Author: Matthew L.M. Fletcher

New Mexico SCT Orders Equitable Tolling of Statute of Limitations on Worker’s Comp Claim against Pojoaque Police Dept.

Matthew L.M. Fletcher

Here is the opinion in Schultz v. Pojoaque Tribal Police Dept. (N.M.).

An excerpt:

{1} On August 17, 2002, Pojoaque Tribal Police Officer Kevin Schultz drowned while rescuing a twelve-year-old boy from the Rio Grande near Pilar, New Mexico. On the day of the accident, Schultz had taken the day off from work to chaperone a group of children from his church on a recreational outing. This case arose when Schultz’s  widow, Cheryl, filed a claim for workers’ compensation benefits resulting from her husband’s death, but only after the statute of limitations had expired.

{2} Notwithstanding the late filing, Mrs. Schultz contends that the conduct of the Pojoaque Tribal Police Department (police department or employer) caused her to file after the deadline, and thus, we should consider her complaint timely filed pursuant to NMSA 1978, Section 52-1-36 (1937) (as amended through 1989) of the Workers’ Compensation Act (the Act), entitled “Effect of failure of worker to file claim by reason of conduct of employer.” This particular statute goes to the heart of Mrs. Schultz’s appeal.

{3} Both the Workers’ Compensation Judge (WCJ) and the Court of Appeals decided that Mrs. Schultz’s complaint was not timely filed. For the reasons that follow, we  reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.

Montana SCT Materials on Failed Challenge to Flathead Reservation Water Compact

Matthew L.M. Fletcher

Here are the briefs and opinion in Western Montana Water Users Assn. v. Mission Irrigation District (Mont.):

Opinion

Appellant Brief

Appellee Brief

CSKT Amicus Brief

Montana Reserved Water Rights Compact Commission Amicus

Montana Water Resources Assn Amicus

Reply Brief

News coverage here, via North Dakota Supreme Court site.

WSJ: Book Review of Robert Utley’s “Geronimo” and Terry Mort’s “The Wrath of Cochise”

Matthew L.M. Fletcher1 Comment

Here.

Bethany Berger on Race, Descent, and Tribal Membership

Matthew L.M. Fletcher

Bethany Berger has published “Race, Descent, and Tribal Membership” (PDF) in the California Law Review Circuit. Here is the description:

Connecticut School of Law Professor Bethany R. Berger looks at the relationship between descent-based tribal citizenship requirements and race or racism. She argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy, and instead are moral, legal, and consistent with federal and international norms.

Huy Letter to UN Special Rapporteur James Anaya re: Indian Prisoner Religious Freedom

Matthew L.M. Fletcher1 Comment

Here:

UNSR Letter of Allegation Indigenous Prisoners Religious Freedom

Excerpt:

A pattern of restricting American indigenous prisoners’ religious freedoms is currently occurring throughout the United States. In recent years, states have issued new regulations curtailing the ability of American indigenous prisoners to possess religious items, participate in religious ceremonies, and otherwise engage in traditional practices. Further, changes in regulations continue to move forward absent meaningful consultation with indigenous peoples.

