Author: Matthew L.M. Fletcher – Page 805

During a VAWA press conference earlier Tuesday, Sen. Patty Murray (D-Wash.) said she is “completely baffled” why House Republican leaders wouldn’t put the Senate bill on the House floor for a vote. She took direct aim at Cantor, who she said she heard is planning to put forward an entirely new VAWA bill this week that leaves out the Senate’s added protections.

“In negotiations over this bill, [Cantor] has indicated that he is set to leave out protections for tribal women … that he wants to leave off protections for the LGBT community once again, and that he will leave out many of the recent immigrants who find themselves with nowhere to turn when they are victims of domestic violence,” Murray said.

White House fact sheet.

Tulalip Tribal Vice-Chair Deborah Parker Press Release: DEBORAH PARKER VAWA PRESS RELEASE

Galanda Broadman blog post.

Judge Crabb Denies Wisconsin Tribes’ Motion to Allow Night Deer Hunting

December 18, 2012Matthew L.M. Fletcher2 Comments

Here:

crabborder

Briefs, news coverage, etc. is here, here, here, and here.

New Scholarship on Long-Term Leasing Act of 1955

December 18, 2012Matthew L.M. Fletcher

Dustin Frye has posted “Law, and Land Tenure: Understanding the Impact of the Long-Term Leasing Act of 1955 on Indian Land Holdings” on SSRN. Here is the abstract:

An increasing focus of contemporary Native American economic development literature concentrates on the role of institutions. Land tenure arrangements are an important part of the institutional structure on reservations because several reservations rely on agriculture and resource extraction. The 1950s and 1960s were characterized by a series of policy interventions targeting Native Americans. One such policy, the Long-Term Leasing Act (LTLA) of 1955, reduced bureaucratic oversight and altered the composition of Native American trust land. The policy extended the possible term of leases on trust lands, increasing economic opportunities, lowering transaction costs, and increasing the discounted present value of retaining land in trust status. Using a new panel dataset on land tenure, this paper finds that the LTLA significantly diminished the flow of land to fee-simple (private ownership) and tribally owned land held in trust, leading to a higher rate of retention in individually owned land held in government trust. I extend the empirical framework to determine whether reservations under state jurisdiction experienced additional changes in land tenure due to the ability to more credibly commit to leasing contracts or whether legal uncertainty over land-use and expanded credit access led to increased transfer to fee-simple. The results suggest that reservations under state jurisdiction continued transferring land to fee-simple, which supports the legal land-use uncertainty and suggests the expanded credit access impacted purchasing more than leasing. To examine the degree that heirship is influencing the results, I estimate the model by allotment date groups, where allotment dates proxy for heirship. Results indicate that reservations allotted earlier, which have more fractionated ownership, responded more to the Long-Term Leasing Act. Shifts in land holdings induced by the LTLA reinforce the importance of reducing transaction costs associated with trust land for Native American economic development.

A Sad Day: Senator Inouye Walks On

December 17, 2012December 17, 2012Matthew L.M. Fletcher1 Comment

Here.

Federal Court Holds Teck Cominco Metals Liable under CERCLA for Lake Roosevelt Pollution Clean-Up Costs

December 17, 2012Matthew L.M. Fletcher

Here is the order in Pakootas v. Teck Cominco Metals (E.D. Wash.):

DCT Judgment Favoring Pakootas — Phase I

Michigan COA Issues Conditional Reversal in ICWA Notice Case

December 17, 2012Matthew L.M. Fletcher

Here is the unpublished opinion:

Matter of Vanostran

An excerpt:

Given the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, the Supreme Court found “the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one,” and held that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. Morris, 491 Mich at 88-89. The transcript of the November 29, 2004, hearing was not provided on appeal for review of the evidence indicating Indian heritage, but the trial court deemed the evidence “weakly strong” and felt it warranted provision of ICWA notice. On appeal, the parties agree that the lower court record does not show notice was provided in 2004. Given the fact that the notice requirement was triggered in 2004, it is unnecessary to decide whether respondent mother’s comments during the 2012 termination hearing were also sufficient to require notice. If her comments were not sufficient, or even if she denied SKV’s Indian heritage, the trigger occurred in 2004, and a parent cannot waive the child’s status. Morris, 491 Mich at 111.

New Oregon Law Review Article on the Application of the Reverse-Erie Doctrine and Indian Law

December 17, 2012Matthew L.M. Fletcher

Here.

An excerpt:

After proposing a new framework for choosing the applicable body of law, one that more closely resembles a mirror image of the Erie framework, this Comment looks to decisions in Indian law to illustrate the problems produced by the current reverse-Erie paradigm and how they might be cured under the proposed framework. The tension between state and federal law is made all the more obvious when a third sovereign, a tribal nation, is thrown into the mix. While a choice-of-law methodology that produces predictable results better serves all litigants, its benefits become particularly clear when it affects a group that been historically disadvantaged in accessing the American justice system.