Author: Matthew L.M. Fletcher

New Scholarship on the UNDRIP’s Article 31 on Intellectual Property Rights

Matthew L.M. Fletcher

The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Intellectual Property Rights, now posted in SSRN, will appear in A Research Handbook on Indigenous Intellectual Property, Edward Elgar (2014).

Here is the abstract:

The UN Declaration on the Rights of Indigenous Peoples (Declaration) establishes, in Article 31, that indigenous peoples ‘have the right to maintain, control, protect and develop their intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions.’ In light of the centrality of the Declaration in the realm of indigenous rights, Article 31 represents the reference point for any credible discussion of the interlink between the cultural and intellectual property rights of indigenous peoples. This chapter seeks to contextualize this important provision within the normative framework of the Declaration. The first part of the chapter will examine the legal and political significance of the Declaration, discussing the circumstances surrounding its drafting and adoption as well as its normative content. The second part of the chapter will focus on the key provisions of the Declaration that are closely connected with indigenous peoples’ intellectual property rights, including those on self-determination and land rights. Special attention will be paid to the content of Article 31 of the Declaration, highlighting the progressive character of this provision in relation to the intellectual property rights regime currently in force at the international level.

Nooksack COA Stays Nooksack Disenrollments

Matthew L.M. Fletcher

Here are the orders in Lomeli v. Kelly and Roberts v. Kelly:

Order Requiring Supplemental Briefing – Roberts v Kelly

Order on Supplemental Appeal – Lomeli v Kelly

Bigotry Piled on Top of Bigotry: More from Oakland County

Matthew L.M. Fletcher1 Comment

Here’s a quote from an L. Brooks Patterson defender:

As for his comment about the fulfillment of an old prediction he made that Detroit would become the equivalent of an Indian reservation, with the people waiting for corn and blankets to be tossed in, well, the remark was crude, but not far off the mark. Get off the freeways and drive into the city’s neighborhoods. You’ll see vast wastelands of blight and abandonment, with a population largely dependent on government hand-outs.

Get out of Oakland County, pal, head to Michigan Indian country and you’ll see a bunch of local governments near Indian reservations thankful for all of the economic development and shared governance generated by Michigan’s 12 Indian tribes.

Interior Board of Indian Appeals Rejects Cherokee Nation’s Challenge to BIA Trust Acquisition for United Keetoowah Band

Matthew L.M. Fletcher1 Comment

Here is the opinion:

Cherokee Nation v Acting Eastern Oklahoma Regional Director BIA

News coverage here.

Ninth Circuit Declares Interior Chukchi Sea Oil Leases Arbitrary and Capricious (in part)

Matthew L.M. Fletcher

Here are the materials in Native Village of Point Hope v. Jewell:

CA9 opinion

An excerpt:

The panel reversed the district court’s summary judgment entered in favor of federal defendants in an action challenging the government’s environmental impact statements  analyzing the environmental effects of proposed leases for oil and gas development in the Chukchi Sea of the northwest coast of Alaska.

The panel held that the Final Environmental Impact Statement and Supplemental Environmental Impact Statement prepared by the federal defendants properly took account of incomplete or unavailable information. The panel held, however, that the reliance in the Final Environmental Impact Statement on a one million barrel estimate of  total economically recoverable oil was arbitrary and capricious.The panel remanded for further proceedings.

Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed with most of the majority opinion, but she did not agree that the federal Bureau of Ocean  Energy Management, Regulation and Enforcement acted arbitrarily in selecting one billion barrels of oil as the benchmark for analyzing the environmental affects of the proposed leases.

Briefs are here:

Appellants Opening Brief

Alaska Answer Brief

Interior Answer Brief

Oil Companies Answer Brief

Appellants Reply Brief

2014 Indian Child Welfare Act Designated Tribal Agents List

Matthew L.M. Fletcher

Here:

2014 ICWA Designated Tribal Agents (PDF)
Online version here, and always available by one click (Kathryn E. Fort) at the top of Turtle Talk here.

Texas Federal Court Refuses to Allow Fake Indian to Change Name to “Jeremiah El Bey”

Matthew L.M. Fletcher

Here is the opinion in In re Cash (N.D. Tex.):

In re Cash

An excerpt:

Cash’s request that he be recognized as a member of the “Aboriginal Cherokee Choctaw” tribe is frivolous. This alleged tribe does not appear to be a recognized Indian tribe and appears, instead, to be related to the “Redemptionist” and/or “sovereign citizen” beliefs that have been discussed at some length by other federal courts. See Johnson-Bey v. Lane, 863 F.2d 1308, 1309 (7th Cir. 1998) (outlining the Moorish movement, which utilizes the suffixes “El” and “Bey” in names to refer to African tribes); Minister Truth Ali Williams v. New Jersey, 2012 U.S. Dist. LEXIS 150195, 2012 WL 4959488, at *1-3 (D.N.J. Oct. 17, 2012) (discussing in depth pleadings that refer to Cherokee Choctaw Aboriginal Nation and its relationship with Moorish movement). Therefore, Cash’s request that the court legally recognize him as a member of this “tribe” fails to state a claim upon which relief may be granted.

Nooksack Council Members Sue Over Removal from Tribal Council

Matthew L.M. Fletcher

Here are the materials in Adams v. Kelly II:

Adams v. Kelly II Complaint

Adams v. Kelly II Michelle Roberts Declaration w Exh

And the press release: Continue reading →

NYTs Profile of Study on Impact of Tribal Gaming Per Cap on Children at Eastern Band Cherokee

Matthew L.M. Fletcher1 Comment

Here. In short, it’s pretty good for young children, doesn’t have much impact on older children.

We posted on part of this study in 2010.

California COA Affirms Immunity of Tribally-Owned Payday Lenders

Matthew L.M. Fletcher3 Comments

Here are the materials in People of the State of California v. MNE:

B242644_Opinion

California Opening Brief

MNE Brief

California Reply Brief

An excerpt from the opinion:

Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 (Ameriloan), the trial court dismissed for lack of subject matter jurisdiction this action by the Commissioner of the California Department of Corporations against five “payday loan” businesses owned by Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe. Because the two tribal entities and their cash-advance and short-term-loan businesses are sufficiently related to their respective Indian tribes to be protected from this state enforcement action under the doctrine of tribal sovereign immunity, we affirm.

A second related opinion from the same court:

B236547_Opinion

An excerpt:

The Commissioner of the California Department of Corporations (Commissioner),1 on behalf of the People of the State of California, sued Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash for injunctive relief, restitution and civil penalties, alleging they were providing short-term, payday loans over the Internet to California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe, specially appeared and moved to quash service of summons and to dismiss the complaint on the ground the lending businesses named as defendants were simply trade names used by the two tribal entities and, as wholly owned and controlled entities of their respective tribes operating on behalf of the tribes, they were protected from this state enforcement action under the doctrine of tribal sovereign immunity.

During the course of this litigation on the issue of subject matter jurisdiction, the trial court imposed $34,437.50 in discovery sanctions against the Commissioner after the court denied in substantial part her motion to compel further responses to a second set of requests for production of documents from MNE and SFS. We affirm.