Author: Matthew L.M. Fletcher

Village of Hobart v. Oneida Tribe of Wisconsin Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Hobart Cert Petition

Questions presented:

1) Whether Congress’ waiver of the federal government’s sovereign immunity, under § 313(a) of the CWA, for enforcement of local stormwater management ordinances, for “any property” over which it has “jurisdiction,” applies to land taken into trust pursuant to 25 U.S.C. § 465.
2) Whether lands acquired by an Indian tribe pursuant to 25 U.S.C. § 465, within its former reservation boundaries are, removed from state jurisdiction because, as the Seventh Circuit ruled, they are reclassified as “Indian Country.”

Lower court materials here.

Mashpee Gaming Compact Approval Letter

Matthew L.M. Fletcher

Here:

January 6,2014 Mashpee Compact Tribe Approval Letter

Sixth Circuit Rejects Constitutional Challenge to Michigan Gaming Control Act

Matthew L.M. Fletcher

Here are (some of) the materials in Arabo v. Greektown Casino:

Arabo Brief

MGM Brief

Michigan Gaming Control Board Brief

CA6 Unpublished opinion

Nooksack COA Rules against Nooksack Disenrollees

Matthew L.M. Fletcher2 Comments

Here is the opinion in Lomeli v. Kelly (Nooksack App.):

Lomeli v Kelly COA Opinion

An excerpt:

This appeal is from the Tribal Com1’s order dismissing Appellants· second amended complaint. Appellants requested the Tribal Court enjoin members of the Nooksack Tribal Council from conducting disenrollment proceedings against them. Appellants are understandably gravely concemed at the prospect of disenrollment. We understand how serious the prospect of disenrollment is to Appellants. and how it impacts their cultural. social and political identity.

We also recognize that determining its own membership is a hallmark of a tribe’s sovereignty. It is one of the few aspects of tribal sovereignty that has withstood the  relentless attempts by outside forces to tear down tribal self-governance, and one of the  few aspects of tribal sovereignty that has not been eroded by the federal government.

Judges are not sages. We do not delude ourselves into believing we have the wisdom of a Solomon. It is not our role to insert ourselves into the Tribe’s political fray. or second guess  the political judgments made by the Tribe’s elected leaders or its voting members, even if  we believe those judgments unwise. We, like the trial court. are limited to resolving legal questions where authorized by the Tribe’s Constitution and laws.

The nature of this dispute requires us to find the delicate balance between Nooksack lawand politics keeping in mind the equal importance attached to both Tribal membership and Tribal sovereignty. The Tribe’s Constitution guides us in this difficult task. which we are duty bound to perform.

The Nooksack judiciary is not the only Nooksack governmental body whose decisions are tethered to the Tribe’s Constitution and laws. The decisions of its elected officials are as well. The trial judge expressed it well and it is worth repeating:

The Tribal Council members named in this Complaint hold an obligation to act in the best interests of the Nooksack Indian Tribe. Membership and enrollment decisions impact individual lives in the deepest possible ways and those decisions cannot be taken lightly. This Cotut recognizes the serious implications of this case and its decision on this motion and all the others that have preceded it. It is the solemn obligation of this Court to follow the law of the Nooksack Indian Tribe and it is the obligation of the Tribal Council to do the same.

Briefs are here and here.

Lower court materials are here.

Federal Court Dismisses Skokomish Treaty Rights Claims against State under 11th Amendment and Rule 19

Matthew L.M. Fletcher2 Comments

Here are the materials in Skokomish Indian Tribe v. Goldmark (W.D. Wash.):

59 State Defendants Motion to Dismiss

60 Prosecuting Attys Motion to Dismiss

67 Tribal Amici Motion to Dismiss

71 Skokomish Reponse

116 DCT Order Dismissing Complaint

An excerpt:

Being fully advised, the court GRANTS both motions on grounds that Skokomish Indian Tribe failed to join certain other Indian tribes in this action. These other tribes are required parties under Federal Rule of Civil Procedure 19, but cannot be joined due to their sovereign immunity. Because the court concludes that the action cannot proceed “in equity and good conscience” without these other tribes, see id., the court dismisses Skokomish Indian Tribe’s action without prejudice. With respect to Defendants Goldmark and Young only, the court also grants Defendants’ motions to dismiss on grounds of Eleventh Amendment sovereign immunity and because Skokomish Indian Tribe has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nevertheless, despite granting Defendants’ motions, the court also grants Skokomish Indian Tribe leave to amend its Amended Complaint.

We posted the complaint here.

Nebraska COA Orders Transfer of ICWA Matter to Tribal Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re Jayden D.

An excerpt:

Because the State did not meet its burden of establishing good cause to deny transfer to tribal court, the juvenile court abused its discretion in denying Yolanda’s motion to transfer. We reverse the order of the juvenile court and remand the cause with directions to sustain the motion to transfer.

Federal Court Rules for State in Challenge to Oklahoma License Plate

Matthew L.M. Fletcher1 Comment

Here is the court’s order in Cressman v. Thompson (W.D. Okla.):

117 DCT Order

How Appealing links to news coverage here.

