Ninth Circuit Restores Navajo Nation Trust Breach Claim in Colorado River Water Rights Matter

Matthew L.M. Fletcher

Here is the opinion in Navajo Nation v. Dept. of the Interior.

An excerpt:

The panel held that the Nation’s breach of trust claim was not barred by sovereign immunity, and remanded to the district court to consider the claim on its merits. The panel held that the broad waiver of sovereign immunity found in § 702 of the Administrative Procedure Act (“APA”) waived sovereign immunity for all non-monetary claims, and § 704 of the APA’s final agency action requirement constrained only actions brought under the APA. The panel concluded that the Nation’s breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in § 702 applied squarely to the claim.

Lower court materials here.

NYTs: “President Trump Expected to Shrink Bears Ears by as Much as 90 Percent”

Matthew L.M. Fletcher

Here.

Special Master’s Final Report on Redistricting San Juan County

Sarah M Donnelly

Here are the materials in the matter of Navajo Nation et al v. San Juan County et al, 12-cv-00039 (D. Utah):

Final Report of Bernard Grofman, Special Master

Link: Previous posts

Indigenous Environmental Network’s Suit Against Keystone XL Will Proceed

Sarah M Donnelly

Here is the order in the matter of Indigenous Environmental Network v. U.S. Dep’t of State, No. 4:17-cv-00029-BMM (D. Mont.):

Doc. 93 – Order

Link: Previous posts

Conn. and Tribes Sue Interior For Failure to Publish Gaming Compact Amendments

Sarah M Donnelly

Here is the complaint in the matter of State of Connecticut et al v. Zinke et al, 17-cv-02564 (D.D.C. Nov. 29, 2017):

Doc. 1 – Civil Cover Sheet and Complaint

With the State of Connecticut, the Mohegan and Mashantucket Pequot Tribes have filed suit against the Secretary of Interior after the Department failed to treat submitted
amendments to their gaming compact as deemed approved and publish in the Federal Register notice that the amendments are deemed approved.

Ninth Circuit Rules in Favor of Lummi over Klallam Tribes in U&A Litigation

Matthew L.M. Fletcher

Here is the opinion in Lower Elwha Klallam Tribe v. Lummi Nation.

From the syllabus:

The panel reversed the district court’s summary judgment in favor of the Lower Elwha Klallam Indian Tribe, and held that the disputed waters west of Whidbey Island, Washington were included in the Lummi Nation’s right of taking fish at usual and accustomed grounds and stations (“U & A”) under the 1855 Treaty of Point Elliot.

In United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), Judge Boldt developed a framework for determining U & As for Indian signatories to the Treaty. In Finding of Fact 46, Judge Boldt stated that the U & A for the Lummi Indians “included the marine areas of Northern Puget Sound from the Fraser River south to the present
environs of Seattle.” 

To determine whether the waters west of Whidbey Island were included in the Lummi’s U & A, the panel followed a two-step procedure. At step one, the panel held that Fact 46 was ambiguous because it did not clearly include or exclude the disputed waters. At step two, the panel examined the record before Judge Boldt to clarify his intent, and concluded that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district court improperly imposed a heightened standard in holding that logic or linguistics needed to “compel the conclusion” that contested waters be included in a U & A.

Briefs here.

Federal Court Dismisses Habeas Petition by Kickapoo Member for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher

Here are the materials in Darnell v. Merchant (D. Kan.):

1 Habeas Petition

15 Response

17 Reply

33 DCT Order

An excerpt:

Petitioner Bobbie Darnell, a member of the Kickapoo Tribe in Kansas (the “Tribe”), filed a Petition for Writ of Habeas Corpus pursuant to 25 U.S.C. § 1303 seeking relief from her tribal court convictions and sentence. Petitioner requests that the Court issue a writ of habeas corpus commanding her immediate release from jail in Brown County, Kansas, overturning her convictions in Kickapoo criminal cases numbers CRM016-11 and CRM016-23, and staying all further tribal court action against her (Doc. 1). In addition, Petitioner has filed a motion for release on her own recognizance (Doc. 25). As explained below, the Court denies the Petition for Writ of Habeas Corpus because Petitioner has not exhausted her tribal remedies. The Court further denies Petitioner’s motion for release on her own recognizance as moot.

