Legislation

Dean Kevin Washburn on the DOJ Internet Gaming Memo

Matthew L.M. Fletcher

Here is the link from SSRN, and the abstract:

The recent opinion by the Office of Legal Counsel has created a lot of activity after years of uncertainty about the legality of Internet gaming in the United States. Internet gaming poses a threat of unknown magnitude to brick and mortar casinos, including Indian casinos. Because internet activities are difficult to regulate across state boundaries and national uniformity is likely to be more effective and more efficient than multiple state regulatory structures, Congress should federalize the regulation of Internet gaming. Congress should, however, consider the important role that Indian gaming has had in lifting the socioeconomic status of Indian people and improving the self-governance and self-sufficiency of Indian nations. Congress must insure that Indian tribes have an equal opportunity to be part of the future of Interney gaming.

Bipartisan Bill to Reauthorize VAWA (with SAVE Native Women Act)

Matthew L.M. Fletcher1 Comment

Here is the text.

Here is a section by section summary.

MSU Indigenous Law and Policy Center Statement on TLOA to the Indian Law and Order Commission

Matthew L.M. Fletcher

Here. A snippet:

Boozhoo!

To the Honorable Troy A. Eid, Chairman of the Indian Law and Order Commission, and Jeff Davis, Executive Director of the Commission, and the rest of Commission members, we offer greetings and a chi-miigwetch for the opportunity to offer our views on the Tribal Law and Order Act (the Act or TLOA), Pub. L. 111-211, Title II, July 29, 2010, 124 Stat. 2263, and the future of Indian country criminal law and jurisdiction.

As you know, Mr. Chairman, our 8th Annual Indigenous Law and Policy Conference, held on October 28-29, 2011 in East Lansing, MI, was titled, “Beyond the Tribal Law and Order Act: Can (Should) Congress Enact an Oliphant Fix?” We invited a wide segment of speakers, including members of the Indian Law and Order Commission, federal government officials, tribal court and elected government officials, and American Indian law scholars to discuss the ongoing issues with the Tribal Law and Order Act and Indian country criminal law and jurisdiction. Much of our commentary here is guided by the knowledgeable, profound, and wise statements and opinions expressed in that conference.

Download Full Statement

 

Indian Law Resource Center Video: “To the Indigenous Woman”

Matthew L.M. Fletcher

From the ILRC:

Please visit our website at www.indianlaw.org and share our new video, “To the Indigenous Woman,” which is intended to raise awareness and help end violence against Native women.  If you click on the Take Action button, you will also find our first video, “Three Little Indians,” released about two weeks ago, along with oither resources and live testimony from our recent thematic hearing on violence against Native women before the Inter-American Commission on Human Rights.  Ryan Red Corn (Osage), with the help of the 1491s, developed the videos for us.

As you may know, on Thursday, November 10, 2011, the Senate Committee on Indian Affairs held a hearing on S. 1763, the SAVE Native Women Act, recently introduced by Chairman Akaka.  The hearing will be viewable by live webcast at http://indian.senate.gov/hearings/.

Thank you.

Jana

Jana L. Walker

Indian Law Resource Center

Sen. Akaka and Rep. Cole on Carcieri Fix: “Create Jobs, Cost Taxpayers Nothing”

Matthew L.M. Fletcher

Here. An excerpt:

In the Carcieri v. Salazar decision, the Supreme Court reversed 75 years of policy and practice. The Indian Reorganization Act (IRA) of 1934 authorized the secretary of the Interior to take lands into trust for federally recognized tribes. The court threw all tribes into a tailspin of uncertainty by ruling that the secretary did not have the authority to take land into trust for tribes that were not considered “under federal jurisdiction” when the IRA was enacted. The court did not define “under federal jurisdiction,” and in 1934 there wasn’t an official list of federally recognized tribes. The decision creates two classes of tribes: those that can have land in trust and those that cannot. Such a system promises to be both chaotic and unfair.

So much land has been taken from tribes and tribal members — it is unconscionable to make it harder for tribes to gain back their traditional lands. Congress enacted the IRA to protect tribal homelands and to restore land that was previously seized from the native peoples. It is the responsibility of Congress to act when its intentions are misconstrued by the courts, and so we must act now.

And here (hope it is readable):

Continue reading →

Written Testimony on SAVE Native Women Act in Yesterday’s SCIA Hearing

Matthew L.M. Fletcher1 Comment

Here is the link to the hearing site.

Here are the relevant witnesses:

Panel #  2

Mr. Tom Perrelli
Associate Attorney General
U.S. Department of Justice, Washington, DC

Panel #  3

Ms. Suzanne Koepplinger
Executive Director
Minnesota Indian Women’s Resource Center, Minneapolis, MN

Mr. Thomas B. Heffelfinger
Attorney
Best & Flanagan LLP, Minneapolis, MN

  • No testimony yet.

Full Text of SAVE Native Women Act

Matthew L.M. Fletcher

A link to the full text of S. 1763 is here.

M. Brent Leonhard on an Oliphant Fix

Matthew L.M. Fletcher5 Comments

M. Brent Leonhard has posted his paper, “Closing a Gap in Indian Country Justice: Oliphant, Lara, and DOJ’s Proposed Fix,” on SSRN.

