Author: Matthew L.M. Fletcher – Page 647

Fletcher: “A Unifying Theory of Tribal Civil Jurisdiction”

January 14, 2014January 14, 2014Matthew L.M. Fletcher

Please see “A Unifying Theory of Tribal Civil Jurisdiction” on SSRN. Here is the abstract:

This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.

I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.

Substantive comments welcome.

R.I. SCT Holds Narragansett Tribe Has Standing to Challenge 2011 Casino Act

January 14, 2014Matthew L.M. Fletcher

Here is the opinion in Narragansett Indian Tribe v. State of Rhode Island.

An excerpt:

The defendant, the State of Rhode Island (State), appeals from the entry of partial summary judgment in the Superior Court for the plaintiff, the Narragansett Indian Tribe (Tribe), finding that the plaintiff had standing to pursue a constitutional challenge to the 2011 Casino Act, G.L. 1956 § 42-61.2-2.1, as enacted by P.L. 2011, ch. 151, art. 25, § 2.1 This case came before the Supreme Court for oral argument on December 4, 2013, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After carefully considering the written and oral submissions of the parties, we are satisfied that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

New Scholarship on Mapping Intergenerational Memories

January 14, 2014January 14, 2014Matthew L.M. Fletcher

Robert Hershey, Jennifer McCormack, and Gillian E. Newell have posted “Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past” on SSRN.

Here is the abstract:

How Indigenous communities choose to represent spaces or spatial information is integral to constructing and archiving cultural memory, articulating current environmental use, and dealing with evidentiary issues for title or land claim cases. For Indigenous communities around the world, the legacy of Western (often, colonial) cartography and spatial theory is disconnected from the many distinct narratives of space (and time) in Native communities.

Specifically in legal situations, this disconnect often reflects a power struggle between a Western, Cartesian division of space and time, and a relational, dynamic capitulation of space and time by an Indigenous group. Indigenous communities attempting to utilize Western legal forums for recognition of their rights face evidentiary hurdles caused by the ethnocentrism inherently built into legal systems. Although exceptions exist to hearsay rules, which allow oral history to be admitted as evidence and are common in multiple jurisdictions, fact finders are not comfortable placing conclusive weight on intergenerational memories. This discomfort is based on Western society’s ideas about what constitutes reality and reliability and results in Indigenous communities being held to strictly Western and often overly lineal principles. Indigenous communities need concrete methods to bring their intergenerational memories into Western courtrooms and have lawyers and judges receive and understand these fully and from an Indigenous standpoint.

UCLA Indian Law and Order Commission Report Conference — Jan. 23, 2014

January 14, 2014January 13, 2014Matthew L.M. Fletcher

Here:

Zephier v. United States & Wolfchild v. United States Cert Petitions

January 14, 2014January 13, 2014Matthew L.M. Fletcher4 Comments

Here:

Wolfchild v US Cert Petition

Zephier v US Cert Petition

Wolfchild questions presented:

1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.

2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.

3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.

Zephier questions presented:

I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?

II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?

III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”

IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?

Lower court materials here.

Fletcher Paper on “Tribal Justice Systems”

January 13, 2014Matthew L.M. Fletcher

I drafted a paper titled “Tribal Justice Systems” for the Allegheny College Undergraduate Conference “Democracy Realized? The Legacies of the Civil Rights Movement” and posted it on SSRN. You can download here.

Here is the abstract:

This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).

United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.

This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.

The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.

In case one wonders, “Representing Justice” by Judith Resnik and Dennis Curtis influenced the paper.

ASU Law Conference on the Federal Recognition Process — Jan. 16-17, 2014

January 13, 2014Matthew L.M. Fletcher

Frank Ettawageshik, our mentor and former LTBB tribal chair, helped to organize this one: “Who Decides You’re Real? Fixing the Federal Recognition Process.”

Agenda is here.

Federal Court Seeks Briefing on Whether Tribe Waived Immunity by Removing FMLA Claim against Tribe to Federal Court

January 13, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Bodi v. Shingle Springs Band of Miwok Indians (E.D. Cal.):

19 Shingle Springs Motion to Dismiss

31 Bodi Opposition

37 Shingle Springs Reply

40 DCT Order

From the order:

The court is concerned by a predicate question: whether the Tribe waived sovereign immunity by removing the action to federal court.

The issue is an open one in the Ninth Circuit. District courts to have considered it focus their analysis on whether tribal immunity is more analogous to states’ immunity to suit under the Eleventh Amendment, or to foreign nations’ immunity under the Foreign Sovereign Immunities Act of 1976, 27 U.S.C. § 1602 et seq. Courts taking the former position have found removal to constitute waiver, see, e.g., State Eng’r v. S. Fork Band of the Te–Moak Tribe of W. Shoshone Indians, 66 F. Supp. 2d 1163 (D. Nev. 1999), while courts taking the latter position have not, see, e.g., Ingrassia v. Chicken Ranch Bingo and Casino, 676 F. Supp. 2d 953 (E.D. Cal. 2009).