Prior materials in this case are here, here, and here.

 

Fletcher & Reo Response Paper to Sanders on the Wisconsin Wolf Hunt

Matthew L.M. Fletcher2 Comments

Matthew Fletcher & Nick Reo published a short paper, “Response to Sanders: Ma’Iignan as Property,” at the Wisconsin Law Review Online. Jason Sanders’ excellent law review note that started all this is here.

Here is an excerpt:

American law has long recognized the state as the owner of wild game within a state’s borders, including gray wolves (or “ma’iingan” in Anishinaabemowin), within the States of Wisconsin, Minnesota, and Michigan. However, as Anishinaabe scholar Jason Sanders forcefully demonstrates, the Anishinaabeg—indigenous people of the western Great Lakes known as the Ottawa (Odawa), Potawatomi (Bodewadmi), and Chippewa (Ojibwe)—considered ma’iingan siblings, not property. One does not hunt one’s siblings.
***
Sanders’s paper is a fine example of cutting edge, pragmatic legal scholarship that will allow the stakeholders, in time, to push through the adversarial rhetoric and move into a more useful cooperative mode. Federal Indian law, often through the assertion of American Indian treaty rights, has historically been a powerful engine for change. Treaty rights cases arising from Anishinaabeg treaties often do not result in a winner-take-all outcome, with either tribes or states prevailing over all opponents. Instead, the rule of law as exemplified by Indian treaty rights forces state interests to reckon with the interests of a discrete and insular minority. As such, regulation of hunting, fishing, gathering, and other activities on or near Indian country is an intergovernmental affair, dominated by cooperative fact finding and negotiation.

 

IMPORTANT REMINDER: Deadline for Purchase Offers Fast Approaching for Landowners with Interests at Pine Ridge, Makah Reservations

Matthew L.M. Fletcher1 Comment

 IMPORTANT REMINDER: Deadline for Purchase Offers Fast Approaching for Landowners with Interests at Pine Ridge, Makah Reservations

The Department of the Interior announced in December 2013 that owners of fractionated land interests at the Pine Ridge and Makah Reservations were the first to receive purchase offers under the Department’s Land Buy-Back Program for Tribal Nations (Buy-Back Program). The Pine Ridge Reservation is among the most highly-fractionated locations in the United States; landowners with purchasable interests have been located in 46 states across the country.

Owners Must Respond Soon. The due date for the first round of purchase offers is quickly approaching, with responses due between January 29 and February 10, 2014. Purchase offers are valid for 45 calendar days from the date of the Cover Letter that is included in the Offer Package provided to owners.

Staff Ready to Answer Owner Questions. Landowners can contact the Trust Beneficiary Call Center at (888) 678-6836 with questions about their purchase offers, visit their local Office of the Special Trustee for American Indians (OST) office, contact their tribe’s staff working with the Buy-Back Program, or find more information atwww.doi.gov/buybackprogram.

Sellers Receive Fair Market Value. The Buy-Back Program was created to implement the land consolidation component of the Cobell Settlement, which provided a $1.9 billion fund to purchase fractionated interests in trust or restricted land from willing sellers, at fair market value, within a 10-year period. Interested sellers will receive payments directly into their IIM accounts. Consolidated interests will be transferred to tribal governments for uses benefiting the tribes and their members.

Sellers receive fair market value for their land, based on objective appraisals. In addition, sellers also receive a base payment of $75 per offer, regardless of the value of the land. Some owners have already received more than $100,000 for their interests (offer amounts will vary based on the particular interests held).  Interests purchased from individuals through the program will be restored to Indian tribes.

Outreach Events Are in Progress. For more than a year, tribes and Interior have conducted outreach events throughout Indian Country, such as pow-wows, community meetings, and large Indian organizational gatherings to get the word out about the program and give landowners the opportunity to gather information in order to make informed decisions about their land. Additional events are scheduled to occur in the next two weeks in Neah Bay and Auburn, Washington, regarding Makah fractional interests, and in Rapid City, South Dakota, and communities on the Pine Ridge Reservation. For information about this week’s event for Makah, contact Dale Denney at 360-645-3106. For details about the Pine Ridge events, contact Georgine Looks Twice at 605-867-2610.

Participation Is Voluntary. Participation in the Buy-Back Program is voluntary and selling land does not jeopardize a landowner’s ability to receive individual settlement payments from the Cobell Settlement. Cobell Settlement payments are being handled separately by the Garden City Group, (800) 961-6109.

N.M. Taxation and Revenue Dept. Decision on Taxation of Indian Domiciled Off-Reservation

Matthew L.M. Fletcher

Here is the decision in the Matter of the Protest of Tutt:

2013-12-02 Decision and Order

This is a case involving state income taxation of an Indian who was domiciled off-reservation, worked on-reservation and had a second place of abode on-reservation. The hearing officer found that the state could not tax the petitioner.