Legislation

New Scholarship Supporting Reform of 25 U.S.C. § 1500

Matthew L.M. Fletcher

Emily S. Bremer & Jonathan R. Siegel have published Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500, in the Alabama Law Review.

An excerpt:

Plaintiffs suing the United States face a little-known obstacle to justice: 28 U.S.C. § 1500. This statute prohibits the United States Court of Federal Claims from exercising jurisdiction over a claim if the plaintiff has the same claim pending in another court. This apparently sensible rule causes considerable trouble because a “claim” is understood to include all claims based on the same operative facts, and Congress has required that certain types of claims against the United States must go to different courts. Therefore, a plaintiff with multiple claims against the United States may neither be able to bring the claims together in one case nor split them into separate cases. Section 1500 may effectively compel such a plaintiff to pursue only one claim and abandon the others. This unjust result  is contrary to fundamental principles of modern civil procedure, which allow a plaintiff to pursue multiple claims against a defendant. Worse, it serves no good purpose. This Article argues that Congress should repeal § 1500 to provide justice to plaintiffs with multiple claims against the United States.

This article is based on a report they co-authored for the United States Administrative Conference.

Sens. Heitkamp and Murkowski Introduce Bill to Improve Lives of Indian Children

Matthew L.M. Fletcher

Here is the text of the press release (bill summary here):

U.S. Senators Heidi Heitkamp (D-ND) and Lisa Murkowski (R-AK) today introduced a comprehensive plan to find solutions to the complex challenges facing Native American children throughout Indian Country.

The bipartisan legislation, Heitkamp’s first bill as a U.S. Senator, would create a national Commission on Native American Children to conduct an intensive study into issues facing Native children – such as high rates of poverty, staggering unemployment, child abuse, domestic violence, crime, substance abuse, and few economic opportunities – and make recommendations on how to make sure Native children are better taken care of and given the opportunities to thrive.   Heitkamp and Murkowski are both members of the Senate Committee on Indian Affairs.

“We have all heard stories or seen first-hand the struggles that too many Native children and their families face from extreme poverty to child abuse to suicide.  Since I’ve been in public office, I’ve worked to address many of these challenges, and I’m proud my first bill as a U.S. Senator will take a serious look at finding solutions to better protect Native children and give them the opportunities they deserve,” said Heitkamp. “Tragically, for children in our nation’s tribal communities, the barriers to success are high and they are the most at-risk population in the country, facing serious disparities in safety, health, and education.

“We need to strive for a day when Native children no longer live in third-world conditions; when they don’t face the threat of abuse on a daily basis; when they receive the good health care and education to help them grow and succeed. However, we don’t just have a moral obligation to fix this, we have treaty and trust responsibilities to do so. The federal government pledged long ago to protect Native families and children. We haven’t lived up to that promise. But we can change that.”

“Last week at the Alaska Federation of Natives, a group of kids from Tanana speak up  with tremendous courage and express that they have had enough of violence, alcohol, drugs, and suicide in their community. Their call for us to take a pledge to protect our villages against suicide, is a call to action for all of us. I am proud to be the lead Republican co-sponsor of the Alyce Spotted Bear and Walter Soboleff Commission with Sen. Heitkamp,” said Murkowski.  “We must ensure our federal government upholds the trust responsibility, especially to our Native children, and this Commission will examine from the lens of justice, education, and healthcare how to improve the lives of our Nation’s native children.”

“It is also time we honor Dr. Walter Soboleff, our champion for cultural education in Alaska. Dr. Soboleff, lived a life committed to ensuring our public education system honored cultural values, and that our University system provided an option for students to learn cultural practices with the established of the Alaska Native Studies Department at the University of Alaska Fairbanks.”

The Alyce Spotted Bear and Walter Soboleff Commission on Native Children, named for the former Chairwoman of Mandan, Hidatsa & Arikara Nation in North Dakota, and Alaska Native Elder and statesman, respectively, is already being praised by a cross-section of individuals from North Dakota, Alaska and around the country. It has been lauded by former Chairman of the Senate Committee on Indian Affairs Byron Dorgan, the National Congress of American Indians and the National Indian Education Association (quotes endorsing the legislation are below).

Continue reading →

New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations

Matthew L.M. Fletcher1 Comment

Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.

Here is the abstract:

The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.

This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.

White House Blog Post on VAWA 2013 and Indian Health

Matthew L.M. Fletcher

Here.

An excerpt:

Because of the successful 2013 Reauthorization of the Violence Against Women Act, which President Obama signed into law on March 7, 2013, tribal courts and law enforcement will soon be able to exercise the sovereign power to investigate, prosecute, convict, and sentence those who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, regardless of the defendant’s Indian or non-Indian status. The tribal provisions of this landmark legislation were originally proposed by the Department of Justice in 2011 to address alarming rates of violence against native women.  We believe today, as we did then, that this is not only constitutionally sound law, but it is also a moral prerogative and an essential tool to ensure that non-Indian men who assault Indian women are held accountable for their crimes.

Tribal Immunity and IGRA’s Legislative History

Matthew L.M. Fletcher1 Comment

Curious about the State of Michigan’s argument that Congress did not believe Indian tribes possessed immunity outside of Indian country when it enacted the Indian Gaming Regulatory Act, I checked out the legislative history for support either way. Below are just the hearings to which I have access.

