Author: Matthew L.M. Fletcher – Page 792

Student Law Review Note Blasts BIA Pacific Region Agency Trust Acquisition Review Process as “Extreme Rubber-Stamping” Favoring Tribes

January 17, 2013January 17, 2013Matthew L.M. Fletcher6 Comments

The paper is called Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934 (PDF: Extreme Rubber-Stamping). The abstract:

In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific Region Bureau of Indian Affairs decisions on proposed trust acquisitions from 2001 through 2011. Supported by this data, which shows a 100% acceptance rate, this Comment ultimately concludes that the process is shockingly biased and toothless—merely an exercise in extreme rubber-stamping. Thus, there is great need for comprehensive reform of the fee-to-trust process, including the creation of a meaningful role in the process for affected communities, establishment of clear and specific standards for acceptance of land into trust, and an emphasis on collaborative solutions.

Interesting , if not downright terrible, methodology — looking only at the notices of successful trust applications to conclude that 100 percent of applications are accepted. Wow! Without knowing, I would guess that the Bureau around the country generally doesn’t actually deny many trust acquisition applications, but they surely do not approve 100 percent. The government just sits on them until they become stale, or the tribe withdraws them when it becomes clear the application would never be approved.

Also, the conclusion that no one appeals or objects to trust acquisitions because the process is unfair is a little hysterical. Nearly all non-gaming related acquisitions are non-controversial, on-reservation acquisitions. Why would there be an appeal or objection? The number of pending federal court challenges to gaming-related trust acquisitions also tends to undermine these conclusions.

Even so, the critiques of the trust acquisition process from the point of view of state and local governments reproduced here are important to review.

NPR on Slow Pace of Criminal Justice Reform in Indian Country

January 17, 2013Matthew L.M. Fletcher1 Comment

Here. Via the excellent North Dakota Supreme Court site.

An excerpt:

The Hopi of northern Arizona were among the first in the nation to increase criminal sentences under the law. The tribe spent 18 months updating criminal codes to create a new class of felonies that could result in more jail time for convicted offenders.

Few tribes have put together all the pieces required to boost jail time, but progress is being made on other fronts. The Southern Utes in Colorado are now contracting with the federal government to hold detainees. On South Dakota’s Rosebud Sioux reservation, tribal officials worked with the U.S. attorney’s office to create a diversion program to keep juveniles out of trouble.

In Montana, special teams made up of tribal and federal officials were established last summer to investigate sexual assault cases.

Oneida Indian Nation Cert Opposition Brief in Reservation Boundaries Case

January 17, 2013Matthew L.M. Fletcher

Here:

1-16-13 12-604 — Madison Countyv. Oneida Indian Nation of New York — S. Ct. Brief in Opposition-

Petition here.

Federal Court Denies Urban Outfitters Motion to Transfer Venue in Navajo Nation Trademark Case

January 17, 2013Matthew L.M. Fletcher2 Comments

Here is the order:

NN v UO Order denying motion to Transfer Venue

Motion materials are here.

Complaint is here.

Supreme Court’s Recent Floating Home Decision a Relief to Dockside Casinos

January 16, 2013January 16, 2013Matthew L.M. Fletcher

The WSJ reports here.

An excerpt:

Things that float aren’t always boats.

So says the Supreme Court, which used a Florida marina dispute to address an issue that has stirred the waters since the early days of the American republic.

The ruling is a relief for dockside-casino operators, which didn’t want their operations subjected to broader legal liability under maritime law.

The opinion in Lozman v. City of Riveria Beach is here. SCOTUSblog page here. SCT haiku version.

Ontario Appeals Court Refuses to Extradite Aboriginal Drug Couriers to US because of Harsh Sentences and Prisoner Abuses

January 16, 2013Matthew L.M. Fletcher

Here is the opinion in :

AG Canada v Leonard & Gionet

The court’s summary:

L and M were Aboriginal Canadians whose extradition was sought by the United States of America to stand trial on drug charges. Their aboriginality and the systemic factors identified by the Supreme Court of Canada in R. v. Gladue would not be considered in U.S. sentencing proceedings. Land M could both be prosecuted in Canada for the conduct that gave rise to the U.S. charges. L entered the United States with approximately 46,000 ecstasy pills. He was 18 years old at the time of the offence and had no criminal record. If convicted, he would probably receive a sentence of between 15 years, 8 months’ to 19 years, 7 months’ imprisonment with no prospect of release until 85 per cent of the sentence had been served. The U.S. prisons to which he would likely be assigned if convicted lacked culturally appropriate programs for Aboriginal inmates. If tried and convicted in Canada, L would likely receive a conditional or relatively short prison sentence. M was allegedly involved in importing oxycodone into the United States from Canada. If convicted in the United States, he faced a sentence of between six and ten years. He submitted that, in Canada, the sentencing range was three to five years and that consideration of his Aboriginal status and the Gladue principles could yield a lower sentence. L and M were committed forextradition. In considering whether to surrender them, the Minister of Justice found that their Aboriginal status and the Gladue principles were not relevant to an analysis under s. 6 of the Canadian Charter of Rights and Freedoms. He found that the Gladue factors were relevant in assessing the applicants’ claims that surrender would violate their rights under s. 7 of the Charter, but concluded that surrendering them would not shock the conscience. He also found that surrender would not be ”unjust or oppressive” under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. He ordered their surrender. The applicants applied for judicial review of that decision. L also appealed his committal order. [The court granted the application]