivan waged war on subsistence rights by carrying on the Katie John litigation and seeking to overturn a prior court decision affirming the federal government’s retained authority to manage subsistence fisheries in Alaska. As most Alaskans know, Katie John was a revered Ahtna elder who fought tenaciously to protect her right to subsistence fish on her Native allotment in the Wrangell-St. Elias National Park and Preserve.

Attorney General Sullivan joined the ranks of past Indian fighters who argued that the subsistence protections established under the Alaska National Interest Lands Conservation Act should be narrowed to exclude vast stretches of Alaska waters from subsistence fishing, in favor of sport and commercial fishing. Had it been successful, the appeal would have dismantled the Federal Subsistence Board’s authority to prioritize subsistence fishing over other uses when resources become limited. Fortunately, both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court rejected the state’s attack.

Sullivan’s hostility to Native interests continued when Governor Sean Parnell moved Sullivan over to be the Commissioner of the Alaska Department of Natural Resources. As Commissioner, Sullivan led the charge in adopting a new Bristol Bay Area Plan which reclassified land use planning for state land at the Pebble Mine deposit as solely mineral land, omitting any land use for subsistence hunting and fishing purposes in an area central to subsistence in southwest Alaska.

Continue reading →

Split Ninth Circuit Panel Affirms Dismissal of Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Matthew L.M. Fletcher2 Comments

Here is the opinion in White v. University of California.

From the court’s syllabus:

The panel affirmed the district court’s dismissal of an action under the Native Graves Protection and Repatriation Act on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action.

The action concerned the “La Jolla remains,” two human skeletons discovered during an archaeological excavation on the property of the Chancellor’s official residence at the University of California-San Diego. The tribes claimed the right to compel repatriation of the La Jolla remains to one of the Kumeyaay Nation’s member tribes. Repatriation was opposed by the plaintiffs, University of California professors who wished to study the remains. The professors sought a declaration that the remains were not “Native American” within the meaning of NAGPRA, which provides a framework for establishing ownership and control of newly discovered Native American remains and funerary objects, as well as cultural items already held by certain federally funded museums and educational institutions.

The panel held that the plaintiffs had Article III standing to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly traceable to the challenged action. In addition, this injury was likely to be redressed by a favorable decision.

The panel held that NAGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. The panel held that the “Repatriation Committee,” a tribal organization, was entitled to tribal sovereign immunity as an “arm of the tribe.” In addition, the Repatriation Committee did not waive its sovereign immunity by filing a separate lawsuit against the University or by incorporating under California law.

The panel held that the tribes and the Repatriation Committee were necessary parties under Federal Rule of Civil Procedure 19(a)(1) and were indispensable under Rule 19(b). In addition, the “public rights” exception to Rule 19 did not apply. Accordingly, the district court properly dismissed the action.

Dissenting, Judge Murguia agreed with the majority that the plaintiffs had Article III standing, that NAGPRA did not abrogate the sovereign immunity of the tribes, and that the Repatriation Committee was entitled to sovereign immunity. She would hold, however, that the Committee was not a necessary and indispensable party because it was neither necessary nor indispensable to resolution of the question whether the University properly determined that the La Jolla remains were Native American within the meaning of NAGPRA.

Briefs are here.

Mille Lacs Ojibwe Seeks Judge

Matthew L.M. Fletcher

Here (District Court Judge).

The District Court Judge presides over the District Court of the Mille Lacs Band of Ojibwe Indians and exercises judicial authority over cases in law and equity for the specific purposes of promoting the general welfare, preserving and maintaining justice, and protecting the rights of all persons under the jurisdiction of the Non-removable Mille Lacs Band of Ojibwe. This is a six-year term.

Ninth Circuit to Re-Hear Big Lagoon Rancheria Appeal Sept. 17, 2014

Matthew L.M. Fletcher2 Comments

Here:

Big Lagoon — CA9 Order Setting Oral Argument

En banc materials here.

Panel materials here.

Tenth Circuit Briefs in Ute Indian Tribe v. State of Utah

Matthew L.M. Fletcher2 Comments

Here:

Ute Indian Tribe Brief

Utah Answer Brief

Wasatch Appellees Brief

Duchesne County Answer Brief

Uintah County Answer Brief

Ute Indian Tribe Reply

Lower court materials here and here.

DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS

Matthew L.M. Fletcher

DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS

 

Report to Congress is Requirement under the Tribal Law and Order Act of 2010

 

WASHINGTON – The Department of Justice released today its second report to Congress entitled Indian Country Investigations and Prosecutions, which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010, as well as information about the progress of the Attorney General’s initiatives to reduce violent crime and strengthen tribal justice systems. 

 

The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO), shows prosecutors in 2013 continued to bring substantial numbers of cases to federal court (a 34 percent increase over FY 2009 numbers) and prosecute a substantial majority of all cases referred to them.  Of the cases that were declined for federal prosecution, most were declined for insufficient evidence or because they were referred to another prosecuting authority, such as the tribe, for potential prosecution.  

 

“As detailed in this report, the Department of Justice is making good on our commitment to strengthen cooperation with sovereign tribes, reduce violent crime, and ensure justice for every individual,” said Attorney General Eric Holder.  “From our work to empower Indian women under the landmark Violence Against Women Reauthorization Act, to the task force we established to safeguard children in Indian country from violence and abuse, we have made significant strides – in close partnership with tribal nations – to bolster the safety and security of all American Indian and Alaska Native communities.   As we move forward, we will continue to expand on this critical work; to deepen our ongoing efforts; and to reaffirm our dedication to the promise of equal rights, equal protection, and equal justice for all.”

 

Although declination rates are an imperfect means of evaluating the effectiveness of criminal justice in Indian country or elsewhere, the report shows that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates, such as the Southwest and the northern plains states (which together handled approximately 70 percent of the 2,542 cases resolved in 2013), federal declination rates were the lowest in the nation.  For instance, South Dakota had the second to highest number of cases resolved in the country last year, 470 cases, and one of the lowest declination rates of 26 percent.  Arizona resolved the highest number of cases, 733 cases, and had a declination rate of 28 percent.

 

Associate Attorney General Tony West announced the findings in remarks to the Four Corners Indian Country Conference today on the Navajo Nation in Flagstaff, and met separately with the Attorney General’s advisory subcommittee on Native American issues to discuss the report, among other matters.

 

“We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country,” said Associate Attorney General West.  “This report shows the fruits of this continuing partnership between the federal government and American Indian tribes, including enhancing training and capacity building for tribal court systems and improving responses to victims in Indian country.”

 

“Over the past five years, the Justice Department and our tribal partners have taken important steps forward on our journey toward a safer Indian Country,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and chair of the Attorney General’s advisory subcommittee on Native American issues.  “Vigorous enforcement of federal laws is vitally important to strengthening public safety on American Indian reservations.  We are pleased to see in this report that U.S. Attorney’s Offices across the country continue to work hard to remove the most dangerous offenders and work closely with tribal law enforcement and prosecutors.  These promising numbers are the direct result of this enhanced communication and collaboration.” 

 

“The FBI continues to be committed to public safety in Indian Country,” said FBI Assistant Director Joseph S. Campbell. “Our partnership with federal, state, local, and tribal agencies remains strong as we continue to aggressively address violent crime and victimization in tribal communities.”

 

The information contained in the report shows the following: Continue reading →

Federal Court Holds Alleging Jay Treaty Rights Does Not Create FTCA Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Hodgson v. United States (W.D. Tex.):

7 US Motion to Dismiss

10 Hodgson Response

11 US Reply

17 DCT Order

Berkey Williams LLP 2015 Summer Associate Posting

Matthew L.M. Fletcher

Summer Associate – 2015

Berkey Williams LLP serves Indian tribes and tribal organizations throughout the United States, with offices in Berkeley, California and Washington D.C. Our law firm works  exclusively with Tribes and Tribal organizations to promote and protect their political, cultural, social and economic self-determination. The Berkeley office is seeking a 2nd year law student for a summer associate position in 2015. The position requires excellent research and writing skills. We especially encourage First Nations/Native American students to apply, as well as students with a demonstrated commitment to serving Indian communities. Please forward a resume and one writing sample to Gloria Coronado, gcoronado@berkeywilliams.com. The deadline to apply is December 31, 2014. No phone calls, please.