Author: Matthew L.M. Fletcher

Federal Court Dismisses ICRA Habeas Claim against Seneca Nation by Tribal Member Facing Quasi-Banishment

Matthew L.M. Fletcher1 Comment

Sorry about the “quasi-banishment.” It’s a made up word, I know. 🙂

Mr. Mitchell contended that the Council’s action imposing certain restrictions on him (following a federal indictment charging him with fraudulent acts in connection with his position with a Nation gaming enterprise) subjected him to custody for purposes of ICRA, and sought habeas corpus relief. The Court held that Mr. Mitchell is not subject to custody or detention, and did not reach the question of exhausting tribal court remedies.

Here are the materials in Mitchell v. Seneca Nation of Indians (W.D. N.Y.):

15-1 Memorandum in Support of Motion to Dismiss Under Rule 12(B)(1)

18 Mitchell Opposition Motion Dismiss 1

9 – SNI Reply – Motion to Dismiss

23 – Order Granting Motion to Dismiss

Important Montana 1 Decision in Federal Trade Commission Suit against On-Rez Payday Lenders

Matthew L.M. Fletcher

Here are the materials in FTC v. Payday Financial LLC (D. S.D.):

DCt Order Denying Defendants’ Motion

Defendants’ Motion for Partial Summary J

FTC Opposition

Defendants’ Reply

From the opinion:

The pending motion for partial summary judgment presents the issue of tribal court jurisdiction over non-Indians who contract with a company doing business from an Indian reservation. The “pathmarking” case on tribal authority over nonmembers is Montana v. United States, 450 U.S. 544 (1981). See Strate v. A-I Contractors, 520 U.S. 438, 445 (1997) (describing Montana as “pathmarking” and applying Montana to evaluate tribal court jurisdiction authority over non-Indians.) In Montana, the Supreme Court recognized two areas in which  Indian tribes have sovereign power to exercise authority over nonmembers on their reservation. The first such “Montana exception” recognizes tribal authority over “the activities of nonmembers who enter consensual relationships with a tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”Montana, 450 U.S. at 565. The precise question presented in this case is one of first impression: When a company conducting  business from an Indian reservation enters into a commercial contract with a non-Indian, is it an unfair and deceptive practice for the company to include forum selection and consent to tribal jurisdiction provisions in [2] the contract and to then expect to litigate any alleged breach of contract claim against the non-Indian in tribal court? This Court determines that, under the circumstances of this case and on the sole issue currently before this Court, such contract provisions are not unfair and deceptive when the non-Indian has entered into “consensual relationships [with tribal] members” with a sufficient connection to on-reservation activities to make the consent to jurisdiction and forum selection provisions enforceable under the first Montana exception. See Montana, 450 U.S. at 565. However, in this case, two open issues prompt this Court to deny Defendants’ Motion for Partial Summary Judgment: (1) This Court’s record lacks information establishing that the Defendants are in fact “members” of the tribe for purposes of the first Montana exception; and (2) an ambiguity in the contract exists as to under what circumstances the non-Indian is consenting to tribal court jurisdiction in addition to binding arbitration.

Turtle Talk Guide to the Amici Supporting Respondents in Baby Veronica Case (Adoptive Couple v. Baby Girl)

Matthew L.M. Fletcher2 Comments

Indian tribes, individuals, law clinics, bar associations, and other entities inundated the Supreme Court with amicus briefs in the Baby Veronica case. Here is our guide to the amici (we’ve highlighted the must-read briefs in red):

The United States:

Here.

As always, the most important brief.

The State AGs Brief:

12-399 bsac Arizona et al

12-399 bsac MN DHS

The AGs’ brief may also be the most important amicus brief, in that 18 state attorneys general signed on to a brief drafted and distributed by the Arizona AG. No state AG filed an amicus brief supporting petitioners. While the contents of the brief are important (they attack the existing Indian family exception (EIF) and provide a defense against the federalism attack on ICWA), the mere fact of the brief is very powerful. The Minnesota DHS brief is along the same lines.

The Strategic Briefs:

12-399 bsac Association on American Indian Affairs (aka the NCAI brief)

12-399 Professors of Indian Law Amicus (the legal history brief)

12-399 bsac Seminole Tribe of Florida et al (the constitutionality brief)

These three briefs form the cornerstone of the amicus strategy. As usual, the NCAI brief offers greater national context for the dispute in issue, offering legislative history and even some sociological history. The law profs brief, IMHO the best law profs brief ever filed in the Indian cases before the Supreme Court, is the legal history of ICWA, written by one of the very best legal historians out there, Stuart Banner, former SOC clerk. The constitutionality brief defends against the farthest-reaching attacks of some of the petitioners, that ICWA is unconstitutional. It focuses on the doctrine we call the political status doctrine, first articulated by the Supreme Court in Morton v. Mancari.

