Author: Matthew L.M. Fletcher

Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act

Matthew L.M. Fletcher2 Comments

Here are the materials in United States v. Alvirez (opinion here):

Alvirez Brief

Federal Appellee Brief

Alvirez Reply

From the court’s syllabus:

Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.

 

NBC News Coverage of Little Traverse Same-Sex Marriage Ceremony

Matthew L.M. Fletcher1 Comment

Here.

United States to Assert Concurrent Criminal Jurisdiction over White Earth Reservation

Matthew L.M. Fletcher1 Comment
First Assumption of Federal Jurisdiction Under Historic Tribal Law and Order Act
The Department of Justice has granted a request by the White Earth Nation for the United States to assume concurrent criminal jurisdiction on the 1,300 square mile White Earth reservation in northern Minnesota, Deputy Attorney General James M. Cole announced today.
The decision was the first action of its kind under the landmark Tribal Law and Order Act of 2010 (TLOA), which granted the Justice Department discretion to accept concurrent federal jurisdiction to prosecute major crimes within areas of Indian country that are also subject to state criminal jurisdiction under Public Law 280. Public Law 280 is the 1953 law that mandated the transfer of federal law enforcement jurisdiction for certain tribes to six states, including Minnesota. The decision, relayed yesterday in a letter to the tribe signed by Deputy Attorney General Cole, will take effect on June 1, 2013. Tribal, state, and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.
“Our goal in granting this request is to strengthen public safety and security for the people of White Earth,” said Deputy Attorney General Cole. “We look forward to partnering with the tribe and our state and local counterparts to support White Earth in ensuring justice on the reservation.”
“The public safety challenges facing our tribal communities are serious and complex,” said U.S. Attorney for the District of Minnesota B. Todd Jones. “The United States Attorney’s Office will continue working closely and collaboratively with our tribal and local partners towards our common goal – improving public safety. It is our hope that with the additional jurisdiction, our Office will be able to support our tribal and county partners for the benefit of all communities.”
The Department of Justice already has jurisdiction to prosecute crimes such as drug trafficking and financial crimes wherever they occur in the United States – including on the White Earth reservation. The change announced today will expand this existing jurisdiction on the reservation to allow federal prosecution of major crimes such as murder, rape, felony assault and felony child abuse.
The decision followed careful consideration of the request and information provided by the White Earth Nation, as well as by the Justice Department’s Office of Tribal Justice, the Executive Office for United States Attorneys, the U.S. Attorney’s Office for the District of Minnesota, the FBI, the U.S. District Court, state and local law enforcement partners and other sources.
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Office of Public Affairs

2013 Michigan Indian Education Critical Issues Conference Today and Tomorrow

Matthew L.M. Fletcher

Website here. Agenda here.

Program Highlights
Keynote Speaker – Friday Breakfast
We welcome Richard M. Church, Pharm. D. as our Keynote Speaker on Friday morning…
Dr. Church was appointed Director of the Office of Public Health Support for the Indian Health Service (IHS) in 2004. He is a native of Michigan and an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians. He earned his Bachelor of Science and Doctor of Pharmacy degrees from the University of Michigan, College of Pharmacy, and he completed his residency at the University of Michigan Medical Center. Dr. Church‘s career accomplishments include developing mission-oriented clinical service and practice roles for pharmacists. He played an active part in advancing progressive pharmacy practice positions that grew out of the IHS and were incorporated into the pharmacy profession at large. Building upon his clinical service foundation, he devoted another career segment to building an information technology infrastructure that positioned the IHS to take advantage of future technology innovations to support public health programs. In his present senior management roles, he provides national leadership in several critical public health support areas, including medical epidemiology; program statistics; planning, evaluation, and research; and health professions support.
Dr. Church has been recognized for service as the recipient of a number of awards and honors. These include the Surgeon General‘s Medallion and the Distinguished Service Medal, as well as many other PHS and professional awards.
Keynote Speaker – Saturday Lunch
Jessica Rickert, DDS was inducted into the Michigan Women‘s Hall of Fame for her work relating to American Indian health issues. A member of the Prairie Band Potawatomi Nation, she was a direct descendant of the Indian chief Wahbememe (Whitepigeon) for whom a village in Michigan is named. Dr. Rickert made history of her own when she became the first female American Indian dentist in the country upon graduating from the University of Michigan – School of Dentistry in 1975. While working in private practice in southeast Michigan, she developed a prevention program and added orthodontics to the dental clinic at Detroit‘s Children‘s Aid Society. As a board member of the Michigan Urban Indian Health Council, Dr. Rickert also established an intertribal dental clinic in Detroit. She assisted two state tribes—the Grand Traverse Band of Chippewa and Ottawa Indians and the Saginaw Chippewa Indians — with such services as dental screenings, preliminary planning for dental clinics, and educational presentations. In 2001, she began a dental advice column syndicated by American Indian newspapers across the nation and distributed in health clinics. That effort earned her the American Dental Association Access Award. She also authored a book entitled ―Exploring Careers in Dentistry.‖

MSU Indigenous Graduate Student Collective Hosts First Conference Today

Matthew L.M. Fletcher

About the Indigenous Gradate School Collective (featuring several MSU law students).

Conference materials here:

Anishinabeg e-maawizijig gizhiikamoowad akinoowamaadiwinan

First Annual Indigenous Graduate Student Collective Symposium

Building Campus and Community Bridges

Friday, March 15, 2013

9am-3:30pm

Kresge Art Center, Rooms 41 and 108

 Register for the Symposium Here

Symposium Flyer

Parking Map

There are a few handicap parking places right next to the building otherwise the map can direct you to visitor parking.

