Turtle Talk

Washburn & Cummings: “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands”

October 24, 2017Matthew L.M. Fletcher

Kevin Washburn & Jody Cummings have posted “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands.”

The abstract:

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called “piggybacking” on pre-existing rights of way and clarifying the rules of taxation related to economic activity. On the other hand, the reforms also sought to assure greater deference to tribal decisions, even when tribal governments act for non-economic purposes. For example, the agency will now defer to decisions to lease land for less than fair market value if a tribal government wishes for approval for other reasons. This descriptive work, prepared for a Rocky Mountain Mineral Law Foundation conference in 2017, details these regulatory reforms.

Materials (So Far) in Oneida Nation v. Village of Hobart

October 24, 2017October 24, 2017Matthew L.M. Fletcher

Here:

1 Complaint

5 Oneida Motion for PI

10 Amended Complaint

25 Oneida Motion for Summary J

46 DCT Order on Preliminary Motions

60 Oneida Motion to Clarify

62 Hobart Response to Motion to Clarify

65 Oneida Reply re Motion to Clarify

66 DCT Order on Burdens of Proof

Alaska AG Opinion on Tribal Self-Governance

October 24, 2017Kate Fort1 Comment

Opinion here.

Big win for tribes, pulling the state in line with the rest of the country. If you’ve ever wondered how difficult it is in Alaska working for and on behalf of tribes, read this much needed opinion.

II. Alaska Tribes are sovereign governments.

Tribal governments are separate sovereigns. As a starting point, tribal sovereignty can perhaps best be understood as self-rule–the right to make one’s own laws and be governed by them. Tribes possess inherent powers of self-government and exercise these powers to the extent they have not been extinguished.

ICWA Inquiry Case out of Colorado Court of Appeals

October 23, 2017October 23, 2017Kate Fort

Here.

To decide if the trial court complied with ICWA, we must answer a question that has yet to be decided in Colorado: When a trial court inquires at an initial temporary custody hearing at the commencement of the dependency and neglect proceeding whether there is a reason to know that the child is an Indian child, must it make another inquiry when termination is sought? We conclude that the answer is “yes,” at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Ninth Circuit Remands Makah v. Quileute/Quinault Ocean U&A Dispute

October 23, 2017Matthew L.M. Fletcher1 Comment

Here is the opinion in Makah Indian Tribe v. Quileute Indian Tribe.

Briefs are here.

Update on Same Sex Marriage Case at Ak-Chin Community

October 23, 2017Matthew L.M. Fletcher1 Comment

Here:

Redacted Special Master Report

Ruling on Matter Under Advisement (1) final Pablo

Michigan COA Rules Former Tribal Official with Criminal Record Not Eligible for State and Local Office

October 23, 2017October 21, 2017Matthew L.M. Fletcher

Here is the opinion in Paquin v. City of St. Ignace:

unpublished opinion

An excerpt:

In light of the foregoing, we hold that the Tribe constitutes a local government and that plaintiff’s employment with the Tribe constituted employment in “local, state, or federal government” for purposes of Const 1963, art XI, § 8. Such a holding does not diminish or undermine the Tribe’s inherent sovereign authority. “[S]tate laws are generally not applicable to tribal Indians on an Indian reservation except where Congress has explicitly provided that state law shall apply.” Huron Potawatomi, Inc v Stinger, 227 Mich App 127, 132; 574 NW2d 706 (1997). In the instant case, no one is seeking to prohibit plaintiff from running for a position in the Tribe or otherwise to interfere in the Tribe’s regulation of its internal matters. Instead, Const 1963, art 11, § 8 is being applied to prohibit plaintiff from running for a position on defendant’s city council. In other words, the constitutional provision is being used to assess the qualification of a potential candidate for a position on the city council of a Michigan municipality, not a position in the Tribe. “The members of the various Indian tribes are citizens of the United States and citizens of the state within which they reside.” Mich United Conservation Clubs v Anthony, 90 Mich App 99, 109; 280 NW2d 883 (1979) (citations omitted). In seeking to run for an elective position in a Michigan city, plaintiff was acting in his capacity as a Michigan citizen rather than a member of the Tribe. As a Michigan citizen, plaintiff is subject to the same laws as other Michigan citizens when seeking to run for an office in a Michigan municipality. See generally, Mescalero Apache Tribe v Jones, 411 US 145, 148-149; 93 S Ct 1267; 36 L Ed 2d 114 (1973) (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”).

Alex Skibine on the Last 30 Years of Indian Law in the Supreme Court

October 21, 2017Matthew L.M. Fletcher1 Comment

Alexander Tallchief Skibine has posted “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?” He presented this paper at the PLSI 50th Anniversary.

Here is the abstract:

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.

The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

Friday Job Announcements

October 20, 2017January 19, 2018Sarah M Donnelly1 Comment

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Maniilaq Association

General Counsel, Kotzebue, A.K. Oversees and manages general counsel functions, including assigning, supervising and evaluating all the work of outside counsel and internal investigations. Works collaboratively with other departments and organizational units to develop and implement processes to ensure appropriate identification, analysis, prioritization, and coordinated response to legal, risk management & compliance issues.

Bear Ears Tribal Commission

Commission Director UPDATED 1/19/18, Four Corners Area. The Director will implement the Commission’s directives as it collaboratively identifies and helps to implement interim visitation, site protection, and interpretation strategies for the monument, and as it engages in the preparation of recommendations for the national monument management plan for Bears Ears National Monument, Utah.

Previous Friday Job Announcements: 10/3/17