  • California: On February 21, 2013, the Department of Corrections issued an “emergency” regulation significantly limiting prisoners’ religious property.[i]  Effective immediately, prisoners no longer have access to sacred medicines like kinninnick, copal, and osha root, cloth for prayer ties, beads, pipes and pipe bags, and numerous other traditional items. The process for getting religious items approved was also made significantly more burdensome. Because the regulations constituted an emergency regulatory action, they went into effect immediately, without any consultation whatsoever with American indigenous peoples or opportunity for public comment.
  • Texas: Prison authorities recently changed regulations for an American indigenous prisoners’ unit, significantly restricting ceremonial participation. American indigenous prisoners are no longer allowed to participate directly in pipe ceremonies, smudge indoors, keep locks of hair from deceased relatives, or perform important ceremonies such as the Wiping Away the Tears ceremony.[ii]  Texas prison guards are also known to engage in overt racism toward indigenous prisoners. The media reports that on January 27, 2013, prison guards searched an indigenous prisoner’s cell, handling his medicine bag. When the prisoner stated that the guards were not supposed to touch his sacred items, a guard said “I don’t give a shit,” and that “being an Indian didn’t make him special.”[iii]
  • Montana: American indigenous prisoners in Montana are currently challenging en masse strip searches conducted prior to sweat lodge ceremonies as well as the confiscation or prohibition of smudge tobacco, antlers, herbs, and other sacred materials.[iv] The state of Montana issued an investigatory report in 2009 confirming almost all of the allegations as well as describing the derogatory treatment of indigenous prisoners by guards.[v]
  • South Dakota: American indigenous peoples comprise 27 percent of the South Dakota prison population, the highest proportion of any state in the country.[vi] On October 19, 2009, the Department of Corrections extended a ban on tobacco to indigenous religious uses. Indigenous prisoners were no longer allowed to use tobacco in sweat lodge ceremonies, pipe ceremonies, or for prayer ties and flags. When a federal district court held the ban violated federal law, prison authorities were still unable to agree with prisoners on an accommodation, forcing the court to issue a remedial order.[vii] South Dakota has appealed the case to the Eighth Circuit Court of Appeals.
  • Washington: In 2010, the Washington Department of Corrections barred almost all American indigenous prisoners’ religious practices, banned tobacco, reclassified sacred medicines such as sage and sweet grass as non-religious, prohibited foods for traditional meals such as frybread and buffalo, disallowed children from attending summer prison pow wows, and altered regulations so that certain religious items could no longer be securely stored.  After ten tribes petitioned the governor, the Department of Corrections reversed course, consulting with tribal leaders about reforms and reaching an accommodation to restore American indigenous prisoners’ religious rights.[viii]  Events in Washington demonstrate both the larger pattern of rising restrictions on indigenous prisoners’ rights as well as the importance of consultation with American indigenous peoples concerning administrative measures that affect them.  That state-tribal consultation and reform effort is what gave rise to Huy.

[i] State of California Office of Administrative Law, Notice of Approval of Emergency Regulatory Action, http://www.oal.ca.gov/res/docs/pdf/emergency_postings/2013-0206-01EON_App.pdf.

[ii] Appellant’s Opening Brief, Chance v. Texas Department of Criminal Justice, No. 12-41015 (January 14, 2013), https://turtletalk.blog/wp-content/uploads/2013/01/chance-opening-brief-filed.pdf.

[iii] Brian Daffron, “Inmate’s Religious Rights Allegedly Violated Within Texas Prison System,” Indian Country Today (March 8, 2013), http://indiancountrytodaymedianetwork.com/2013/03/08/inmates-religious-rights-allegedly-violated-within-texas-prison-system-148058.

[iv] Knows His Gun v. Montana, 866 F.Supp.2d 1235 (D. Mont. 2012), http://www.narf.org/nill/bulletins/dct/documents/knows_his_gun.html.

[v] Montana Department of Corrections Investigation Team, “Investigation into Complaints from Native American Inmates at the Crossroads Correctional Center, Shelby, Montana,” May 14, 2009, Part 1: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation1.pdf, Part 2: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation2.pdf.

[vi] Native Am. Council of Tribes v. Weber, No. Civ. 09-4182, 2012 WL 4119652 (D.S.D. Sept. 19, 2012), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[vii] Id.; Remedial Order, Native Am. Council of Tribes v. Weber, Civ. 09-4182-KES (D. S.D. 2013), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[viii] Gabriel S. Galanda, “Native American Prisoners Obtain Religious Freedom,” King County Bar Association Bar Bulletin (July 2012), https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=07&Year=2012&AID=article1.htm.

NNABA Resolution Supporting the Free Exercise of Indigenous Religion by American Indian, Alaska Native and Native Hawaiian Prisoners in Domestic Detention Facilities

Matthew L.M. Fletcher1 Comment

Here:

NNABA Resolution 2013-3

Excerpts:

NOW THEREFORE BE IT RESOLVED, that the National Native American Bar Association calls upon the United States, all fifty American states and the District of Columbia – including federal and state executive, agency, legislative, corrections and judicial officials and employees – to:

(a) Take all reasonable and any least restrictive steps to commend, support and facilitate incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion,

(b) Denounce or cease any unduly burdensome or patently illegal or illegitimate federal, state or local government restriction upon incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion, and

(c) Explore how federal, state and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples.