National Indian Law Library Bulletin (11/30/2017)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 11/30/17.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2017-2018update.html
Petitions for certiorari were denied on 11/27/17 in:
Town of Vernon v. U.S. (Land into Trust)
Upstate Citizens for Equality v. U.S. (Land into Trust)
Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Petition for certiorari was filed on 11/20/17 in: Public Service Company of New Mexico v. Barboan, et al. (Condemnation – Rights of Way)

Read the latest Tribal Supreme Court Project update published on 11/30/17.

U.S. Federal Courts Bulletin
http://www.narf.org/nill/bulletins/federal/2017.html
Darnell v. Merchant (Exhaustion of Tribal Remedies; Sentencing)
Allen v. United States of America (Tribal Membership; Federal Recognition)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
Read about a tribal groundwater case in the Land & Water section.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html
We added the following bills and resolutions:
H.R.4443: Urban Indian Health Parity Act.
H.R.4485: To direct the Attorney General to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered Indians, and for other purposes.
H.R.4419: Bureau of Reclamation and Bureau of Indian Affairs Water Project Streamlining Act.
H.R.4436: Caguana Indigenous Ceremonial Park and Tribes Indigenous Ceremonial Center Study Act.
H.R.4448: To provide for an exchange of Federal land and non-Federal land in the State of Idaho, and for other purposes.
S.Res.342: A resolution expressing the sense of the Senate that States, cities, Tribal nations, businesses, and institutions of higher education in the United States should work towards achieving the goals of the Paris Agreement.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2017.html
We feature these articles:
The fairness of tribal court juries and non-Indian defendants.
Access to energy in Indian Counrty: The difficulties of self-determination in renewable energy development.
Continuning to work for Indian Country in the 115th Congress.
The Tribal Labor Sovereignty Act: Do Indian tribes finally hold a trump card?
Indigenous people, human rights, and consultation: The Dakota Access Pipeline.
Yellowbear v. Lampert – Putting teeth into the Religous Land Use and Institutionalized Person Act of 2000.
Salvaging the United Nations REDD Program against the backdrop of international human rights violations.
Making strategic choices: How and why Indian groups advocated for Federal Recognition from 1977-2012.
Legacy in paradise: Analyzing the Obama adiminstration’s efforts of reonciliation with Native Hawaiians.
“Why should I go vote without understanding what I am going to vote for?” The impact of first generation voting.
The case against property rights in old intangible Indigenous cultural property.
Water Security.
To sue and be sued: Capacity and immunity of American Indian Nations.
(Re)Righting history: Deconstructing the Court’s narrative of Hawai’i’s past.
Mitigating state sovereignty: The duty to consult with Indigenous peoples.

Law Scholars Brief in Support of St. Regis Mohawk Patent

Matthew L.M. Fletcher

Here is the brief from Lawrence Tribe, William Eskridge, Erwin Chemerinsky, Joe Singer, and David Orozco:

Brief of Amici Scholars iso of Saint Regis Mohawk Tribe

Profile of Western Mich. U. Artist of the Month, Isa Kip Mani Win

Ann Tweedy

A profile of Oglala musician and music therapy student Isa Kip Mani Win/Cindy Minkler, here. Excerpt below:

When meeting Isa Kip Mani Win/Cindy Minkler, a music therapy student at Western Michigan University who plays both piano and her distinctive cedar flute, two things become immediately evident: she loves making people laugh and she lives her life to a continual soundtrack. Whether finding inspiration from the soaring coastal mountains of Washington’s west coast, her deep and rich Sioux heritage, or Elton John’s addictive melodies, music’s never-ceasing flow keeps her moving.

Source: Music keeps Western Artist of the Month, Isa Kip Mani Win, moving