federal recognition

Lorinda Riley on the Federal Recognition Process

Matthew L.M. Fletcher

Lorinda Riley has published “Shifting Foundation: The Problem with Inconsistent Implementation of Federal Recognition Regulations” (PDF) in the NYU Review of Law & Social Change.

Here is the abstract:

The establishment of federal recognition is the cornerstone of federal Indian law. All rights, including criminal jurisdiction, tax status, gaming rights, and hunting and fishing rights, stem from this initial acknowledgment. Yet prior law review articles have focused only on the overarching process of federal recognition without closely examining the actual administrative findings of the Department of the Interior.

This article will provide an in-depth examination of the regulations governing whether an Indian entity is entitled to the benefits of a government-to-government relationship with the United States. Specifically, this article examines the regulatory process for filing a federal recognition petition and critiques four of the criteria that petitioning Indian entities consistently fail to meet. By reviewing Department of the Interior decisions, this article demonstrates the inconsistencies in regulatory interpretations and guidance documents as well as the inherent biases in the current regulatory framework.
Finally, the article discusses potential solutions to these problems and identifies the first step necessary in order to fully understand the depth of this regulatory issue.

Tenth Circuit Rejects Uinta Allottees Petition for Section 17 Corporate Charter

Matthew L.M. Fletcher

Here are the materials in Gardner v. Jewell:

Gardner Opening Brief

Interior Answer Brief

Gardner Reply

CA10 Unpublished Opinion

Federal Court Grants Intervention to Ione Band Miwok in Challenge to Federal Trust Land Acquisition

Matthew L.M. Fletcher1 Comment

Here are the materials so far in No Casino in Plymouth v. Jewell (E.D. Cal.):

35 Ione Band Motion for Intervention

39 NCIP Opposition

44 Ione Band Reply

46 DCT Order Granting Intervention

Complaints are here.

“US overhauling process for recognizing Indian tribes”

maanee763

Here:

http://news.msn.com/world/us-overhauling-process-for-recognizing-indian-tribes

Public Commentary Deadline Extended for Federal Acknowledgment Regulations

Kate Fort

Here.

Assistant Secretary – Indian Affairs Kevin K. Washburn announced that the Department is extending the opportunity for public comment on a Preliminary Discussion Draft of potential changes to the Federal Acknowledgment Process by more than 30 days to September 25, 2013. This extended period is in response to written requests as well as requests received at the tribal consultation sessions and public meetings held in July and August.
The discussion draft, initially issued on June 21, 2013, is a preliminary precursor to the rulemaking process and is intended to provide tribes and the public an early opportunity to provide input on potential improvements to the Part 83 process. Once the Department begins the rulemaking process, tribes and the public will have additional opportunities to provide comment. The discussion draft is available for review at http://www.bia.gov/WhoWeAre/AS- IA/ORM/83revise/index.htm.
Comments on the discussion draft may be submitted by email to consultation@bia.gov (include “1076-AF18” in the message subject line) or by mail to: Elizabeth Appel, Office of Regulatory Affairs and Collaborative Action, U.S. Department of the Interior, 1849 C Street, N.W., MS- 4141-MIB, Washington, D.C. 20240 (include “1076-AF18” on the cover of the submission).

Summary Judgment Motions in Mishewal Wappo Tribe Federal Recognition/Termination/Trust Breach Case

Matthew L.M. Fletcher1 Comment

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

Interior Motion for Summary J

Mishewal Wappo Motion for Summary J

Interior Opposition

Mishewal Wappo Opposition

Interior Reply

Mishewal Wappo Reply

Ninth Circuit Affirms Exclusion of Counties in Termination Case Involving Mishewal Wappo Tribe

Matthew L.M. Fletcher

Here is the opinion in Mishewal Wappo Tribe v. Salazar.

Excerpt:

The Counties of Napa and Sonoma (“the Counties”) appeal the district court’s revocation of  their status as intervening defendants. The Counties also appeal the district court’s denial  of their motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the revocation of their status as intervenors.

Briefs:

County Opening Brief

Mishewal Wappo Brief

County Reply

Michigan COA Holds that ICWA is Inapplicable to Mackinaw Band Ottawa and Chippewa Members

Matthew L.M. Fletcher

Here is the opinion:

In re Thibeault

Draft 25 CFR Part 83 Regs (Office of Federal Acknowledgment)

Matthew L.M. Fletcher

Here:

idc1-022123

Quick Comments:

This revision strikes me as a response in some ways to the Carcieri decision. The first obvious change is that tribal groups need only to prove existence (for lack of a better word so early in the morning) dating back to 1934 instead of 1900. As a result, some of the substantive criteria has been changed due to the date change, and perhaps even liberalized to the benefit of petitioning groups.

Finally, there appears to be some changes allowing for expedited decisions favoring tribes previously recognized in some contexts, perhaps ala Tejon.

Eighth Circuit Rejects Sandy Lake Chippewa Secretarial Election Appeal — UPDATED with briefs

Matthew L.M. Fletcher

Here is the opinion.

The court’s syllabus:

Civil case – Indian law. Because the district court had adjudicated the issue of subject matter jurisdiction in the Sandy Lake Band’s previous suit, and Sandy Lake did not appeal from that decision or exhaust its administrative remedies, the court is bound by the district court’s original determination that it lacked subject matter jurisdiction; the district court’s dismissal order is affirmed, but modified to be without prejudice.

Briefs:

Sandy Lake Opening Brief

Federal Answering Brief

Sandy Lake Reply

Lower court materials here.