Schedule Continue reading →

Atlantic.com Profile of Niijii Radio

Matthew L.M. Fletcher

Here.

Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit

Matthew L.M. Fletcher2 Comments

Here is the order  and related materials in Confederated Tribes of the Grand Ronde Community of Oregon v. Salazar (D. D.C.):

DCT Order

Clark County et al Motion for Summary J

Interior Opposition to Summary J Motion

USET Amicus

City of La Center Amicus

Interior Revised Cowlitz Initial Reservation Opinion

Interior Motion to Remand

Clark County et al Opposition to Remand Motion

Clark County et al Motion to Strike

Interior Opposition to Motion to Strike

Clark County et al Reply in Support of Motion to Strike

Excerpt from Judge Rothstein’s opinion:

Nor can the Federal Defendants supplement the administrative record with the 2012 Revised Initial Reservation Decision. It is black letter law that the record to be considered by this Court “consists of the administrative record compiled by the agency in advance of litigation, not any record thereafter constructed in the reviewing court.” AT&T Info. Sys. Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (emphasis added) (rejecting agency’s attempt to submit a litigation affidavit as a post hoc rationalization of the agency’s action); see also, Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992) (rejecting agency’s rationale as post hoc rationalization not included in administrative record); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539-40 (1981) (“[P]ost hoc rationalization of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action”). Accordingly, the Federal Defendants cannot “incorporate” a 2012 explanation into a 2010 ROD by characterizing it as a “Supplemental Record of Decision.”

However, the Court is now in a conundrum. The Court notes that Plaintiffs opposed the Federal Defendants’ motion to remand, yet remand is the relief that they sought on the initial reservation determination because the agency had failed to provide a “reasoned explanation for his decision.” The Secretary has now provided such a reasoned explanation. Plaintiffs again oppose remand and ask the Court to strike the Supplemental ROD. If the Court were to grant Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded. The Court will not waste its or the parties’ resources on such a fruitless endeavor. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[Federal courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong”). The Court is also cognizant of the fact that the parties have been locked in this battle for nearly eleven years. (TR at 13.). However, the APA requires that the Federal Defendants conform to its dictates, disallowing amendments to a final decision once a case has been filed in district court. Accordingly, the Court will remand this action to the agency with instructions to rescind the 2010 ROD. Since this is a case where the agency has already reconsidered and revised its final decision and since the parties represent to the Court that the agency is not required to provide public notice under IGRA (which is the only portion of the 2010 ROD being supplemented), the Court will require the agency to issue a new decision of record within sixty (60) days of the date of this order, unless good cause is shown why it cannot do so. See Fulton v. FPC, 512 F.2d 947, 955 (D.C. Cir. 1975).

News coverage here.

Conner & Taggart on the Impact of Gaming on Indian Nations Nationally

Matthew L.M. Fletcher

Thaddieus W. Conner and William A. Taggart have published “Assessing the Impact of Indian Gaming on American Indian Nations: Is the House Winning?” in Social Science Quarterly. Send me an email if you need a copy.

Abstract here:

Objective. The objective of this article is to examine the impact of Indian gaming on reservation conditions in the contiguous American states following passage of the Indian Gaming Regulatory Act in 1988. Methods. Utilizing 1990 and 2000 Census data for 330 Indian nations, a pretest/posttest design permits a comparison of nongaming nations to three different types of gaming nations on eight economic measures, while controlling for multiple tribal characteristics and considering the effects of certain state contextual factors confronting nations due to location. Results. The analysis reveals (1) that the overall impact of gaming, while generally positive, is not as extensive after controlling for certain tribal features, (2) that there are differential effects evident across the three types of gaming nations, and (3) that the state context makes a difference in influencing the relationship between gaming and reservation conditions. The most substantial impacts are for a small subset of nations with Class III gaming and making per capita payments to their members in larger, wealthier states prohibiting non-Indian casinos. Conclusion. These results challenge some of the core assumptions about Indian gaming radically changing the poor economic conditions endemic to Indian country.

You may recall these authors previously published a paper focused on New Mexico.

Iipay Nation First Amended Complaint against Cal. Gambling Control Commission

Matthew L.M. Fletcher

Here:

Iipay First Amended Complaint

Prior complaint here.

Native Village of Kivalina v. ExxonMobile Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Native Village of Kivalina Cert Petition

Question presented:

Petitioners Native Village of Kivalina and the City of Kivalina, a federally-recognized tribe and an Alaskan municipality, are the governing bodies of an Inupiat village located on an Arctic barrier island that is being destroyed by global warming. Greenhouse gases have caused the Earth’s temperature to rise, especially in the Arctic, which has melted the land-fast sea ice that protects the village from powerful oceanic storms. Kivalina is thus now exposed to erosion and flooding from the sea and must relocate or face imminent destruction.

Petitioners seek damages — not injunctive relief–from the largest U.S. sources of greenhouses gases under the federal common law of public nuisance. In American Electric Power Co. v. Connecticut (“AEP”), 131 S. Ct. 2527 (2011), the Court dismissed a federal common law claim for injunctive relief, holding that the Clean Air Act displaces “any federal common law right to seek abatement” of emissions because the Clean Air Act “provides a means to seek limits on emissions [2]  of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law.” AEP, 131 S. Ct. at 2537, 2538 (emphasis added).

The question presented is: Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.

Lower court materials here.