Author: Matthew L.M. Fletcher

Colorado SCT Water Rights Ruling

Matthew L.M. Fletcher

Here is the opinion in Pawnee Well Users Inc. v. Wolfe (Colo.).

The court’s summary:

2013 CO 67. No. 12SA13. Pawnee Well Users, Inc.v. Wolfe, State Engineer.
Ground Water Regulation—Administrative Law and Procedure—Rules, Regulations, and Other Policymaking—Judicial Review of Administrative Proceedings.

The Supreme Court held that the water court erred in invalidating a basin-specific rule of the final Produced Nontributary Ground Water Rules (Final Rules) known as the Fruitland Rule, based on a stipulated agreement between the State Engineer and the Southern Ute Indian Tribe. Another Final Rule—known as the Tribal Rule—states: “These Rules and regulations shall not be construed to establish the jurisdiction of either the State of Colorado or the Southern Ute Indian Tribe over nontributary ground water within the boundaries of the Southern Ute Indian Reservation.”

The Tribal Rule does not and cannot divest the State Engineer of his authority to promulgate the Final Rules governing water extracted during oil and gas production throughout the state, including nontributary groundwater. By passing HB 1303, the General Assembly authorized the State Engineer to adopt rules to assist with the administration of nontributary ground water extracted in the course of coalbed methane production and other oil and gas development in Colorado, thus authorizing the State Engineer to promulgate the Fruitland Rule. Because administrative agencies powers and duties as given by the legislature, the State Engineer cannot establish or disestablish his own jurisdiction.

Further, because the Fruitland Rule was issued pursuant to the authority granted in HB 1303—authority that was not divested by the Tribal Rule—it follows that the water court erred in labeling the Fruitland Rule an “advisory” rule and requiring the State Engineer to obtain a judicial determination that he had authority to administer nontributary ground water within the Southern Ute Indian Tribe’s Reservation’s boundaries. The Court therefore reversed the water court’s order and remanded the case for further proceedings.

Part 1: Update on Tribal Membership/Disenrollment Issues at Grand Ronde — Complaint Filed

Matthew L.M. Fletcher2 Comments

Here is the complaint in Williams v. Leno (Confederated Tribes of Grand Ronde Tribal Ct.):

Williams v Leno Grand Ronde Tribal Court Complaint For Sanctions And Declaratory Relief

And the accompanying press release:

Lawsuit Filed Against Officials of the Confederated Tribes of Grand Ronde Challenging Illegal Enrollment Audit and Resulting Disenrollment Proceedings
Grand Ronde, OR – An ethics lawsuit has been filed in Grand Ronde Tribal Court against top officials of the Confederated Tribes of Grand Ronde regarding the proposed disenrollment of as many as 1,000 tribal members.  The lawsuit names the Tribal Council Chairman Reyn Leno and Enrollment Department Head Penny Deloe and alleges that they breached tribal law by disclosing members’ enrollment records and personal information to a third-party consulting firm in Albuquerque, New Mexico.

Continue reading →

Part 2: Update on Tribal Membership/Disenrollment Issues at Grand Ronde — Tribe Statement

Matthew L.M. Fletcher1 Comment

Here is a statement from the tribe:

The Confederated Tribes of Grand Ronde is conducting an enrollment audit.  The audit fulfills one of the tasks assigned in the Tribal Strategic Plan for 2010, which was adopted in August of 2009.   That plan was formulated after nearly two years of development that began with a Strategic Futures conference in 2007 involving Tribal leaders and members. The plan directed Enrollment to audit all enrollment files and applications, track reasons for denials, and audit blood quantum records with the goal of strengthening the Grand Ronde Family Tree.

Recently some statements have cropped up on social media sites regarding the Tribe’s Enrollment audit.  One of them even featured the Tribe’s emblem and could have led people to believe it was an official statement from the Tribe.  It was not.  In addition, the statements contain extremely misleading and false information.  For example, the statement that up to 20% of the Tribe is being disenrolled is simply not true.  Audit proceedings are ongoing and in fact, over the last several months a number Tribal members and their families. have provided the necessary information to clear up inconsistencies in their files and resolve issues related to their enrollment.

Tribal Council cannot make any specific comments on the Enrollment Audit until audit proceedings have been completed.    The Tribal Council does not see enrollment files until an Enrollment Committee recommendation is presented.
There is an established process under the Enrollment Ordinance for addressing loss of membership that includes working with Enrollment Staff, then hearings before the Enrollment Committee, a hearing before Tribal Council., and ultimately an appeal to Tribal Court and the Tribal Court of Appeals.

Over the years our Tribal membership, through Constitutional amendments, has consistently pushed for tightening our membership requirements.   As elected officials the Tribal Council took an oath of office to uphold the Tribal Constitution and the laws of the Confederated Tribes of Grand Ronde.  In that same pledge, the Council swore that they would perform all duties required of them by the Constitution and the laws of the Tribe.  The Council knows this process is not any easy one for the Tribal community   But the Council is committed to getting through it with diligence and compassion.

