Michigan Indian

Michigan COA Unpublished Decision on ICWA Notice

Kate Fort1 Comment

Here.

Here, respondent-father indicated to the referee that his great-grandmother was a member of the “Blackfoot” tribe. Although petitioner argues that there is no such tribe as “Blackfoot,” the BIA’s list of federally recognized Indian tribes includes “the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.” See http://www.ncsl.org/research/state-tribal-institute/list-of- federal-and-state-recognized-tribes.aspx (last visited December 30, 2013).    Respondent-father points out that the name “Blackfoot” was used by the federal government in the Treaty with the Blackfeet of 1855, which recognized the existence of a Blackfoot Tribe and Blackfoot Nation. See Treaty with the Blackfeet, 11 Stat 657 (October 17, 1855). Thus, mindful of our Supreme Court’s statement that “[i]f there must be error in determining whether tribal notice is required, let it be on the side of caution[,]” Morris, 491 Mich at 108, we hold that respondent-father provided sufficient indicia of Indian heritage to the trial court to require tribal notice. If the identity of the tribe is uncertain, 25 USC § 1912(a) allows notice to be given to the Secretary of the Interior. Here, the record does not indicate that any notice was given.

***

We therefore conditionally reverse the trial court’s termination of respondent-father’s parental rights, and remand to the trial court for resolution of the notice issue. On remand, the trial court shall ensure that notice is properly made to the appropriate entities. If the children are not Indian children or the properly noticed tribes or government entities do not respond within the allotted time, the trial court’s termination of respondent-father’s parental rights is reinstated. If, however, the trial court concludes that the ICWA does apply to the proceedings, the trial court’s termination of respondent-father’s parental rights to his four children must be vacated and proceedings begun anew in compliance with the procedural and substantive requirements of the ICWA.

En Banc Petition Materials in Michigan v. Sault Tribe

Matthew L.M. Fletcher

Here:

2014-01-16 Petition for Panel Rehearing with a Suggestion for Rehearing …

2014-01-22 NHBPI Motion for leave to file amicus brief -rehearing

2014-01-23 NHBPI Amicus Curiae Brief in Support of St of MI Pet

2014-01-23 Order Granting Motion for Leave to file Amicus Brief NHBPI

Panel materials are here.

Fletcher, Fort, and Reo on “Tribal Disruption” Theory in the Michigan Law Review First Impressions

Matthew L.M. Fletcher

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo have published “Tribal Disruption and Indian Claims” in Michigan Law Review’s First Impressions. PDF. Here is a taste:

Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims.[1] The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York,[2] because it considered the claims so disruptive.

We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York,[3] the Saginaw Chippewa Indian Tribe,[4] and five Michigan Anishinaabe tribes[5] demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.

Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-­ecological systems offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests, or other ecosystems. Floods, forest fires, and windstorms break down existing structures, allowing space for reorganization, diversification, and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.

Sixth Circuit Reverses in Michigan v. Sault Ste. Marie Tribe

Matthew L.M. Fletcher5 Comments

Here is the opinion:

Michigan v SSM CA6 Opinion

An excerpt:

Because the State is not suing to enjoin a class III gaming activity, but instead a trust submission under MILCSA, § 2710(d)(7)(A)(ii) of IGRA does not abrogate the Tribe’s sovereign immunity, and the district court lacked jurisdiction. The issue of whether class III gaming on the casino property will violate IGRA if the Tribe’s MILCSA trust submission is successful is not ripe for adjudication because it depends on contingent future events that may never occur. The injunction was therefore not properly entered.

Briefs are here.

Lower court materials here.

Michigan v. Bay Mills Oral Argument Audio

Matthew L.M. Fletcher

Available at SCOTUS and on Oyez.

Fletcher Commentary on the Michigan v. Bay Mills Argument

Matthew L.M. Fletcher5 Comments

My read of the transcript is below. Same disclaimers as always — I wasn’t there; cold transcripts are treacherous; and, especially, none of this means anything if it isn’t in the majority opinion.

State’s Main Argument

As has become the norm in Indian law arguments, Justice Sotomayor opened with an initial flurry of questions to State’s counsel, a discussion that went on for some time (page 3 line 25 through page 6 line 20). She wondered why the State was the petitioner here when the district court expressly did not include the State in the denial for an injunction against the Vanderbilt casino (it was a motion by the Little Traverse Bay Bands of Odawa Indians instead), a point made by the National Congress of American Indians. The State’s response was fairly weak — the parties (and it turns out, perhaps, the CA6) merely “assum[ed]” the State and LTBB’s claims were consolidated. Moreover, Justice Sotomayor’s questions delayed the State’s wish to proceed directly to a discussion of tribal immunity by several minutes.

Justice Ginsburg further delayed the State (page 5 line 5 through page 8 line 18) by wanting to know why the State did not choose to invoke the dispute resolution mechanism in the 1993 gaming compact with Bay Mills, especially as Justice Kagan later noted the Court had previously held in C&L Enterprises that an arbitration provision can effectuate a waiver of tribal immunity. From page 8 line 19 to page 9 line 7, the Chief Justice wanted to know why the State raised its own immunity when BMIC sued for a declaratory judgment on the merits of the Vanderbilt casino theory. The State’s blithe(?) response was “all roads lead to tribal immunity.”

Justice Sotomayor finally got the argument into important ground by asking about Ex parte Young, which prompted the State to explain why federalism principles justified the procedural posture of this case (page 9 line 8 through page 12 line 15). First, this initial colloquy:

JUSTICE SOTOMAYOR: All roads lead to one issue, I think. If you had gotten a declaratory judgment, they would have had to stop their gaming activity.