There is a fair amount of discussion about tribal immunities from state regulation and taxation, and most interestingly about whether tribal immunity cloaks nonmember gaming management companies and consultants.

I don’t see any discussion of off-reservation gaming at all, which the State suggests, I suppose, would be normal if Congress was assuming something about immunity one way or the other.

In any event, enjoy the legislative history.

June 25, 1987 hearing (PDF)

Nothing here, except in a newspaper article reference to an inter-tribal dispute between the Otoes and the Seminoles that couldn’t be settled in the courts “because sovereign immunity would prevent the tribes from successfully suing one another.” Page 184.

June 17, 1986 hearing (PDF)

Omaha Tribe opposes any provision that would waive tribal immunity; not specific as to language in a draft bill or elsewhere. Page 110. See also page 357.

DOJ testifies against Indian gaming referencing immunity from state regulation in Indian country. Page 143

Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 164.

Excerpt from federal district court decision on tribal immunity from state taxation, suggesting Congress assumes states have no “residual power” to tax tribes. Page 419.

State of Minnesota testimony requesting waiver of tribal immunity to enforce gaming “licenses” against tribes. Page 501.

State of Minnesota testimony requesting waiver of immunity to allow national commission to enforce fines on tribes. This appears to assume that an Indian tribe might be immune from federal regulation, too. Page 504. See also page 505.

Arizona AG arguing that nonmembers gaming in tribal casinos should not be cloaked in tribal immunity for purposes of state regulation. Page 598.

Jun. 25, Sep. 13, 1985 Hearings (PDF)

Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 40.

Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 163.

Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 188.

Indian Country, USA waiver of immunity in general form contract. Page 202.

Fort McDowell bingo code, preserving immunity. Page 900.

Rincon Band management contract, with limited waiver of immunity. Page 1183.

Barona Band management contract, with limited waiver. Page 1235.

June 26, 1985 Hearing (PDF)

Sen. Domenici testimony, concern about nonmember employees claiming immunity. Page 22.

Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 115 (same as June 25 testimony)

Morongo Band management contract, no waiver. Page 266.

Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 284. (same as June 25 testimony)

Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 295. (same as June 25 testimony)

Indian Country, USA waiver of immunity in general form contract. Page 309. (same as June 25)

June 18, 1987 Hearing (PDF)

Coos, Lower Umpqua & Suislaw Indians testimony against waiver of tribal immunity, referencing “discriminatory taxation legislation.” Page 496.

Nov. 14, 1985 Hearing (PDF)

Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 38.

June 19, 1984 Hearing (PDF)

Rep. Vento expressing concern about nonmember management contractors asserting immunity from state regulation. Page 44-45.

National Indian Gaming Task Force testimony on tribal immunity from suit by gaming management consultants. Page 80.

CRS Report, April 26, 1985 (PDF)

Nothing

 

 

H.R. 3043: Tribal General Welfare Exclusion Act of 2013

Matthew L.M. Fletcher

Bill text here. PDF.

Purpose:

To amend the Internal Revenue Code of 1986 to clarify the treatment of general welfare benefits provided by Indian tribes.

Little River Band Ottawa Reply Brief in LRB v. NLRB

Matthew L.M. Fletcher

Here:

2013-08-20 Reply Brief (As Filed)

 

Slate Publishes 1830 Petition Protesting Indian Removal Act

Matthew L.M. Fletcher2 Comments

Here for details.

And here for the petition:

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New Student Scholarship on the Tribal Law and Order Act

Matthew L.M. Fletcher

Seth J. Fortin has published “The Two-Tiered Program of the Tribal Law and Order Act” (PDF) in the UCLA Law Review Discourse.

Here is the abstract:

The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.

New Study on Impact of Public Law 280 on Umatilla Reservation (+ 160 Other Reservations)

Matthew L.M. Fletcher

Sarah N. Cline’s study, “Sovereignty Under Arrest? Public Law 280 and its Discontents” is available here (PDF).

The abstract:

Law enforcement in Indian Country has been characterized as a “maze of injustice”—one in which offenders too easily escape and victims are too easily lost (Amnesty International, 2007). Tribal, state, and federal governments have recently sought to amend this through the passage of the Tribal Law and Order Act (TLOA) in 2010 and the expansion of cross-deputization agreements. Positioning itself amid these developments, this study seeks to determine the administrative impact of Public Law 280 (P.L. 280), which creates a concurrent jurisdictional regime between states and tribes. Taking a mixed-methodological approach, the law’s effect on the sovereignty and resource capacity of tribal justice systems is first analyzed using existing data for 162 American Indian reservations. Through a series of logistic regressions, hypotheses are tested to determine whether a statistically significant difference emerges between policy treatments under P.L. 280. This quantitative analysis is then grounded in a case study of the Confederated Tribes of the Umatilla Indian Reservation, who are unique for their 1981 retrocession of criminal jurisdiction in the mandatory P.L. 280 state of Oregon. Both content analysis of archival records and semi-structured interviews with tribal, state, and federal public officials shed light on experiences of the criminal justice system before, during, and after P.L. 280. This research contributes to the overarching objectives of TLOA, which seek to locate best practices and administrative models in reducing crime and victimization on reservations.