Here are the materials:
DCT Order Denying Motion to Enforce
tribal constitutions
D.C. Circuit Reverses Dismissal of Cherokee Freedmen Suit against Cherokee Officials
Here is today’s opinion in Vann v. Dept. of Interior: CADC Opinion
An excerpt:
Applying the precedents that permit suits against government officials in their official capacities, we conclude that this suit may proceed against the Principal Chief in his official capacity, without the Cherokee Nation itself as a party.
The Freedmen have sued the Principal Chief in his official capacity under the doctrine of Ex parte Young, 209 U.S. 123. The Ex parte Young doctrine allows suits for declaratory and injunctive relief against government officials in their official capacities – notwithstanding the sovereign immunity possessed by the government itself. The Ex parte Young doctrine applies to Indian tribes as well. Cf. Oklahoma Tax Commission, 498 U.S. at 514; see generally Larson, 337 U.S. at 689-92; RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 958-60 (5th ed. 2003).
Briefs are here.
White Earth Band Chippewa Tribal Council Awarded Grant for Constitutional Reform
White Earth Tribal Council awarded Bush Foundation grant for constitutional reform process
WHITE EARTH, MINN. – The Bush Foundation has recently approved a grant of $379,771 to the White Earth Tribal Council to help support the White Earth Nation’s constitutional reform process. White Earth’s match of $10,394 brings the total to $390,165.
In 2009, White Earth convened a Constitution Convention and drafted and ratified a new White Earth Nation Constitution. The Bush Foundation funds will be used to inform and prepare White Earth constituents for a referendum on the White Earth Nation Constitution.
“Constitutional reform is imperative to the sovereignty, self-determination, and economic development of the White Earth Nation,” said White Earth Chairwoman Erma J. Vizenor.
“The present Minnesota Chippewa Tribe Constitution that has governed White Earth since 1936 is a boilerplate constitution from the Indian Reorganization Act of 1934,” said Vizenor. “This boilerplate tribal constitution is similar to a business charter, lacking a separation of powers with no provision for an independent judicial system, weak assertion of jurisdiction, and restricting tribal citizenship to eventual extinction.”
The Bush Foundation was established in 1953 by 3M executive Archibald Bush and his wife, Edyth, and today works in communities across Minnesota, North Dakota, South Dakota and the 23 Native nations that share the same geographic area.
Ninth Circuit Oral Argument Audio in Grand Canyon Skywalk — UPDATE
Here.
News coverage from WaPo. More detail from HuffPo.
I will note that at the end of oral argument one of the Ninth Circuit judges found part of the Grand Canyon Skywalk Development LLC’s opening brief “offensive,” “histrionic,” and “vituperative.” There was a “big frown face on the opening brief.” Lots of frustration in this case.
Navajo Nation CLE at Arizona State
Navajo Nation Law CLE Conference
Friday, November 30, 2012 / 8:30 a.m. – 5:15 p.m.
Sandra Day O’Connor College of Law at Arizona State University / Armstrong Hall / Great Hall/ Tempe campus
Indian Legal Program at the Sandra Day O’Connor College of Law at ASU and the National American Bar Association of Arizona are hosting a conference that will offer a survey of ethical, social, cultural, employment, economic development, political and legal issues affecting the Navajo Nation. It is ideal training for tribal court advocates, tribal court practitioners, tribal court prosecutors, tribal court defenders, tribal council members, Indian law attorneys and attorneys practicing on and near the Navajo Nation Reservation, tribal liaisons, government legislators, Navajo Nation Bar members, law students, as well as teachers/professors and students of American Indian studies.
This conference may qualify for up to 8 CLE credit hours for Navajo Nation Bar Association, and New Mexico MCLE credits, including 2 credit hours Navajo Ethics* – approval pending. The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education requirement. This activity may quality for up to 8 hours toward your annual CLE requirement, including 2 hours of professional responsibility.
http://conferences.asucollegeoflaw.com/navajolaw/
Sessions include: Continue reading
Update in Vann v. Interior & Cherokee Nation v. Nash
The Cherokee Nation has voluntarily dismissed their claims against the feds in Cherokee Nation v. Nash:
Cherokee nation vs nash order 8 21 2012 feds
The feds have an outstanding counterclaim against the Nation and so they remain parties.
In the D.C. Circuit appeal, Vann v. Interior, here is Vann’s reply brief:
2012-08-30 Reply Brief of Appellants Marilyn Vann et al
Prior briefs are here.
Update in Diné CARE v. Salazar
Here is Navajo’s latest pleading (limited motion to intervene and motion to dismiss):
FINAL COMBINED NAVAJO NATION AREA IV PLEADINGS
The complaint is here.
Federal Court Declines to Dismiss Tribal Election Dispute Question
Here are the materials in Eastern Shawnee Tribe v. Douthitt (N.D. Okla.):
DCT Order Denying CIO Motion to Dismiss
An excerpt from the opinion:
Now before the Court is Defendants’ Motion to Dismiss and Brief in Support (Dkt. # 16). Defendants argue that the Court lacks subject matter jurisdiction over this case because plaintiff is asking the Court to resolve an internal tribal dispute. They also assert that they have not waived their sovereign immunity from suit and that plaintiff’s claims should be dismissed. Plaintiff responds that it is asking the Court to determine whether the Court of Indian Offenses for the Eastern Shawnee Tribe of Oklahoma had jurisdiction to decide an election dispute, and this is a federal question that can be decided by this Court. They also argue that defendants are not shielded from suit by the doctrine of sovereign immunity.
Update in Grand Canyon Skywalk Development v. ‘Sa’ Nyu Wa: Complete Ninth Circuit Briefing
Here are the briefs (argument is October 19, 2012):
Lower court materials here.
Fletcher on “Tribal Membership and Indian Nationhood”
I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).
Here is the abstract of the new paper:
American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.
This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.
I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.
Turtle Talk 
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