Legislation

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.

CA Senate Approves Casino Deal for North Fork Rancheria of Mono Indians

Victoria Sweet

The 22-11 vote, which split members of both parties, will allow the North Fork Rancheria of Mono Indians to build a new casino with 2,000 slot machines on a 300-acre parcel just north of Madera in the Central Valley that was once slated to be a NASCAR track.

The deal was made possible through a rare federal approval process that allowed the tribe to build on land it has just recently acquired. Federal law stipulates that typically casinos can be build only on lands recognized as belonging to tribes before 1988, the year the federal government officially sanctioned tribal gambling.

The exception made for North Fork angered other neighboring and large casino-owning tribes around the state who said the North Fork were “reservation shopping.” The new location’s proximity to a major state highway and the city of Madera also touched off concerns about the encroachment of Indian casinos into urban areas.

Article here.

Previous coverage here.

Santa Ysabel Announces Support of Same Sex Marriage

Victoria Sweet1 Comment

Among those who have suffered the denial of basic human rights in this country, Native Americans can unfortunately take a prominent place. Because their historic experience of prejudice strongly resonates to this day, the Santa Ysabel Tribe, founded in 1893 in California, has announced its firm support for the LGBT community as it strives for same-sex marriage equality and an end to governmental discrimination. As sovereign nations, Tribes in the United States have the power to issue proclamations on public policy issues affecting their membership and others occupying their reservations.

Santa Ysabel is one of only four Tribes in the U.S., and the only Tribe in California, to date, to recognize same sex marriage. The Santa Ysabel Tribe’s announcement comes as the Supreme Court contemplates the constitutionality of DOMA and Californians await a decision regarding the legality of prop 8 in their state.

Story here.