Turtle Talk

Seneca County v. Cayuga Indian Nation Cert Petition

March 5, 2021Matthew L.M. Fletcher

Here:

2021-02-17 Seneca County Petition Final

Lower court materials here.

Question presented:

This Court has twice granted certiorari to decide whether tribal sovereign immunity bars lawsuits concerning rights to property that a tribe acquires on the open market. See Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018); Madison Cty. v. Oneida Indian Nation of N.Y., 562 U.S. 960 (2010) (mem.). Both times, however, subsequent developments prevented the Court from definitively answering the question. This case presents an opportunity to definitively answer that important and recurring question. In the decision below, the Second Circuit doubled down on the holding that this Court granted certiorari to review in Madison County, and again robbed this Court’s decision in City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), of practical effect by holding that if an Indian tribe purchases land on the open market and refuses to pay property taxes, there is nothing a local jurisdiction can do about it. That decision cannot be reconciled with Sherrill, and it effectively grants tribes a super immunity by rejecting the “uniform authority in support of the view that” the “immovable property” exception would preclude any sovereign’s efforts to invoke sovereign immunity in these circumstances. Upper Skagit, 138 S.Ct. at 1657 (Thomas, J., dissenting).

The question presented is:

Whether tribal sovereign immunity bars local tax authorities from collecting lawfully imposed property taxes by foreclosing on real property that a tribe has acquired on the open market.

Sixth Circuit Enforces Tribal Sovereign Lending Arbitration Clause

March 4, 2021Matthew L.M. Fletcher

Here is the opinion in Swiger v. Rosette.

Briefs here.

Tribal Veteran Courts Webinar

March 4, 2021Kate Fort

webex-3-10-2021-veteran-courts-vjos Download

3/10/21, Wednesday, 3:00 ET; 2:00 CT; 1:00 MT; 12:00 PT, 11:00am AK
Register for and join the session by CLICKING HERE
If you have questions or require special accommodations,
please contact Peter.Vicaire@va.gov, 612-558-7744

N.Y. Appellate Division Recognizes Unkechaug Nation Land Assignment

March 4, 2021Matthew L.M. Fletcher

Here is the opinion in Unkechaug Indian Nation v. Treadwell.

An excerpt:

When acting within its territorial boundaries and with respect to internal matters, an Indian Nation retains the sovereignty it enjoyed prior to the adoption of the United States Constitution except to the extent that its sovereignty has been abrogated or curtailed by Congress (see Montana v United States, 450 US 544, 564; United States v Kagama, 118 US 375, 381-382; Cayuga Nation v Campbell, 34 NY3d 282, 291, 293). As such, “tribes possess the common-law immunity traditionally enjoyed by sovereign powers” (Oneida Indian Nation v Phillips, 981 F3d 157, 170 [2d Cir]). As the Supreme Court correctly determined in the May 1, 2019 order, in seeking a declaration with respect to Curtis’s right to occupy the disputed portion of the subject property, the Nation waived its sovereign immunity as to that issue (see Rupp v Omaha Indian Tribe, 45 F3d 1241, 1244 [8th Cir] ; Cayuga Indian Nation of New York v Seneca County, New York, 260 F Supp 3d 290, 299 [WD NY]). However, “a waiver of sovereign immunity cannot, on its own, extend a court’s subject matter jurisdiction” (Oneida Indian Nation v Phillips, 981 F3d at 171), and “[w]aivers of [sovereignty] are to be strictly construed in favor of the Tribe” (Wells Fargo Bank, N.A. v Chukchansi Economic Dev. Auth., 118 AD3d 550, 551 [internal quotation marks omitted]; see Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 AD3d 1203, 1204).
Because of the retained sovereignty of Indian Nations, the subject matter jurisdiction of state courts “must be predicated on explicit authorization from Congress to address matters of tribal self-government” (Cayuga Nation v Campbell, 34 NY3d at 292). Moreover, the courts of this State have rejected the “paternalistic view” that Indian Nations within its borders are “disadvantaged” by their “inability to rely on New York courts” to determine internal disputes, since “the use of dispute resolution mechanisms other than courts is itself an exercise of the right to self-govern in a manner consistent with tribal traditions and oral law” (id. at 296; see Cayuga Nation v Tanner, 824 F3d 321, 327 [2d Cir]). Thus, “‘when it comes to Indian affairs, state courts are courts of limited jurisdiction'” (Cayuga Nation v Campbell, 34 NY3d at 296, quoting Bowen v Doyle, 880 FSupp 99, 114 [WD NY], affd 230 F3d 525 [2d Cir]).

