Author: Matthew L.M. Fletcher

Kickapoo Water Rights Claim Fails

Matthew L.M. Fletcher

Here are the materials in Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Black (D. Kan.):

248 Watershed District Motion for Summary J

291 Kickapoo Motion for Summary J

301 DCT Order

An excerpt:

As is evidenced by the briefing, this case has a long and complex factual background. However, the facts material to the pending motions are few and uncontroverted. The Kickapoo Indian Reservation (“Reservation”) lies almost entirely within the District’s boundaries. The Tribe and the District entered into the Watershed Plan and Environmental Impact Statement for the Upper Delaware and Tributaries Watershed (“Agreement”) in 1994 to serve as co-sponsors of a project aimed to carry out works of improvement for soil conservation and for other purposes, including flood prevention. The parties agreed to co-sponsor the project after failed attempts by each party to sponsor the project on its own. The parties reached the Agreement following a procedure established by the United States Department of Agriculture’s Soil Conservation Service (“SCS”), now known as the National Resource Conservation Service, under what is referred to as P.L. 83–566 (the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1001 et seq.). Many years of planning and negotiation by both parties and numerous other contractors, government officials, and agencies preceded the Agreement. In addition to twenty floodwater retarding dams and other various improvements, the Agreement included plans for a multipurpose dam with recreational facilities, otherwise known as the “Plum Creek Project.”

On multiple occasions, the Tribe asked the District to exercise its power of eminent domain to condemn non-Indian-owned land for the Plum Creek Project that the Tribe had been unable to acquire on its own. The District declined the Tribe’s request each time. The Tribe filed this water rights action on June 14, 2006, seeking declaratory relief, injunctive relief, compensatory damages, and specific performance. In essence, the Tribe claims that the Agreement is a binding contract that obligates the District to condemn 1,200 acres of land on the Tribe’s behalf to build the Plum Creek Project.

The parties agree that the issue before the court in both summary judgment motions boils down to this: Does the Agreement unambiguously require the District to exercise its eminent domain powers on the Tribe’s behalf to acquire non-Indian land necessary to build the Plum Creek Project? The Tribe contends the answer is yes, and the District argues that the answer is no.

Prior posts here and here.

Ramapough Tribal Members Suit against Producers of “Out of the Furnace”

Matthew L.M. Fletcher

Here is the news coverage.

Here is the complaint in DeGroat v. Cooper (D. N.J.):

1 Complaint

New Scholarship on Zablocki v. Red Hail

Matthew L.M. Fletcher1 Comment

Tonya L. Brito, Raymond Kirk Anderson, and Monica Ashley Wedgewood have posted “Chronicle of a Debt Foretold: Zablocki v. Red Hail, 434 U.S. 374 (1978),” on SSRN. Here is the abstract:

Zablocki v. Red Hail is a canonical case in family law jurisprudence. One of the few Supreme Court decisions addressing the fundamental right to marry, the case involves a successful challenge to Wisconsin’s “permission to marry” statute. However, the conventional understanding of the case addresses only part of the story. The narrative threads uncovered as part of this oral history research study reveal a more multifaceted and complicated story than has been previously appreciated. The story behind Zablocki v. Red Hail spans the 1970s in Milwaukee, a period of great inequality and dynamic social change. It also engages the American Indian experience in the United States, particularly the experience of urban Indians who have been uprooted from their native lands and disconnected from their heritage and history. Finally, although Zablocki v. Red Hail was a significant constitutional victory, the ruling did not secure justice for Roger Red Hail because the pursuit of a rights-based claim left standing an economically unjust (and apparently unending) child support order.

Highly recommended!

Tenth Circuit Affirms Conviction of “Pharmacist” on Ponca Reservation

Matthew L.M. Fletcher

Here are the materials in United States v. Williams:

CA10 Unpublished Opinion

Williams Opening Brief

US Answer Brief

Williams Reply Brief

From the opinion:

Zachary Carl Williams appeals his conviction for conspiracy to misbrand prescription drugs in violation of 21 U.S.C. §§ 331(a), 331(k), 333(a), and 18 U.S.C. § 371. Williams raises five issues on appeal. In his first two issues he alleges the indictment was constructively amended in violation of his constitutional rights. In his third and fourth issues he alleges the jury was improperly instructed. Finally, Williams argues that he is entitled to tribal sovereign immunity because his pharmacy operation was authorized by a license issued by the Ponca Tribe, a federally recognized tribe. Finding no error, we affirm Williams’ conviction.

