Author: Matthew L.M. Fletcher

Michigan State University Law Faculty Job Posting

Matthew L.M. Fletcher

MSU

Michigan State University College of Law seeks exceptional candidates for two faculty positions. The first is a tenure-system position in tax.  The Law College is particularly interested in candidates whose teaching interests include basic federal income taxation and decedents’ estates and trusts.  The successful applicant for the second position will teach in the Alvin L. Storrs Low-Income Taxpayer Clinic.  The clinical position may be either a tenure-system appointment or a clinical track appointment culminating in a rolling, long-term contract. Lateral and entry-level candidates are encouraged to apply for either or both positions.

Michigan State University is the nation’s premier land-grant university, established in 1855. More information about the Law College can be found at

MSU is committed to achieving excellence through cultural diversity.  The University actively encourages applications from and nominations of women, persons of color, veterans and persons with disabilities.

Please submit application materials or nominations to:

Professor Anne Lawton

Chair, Faculty Appointments Committee

648 N. Shaw Lane, Room 453

MSU College of Law

East Lansing, Michigan  48824-1300

MSU and MSU COLLEGE OF LAW ARE

AFFIRMATIVE ACTION/EQUAL OPPORTUNITY EMPLOYERS

Jace Weaver Talk at Michigan State — Sept. 19, 2013 — “Religion and the Red Atlantic”

Matthew L.M. Fletcher

Professor Weaver will be speaking at Wells Hall at 3PM on Sept. 19 (next Thursday). Hope to see you there.

Flyer here:

Weaver Announcement 9-19-13

Colville Enacts Same-Sex Marriage Recognition Statute

Matthew L.M. Fletcher1 Comment

Here (h/t here). They join Coquille, Suquamish, Little Traverse, Pokagon, and Santa Ysabel. For other tribes interested, see the toolkit Ann Tweedy posted a while back.

An important point:

Practically speaking, Finley said, it will mean that gay partners can have the same rights as a married couple of different sexes. One change already enacted allows anyone who works for the tribe to add a spouse of the same sex to their insurance and benefits.

He said the tribe will now begin modifying its other codes, plans and policies to make sure they agree with the newly passed amendment.

Mashantucket Pequot Second Circuit En Banc Petition (and Amicus Support)

Matthew L.M. Fletcher

Here are the new materials in Mashantucket Pequot Tribe v. Town of Ledyard (2d Cir.):

MPN En Banc Petition

Amicus Brief in Support of En Banc Petition — Seminole, Umatilla, and Coquille

Panel decision and briefs are here.

Federal Court Orders Tribal Exhaustion in Coeur d’Alene Reservation Waste Dumping

Matthew L.M. Fletcher

Here are the materials in St. Isidore Farm LLC v. Coeur D’Alene Tribe of Indians (D. Idaho):

1 Complaint

3-1 St. Isadore Motion for TRO

7 DCT Order Granting TRO

17 Coeur d’Alene Response

21 Coeur d’Alene Motion to Dismiss

28 St. Isadore Reply

43 St. Isadore Response

44 Coeur d’Alene Reply

61 DCT Order Granting Motion to Dismiss

News coverage here.

USA / Indigenous peoples: UN expert urges respect for the rights of Cherokee child in custody dispute

Matthew L.M. Fletcher1 Comment

Here.

Response from the U.S. Mission to the UN here.

GENEVA (10 September 2013) – The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, today called on the relevant state, federal and tribal authorities in the United States of America to take all necessary measures to ensure the wellbeing and human rights of ‘Veronica,’ an almost four year old Cherokee child at the center of a highly contentious custody dispute.

“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya stressed. “The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”

Veronica is currently facing judicially ordered removal from her Cherokee family and community. In June of this year the US Supreme Court ruled that certain protections of the Indian Child Welfare Act did not apply to proceedings in which a non-Cherokee couple sought to adopt Veronica, given the particular circumstances of the case. The high court, however, it did not make an ultimate determination of the disposition of the adoption proceedings.

Following the Supreme Court decision, a South Carolina state court awarded custody of Veronica to the non-Cherokee couple, but it did so without a determination of whether her transfer away from her Cherokee family would be in her best interests in light of her current situation and Cherokee heritage. Although Veronica lived with the non-Cherokee couple in South Carolina for the first two years of her life, she has now resided with her father and extended indigenous family in Cherokee territory in the state of Oklahoma for nearly two years.

South Carolina authorities have attempted to force Veronica’s father to release custody of her, charging him with custodial interference for his refusal to do so. On 3 September 2013 the Oklahoma Supreme Court took up the case, granting a temporary stay of an enforcement order and allowing the father to keep Veronica pending further proceedings.

“I urge the relevant authorities, as well as all parties involved in the custody dispute, to ensure the best interests of Veronica, fully taking into account her rights to maintain her cultural identity and to maintain relations with her indigenous family and people,” said the UN Special Rapporteur.

The independent expert pointed out that these rights are guaranteed by various international instruments subscribed to or endorsed by the US, including the International Covenant on Civil and Political Rights, and the UN Declaration on the Rights of Indigenous Peoples.

In his 2012 report* on the situation of indigenous peoples in the US, the Special Rapporteur noted that the removal and separation of Indian children from indigenous environments is an issue of longstanding and ongoing concern. “While past practices of removal of Indian children from their families and communities have been partially blunted by passage of the Indian Child Welfare Act in 1978, this law continues to face barriers to its implementation,” Mr. Anaya stated.

“I encourage the United States to work with indigenous peoples, state authorities and other interested parties to investigate the current state of affairs relating to the practices of foster care and adoption of indigenous children, and to develop procedures for ensuring that the rights of these children are adequately protected,” the UN Special Rapporteur said.

