Supreme Court – Page 12

SCOTUS Denies Cert in Challenge to Spokane Tribe Water Agreement

March 20, 2023Matthew L.M. Fletcher

Here is today’s order list.

The denied petition is Sulgrove v. Spokane Indian Tribe.

Lower court materials here.

SCOTUSBlog Preview of Arizona v. Navajo Nation

March 17, 2023Matthew L.M. Fletcher

Here is “As drought persists in the west, justices to consider Navajo Nation’s rights to Colorado River.”

Background materials on the case are here.

Jacob Jurss on ICWA and Brackeen

February 24, 2023Matthew L.M. Fletcher

Here is “Counterpoint: Tribal rights, futures must not be plundered again” in the Minnesapolis Star-Tribune.

SCOTUS Sets Oral Argument Dates for Navajo and LDF Cases

February 7, 2023Matthew L.M. Fletcher

Arizona v. Navajo will be argued on March 20, 2023.

LDF v. Coughlin will be argued on April 24, 2023.

Emily Harwell on the Effects of McGirt

January 31, 2023Matthew L.M. Fletcher

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.

HIGHLY RECOMMENDED.

Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

Lunch in Indian Country CLE: Supreme Court Update on Indian Law [with Fletcher]

January 17, 2023Matthew L.M. Fletcher

Supreme Court Update on Indian Law

Co-Sponsored by the State Bar of Arizona and the State Bar’s Indian Law Section

January 18, 2023, 12:00-1:00 MST

1.0 Total CLE Unit

Join Professor Matthew Fletcher as he reviews the most recent Supreme Court decisions affecting Indian Country.

Faculty:

Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, Michigan Law

Chairpersons:
Doreen McPaul, President, Tribal In-House Counsel Association
Virjinya Torrez, Assistant Attorney General, Pascua Yaqui Tribe

Register: https://azbar.inreachce.com/Details/Information/1661e72a-831b-45a2-ad84-a06a235557ee

SCOTUS Grants LDF v. Coughlin

January 13, 2023Matthew L.M. Fletcher

Here is the order.

Cert stage briefs here.

Merits Stage Briefs in Arizona v. Navajo Nation/Dept. of the Interior v. Navajo Nation

December 20, 2022January 5, 2023Matthew L.M. Fletcher

Here:

Interior Brief.pdf Download

Arizona Merits Brief.pdf Download

Colorado Merits Brief.pdf Download

Western Water Users Amicus.pdf Download

Greg Bigler on Euchee Legal Traditions

December 15, 2022December 15, 2022Matthew L.M. Fletcher

Gregory Bigler has posted “7000 Dzo-Gaw-law (Ancestors)” on SSRN. Here is the abstract:

I read Stories from the Euchee Reservation on a plane. I read it cover to cover, I was as if emerging from a dream in which animals and humans understand one another and spirits come to visit over a cup of coffee.

Judge Bigler is a Euchee tribal citizen and a member of Polecat Ceremonial Grounds, a Harvard Law School graduate, longtime district court judge at the Muscogee (Creek) Nation. He co-counselled Indian law cases to the U.S. Supreme Court, mentored generations of Indian law attorneys, published law review articles.

Yet as Judge Bigler’s stories make clear, Indian people are keeping their traditions alive, listening to their chiefs, speaking Indigenous languages, and navigating contemporary circumstances: sending gossipy texts at the stomp grounds, wolf eating tofu in the forest, or teasing academics about their decolonizing methodologies. Shaw-jane, Mr. Rabbit, remains popular even after many years on the Indian story circuit.

This is a world, real life, for the people who keep the fire, the towns, the ballgames, and dances alive day in and day out, carrying out the ways of their people. These are cultural traditions handed down from generation to generation, suppressed for hundreds of years, still surviving today. Even if only with maybe a few hundred traditional practitioners.

The U.S. Supreme Court decided in the 2020 case of Jimcy McGirt v. State of Oklahoma that the Muscogee (Creek) Nation remains a reservation, “Indian Country” for purposes of federal criminal jurisdiction. The McGirt decision, means the Muscogee (Creek) Nation government has jurisdiction over a significant portion of northeast Oklahoma.

What law now applies in the reservation? Federal and tribal law, perhaps state law by agreement or statute? What is tribal law exactly? The United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of tribes to exist as distinct peoples with their own “laws, customs, and traditions.” It recognizes their rights to maintain their religious sites, indigenous languages, sacred plants, traditional medicines – or as Natives put it, the Declaration recognizes the rights of Indigenous Peoples to maintain their “ways.”

The ways of the Muscogee and Euchee people are carried on at the stomp grounds. These ways can be understood as the laws, customs, and traditions of the Muscogee and Euchee people, are highly complex, deeply embedded, and alive. Following the directions of their chiefs, carrying out ceremonial rules, honoring the spirit world, maintaining peace and order, caring for children while teaching them proper ways of behavior, and so on. These laws, customs, and traditions, structure Euchee society in Stories from the Euchee Reservation. These laws are challenged by many things – the history of conquest and colonization, generations of social and economic deprivation, and the temptations of contemporary society – yet they remain alive to this day.