Here is the abstract:

This paper analyzes whether DOJ’s proposed legislative fix to allow tribes to prosecute limited non-Indian domestic violence crimes is legally permissible by closely analyzing the decisions in Oliphant and Lara. Given the closely circumscribed requirements for the exercise of such power, and past decisions of various justices, this article concludes that it is within Congress’ power to recognize the inherent power of tribes to prosecute non-Indians for domestic violence crimes against Indians.

Brent Leonhard on PL 280 Retrocession in Washington State

Matthew L.M. Fletcher

M. Brent Leonhard has posted his paper, “Returning Washington PL 280 Jurisdiction to its Original Consent-Based Grounds,” on SSRN . It is forthcoming in the Gonzaga Law Review.

Here is the abstract:

When enacted in 1953, President Eisenhower expressed “grave doubts” about provisions of Public Law 83-280 (PL 280) that allowed a state to assert jurisdiction over Indian country without tribal consent. Consistent with President Eisenhower’s doubts, the State of Washington enacted legislation in 1957 to assert PL 280 jurisdiction over Indian country provided a tribe requested the State exercise such power. However, in 1963 the State amended its law and baldly asserted limited PL 280 jurisdiction over all of Indian country regardless of tribal consent. Five years later, recognizing the inappropriateness of non-consensual assertions of state authority over tribes, the federal government amended PL 280 in 1968 to require tribal consent and to create a path for retrocession of state authority. Despite changes in federal law, the State of Washington has never acted to rectify its assertion non-consensual authority over tribal nations.

In the 2011 Washington legislative session a joint executive-legislative workgroup on tribal retrocession was formed to study the desirability of enacting a law that would require the State to retrocede PL 280 jurisdiction back to the federal government when specifically requested by an affected tribe. This paper advocates for such changes in Washington’s law, which would effectively return the law to its original consent-based grounds. In doing so, it explains how Indian country criminal jurisdiction would work with such changes, how it currently works under PL 280 generally and Washington specifically, and why a mandatory retrocession provision ought to be adopted for both moral and pragmatic reasons.

Sen. Akaka Introduces SAVE Native Women Act

Matthew L.M. Fletcher1 Comment

SENATOR DANIEL K. AKAKA INTRODUCES BILL TO PROTECT NATIVE WOMEN AGAINST DOMESTIC VIOLENCE AND SEXUAL ASSAULT
The Stand Against Violence and Empower Native Women (SAVE Native Women) Act would empower Tribes to prosecute violent crimes and improve prevention programs

WASHINGTON, D.C. – U.S. Senate Indian Affairs Committee Chairman Daniel K. Akaka (D-Hawaii) today introduced S.1763, the Stand Against Violence and Empower Native Women (SAVE Native Women) Act. The bill would provide Indian Country with jurisdiction over non-Indians who commit crimes on Indian lands, improve the Native programs under the Violence Against Women Act (VAWA), and improve data gathering programs to better understand and respond to sex trafficking of Native women.

Senators Al Franken (D-Minnesota), Tom Udall (D-New Mexico), Daniel K. Inouye (D-Hawaii), Mark Begich (D-Alaska), Patty Murray (D-Washington), TimJohnson (D-South Dakota), Jeff Bingaman (D- New Mexico), Jon Tester (D-Montana) and Max Baucus (D-Montana) are cosponsors of the bill.

“According to a study by the Department of Justice, two-in-five women in Native communities will suffer domestic violence, and one-in-three will be sexually assaulted in their lifetime. To make matters worse, four out of five perpetrators of these crimes are non-Indian, and cannot be prosecuted by tribal governments. This has contributed to a growing sense of lawlessness on Indian reservations and a perpetuation of victimization of Native women,” said Senator Akaka.

“American Indian women suffer disproportionately from domestic violence and sexual assault, and the Violence Against Women Act must be updated to more effectively address their unique needs,” said Senator Franken.

“This legislation works to ensure services are available to survivors of assault in native communities, repair a fragmented criminal justice system, and give tribes more power to prosecute those who are committing such heinous crimes against women,” said Senator Udall.

“By strengthening tribal jurisdiction we are empowering our Native communities with the tools they need to fight back against instances of violence,” said Senator Begich.

“We cannot let the next generation of young Native women grow up as their mothers have-in unbearable situations that threaten their security, stability, and even their lives,” said Senator Akaka.

“With the introduction of this legislation, the sponsors are sending a clear message that Congress intends to build on the incredible momentum of VAWA to ensure that the epidemic of violence against Native women will end in our lifetime,” said Sarah Deer, Amnesty International’s Native American and Alaska Native Advisory Council Member.

“Senator Akaka’s SAVE Native Women Act has the potential to restore safety and justice for American Indian and Alaska Native women. It offers American Indian tribes the opportunity to increase life-saving protections for women living within tribal jurisdiction,” said Terri Henry, Co-chair of the National Congress of American Indians (NCAI) Task Force on Violence Against Women.

“This is an epidemic. It is unacceptable. And, we must stand against it,” said Senator Akaka. “I am committed to working with the co-sponsors, tribal leaders, NCAI and others who diligently work to protect at-risk Native women, to pass this much needed legislation.”

Senator Akaka’s floor statement introducing the bill today is available here:
http://akaka.senate.gov/statements-and-speeches.cfm?method=releases.view&id=28f371bf-c01f-4ea5-a42b-72359ea839e7

Audio file of Senator Akaka’s comments are available here:
http://demradio.senate.gov/actualities/akaka/103111_AKAKA_1_RADIO.mp3