Briefs Authored by Supreme Court Specialists:

12-399 bsac CaseyFamilyPrograms (Patricia Millett)

12-399 bsac CurrentandFormerMembersofCongress (Kathleen Sullivan)

12-399 bsac Adult Pre-ICWA Indian Adoptees (Ed DuMont)

It’s unfair to characterize these briefs solely as briefs authored by Supreme Court specialists, but names mean a great deal to clerks when slogging through a very large pile of amicus briefs. The Millett brief may be critically important, given that so many adoption and children’s organizations signed on, responding in force to the petitioners’ adoption policy positions.

Social Science Brief:

12-399 bsac Nat’l Lat Psych Assoc

I guess the closest thing we have to a Brandeis brief in this case. Could be critical, especially since the social science that persuaded Congress to adopt ICWA in 1978 has not aged all that well. Also, it responds directly to the junk science on attachment theory Mark Fiddler keeps pitching. Continue reading →

New Scholarship on Native Hawaiian Land Disputes

Matthew L.M. Fletcher1 Comment

The Cardozo Journal of Conflict Resolution has published “Hawaiian Land Disputes: How the Uncertainty of the Native Hawaiian Indigenous Tribal Status Exacerbates the Need for Mediation,” a student note (PDF).

From the intro:

Many people see the Hawaiian Islands as a paradise in the Pacific Ocean.1 However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until 1893,2 and the islands did not reach statehood until 1959.3 Despite this however, Native Hawaiians have never officially been considered an indigenous tribe.4 This lack ofrecognition from the federal government has caused a strong sense of injustice that is prevalent throughout the Native Hawaiian community.5

Adoptive Couple v. Baby Girl Amicus Briefs Supporting Respondents — UPDATED 3/29/13

Matthew L.M. Fletcher

Here:

11-399 bsac The Seminole Nation of Oklahoma

12-399 bsac 63 California Indian Tribes

12-399 bsac American Civil Liberties Union

12-399 bsac Arizona et al

12-399 bsac CurrentandFormerMembersofCongress

12-399 bsac Family Law Professors

12-399 bsac Friends Committee on National Legislation et al.

12-399 bsac Hamline Univ Sch of Law Child Advocacy Clinic

12-399 bsac Lower Sioux Indian Community

12-399 bsac Nat’l Lat Psych Assoc

12-399 bsac Navajo Nation

12-399 bsac Seminole Tribe of Florida et al

12-399 bsac Tanana Chiefs Conference, et al

12-399 bsac The Honorable Abby Abinanti Chief Justice of the Yurok Tribal Court (2)

12-399 bsac Wisconsin Tribes

12-399 Professors of Indian Law Amicus

12-399 bsac Adult Pre-ICWA Indian Adoptees

12-399 bsac Associationon American Indian Affairs

12-399 bsac CaseyFamilyPrograms

12-399 bsac Inter Tribal Council of AZ

12-399 bsac MN DHS

12-399 bsac Nat’l Native American Bar Assoc

12-399 bsac Oklahoma Indian Child Welfare Assoc

IRS Throws Open Door to Tribal Participation as Owners of Renewable Energy Projects

Matthew L.M. Fletcher

Here is the ruling:

IRS Tribal Ruling

Thanks to John Marciano who sent this along, and wrote it up here.

Stuart Banner’s New Book Reviewed by Liptak in the NYTs

Matthew L.M. Fletcher

Here.

We’re big fans of Stuart, and his new book (“The Baseball Trust: A History of Baseball’s Antitrust Exemption”) looks great.

ACLU Amicus Brief in Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher1 Comment

Here:

12-399bsacAmericanCivilLibertiesUnion

Federal Court Denies Motion to Dismiss Navajo Trademark Claims against Urban Outfitters & Anthropologie

Matthew L.M. Fletcher2 Comments

Here are the materials in Navajo Nation v. Urban Outfitters (D. N.M.):

NN v. UOs Order Denying Motion to Dismiss

UO Motion to Dismiss

Navajo Nation Opposition

UO Reply

Previous materials on a denied motion to transfer venue are here.

Wenona Singel: “Indian Tribes and Human Rights Accountability”

Matthew L.M. Fletcher5 Comments

Our own Wenona T. Singel has posted her paper, “Indian Tribes and Human Rights Accountability,” on SSRN. The San Diego Law Review recently published it.

Here is the abstract:

In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.

You may recall that Michigan State Law Review hosted a symposium on Wenona’s paper. We will post those papers as soon as they’re published.