trust relationship

ICT Coverage of Senate Report on Carcieri

Matthew L.M. Fletcher

Here.

An excerpt:

The report says that the decision sent “shockwaves” through Indian country “in great part because the record on which the Supreme Court based its interpretation of section 19 of the IRA was noticeably incomplete.” It adds that the decision undermines the intent of the IRA, threatens public safety and law enforcement, and impedes economic development, while increasing costly tribal and federal litigation.

Sen. John Barrasso, R-Wyoming, said in an accompanying view issued within the report that he concurs with most of Akaka’s views regarding the effects of the decision of and the purposes of the IRA, although he said he recognizes there to be other “good faith” understandings of the Supreme Court’s rationale.

“For my part, I do not claim to know enough about the government’s internal deliberations and legal strategies in the Carcieri case to say that there were deliberate or even careless omissions from the record presented to the Supreme Court,” Barrasso says. “But whether that happened or not is ‘water under the bridge’ and therefore much less important than the consequences of the decision itself.”

Continue reading →

Spokane Tribe Member Breach of Trust Case re: Mining on Indian Allotment Partially Dismissed

Matthew L.M. Fletcher3 Comments

Here are materials from Villegas v. United States (E.D. Wash.):

DCT Order Partially Dismissing Villegas Complaint

Villegas Complaint

Dawn Mining Motion to Dismiss

Newmont USA Motion to Dismiss

 

News Coverage on Cobell Decision

Matthew L.M. Fletcher

From BLT.

From CBS.

D.C. Circuit Affirms Cobell Settlement

Matthew L.M. Fletcher4 Comments

Here.

Briefs are here.

An excerpt:

This is an appeal from the approval of a class action settlement agreement related to the Secretary of the Interior’s breach of duty to account for funds held in trust for individual Native Americans. Class member Kimberly Craven challenges the fairness of the settlement, contending principally that an impermissible intra-class conflict permeates the scheme to compensate class members for surrendering their established right to injunctive relief and that this conflict undermines the commonality, cohesiveness, and fairness required by Federal Rule of Civil Procedure 23 and due process. The record, however, fails to confirm either the existence of the purported intra-class conflict or a violation of due process. Rather, the record confirms that the two plaintiff classes possess the necessary commonality and adequate representation to warrant certification, and that the district court, therefore, did not abuse its discretion in certifying the two plaintiff classes in the settlement or in approving the terms of the settlement as fair, reasonable, and adequate pursuant to Rule 23(e). Accordingly, we affirm the judgment approving the class settlement agreement.

Prepared Witness Testimony in SCIA Oversight Hearing on the Trust Responsibility

Matthew L.M. Fletcher

Here:

Panel #  1

Ms. Melody McCoy
Staff Attorney
Native American Rights Fund, Boulder, CO

Mr. Matthew L. M. Fletcher
Professor of Law and Director of the Indigenous Law and Policy Center
Michigan State University College of Law, East Lansing, MI

Mr. Daniel Rey-Bear
Partner
Nordhaus Law Firm, LLP, Albuquerque, NM

Panel #  2

Mr. Ray Halbritter
Nation Representative
Oneida Indian Nation, Verona, NY

The Honorable Fawn Sharp
President
Quinault Indian Nation, Taholah, WA

The Honorable Brooklyn D. Baptiste
Vice-Chairman
Nez Perce Tribe, Lapwai, ID

I don’t see Jicarilla’s testimony here.

Webcast of Today’s SCIA Hearing on Fulfilling the Trust Responsibility

Kate Fort

Here: Oversight Hearing on Fulfilling the Federal Trust Responsibility

HEARTH Act Update

Matthew L.M. Fletcher

The HEARTH Act passed the House 400 to zero on May 15. Here is NCAI’s description:

The HEARTH Act (H.R. 205 and S. 703) has been favorably considered in committee in both the Senate and the House, and we urge the Administration to work with Congress to pass the legislation as soon as possible. The HEARTH Act promotes tribal self-determination in the management of tribal lands and would allow tribes to lease their own lands without the delay and bureaucracy of approval within the BIA. The legislation is also optional; each tribe would decide for itself whether or not to take advantage of the Act. Many tribes desire to manage their own lands and to promote economic development, and they are in the best position to decide for themselves whether this Act suits their needs. The Act expands the Navajo Leasing Act of 2000 (P.L. 106-568) to all federally recognized tribes.

New Scholarship by Tom Fredericks and Andrea Aseff Arguing BLM Should Not Have Jurisdiction over Indian Lands

Matthew L.M. Fletcher1 Comment

Tom Fredericks and Andrea Aseff have published “When Did Congress Deem Indian Lands Public Lands?: The Problem of BLM Exercising Oil ad Gas Regulatory Jurisdiction in Indian Country” in the Energy Law Journal.

From the synopsis:

While the BLM has been asserting regulatory jurisdiction over oil and gas development on Indian lands for approximately twenty years, it should not be. Congress charged the BLM with regulating oil and gas and other activities on public lands, specifically for multiple use and sustained yield in accordance with land use plans the agency develops. Indian lands are not public lands. This article seeks to address whether Congress charged the BLM with regulating oil and gas development on Indian lands. After an exhaustive legal analysis, the authors found that the BLM likely lacks statutory authority to regulate oil and gas on Indian lands. This is significant because the BLM’s congressional mandate and implementing regulations to manage public lands contain restrictive management standards and requirements that Congress did not intend to apply to Indian lands, while adding another layer of regulatory requirements to an already complicated and extensive regime.

Audio of Salazar v. Ramah Available

Kate Fort

Here is the mp3 of the argument. It took a while for us to load, but it is also available for download here. Our previous commentary on the case is here.

Lyle Dennison (SCOTUSblog) Commentary on Ramah Argument

Matthew L.M. Fletcher

Here.

An excerpt:

No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services.  But, on the other hand, it said every year that the government could not pay for everything it got in return.   On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)