trust relationship

Materials and briefs in the matter of Hoopa Valley Indian Tribe v. Bureau of Reclamation of the Department of the Interior of the United States of America et al, 16-cv-04294 (N.D. Cali.):

33 Federal Defendants’ Notice of Motion and Motion to Dismiss or, in the Alternative, to Stay
- 44 Plaintiff’s Response in Opposition to Federal Defendants’ Motion to Dismiss or, in the Alternative, to Stay
  - 60 Federal Defendants’ Reply in Support of Their Motion to Dismiss or, in the Alternative, to Stay
69-1 Plaintiff’s Memorandum in Support of Motion for Partial Summary Judgment, and Injunctive Relief
- 93 Federal Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment
  - 96 Plaintiff’s Reply to Federal Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment
- 94 Defendant-Intervenors’ Response to Plaintiff’s Motion for Partial Summary Judgment and Injunctive Relief
  - 97 Plaintiff’s Reply to Defendant-Intervenors’ Response to Plaintiff’s Motion for Partial Summary Judgment and Injunctive Relief
88 Federal Defendants’ Motion to Limit Review to the Administrative Record and Strike Extra Record Evidence
- 90 Plaintiff’s Opposition to Federal Defendants’ Motion to Limit Review to the Administrative Record and to Strike Plaintiff’s Extra-Record Evidence
  - 95 Federal Defendants’ Reply in Support of Their Motion to Limit Review to the Administrative Record and Strike Extra Record Evidence
102 Order Re Motions for Summary Judgment, Motions to Strike, and Motion to Dismiss

Tribal Amicus Brief in Challenge to EPA Mercury Rule

January 31, 2017March 24, 2017Matthew L.M. Fletcher

Here is the brief in Murray Energy Corp. v. EPA (D.C. Cir.):

tribal-amicus-brief

Tribal Amicus Brief FINAL

Federal Circuit Revives “Bad Men Clause” Claim

January 30, 2017Matthew L.M. Fletcher

Here are the materials in Jones v. United States.

Opinion

Briefs:

Jones Brief

US Response Brief

Bill Wood on the IRA’s “Under Federal Jurisdiction” Provision

January 27, 2017January 26, 2017Matthew L.M. Fletcher1 Comment

William Wood has published Indians, Tribes, and (Federal) Jurisdiction in the University of Kansas Law Review.

Here is an excerpt:

I argue that, doctrinally, all Indian tribes currently recognized as such by the U.S. government—all “federally recognized tribes”— necessarily were under federal jurisdiction in 1934. Under the doctrine of discovery (or discovery doctrine), the United States, like the European powers that preceded it, asserted jurisdiction regarding the Indigenous peoples within its claimed territories and assumed certain obligations to those peoples. As it developed this doctrine into the plenary Indian affairs power doctrine (or plenary power doctrine), the Supreme Court explained that the federal government had since its inception possessed this plenary jurisdiction regarding all Indians within the United States’ boundaries. It was part of the colonial relationship: because the United States claimed sovereignty over their territories, the Indians living there fell under the federal government’s jurisdiction.

Galanda: “Obama’s Disenrollment Legacy”

January 25, 2017Matthew L.M. Fletcher1 Comment

Here.

NYTs on Suit against Havasupai Elementary/United States

January 23, 2017Matthew L.M. Fletcher1 Comment

Here.

Complaint here.

Report: Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions – January 2017

January 18, 2017October 27, 2017Matthew L.M. Fletcher4 Comments

Here. [PDF for when the Trump Administration deletes this report.] Update 10/27/17 — aaaaand it’s gone.

An excerpt:

This Report serves several functions. First, it provides information about the existing Federal statutory, regulatory, and policy framework governing both Tribal consultation and Federal decision-making on infrastructure and related projects. Second, it serves as a record of Tribal input on this topic, summarizing both written and oral comments received during the consultations, listening session, and written comment period. Third, in order to improve both consultation and infrastructure permitting processes, this Report recommends that agencies undertake a thorough review of their consultation policies and practices, and that consultation policies be provided to the WHCNAA and made publicly available (if they are not already). The Report provides an initial Federal response to Tribal comments and recommendations along with a set of principles that should inform Tribal consultation. Finally, the Report highlights best practices gleaned from what Tribes identified as successful Tribal consultations and makes recommendations for further research, administrative, regulatory, or legislative action.

Cayuga Nation IBIA Appeal

January 18, 2017Matthew L.M. Fletcher1 Comment

Here:

cayibia_ap1-14-17-116123107-0001

Press release:

Cayuga Nation Traditional Government Appeals BIA Decision

Agency Violates Own Rules to Interfere in Cayuga Affairs

January 16, 2017 – Seneca Falls, NY—The Cayuga Nation’s traditional government – the Council of Chiefs and Clan Mothers – on Friday appealed the December 15, 2016 Bureau of Indian Affairs (BIA) decision declaring a group organized by Clint Halftown to be the government of the Cayuga Nation. The decision by BIA Eastern Regional Director Bruce Maytubby would strip the Clan Mothers of their longstanding role in the Nation’s government, a role Clint Halftown has previously supported. It would put in place a mail-in survey process to substitute for the traditional processes by which Haudenosaunee Nations like the Cayuga Nation have always chosen their leaders.

“Far from being a neutral decision-maker, Maytubby prejudged the viability of the campaign of support process and secretly colluded with the Halftown faction while excluding Nation leaders then-recognized by the United States,” the appeal says. “Mr. Maytubby reversed existing federal policy on supporting mail-in surveys as a means of Cayuga governance without providing any evidence whatsoever – much less substantial evidence – to justify such a reversal.”

The appeal highlights secret communications and meetings between Mr. Maytubby and the Halftown group and points out Mr. Maytubby’s own admission that the mail-in survey process would violate federal law on tribal elections.

“This arbitrary and capricious decision and the backroom dealings that preceded it sets dangerous precedent for federal interference in the affairs of sovereign Indigenous Nations,” explained attorney Joseph Heath, who represents the Nation’s traditional leaders, many of whom have been recognized by the BIA and acknowledged as leaders by the Halftown group for more than a decade. “This violates not only Haudenosaunee law but also federal law protecting Indian nations’ right to self-governance, and their right to self-determination under Article 3 of the United Nations’ Declaration on the Rights of Indigenous Peoples.”

Sachem Samuel George of the Cayuga Nation noted, “Centuries of bad policies by the United States and its Bureau of Indian Affairs have resulted in the challenges our people face today. We have survived genocide, being forced from our lands, having our children taken from us. In recent decades, the United States’ policies have improved in their acknowledgement of the sovereignty of Indigenous Nations, giving us the freedom to create a better future for our people. Maytubby’s decision, on the other hand, is a return to the dark ages of Indian Affairs.”

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Alabama-Quassarte Tribal Town Loses Challenge Related to Wetumka Project

January 2, 2017January 2, 2017Matthew L.M. Fletcher

Here are the materials in Alabama-Quassarte Tribal Town v. United States (E.D. Okla.):

202-tribal-motion-for-summary-j

Kevin Washburn on the Return of Lands to the MHA Nation from the United States

December 22, 2016Matthew L.M. Fletcher

Kevin Washburn has posted “Another Broken Promise Addressed with the Return of 25,000 Acres to the MHA Nation in North Dakota” on LinkedIn Pulse.