NOW THEREFORE BE IT FURTHER RESOLVED, that the National Native American Bar Association calls upon the American Bar Association, Federal Bar Association and state and local bar associations, the National Congress of American Indians, regional inter-tribal associations and individual American indigenous governments, the United States Attorney General and Department of Justice, the American Correctional Association and American Association of State Correctional Administrators, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples, to also formally call upon the United States, all fifty American states and the District of Columbia, to:

(a) Take all reasonable and any least restrictive steps to commend, support and facilitate incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion,

(b) Denounce or cease any unduly burdensome or patently illegal or illegitimate federal, state or local government restriction upon incarcerated American Indigenous Peoples’ freedom to believe, express and exercise traditional indigenous religion, and

(c) Explore how federal, state and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples.

Arkansas COA Decides ICWA Case — ICWA as Best Practices

Matthew L.M. Fletcher

Here is the opinion:

Stevens v Ark Dept of Human Services

An excerpt:

Even though the child’s father had not produced the ordered evidence of eligibility for Choctaw membership, the trial court utilized the higher evidentiary standard of proof beyond a reasonable doubt, which is required under the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (2010). The trial court found that DHS had used reasonable and active efforts to rehabilitate Kayla and prevent the dissolution of an Indian family; that DHS had complied with ICWA requirements; and that DHS had demonstrated the likeliness of serious emotional harm if returned to the parent. In addition, the trial court found that J.S. was adoptable and that termination was in her best interest.

NYTs on “Water War” on Flathead Reservation

Matthew L.M. Fletcher

Here.

Press Release on Confirmation of Derrick Watson to Federal Bench

Matthew L.M. Fletcher

WWW.NATIVEAMERICANBAR.ORG

For Immediate Release, April 22, 2013

Contact: Mary L. Smith (202) 236-0339

 NNABA APPLAUDS THE CONFIRMATION OF DERRICK WATSON TO THE FEDERAL BENCH

 Fourth Native Hawaiian in U.S. History to be Federal Judge

Phoenix, AZ. – The National Native American Bar Association (NNABA) commends the confirmation of Derrick Kahala Watson to the U.S. District Court for the District of Hawaii.  Watson becomes the only person of Native Hawaiian descent to currently serve in the federal judiciary and only the fourth Native Hawaiian in U.S. history.

“NNABA is thrilled by the historic confirmation of Derrick Kahala Watson to the federal judiciary,” said Mary L. Smith, President of NNABA. “We are heartened that in addition to Mr. Watson’s eminent qualifications, the federal bench will be furthered diversified as the result of Mr. Watson’s ascension to the court.  We applaud President Obama for nominating Mr. Watson and the U.S. Senate for its 94-0 vote to confirm him.”   NNABA hopes that this nomination signals that a Native American will soon be appointed to the federal bench.

Mr. Watson recently served as chief for the Civil Division in the U.S. Attorney’s Office for he District of Hawaii.  He attended the Kamehameha Schools and graduated from Harvard Law School.

Founded in 1973, NNABA serves as the national association for American Indian, Alaska Native, and Native Hawaiian attorneys, judges, law professors and law students.  NNABA strives for justice and effective legal representation for all American indigenous peoples; fosters the development of Native American lawyers and judges; and addresses social, cultural and legal issues affecting American Indians, Alaska Natives, and Native Hawaiians.

NNABA has launched an “Increase Natives and Tribal Court Judges in the Judiciary” initiative.

For more information contact 480-727-0420 or visitwww.nativeamericanbar.org.

Turtle Talk Faves: Jeffrey Veregge Art

Matthew L.M. Fletcher

Jeffrey is a Port Gamble S’Klallam tribal member, and just awesome. Here is his website. H/T blog profiling Jeffrey’s Indian art-inspired Superheroes.

Buy a print, or a t-shirt.

TheBat