The UN Human Rights Council appointed S. James Anaya as Special Rapporteur on the rights of indigenous peoples in March 2008. Mr. Anaya is a Regents Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona (United States). As Special Rapporteur, he is independent from any government or organization and serves in his individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx

(*) Check the Special Rapporteur’s 2012 report on the USA: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session21/Pages/ListReports.aspx

See the UN Declaration on the Rights of Indigenous Peoples: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/61/295&Lang=E

UN Human Rights Country Page – United States of America: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/USIndex.aspx

For more information and media inquiries, please contact Maia Campbell (+ 41 22 917 9314 / mcampbell@ohchr.org) or write to indigenous@ohchr.org.

For media inquiries related to other UN independent experts:
Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)

Federal Court Dismisses Challenge to Cheyenne River Sioux Equitable Compensation Act

Matthew L.M. Fletcher1 Comment

Here are the materials in LeBeau v. United States (D. S.D.):

1 Complaint

17 US Motion to Dismiss

20 Opposition

25 US Reply

32 DCT Order Dismissing Complaint

An excerpt:

Plaintiffs brought suit against the United States alleging claims for breach of trust obligations, breach of fiduciary duty, and accounting. The relief sought by plaintiffs is limited to declaratory and equitable relief. The United States moves to dismiss plaintiffs’ complaint in its entirety, arguing plaintiffs lack standing, among other things. Plaintiffs resist the motion. For the following reasons, the motion is granted, and plaintiffs’ claims are dismissed without prejudice.

 

Federal Court Dismisses Federal Assault Indictment — Denies Effort to Assimilate State Law

Matthew L.M. Fletcher

Here is the opinion in United States v. Kydney (D. Neb.):

DCT Order Dismissing Count I of Indictment

An excerpt:

Even if the threatened crime of violence were simple assault under federal law, the same analysis would hold true. The Nebraska third-degree assault crime is the statutory corollary to the common-law crime of simple assault. Under both Nebraska and Federal law, simple assault is a misdemeanor and the elements are similar.

Evidence of Prior Navajo DUI Conviction Excluded from Federal Prosecution

Matthew L.M. Fletcher

Here are the materials in United States v. Bundy (D. N.M.):

US Motion to Introduce Evidence of Navajo Conviction

Bundy Response

DCT Order Denying Motion

From the order:

As previously noted, Defendant has provided the Court with a copy of the transcript of her guilty plea proceeding. [Doc. 194-1] Since there is no indication in the transcript that Defendant was represented by counsel, the Court will not assume that Defendant was informed of her rights by counsel. Rule 12(c) of the Navajo Rules of Criminal Procedure required the judge, prior to accepting Defendant’s plea, to explain to Defendant that she had the rights (1) to remain silent, (2) to have counsel at her own expense or appointed counsel if defendant cannot afford counsel, (3) to plead not guilty, (4) to confront and cross-examine witnesses; (5) to be released on bail unless certain findings are made, (6) to trial by jury, (7) to a speedy and public trial, (8) to call witnesses, and (9) to file a writ of habeas corpus. Instead of the detailed enumeration of her trial rights contemplated by the Navajo Rules of Criminal Procedure, the page-and-a-half transcript shows a cursory, rudimentary colloquy. Although Defendant was asked “Do you understand your rights as explained to you?” the transcript does not include any enumeration of those rights, nor does the record show that Defendant was told that she was giving up those rights by pleading guilty. Under the Navajo Rules of Criminal Procedure, the advisement of rights pursuant to Rule 12(c) is the sole procedure for advising a defendant of her rights. Further, Defendant’s counsel has represented to the Court that an examination of the tape of the proceedings before the tribal court for April 22, 2009 fails to show any explanation of rights to Defendant or any other person. [Doc. 194 at 3, n.1] It appears that this prerequisite to a valid guilty plea was entirely overlooked in Defendant’s case. The Court finds that Defendant was not advised of key rights guaranteed by ICRA–the privilege against self-incrimination, the right to confront her accusers and to compulsory process, the right to counsel at her own expense, and the right to trial before a jury of not less than six persons. Section 1302 (4) (6) and (10). The transcript also shows that there was no inquiry into the factual basis of Defendant’s plea. Defendant has made a compelling showing that her guilty plea was not knowing and voluntary. Under ICRA due process of law is itself a right. Section 1302(8). The Court concludes that Defendant’s guilty plea was obtained in violation of the due process provision of ICRA, and under Shavanaux is inadmissible as substantive evidence in a subsequent federal prosecution.

In a footnote, the court added:

Given the solicitude of the Navajo Supreme Court for the rights of accused tribemembers, e.g. Eriacho v. Ramah District Court, 6 Am. Tribal Law 624 (Navajo Sup. Ct. 2005); Navajo Nation v. Curley, 6 Am. Tribal Law 697 (Navajo Sup. Ct. 2005); Curley v. Navajo Nation, 4 Am. Tribal Law 622 (Navajo Sup. Ct. 2002), the Court has considerable doubt whether a prior conviction based on a demonstrably invalid guilty plea would be admissible in Navajo tribal court over the defendant’s objection.

California Indian Law Association 13th Annual Conference Announcement — Oct. 10-11, 2013

Matthew L.M. Fletcher

13th Annual Indian Law Conference October 10 – 11, 2013

13th Annual CILA Indian Law Conference to be held at the Yocha Dehe Cache Creek Casino Resort in Brooks, CA, on Highway 16, approximately one-hour northwest of Sacramento, California.  Click here for more information.

Agenda and registration form here.