Author: Matthew L.M. Fletcher

Here is the petition in Smith v. People of the State of New York:

The question presented:

Whether the statutory bar restricting removal jurisdiction is a separate and distinct removal jurisdiction, and a waivable procedural defect, by the failure to file a motion to remand with the 30 day statutory time limitation provided in 28 U.S.C. § 1447(c)?

Northern California Intertribal Court System Tribal Court Director Job Announcement

November 27, 2012Matthew L.M. Fletcher

Here:

NCICS Court Director Announcement

Pine Tree Legal Assistance Job Posting for Native American Attorney

November 27, 2012Matthew L.M. Fletcher

Full-time Native American attorney position.

This full-time staff attorney position will maintain an active caseload for Native American clients statewide, especially related to their status as Native Americans and/or which raise Indian law issues, including tribal/state jurisdiction, tribal benefits, tribal housing, race discrimination, Indian Child Welfare Act, the Indian Civil Rights Act, and/or border crossing issues, as well as state and federal poverty law issues. It is essential that the attorney maintain and develop working relationships within tribal communities, which will require regular outreach and related activities. The attorney will be expected to work supportively with groups such as the Maine Indian Tribal-State Commission and tribal community organizations, and to maintain active contacts with the national Indian Legal Services community. The attorney may be required to handle juvenile or criminal court appointments and civil cases in tribal courts pursuant to multi-year sub-grants to Pine Tree, for which careful timekeeping and reporting is required. Additional responsibilities may include work on the Native American Unit’s special newsletters and website resources for Native Americans in Maine and Connecticut, pursuant to program grants for those client populations. The position will be housed in the Bangor office and will be supervised by Regional Directing Attorney Judd Esty-Kendall.

Pine Tree recently marked its 45th anniversary as Maine’s oldest and largest legal aid provider. The program is nationally recognized as a creative, effective advocate for poor Mainers and all staff are expected to meet the program’s high standards for legal advocacy. The Native American Unit at Pine Tree also has a long history of effective advocacy on behalf of the four federally-recognized tribes in Maine. Successful applicants should bring an energetic commitment to justice for low-income individuals, the ability to relate to diverse clients, strong legal skills, and a valid driver’s license. Applicants who are Native American or who have lived or worked within the Native American community in Maine or elsewhere will be advantaged in taking on this work for Maine’s various tribal communities and Native American people. Preference will be given to applicants who are current members of the Maine bar or are licensed in another jurisdiction and eligible to practice under Rule 89(c) of the Maine Rules of Civil Procedure.

The starting salary for the attorney is $43,750+ depending on experience, with excellent benefits. Entry level applicants are preferred because of the program’s funding limitations. The position is available immediately.

Interested applicants should send a letter, resume, law school transcript and three references to both of the following individuals:

· Executive Director Nan Heald, Pine Tree Legal Assistance, PO Box 547, Portland ME 04112 (or email to nheald@ptla.org); and
· Directing Attorney Judson Esty-Kendall, Pine Tree Legal Assistance, 115 Main Street, Bangor ME 04401 (email jestykendall@ptla.org)

This position is open until filled but applications are encouraged by December 17.

Pine Tree is an equal employment/equal opportunity employer.

Ninth Circuit Affirms Conviction for Selling Eagle Parts

November 27, 2012November 27, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Wahchumwah:

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts. The panel held that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous. The panel rejected the defendant’s objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403. The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.

I found this portion of the opinion a little odd (not the opinion, but what it describes):

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

It just seems odd to use eagle parts for the purpose of entrapment….

Update: A related unpublished opinion in United States v. Jim is here.

Job Announcement: Chief Judge, Standing Rock Tribal Court

November 27, 2012November 3, 2015Matthew L.M. Fletcher

Here.

Closed 11/3/15.

Ryan Dreveskracht Article on Tribal Energy Development

November 27, 2012Matthew L.M. Fletcher1 Comment

Ryan Dreveskrachthas published “Alternative Energy in American Indian Country: Catering to Both Sides of the Coin” in the Energy Law Journal. Here is the synopsis:

This article looks at both sides of the renewable energy “coin” in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn’t be further from the truth – tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands and/or areas of cultural significance. Indeed, contrary to being opposed to alternative energy development, tribes are very actively seeking to develop their lands in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. This article argues that the oft-overlooked other side of the renewable energy “coin” are the federal regulations that hinder these projects from coming to fruition. The final section of the article will discuss what Congress is – and is not – doing regarding the two sides of this “coin.”

Umatilla Tribal Court Hands Down 27 Month Sentence under TLOA’s Enhanced Sentencing Rules

November 27, 2012November 27, 2012Matthew L.M. Fletcher

Here.

From Brent Leonhard:

Just to clarify a few things about the story:

The info isn’t entirely accurate, but it isn’t too far off. If the BOP doesn’t pick up the tab, the Tribe will have to pay for incarceration and we contract with Umatilla county – not federal prison. Also, I’m fairly sure we are the first to implement felony sentencing (we did it in March of 2011). Finally, this was the third person sentenced to more than a year for a felony offense, but the first to have jail time imposed of over a year for a single offense. (The other two had 3 years imposed but all but 6 months was suspended in one and all but 3 months suspended in the other – with 3 years of probation and the suspended time hanging over their heads).

The big issue is whether the BOP Pilot Project will accept our referral on the 27 month imposed jail sentence so the feds will eat the cost and house him in their system. I’m waiting to hear back on that.

Sen. Reid Indicates that Senate Continues to Negotiate Carcieri Fix Legislation — Vote Delayed

November 27, 2012Matthew L.M. Fletcher

Mr. REID. “As I indicated this morning, we are trying to work our way through a number of issues. We thought we were going to be able to move toward the Carcieri matter this evening, but we are still negotiating this matter, so we are going to have to do that at some subsequent time.”

http://www.gpo.gov/fdsys/pkg/CREC-2012-11-26/pdf/CREC-2012-11-26-senate.pdf, page S6891