Legislation – Page 10

Harvard Law Review Profile of the VAWA Tribal Jurisdiction Provisions

March 20, 2014April 2, 2014Matthew L.M. Fletcher3 Comments

The Harvard Law Review has published “Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)” (PDF).

From the conclusion:

From a practical standpoint, section 904 does not release a substantial amount of power back to the tribes; it is a cautious experiment, not a revolution. Indeed, section 904 is primarily a statement about values — the value of tribal sovereignty, the value of liberal ideals, the proper balance between them, and above all, Congress’s role in fixing that balance. By aligning section 904 so closely with the Court’s previously expressed concerns, Congress leaves the Court with no choice but to accept its calibration of these important values, and consequently, its privileged role in setting federal Indian policy.

Interior Opinion on Meaning of “Under Federal Jurisdiction”

March 12, 2014March 25, 2014Matthew L.M. Fletcher1 Comment

Here:

DOI Carcieri M opinion – M 37029

Here is the link to Interior opinions.

NPR on the VAWA Tribal Jurisdictional Provisions

February 21, 2014February 21, 2014Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

This Thursday, three Native American tribes are changing how they administer justice.

For almost four decades, a U.S. Supreme Court ruling has barred tribes from prosecuting non-American Indian defendants. But as part of last year’s re-authorization of the Violence Against Women Act, a new program now allows tribes to try some non-Indian defendants in domestic abuse cases.

It will be another year before the program expands to other eligible federally-recognized tribes around the country in March 2015. But the Department of Justice has selected three tribes to exercise this authority first, including the Pascua Yaqui Tribe of Arizona, the Confederated Tribes of the Umatilla Indian Reservation in Oregon, and the Tulalip Tribes, located north of Seattle.

SCIA Hearing on the Indian Law and Order Commission Report

February 13, 2014Matthew L.M. Fletcher

Link to video here.

Witness list:

Panel 1

The Honorable Kevin Washburn
Assistant Secretary-Indian Affairs-U.S. Department of the Interior, Washington, DC

The Honorable Timothy Q. Purdon
U.S. Attorney-District of North Dakota, U.S. Department of Justice, Fargo, ND

Panel 2

Mr. Troy Eid
Chairman-Indian Law and Order Commission, Denver, CO

Ms. Affie Ellis
Commissioner-Indian Law and Order Commission, Cheyenne, WY

Ms. Tamra Truett Jerue
Director-of Social Services and Tribal Administrator, Anvik Tribal Council, Anvik, AK

Article on Allotment-Era Literature and Cases on Tribal Jurisdiction and Reservation Diminishment

February 3, 2014Ann Tweedy

My article. “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” was recently published in volume 82 of the University of Toronto Quarterly, in a special issue on law and literature.

I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.

Unfortunately, the article isn’t available on Lexis or Westlaw, but it is on Muse, if you have access to that. A sightly older version is on my ssrn page.

Fletcher Paper on the Seminole Tribe and the Origins of Indian Gaming

December 20, 2013December 20, 2013Matthew L.M. Fletcher

At the invitation of Alex Pearl and the FIU Law Review to write a symposium piece on Florida Indian history and law, a challenge for me since I know very little about it, I came up with “The Seminole Tribe and the Origins of Indian Gaming.” Assuming the law review finds it publishable, it will appear in the FIU Law Review alongside the work of luminaries like Siegfriend Weissner and Sarah Krakoff.

Here is the abstract:

The Seminole Tribe of Florida has played perhaps the most important role in the origins and development of Indian gaming in the United States of any single tribe. The tribe opened the first tribally owned high stakes bingo hall in 1979. The tribe in 1981 was involved in one of the earliest lower court decisions forming the basis of the legal theory excluding most states from the regulation of high stakes bingo, a theory that Congress largely codified in the Indian Gaming Regulatory Act (IGRA) years later. The tribe was a party to the Supreme Court decision in 1996 that radically altered the bargaining power between tribes and states over the negotiation and regulation of casino-style gaming under IGRA. And more recently, the tribe has been a leading participant in negotiations and litigation over the regulatory landscape of Indian gaming after the 1996 decision. The Tribe is one of the most successful Indian gaming tribes in the nation.

This paper traces that history, but also offers thoughts on how the culture and traditional governance structures of the Seminole Tribe played a part in its leadership role in the arena of Indian gaming.

New Scholarship on the HEARTH Act

December 13, 2013December 13, 2013Matthew L.M. Fletcher1 Comment

Elizabeth Kronk Warner has posted “Tribal Renewable Energy Development Under the Hearth Act: An Independently Rational, But Collectively Deficient Option,” forthcoming in the Arizona Law Review, on SSRN.

The abstract:

Increased domestic energy production is of enhanced importance to the United States. Given the growing focus on domestic energy development, many, including tribal governments, have increasingly looked to Indian country for potential energy development opportunities. Such attention is warranted, as abundant alternative and renewable energy sources exist within Indian country. Many tribes are increasingly exploring possible opportunities related to alternative and renewable energy development. Despite this interest, large alternative and renewable energy projects are virtually absent from Indian country. This article explores why, despite the great potential for alternative and renewable energy development in Indian country and strong tribal interest in such development, such little development is occurring.

Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in July 2012 to address one of the obstacles to alternative and renewable energy development in Indian country — federal approval for leases of tribal lands. In brief, the HEARTH Act allows tribes with tribal leasing provisions pre-approved by the Secretary of the Interior to lease tribal land without Secretarial approval required for each individual lease.

To fully understand the potential implications of the HEARTH Act, this Article explores obstacles to effective energy development in Indian country, what the HEARTH Act is and how it supposedly addresses those obstacles, and some significant problems associated with enactment of the HEARTH Act — specifically, the mandatory environmental review provisions and waiver of federal liability, and the impact of the liability waiver on the federal government’s trust responsibility to federally recognized tribes. The article ends with some concluding thoughts on how the HEARTH Act and potential future reforms to the existing federal regulatory scheme applicable to energy development in Indian country might better address tribal sovereignty and the federal trust responsibility to Indian country.