federal recognition

Kirsten Carlson on Congress, Tribal Recognition, and Legislative-Administrative Multiplicity

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.

Here is the abstract:

For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.

Highly recommended.

 

Federal Court Dismisses Title VII Claim against Seminole Casino

Matthew L.M. Fletcher1 Comment

Here are the materials in Longo v. Seminole Indian Casino–Immokalee (M.D. Fla.):

24 Motion to Dismiss

25 Response

28 Reply

29 Surreply

31 DCT Order

An excerpt:

Remarkably, Plaintiff demands that the Court ignore this clear and dispositive analysis, and hold that the Tribe is not actually a federally recognized tribe. Plaintiff acknowledges that to do so, this Court would have to find not only that its own previous opinion, Mastro v. Seminole Tribe of Florida, No. 2:12–cv–411–SPC–38UAM, 2013 WL 3350567, at *1 (M.D.Fla.2013), was incorrect, but also that the Eleventh Circuit has erred on multiple occasions too, see Mastro, 578 F.App’x 801; Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir.2012). To support this sizeable request, Plaintiff provides the Court with numerous pages of historical context and argument, explaining how the Tribe, to this date, has failed to achieve federal recognition as an Indian tribe. But this argument is completely without merit. This Court, the Eleventh Circuit, and the Florida Supreme Court “rotely” accept that the Tribe is federally recognized because it is. Unsurprisingly, this has not changed in 2015. A simple search in the Federal Register reveals as much. To be sure, the United States Bureau of Indian Affair’s most recent list of “Indian entities … acknowledged to have the immunities and privileges available to federally recognized Indian tribes” includes the Seminole Tribe of Florida. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 80 FR 1942–02 (2015) (emphasis added).

New Student Scholarship on the Environmental Impact of Federal Recognition of American Indian Nations

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “People of the Outside: The Environmental Impact of Federal Recognition of American Indian Nations” (PDF).

Here is the abstract:

American Indians interact with land and the environment in a manner that is distinct from non-native peoples. They view natural resources as an integral part of their way of life. As a result, Indian tribes desire to implement policies and programs that will protect their natural resources. In order to receive federal assistance for these policies and programs, however, a tribe must be federally recognized. The Duwamish tribe, which resides near Seattle, Washington, is not a federally recognized tribe. Despite years of fighting for recognition, the Duwamish cannot take part in the improvement of their tribal region’s air and water quality. Alternatively, the Forest County Potawatomi Community is federally recognized. The tribe has utilized its federal status to redesignate its reservation lands under the Clean Air Act, which brings stricter environmental regulations on and around the reservation. As long as the Bureau of Indian Affairs’ criteria for federal recognition continue to be arbitrarily and haphazardly enforced, unrecognized tribes like the Duwamish will continue to lack the power to address the environmental issues in their tribal region, in contravention of their fundamental beliefs and way of life.

Federal Court Rejects Gaming Bid of MOWA Band of Choctaw Indians

Matthew L.M. Fletcher

Here are the materials in State of Alabama v. 50 Serialized JLM Games (S.D. Ala.):

8 Alabama Motion to Remand

10 MOWA Motion to Dismiss

23 Alabama Response to Motion to Dismiss

31 MOWA Amended Notice of Removal to Federal Court

32 Alabama Surreply re Motion to Remand

36 Magistrate Report

39 DCT Order

Federal Court Rejects Mackinac Tribe’s Bid for Federal Recognition

Matthew L.M. Fletcher3 Comments

Here is the order in Mackinac Tribe v. Jewell (D. D.C.):

19 DCT Order

Briefs are here.

Mishewal Wappo Tribe Loses Trust Breach/Federal Recognition Claim

Matthew L.M. Fletcher

Here is the order in Mishewal Wappo Tribe  of Alexander Valley v. Jewell (N.D. Cal.):

197 DCT Order

Briefs are here.

California Valley Miwok Tribe v. California Gambling Control Commission Complaint

Matthew L.M. Fletcher

Here:

1 Complaint

Second Circuit Rejects Schaghticoke Land Claims

Matthew L.M. Fletcher

Here is the unpublished opinion in Schaghticoke Tribal Nation v. Kent School Corp. Inc.:

Schaghticoke CA2 Opinion

An excerpt:

Ultimately, the district court concluded that the evidence submitted by STN was insufficient to satisfy the Montoya standard requiring that the group be “united in a community under one leadership or government.” Montoya, 180 U.S. at 266. In so deciding, it relied on DOI’s conclusions that STN had presented insufficient direct evidence of a distinct tribal community from 1920 to 1967 and after 1996, and of political authority  over tribal members from 1801 to 1875 and after 1996. It was appropriate for the district  court to rely on the DOI’s factual findings. To hold to the contrary would require the district court to conduct the independent, complex evidentiary hearing that this Court sought to avoid in Golden Hill.

Briefs and lower court materials here.

Ninth Circuit Decides Cloverdale Rancheria v. Jewell

Matthew L.M. Fletcher

Here is the unpublished opinion.

Plaintiffs-Appellants are five members of the Cloverdale Rancheria of Pomo Indians of California (“the Tribe”) who seek to compel Defendants-Appellees, the Department of Interior and its officials (“the Department”), to recognize them as the Tribe’s leadership and negotiate self-determination contracts with them. The district court dismissed both of Plaintiffs-Appellants’ complaints for lack of subject matter jurisdiction and lack of standing. We review these dismissals de novo, Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007), and we affirm.

Briefs and other materials here.

Law Prof Comments on Proposed Federal Acknowledgement Process Revisions

Matthew L.M. Fletcher

Here:

Law Professor Letter – FAP Reform

Chi-miigwetch to Patty Ferguson for doing the heavy lifting.