We also attach an email we received from the tribe regarding our previous post, the contents of which we received from a reliable source, but apparently there was a misunderstanding on our part:

Dear Mr. Fletcher:

On Nov. 19 you posted an article regarding the Grand Ronde Tribe and some disenrollment actions.  The article is one that has been posted by an individual on several social media sites.  It is false and misleading.  I am troubled to see it on Turtle Talk, a site that represents Michigan State University’s Indigenous Law Center and one that holds credibility in the eyes of many readers, both Native and non-Native.  Here is the actual statement from the Grand Ronde Tribe on the current issue.  I hope you will see fit to correct the misrepresentation on Turtle Talk.

Sincerely,

Siobhan Taylor
Public Affairs Director
Confederated Tribes of Grand Ronde

We always strive to give equal time to parties in dispute, and generally do not take sides. We let the material speak for itself.

Opening Nooksack COA Brief in Roberts v. Kelly

Matthew L.M. Fletcher

Here:

Roberts v Kelly COA Opening Brief of Appellants

Lower court materials here.

Affiliated Tribes of Northwest Indians Asks Wash. Dept. of Revenue to Withdraw Guidance re: Chehalis Decision

Matthew L.M. Fletcher

Here:

Res 13-87

That guidance is here.

Ponca “Cowboys and Indians” Camp against Keystone XL Pipeline

Matthew L.M. Fletcher

Here.

Federal Judge Agrees with Minnesota Ojibwe Members to Dismiss Lacey Act Prosecutions for Fishing at Red Lake

Matthew L.M. Fletcher2 Comments

This sets up an unusual circumstance — conflicting federal district court opinions arising from the same federal investigation. Our post on the prior order from a different judge, who rejected the motion to dismiss in United States v. Holthusen is here. News coverage here.

Here are the materials in United States v. Good (D. Minn.):

43 MJ R&R

46 Objections to MJ R&R

52 Government Response

56 DCT Order Rejecting MJ R&R

Here are the materials in United States v. Brown (D. Minn.):

71 MJ R&R

90 DCT Order Rejecting MJ R&R

Contract Breach Claim against Delaware Tribal Officials Survives in Pennsylvania Federal Court

Matthew L.M. Fletcher

Here are the materials in Magyar v. Kennedy (E.D. Pa.):

11 Motion to Dismiss

12 Response

18 Reply

23 Motion to Dismiss Count 1

24 Response

31 DCT Order Denying Motion to Dismiss Count 1

An excerpt:

Thus, based upon an examination of the Second Amended Complaint and its Exhibits, we determine that Plaintiff has met his burden to convince us that Defendants acted beyond their official capacity and outside the scope of their authority when they terminated Plaintiff’s Agreements and failed to compensate Plaintiff for the services he rendered in June 2012. Accordingly, we conclude that the Second Amended Complaint alleges facts sufficient to persuade us that Defendants are not protected by sovereign immunity in connection with Count One of the Second Amended Complaint.

Illinois Law Review Student Note on Uncounseled Tribal Court Convictions and ICRA

Matthew L.M. Fletcher

The University of Illinois law Review has published “Uncounseled Tribal Court Convictions: The Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act.”

Here is the abstract:

Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration of more than one year. State and federal courts require the opportunity of representation for all defendants in criminal proceedings. This discrepancy between the rights afforded in tribal courts and in state and federal courts lead to unique legal issues for Native American defendants indicted in federal court after being convicted without counsel in a tribal court.
Native Americans prosecuted under federal re-peat-offender statues could be exposed to harsher penalties based on prior uncounseled tribal con-victions. Thus, even if a Native American lacked representation in tribal court, those convictions might be used as predicate offenses for the purposes of federal repeat-offender laws. Different approaches to this issue are presented from the Eighth, Ninth, and Tenth Circuits. This Note ad-dresses the reasoning of each Circuit and offers a Recommendation that balances tribal sovereignty concerns, Sixth Amendment ramifications, and justice implications for both victims and defendants in the tribal court system.

Fletcher & Fort: “Indian Children and Their Guardians ad Litem”

Matthew L.M. Fletcher

Kate Fort and I published a short paper for a Boston University Law Review mini-symposium on Adoptive Couple v. Baby Girl: “Indian Children and Their Guardians ad Litem.”

An excerpt:

One of the primary goals of the Indian Child Welfare Act (ICWA) is to limit the influence or bias of state workers in decisions placing American Indian children out of their home and community.1 While this focus usually concerns state social workers, the officials who most often seek removal of a child, or the courts, the body that issues the orders and opinions, guardians ad litem (GALs) receive less attention.2 Despite this lack of attention, GALs exert a similar level of influence as state social workers. In Adoptive Couple v. Baby Girl,3 the role of the GAL was unusual but critical – the GAL, while officially appointed by the court, was handpicked by the adoptive parents.4 The role of the GAL remains understudied in the ICWA literature, though GALs continue to exert enormous influence in the courts. Unfortunately, many GALs throughout the nation subvert the national policy embodied by the ICWA by advocating against the implementation of the statute in case after case.5

There are three other papers in the symposium:

Perspective I by Professor Barbara Ann Atwood is available here, 

Perspective II by Professor James G. Dwyer is available here, and

Perspective III by Professors Naomi Cahn and June Carbone is available here.