MR. BURSCH: No.

JUSTICE SOTOMAYOR: But you wouldn’t have gotten their property; isn’t that what this suit is about, you trying to take over the –the casino?

MR. BURSCH: No, we don’t want to take over the casino. We want to stop illegal gaming on lands subject to Michigan’s exclusive jurisdiction.

JUSTICE SOTOMAYOR: So why not Ex Parte Young?

The State’s answer is quite silly — and what is getting picked up in the newspapers and perhaps some Justices gaoing all the way back to Kiowa itself — if France or Haiti opened a casino in Michigan then the State would be able to sue those foreign nations to get relief, but for some unexplained reason not Indian tribes (page 10 line 17 through page 17 line 21). I don’t believe the State ever explained why Ex parte Young is insufficient to shut down off-reservation gaming under the tribe’s MILSCA theory. The State wants to win by limiting or modifying Kiowa Tribe, rather than win with Ex parte Young (page 17 lines 15-23):

JUSTICE GINSBURG: But once the Congress didn’t respond, the majority opinion in Kiowa –I don’t know whether it’s “Kiowas” or “Kiowa” –said, you know, this is an unfortunate result, but Congress can do something about it. Well, now Congress hasn’t done anything about it, and you are asking this Court essentially to modify the –that precedent.

MR. BURSCH: I am. I mean, I don’t think you need to modify it.

Justice Alito kicked off another almost morbid series of colloquies that bled into the Tribe’s argument time about whether the State could arrest tribal officials, employees, and casino patrons, and prosecute them on page 18 line 9.

A largely irrelevant point to this case, but perhaps more important to the six tribes (including BMIC) now negotiating with the State over class III gaming, the State made a concession:

JUSTICE ALITO: It seems to me if a tribe wants to open a casino and the State has to –it has to have a compact with the State. Isn’t all the bargaining power on the –on the side of the State? So the State says, fine, if you want to do that, you have to waive sovereign immunity.

MR. BURSCH: Well, we had a compact in place in 1993 that limited their casinos so that this wouldn’t happen.

JUSTICE ALITO: Well, I –but I mean, when will –when will this compact expire?

MR. BURSCH: Right. Let me give you a very practical answer to that question. This compact in 1993 had a 20-year term on it. And so it essentially expired at the end of –of November, just a few days ago, although it has an evergreen clause that allows it to continue while the parties try to negotiate a new compact. And As you would imagine, the very first thing Michigan asked for in its proposed amended compact was to waive tribal sovereign immunity to deal with issues like this. And, unsurprisingly, the tribe said: We’re really not interested in that; we kind of like the way the sovereignty issue is preserved in  the existing compact.

***

JUSTICE ALITO: So the compact has expired and there’s –so then how can they operate the casino?

MR. BURSCH: Well, it hasn’t expired. Until the parties –

JUSTICE ALITO: Until they reach a new compact, it continues.

MR. BURSCH: Until they reach a new compact, it continues in effect.

Near the end of the State’s time, Justice Sotomayor redirected the argument at least obliquely to an important issue raised by the National Congress of American Indians — why is the NIGC is sitting this one out? (page 22 line 20 to page 24 line 16). Specifically:

JUSTICE SOTOMAYOR: All right. The issue of what constitutes Indian lands is between the Federal government and the Indians pursuant to the land trust settlement, correct?

MR. BURSCH: I disagree with that because –

JUSTICE SOTOMAYOR: Well, I know you do and I know why you do. But –but what defines the lands is the settlement trust, correct?

MR. BURSCH: Federal court interpretation of the Michigan Indian Land Claims Settlement Act, yes, would determine the status of these lands. The reason why it’s not just between the tribe and the Federal government is because Michigan has a huge interest in having lands that aren’t currently under its exclusive sovereign jurisdiction be determined to be  Indian lands –

One wishes Justice Sotomayor had been more direct in her questioning on this point, but the point was made.

Tribe’s Argument Continue reading →

Michigan v. Bay Mills Indian Community Argument Previews

Matthew L.M. Fletcher

Here:

SCOTUSblog, by Markham Erickson

Yale Law Journal Online, by MF

Oyez

Cornell Legal Information Institute, byKatherine Hinderlie and Rose Nimkiins Petoskey

Fantasy SCOTUS predicts an affirmance (83 percent?!?!?)

Little Traverse Bay Bands Odawa Attorney Job Posting

Matthew L.M. Fletcher

Here:

Office of the Executive Services Attorney 12-13-2013-1

Media Coverage of Michigan v. Bay Mills

Kate Fort

Michigan Public Radio

SCOTUSblog

Freep (same article in Lansing State Journal and USAToday)

Post-Argument

Detroit News

AP

Michigan Gaming Compact Negotiation News Coverage

Matthew L.M. Fletcher

From the Alpena News:

The Fletcher law firm in Lansing, which specializes in Native American legal issues, has said when the 20-year-old agreements expire is up for interpretation. Some experts cite a provision implying that the deals automatically roll over for five years if no new ones are reached.

And from MLive:

The state is looking at getting back some of that revenue sharing, but tribes will generally oppose that unless the state offers meaningful concessions, said Zeke Fletcher, a Lansing-based tribal lawyer and citizen of the Grand Traverse Band. He is not representing any tribes in the negotiations.

Traditionally, “meaningful concessions” have meant statewide exclusive rights to offer Vegas-style, or class III gaming, Fletcher said. In more recent compacts the state secured revenue sharing in exchange for more of a regional protection from competition, according to a blog post from Fletcher’s colleague, Bryan Newland.

Newland’s posts are here and here.