NYTs: “Wisconsin Hunters Kill Over 200 Wolves in Less Than 3 Days”

March 3, 2021Matthew L.M. Fletcher

Here.

A shocking excerpt:

The state had set a quota of 200 wolves, with 119 for hunters who applied for permits with the department and 81 set aside to the Ojibwe Tribes under their treaty rights.
“The notion that there was this wide divergence between the outcome of the hunt and the number of the wolves that could be hunted simply doesn’t bear up to analysis,” Mr. Esenberg said.
But the tribes consider wolves to be sacred and made a deliberate decision not to hunt them, said Dylan Jennings, a spokesman for the Great Lakes Indian Fish and Wildlife Commission, which represents the tribes.

Tenth Circuit Briefs in Pueblo of Jemez v. United States [Valles Caldera]

March 3, 2021February 4, 2022Matthew L.M. Fletcher

Here:

Jemez Pueblo brief sealed

Indian Advocacy Groups Amicus Brief

Indian Law Profs Amicus Brief

Pueblo Nations Amicus Brief

US Response Brief

Gas Company Brief

Lower court materials here.

Briefing in Mille Lacs Reservation Boundaries Case

March 3, 2021Matthew L.M. Fletcher

Here are the materials in Mille Lacs Band of Chippewa Indians v. County of Mille Lacs (D. Minn.):

225 Tribe Motion for Summary Judgment

241 County Motion for Summary Judgment

250 State of Minnesota Amicus Brief

265-1 US Amicus Brief

Prior post here.

Native America Calling Program on Oliphant — Thursday, March 4, 2021

March 2, 2021Matthew L.M. Fletcher

Here: “Oliphant: four decades of hampered tribal jurisdiction.”

The blurb:

A U.S. Supreme Court decision in March, 1978 continues to hinder tribal sovereignty on a daily basis. The ruling in Oliphant v. Suquamish Indian Tribe stripped tribes of most criminal prosecutions against non-Indians. Those cases became the responsibility of the federal government. In his dissent, Justice Thurgood Marshall wrote “I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation.” The Violence Against Women Act was an attempt to remedy the persistent trend of non-Native abusers of Native women slipping through the cracks of the federal justice system. We’ll look at the distressing consequences of Oliphant and efforts through the years to fix it.

Yale Law and Policy Review: ICWA and Commandeering

March 2, 2021March 4, 2021Kate Fort

We’ve been looking forward to this article for a while. Highly recommended.

Here.

This Note argues that ICWA does not commandeer the States. Part I grounds the discussion in the history of genocide and colonization of Indian peoples. This historical context is crucial to understanding the passage of ICWA and the current reactionary effort to dismantle it. Part II provides a brief overview of the anti-commandeering doctrine and lays out the commandeering claims that opponents have leveled against ICWA. Additionally, this Part argues that ICWA fully aligns with modern anti-commandeering doctrine for four reasons. First, it is settled doctrine that state courts must enforce federal law. As such, anti-commandeering doctrine does not apply to state courts in the same way as it applies to the state political branches. Second, Congress may impose federal procedures on state courts to vindicate federal rights, federal causes of action, and–we argue–vital federal interests, including the protection of the federal trust obligation to Indian tribes. The procedural requirements imposed by ICWA on state courts fall within all three of these categories. Third, it is established doctrine that Congress may impose record-keeping requirements on the States, including the record-keeping required by ICWA. Fourth, contrary to the claims of its opponents, ICWA even-handedly regulates states and private entities, consistent with the Constitution’s anti-commandeering requirements. Part III explains the dangerous implications of the anti-commandeering argument for tribal sovereignty, demonstrating the high stakes of ICWA litigation for federal Indian law more broadly. The Note concludes with an exploration of how attacks on ICWA based on anti-commandeering doctrine threaten the very structure of federalism in the United States.

Here: https://ylpr.yale.edu/sites/default/files/YLPR/v39_6_gale_mcclure_commandeering_confrontation.pdf.Download