News Coverage of Wiyot Nation Return to Indian Island after 150 Years

Matthew L.M. Fletcher

Here.

An excerpt:

“We need to complete the ceremony of 1860 for the ones who were lost,” said Ted Hernandez, chairman of the 645-member tribe.

The ceremony will act as a marker on a long and unlikely journey of survival. It is not easy to recover from a massacre, and that year the endured one of the worst ethnic slaughters in U.S. history as they danced and sang at a world renewal ceremony on Indian Island.

A posse of white settlers sneaked through the darkness one night in 1860 and murdered more than 50 Native American women and children, mostly with axes and hatchets.

“Amidst the wailing of mutilated infants,” The San Francisco Bulletin wrote at the time, “the savage blows are given, cutting through bone and brain.” 

Nearby settlers carried out two more massacres that night, killing an additional 90 Indians, most of them Wiyot, and for more than a century it seemed the Wiyot were a destroyed people.

NYTs on the Auction of Little Thunder’s Shirt

Matthew L.M. Fletcher1 Comment

Here is the article “Indian Family Sees Its History in a Shirt.”

An excerpt:

Cultural property claims can be complex: The competing interests of good-faith collectors and plundered civilizations have to be adjudicated among complications like the passage of time, the disappearance of records and the evolution of law.

Douglas Diehl, director of the American Indian and ethnographic art department at the auction house, would not discuss the matter when reached by phone, but released a statement saying that Skinner “is committed to the highest standards of research and due diligence” and is “particularly sensitive to Native American artifacts.”

The collector who consigned the item for sale, Charles E. Derby, said that he had good title to the shirt. He bought it, according to his lawyer, William H. Fry, from another collector in the early 1980s and has a bill of sale. Mr. Fry said his client could track the shirt, which has been shown in museums, back to 1955, when it was displayed, and later sold, by a bookstore in Cambridge, Mass.

A lawyer for the Little Thunder family, Robert P. Gough, said that a collector would need a lengthier provenance for the shirt to claim good title.

Wind Energy Blog Commentary on New Eagle Permit Rule

Matthew L.M. Fletcher

Here.

Ninth Circuit Rejects Another Matheson Objection to Tribal-State Tax Compact

Matthew L.M. Fletcher

Here are the materials in Matheson v. Smith:

CA9 Unpublished Memorandum

Matheson Opening Brief

Washington Brief

Matheson Reply Brief

Lower court materials here.

Ninth Circuit Affirms Injunction against BIA in San Pasqual Band of Mission Indians Membership Dispute

Matthew L.M. Fletcher2 Comments

Here are the materials in Alto v. Black:

CA9 Opinion

San Pasqual Band of Mission Indians Brief

Alto Answer Brief

Federal Appellee Brief

San Pasqual Band of Mission Indians Reply Brief

An excerpt:

In an appeal from the district court’s orders denying a motion to dissolve a preliminary injunction and denying motions to dismiss in an action concerning a dispute over membership in an Indian tribe, the panel affirmed in part, dismissed in part, and remanded. The San Pasqual Band of Mission Indians’ governing documents vested the United States Department of Interior, Bureau of Indian Affairs, with ultimate authority over membership. The panel held that the district court had jurisdiction to enjoin preliminarily the enforcement of the Bureau of Indian Affairs’ order upholding the Band’s decision to disenroll descendants of Marcus Alto, Sr. from the Band, and that the Band was not a required party, because the claims underlying the preliminary injunction concern solely the propriety of final agency action. Accordingly, the panel affirmed the district court’s denial of the Band’s motion to dismiss the claims on which the injunction rests and  the district court’s consequent refusal to dissolve the preliminary injunction. The panel remanded to allow the district court to clarify its order. Finally, the panel held that it lacked jurisdiction to review on interlocutory appeal the Band’s motion to dismiss the Altos’ other claims, on which the district court expressly deferred ruling.

Lower court materials here and here.

American Public Media “Marketplace” Shows on Crow and Lummi Coal News

Matthew L.M. Fletcher1 Comment

Thanks to D.L.:

The American Public Media show “Marketplace” is doing a series on coal, and two of their stories have focused on Indian tribes.  The first, about coal mining on the Crow Reservation, is more about the tribal economy; but the second, about a proposed coal shipping terminal in Washington state, has some legal issues (whether treaty fishing rights might be used to defeat the proposed coal terminal).

Both stories can be found at http://www.marketplace.org/topics/sustainability/coal-play