Author: Matthew L.M. Fletcher – Page 691

Indian Country is all too familiar with the perils of taking cases before the U.S. Supreme Court. Even under the best legal circumstances, the high court has repeatedly handed down staggering losses that impact the most sacred issues to Indian Country. That is why we are so concerned about a recent case the Supreme Court has decided to review that could severely limit tribal sovereignty for all of Indian Country.

The case is Michigan vs. Bay Mills Indian Community which originated in late 2010 when the Bay Mills Tribe opened an off-reservation casino in Vanderbilt, Michigan, about 125 miles south of its reservation without proper approvals from federal and state governments. The Bay Mills Tribe, and its sister tribe Sault Ste. Marie, have argued in federal court that the Michigan Indian Land Claims Settlement Act of 1997 allows them to buy land anywhere in the United States to build a casino, so long as the land was purchased with land claim settlement trust funds. The two tribes assert they are not restricted by geography or quantity of casinos.

Both tribes have pursued federal litigation despite the fact that both the National Indian Gaming Commission and the Department of the Interior issued separate legal opinions concluding that Bay Mills claims are completely without merit.

The U.S. Supreme Court granted review of the Bay Mills case after the 6^th Circuit Court of Appeals sided with the Tribe’s assertion that sovereign immunity prevents the State of Michigan from suing to close an illegal off-reservation casino. While we believe the State had the ability to close the casino under state law, Michigan’s Attorney General felt the need to seek relief from the Supreme Court since no federal entity would step in and close the illegal Vanderbilt casino. We think it is safe to assume the Supreme Court did not grant review to affirm the lower court ruling.

All the Michigan gaming compacts contain a provision which states that no tribe shall pursue off-reservation gaming unless there is a written agreement between all the state’s federally recognized tribes to share in the revenue. In March, a federal district court judge ruled that this provision is legally binding on all Michigan tribes – putting both the Sault Tribe and Bay Mills in violation of the compact.

Now, the Bay Mills case presents two questions to the Supreme Court; whether federal courts have jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands, and whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands. Given the Court’s recent decisions, we are deeply concerned the Court will cut away at the sacred doctrine of tribal sovereign immunity.

Off-reservation gaming has already created a strong backlash from Congress. It is unfortunate that some tribes who seek to build casinos far from their reservations are willing to risk the inherent sovereign rights of all tribes. Once again, Indian Country finds itself before the Supreme Court in a case that should have never been considered in the first place.

Homer A. Mandoka, Chairman

Nottawaseppi Huron Band of Potawatomi

Dennis V. Kequom, Chief

Saginaw Chippewa Indian Tribe

Bloomberg on Sea Change on Indian Gaming from Bush’s Interior to Obama’a Interior

September 18, 2013Matthew L.M. Fletcher

Here.

An excerpt:

Skibine said the Bush administration was in the thick of a lawsuit in which tribes sued the federal government for mismanaging reservation land and were reluctant to take more into trust — a precursor to any reservation gaming project that isn’t located on the tribe’s traditional grounds.

The Bush White House was also operating in the midst of the Jack Abramoff lobbying scandal, in which Capitol Hill aides and Republican advocates secretly pitted tribes and Christian groups against one another while raking in millions.

The administration’s policy was presented in a Jan. 3, 2008, Indian Affairs memo that limited how far from a tribe’s existing reservation a casino project could be located.

“No application to take land into trust beyond a commutable distance from the reservation should be granted unless it carefully and comprehensively analyzes the potential negative impacts on reservation life and clearly demonstrates why these are outweighed by the financial benefits of tribal ownership in a distant gaming facility,” Carl Artman, Bush’s assistant secretary of Interior for Indian Affairs, wrote.

Tenth Circuit Rules in Favoring of Trust Accounting Claims of Osage Headright Holders

September 18, 2013September 17, 2013Matthew L.M. Fletcher2 Comments

Here are the materials in Fletcher v. United States:

CA10 Opinion

Fletcher Opening Brief

Interior Answer Brief

Fletcher Reply Brief

An excerpt:

After settlers displaced the Osage Nation from its native lands, the federal government shunted the tribe onto the open prairie in Indian Territory, part of what later became the State of Oklahoma. At the time, the government had no idea those grasslands were to prove a great deal more fertile than they appeared. Only years later did the Osages’ mammoth reserves of oil and gas make themselves known. When that happened, the federal government appropriated for itself the role of trustee, overseeing the collection of royalty income and its distribution to tribal members. That role continues to this day. In this lawsuit, tribal members seek an accounting to determine whether the federal government has fulfilled the fiduciary obligations it chose to assume. The district court
dismissed the tribal members’ claims. We reverse.

Lower court materials here and here.

Michigan v. Bay Mills Indian Community Oral Argument Set for December 2

September 18, 2013September 17, 2013Matthew L.M. Fletcher

Here.

Onondaga v. New York Cert Stage Briefing Complete

September 18, 2013September 17, 2013Matthew L.M. Fletcher1 Comment

Here:

Onondaga Cert Petition

Supreme Court’s CFR

New York Opposition

Reply Brief for Petitioner [Onondaga]

Elizabeth Warner on Tribal Environmental Law

September 18, 2013September 18, 2013Matthew L.M. Fletcher

Elizabeth Warner has posted “Examining Tribal Environmental Law” on SSRN. Here is the abstract:

Federal environmental law recently celebrated its 40th birthday and much has been said about it in the past four decades. Today, however, little is said about the role the third sovereign, tribal nations, plays in the development of environmental law. Although some scholarship exists regarding the development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This article fills that vacuum by taking a first look at how tribal environmental law has developed and exploring the laws of one tribal nation that has enacted several environmental laws. The article also begins the discussion of what may be normative practices in the development of tribal environmental law.

Where the federal government has not pre-empted them, tribes may develop their own tribal environmental laws. The time has never been better for an examination of tribal environmental laws. From a historical perspective, Indian country has been the location of substantial environmental contamination. Today, Indian country possesses a substantial potential for natural resource development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), may spur development of tribal environmental laws. To take advantage of “streamlined” development provisions under both the TERA provisions and HEARTH Act, tribes must develop certain environmental review provisions. These factors in combination with the fact that the environment plays an important cultural and spiritual role for many tribal communities mean that now is an optimum time to consider tribal environmental law.

To start this important discussion on existing tribal environmental law, the article begins in Part II with an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. Next, in Part III, the article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. The article next describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted. This portion of the article concludes that a significant number of federally recognized tribes have no publically available tribal environmental laws. In light of this finding, Part V examines the existing laws of one tribal nation, the Navajo Nation, which has actively developed its tribal environmental laws. Moreover, Part V also begins the discussion of what may be norms for the development of tribal environmental law in the future. In this regard, this article establishes the foundation for the development of a robust examination of tribal environmental law.

Judge Hogan Sets Cherokee Freedmen Oral Argument for April 29, 2014

September 18, 2013September 17, 2013Matthew L.M. Fletcher2 Comments

Here:

2013-09-17 Order Granting Joint Motion for Order Setting Briefing Schedule for Summary Judgment on Core Issue