Saginaw Chippewa Disenrollees Win Small Victory against Interior

Here are the materials in Cavazos v. Haaland (D.D.C.):

18-2 Saginaw Chippewa Motion to Intervene

21 Cavazos Motion for Summary Judgment

26 Saginaw Chippewa Cross Motion for Summary

29 Federal Cross Motion for Summary

34 Cavazos Reply

38 Saginaw Chippewa Reply

39 Federal Reply

40-1 Cavazos Proposed Surreply

48 DCT Order

An excerpt:

This administrative law case centers on a U.S. Department of the Interior’s (“Interior”) decision (“AS-IA Decision”), after an informal adjudication, to decline to intervene in tribal disenrollment proceedings by the Saginaw Chippewa Indian Tribe of Michigan (“Tribe”). Plaintiffs are former members of the Tribe who have since been disenrolled by Tribal leadership. Plaintiffs charge that a federal statute particular to the Tribe, the Judgment Funds Act, PL 99-346, 100 Stat. 674 (1986) (“JFA”), required Interior to intervene in and put a stop to Tribal disenrollment proceedings. In their only claim before the Court, Plaintiffs argue that Interior’s inaction was arbitrary and/or capricious within the meaning of the Administrative Procedures Act, 5 U.S.C. §§ 500 et seq. (“APA”). As a remedy, Plaintiffs seek not just a remand back to the agency, but an order from this Court mandating Interior’s intervention to reverse the Tribe’s disenrollment proceedings.
In support thereof, Plaintiffs focus primarily on statutory provisions in the JFA governing (1) antidiscrimination against tribal members enrolled after the JFA’s enactment and (2) Interior’s supervision of the JFA. Ultimately, the Court agrees with Interior that the plain meaning of the JFA: (1) does not  classify disenrollment as discrimination and (2) grants Interior broad discretion to intervene in Tribal disputes related to the JFA. However, the Court holds that Interior incorrectly read the JFA to bar  discrimination only against enrolled members of the Tribe. Because the JFA also bars the Tribe from discriminating against disenrolled members in access to benefits and services funded by the JFA, the Court shall remand the matter to Interior to reconsider whether it should exercise its discretionary authority to intervene in the alleged inequitable provision of such benefits and services. 

Prior post here.

Tribal Amicus Brief Supporting Cert Petition in LTBB v. Whitmer

Here:

Petition here.

LTBB v. Whitmer Cert Petition

Here:

Cert Petition

Question presented:

Whether the 1855 Treaty of Detroit established a federal reservation for the Little Traverse Bay Bands of Odawa Indians?

Lower court materials here.

Fletcher on Pandemics and the Making of a Tribal State

My draft paper, “Pandemics in Indian Country: The Making of the Tribal State,” part of a symposium on John Fabian Witt’s American Contagions book hosted by the St. Thomas Law Journal, is available on SSRN.

The abstract:

This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan of the 1881 smallpox outbreak and the 2020-2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020-2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government. But I argue there is more going on here. Sovereignty – whether liberal or authoritarian, in Witt’s words – is the first step in the analysis, but not the last. Culture is the second step.
This Essay intends to gently disrupt Professor Witt’s theory by superimposing Anishinaabe political theory on American Contagions. The very notion of sovereignty is foreign to Anishinaabe. Western political theory insists on the power of a sovereign entity to enforce a social contract or else society will collapse. Anishinaabe political theory does not. The difference matters.

Keep the UP Wild: The Environmental Law and Policy Center (ELPC)

Keep the UP Wild

The Environmental Law and Policy Center (ELPC) and their Michigan partners are currently working on a project to designate four areas in Michigan’s Upper Peninsula as federal Wilderness areas – three new areas and one addition to an existing Wilderness area.

View a brief project memo describing this effort as well as the current crop of Existing Michigan Wilderness Areas in the state. Please visit their project website which lists the more than 125 existing organizations already supporting this effort. Indigenous voices, tribes, and the broader business community have been two of their highest prioritizations on this project.

Fletcher & Singel on Lawyering the Indian Child Welfare Act

Fletcher and Singel have posted “Lawyering the Indian Child Welfare Act,” forthcoming in the Michigan Law Review‘s upcoming symposium on civil rights lawyering. Here is the abstract:

This Essay describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even where Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the Constitutional validity of the law. The primary goal of this Essay is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important ICWA case in history, Brackeen v. Haaland, reaches the Supreme Court.