Legislation

NPR on the VAWA Tribal Jurisdictional Provisions

Matthew 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

Matthew 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

Ann 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

Matthew 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

Matthew 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.

Written Testimony in SCIA Hearing on Carcieri

Matthew L.M. Fletcher

Here:

NIGC and Interior Opinions on Wampanoag Tribe of Gay Head (Aquinnah)

Matthew L.M. Fletcher

Here:

Aquinnah Land Opinion 10-25-13 copy

2013.08.23 – Aquinnah Settlement Act Interpretation (signed)-2 copy

Indian Law and Order Commission Report Released Today

Matthew L.M. Fletcher

News coverage here.

20131112-072415.jpg

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).

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