Michigan Indian

Initial Commentary on Salazar/Gun Lake v. Patchak

Matthew L.M. Fletcher8 Comments

We posted the transcript here.

* The first remarkable point about today’s argument is that Justice Scalia appeared to come to the rescue of counsel for Patchak four times , and by the end of Respondent’s time was virtually arguing the case against the government and tribe through counsel. Page 50, line 23 to page 51, line 8, Justice Scalia answers questions from Justices Kagan and Sotomayor on behalf of counsel. On page 52, line 11 to page 53, line 6, Scalia literally concludes counsel’s argument on his behalf, offering two questions that counsel needs only say “yes” to.

The first instances Justice Scalia offers help to Patchak’s counsel are page 34, lines 9 through 20, which ends with Scalia telling counsel he’s supposed to say “yes, sir” to his question and which also ends with laughter from the gallery (presumably the clerks); and on page 39, line 13 though page 40, line 4 (also ending in laughter as Patchak’s counsel agrees with Justice Scalia).

* Justice Scalia comments early on in the government’s time: “whether this land could be used for what you call gaming and I call gambling.” There’s a longstanding rhetorical distinction between those who support tribal gaming/gambling — opponents call it “gambling” and supporters call it “gaming.” Justice Scalia tips his hand, no doubt intentionally.

* In light of our post from earlier today, there were 60 questions for the government and the tribe, and 49 for Patchak.

* A recurring theme in the argument, starting with the opening question from Justice Sotomayor, was that Patchak could have sued under NEPA, other statutes, or federal regs (within 30 days) to challenge the trust acquisition before the land goes into trust, as MIchGO did. The possible weakness is that the government’s position seems to be it can take land into trust at any time to foreclose any challenges to the trust acquisition by slipping behind the immunity barrier in the QTA. If the government did this, then the due process/non delegation problems identified in the 1995 South Dakota v. US decision comes to light. It seems to me that the relatively easy answer is that the due process/non delegation claim is available to challengers if the government did act in this manner, and since it didn’t here, there’s no issue. Of course, the Court would have to trust the Secretary of Interior, which historically, it doesn’t really do.

Update: Even local television (Wood TV, notoriously anti-Gun Lake) conceded that the Justices generally seemed hostile to Patchak’s claims.

SCOTUSBlog Preview of Salazar/Gun Lake Band v. Patchak Argument

Matthew L.M. Fletcher

Here.

An excerpt:

One might think that this is not the stuff of an historic oral argument.  But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.

Congrats to Pattie!!!!

Federal Government Reply Brief in Salazar v. Patchak

Matthew L.M. Fletcher

Here:

11-247rbUS

Gun Lake Band Reply Brief in Patchak

Matthew L.M. Fletcher

Here:

11-246 & 11-247 rb

Michigan Indian Legal Services Winter 2011-2012 Newsletter

Matthew L.M. Fletcher

Here:

MILS_Newsletter_Winter_2011-2012_Edition

Interesting articles on Jay Treaty border crossings and right to counsel in tribal courts. Oh, and MSU ILPC alum Erin McCormick.

Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act

Matthew L.M. Fletcher

Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.

Here is the abstract:

This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.

Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.

IPR on Proposal to Add More Casinos in Michigan

Matthew L.M. Fletcher

Here.

ALJ Rules against Saginaw Chippewa in NLRB Jurisdiction Case

Matthew L.M. Fletcher1 Comment

Here:

Administrative Law Judge’s Decision

Freep: 8 New Casinos For Michigan Proposed

Kate Fort

Here.

As early as Tuesday morning, the Committee for More Michigan Jobs could get approval from the State Board of Canvassers to launch a campaign to persuade Michigan voters to let the group build those two casinos and six more. If the developers convince voters to amend the Michigan Constitution, it could usher in the largest expansion of gambling since Detroit won three casinos in 1996.

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Backers include former Granholm administration budget director Mitch Irwin, an East Lansing Democrat, and former House Speaker Rick Johnson, a Cadillac-area Republican. The Detroit partnership has lined up names such as Four Tops singer Duke Fakir, boxing promoter Emanuel Steward and Detroit funeral director O’Neil Swanson as major investors.

Despite the big names and big money, however, the outcome is far from certain. The proposal faces opposition from Indian tribes that operate outstate casinos and existing Detroit casino operators not keen on new competition.

“We are confident the voters of Michigan will reject this unprecedented expansion of gaming,” said James Nye, spokesman for Protect MI Vote, a coalition that includes MGM Grand Detroit and Greektown Casino-Hotel in Detroit; the Saginaw Chippewa Indian Tribe, owner of Soaring Eagle Casino & Resort in Mt. Pleasant, and the Nottawaseppi Huron Band of Potawatomi, owner of FireKeepers Casino near Battle Creek.

Michigan Indian Country Crime Report

Matthew L.M. Fletcher
Man Sentenced For Murder on Indian Reservation (U.S. Attorney for the Eastern District of Michigan – http://www.justice.gov/usao/mie/)
Daniel Lawrence Fuller, 31, of Mount Pleasant Mich., was sentenced to 300 months in prison and five years supervised release for second degree murder on March 22, 2012.  Fuller pleaded guilty to the charge on Dec. 7, 2012.  The evidence at the plea hearing established that on July 10, 2010, Fuller strangled his sister, Iva Joy Fuller, to death on the Isabella Reservation.
 
Man Sentenced for Shooting Gun Inside House on Indian Reservation (U.S. Attorney for the Eastern District of Michigan – http://www.justice.gov/usao/mie/)
Gonnzalo Alaniz Jr., 44, of Mount Pleasant, Mich., was sentenced to 14 months in prison and two years of supervised release on March 22, 2012.  Alaniz was sentenced in connection to his guilty plea on Oct. 11, 2011. The evidence at the plea hearing established that on Feb. 23, 2011, Alaniz discharged a firearm on the Isabella Reservation after having previously been convicted of a felony.