New Student Scholarship on Tribal Internet Gaming

Matthew L.M. Fletcher

The Jurimetrics Journal at ASU Law has published “A New Formula for Tribal Internet Gaming” by Racheal White Hawk. [pdf]

The abstract:

Tribal gaming is an industry that generates more than $27 billion a year. It comprises forty percent of all gaming in the United States, and has provided more than 628,000 jobs for Native and local communities. While tribal brick-and-mortar casinos contribute numerous economic, cultural, and social benefits to Native communities, Internet gaming profits are a potential boon. Internet gaming is well positioned for rapid growth because tens of millions of Americans use computers, cell phones, and tablets for shopping, games, and entertainment. Furthermore, with the advent of increasingly accurate geolocation technology, filtering, and blocking systems, the age and location of gamblers can be monitored, thus facilitating legal Internet gaming within state borders. Moreover, the potential for tax and licensing revenue from Internet gaming is immense, and states may enter into revenue-sharing agreements with tribes while offering exclusivity for tribal operators. For instance, in California, tribes contributed $467 million to state revenue in 2012 from brick and mortar casinos. States such as Delaware and New Jersey have legalized intrastate Internet gaming to reap tax revenue. California, however, has not yet legalized intrastate Internet gaming. Rather than wait for states to legalize intrastate Internet gaming, some tribes are launching their own online poker and bingo rooms to accept bets from players not located on Indian lands, asserting that doing so is legal under the Indian Gaming Regulatory Act (IGRA). However, some states disagree that it is legal under IGRA. To prevent impending expensive and time-consuming litigation and to support tribal economic development, Congress should reform the current regulatory patchwork of federal Internet gaming legislation by legalizing interstate Internet gaming, allowing states to opt out of the federal interstate Internet gaming scheme, and adding a new category specifically for Internet gaming to IGRA.

ICWA Guidelines Presentation to Utah Juvenile Judges

Kate Fort

IdahoJudges

Just got to the hard part when they took the picture!

Minneapolis ICWA Law Center Video

Kate Fort

One of our very favorite groups we get to work with has a beautiful new video up:

Password: icwa

The Minneapolis ICWA Law Center represents parents in ICWA cases, among other things.

Lakehead University Law Seeks Director of Indigenous Relations

Sarah M Donnelly

Download job announcement here.

Native America Humane Society’s Summer Legal Research Intern

Sarah M Donnelly

Download job announcement here.

Legal research interns for NAHS’s Tribal Animal Legal Code Database Project will gather animal codes from tribal communities in an assigned region of the United States. The gathered codes then go into a database to be hosted by Michigan State University College of Law.

Federal Court Affirms Cancellation of Tribal Members Group’s Federal Grazing Permits

Matthew L.M. Fletcher

Here are the materials in South Fork Livestock Partnership v. United States (D. Nev.):

35 US Motion to Dismiss

41 Tybo Motion to Dismiss

42 Response to 35

43 Response to 41

44 US Reply

47 Tybo Reply

57 Mose-Temoke Motion to Dismiss

60 Response to 57

66 Mose-Temoke Reply

67 DCT Order

Snarky News Commentary about Pro-Football Inc.’s Cert Petition

Matthew L.M. Fletcher

Hey it’s Friday! 🙂

From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”

An excerpt:

As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:

“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”

The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.

If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.

Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.

Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?

Amicus Brief in Support of Shinnecock Indian Nation Land Claims Cert Petition

Matthew L.M. Fletcher

Here:

15-1215acFederalIndianLawProfessors

Petition here.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Angela Riley & Kristen Carpenter Publish “Owning Red”

Matthew L.M. Fletcher1 Comment

Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.

Here is the abstract:

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another.  While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession.  For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization.  Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes.  Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others.  As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts.  When it comes to intangible property, however, the situation is more complicated.  It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions.  Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources.  To advance understanding of this contested area of law, Professor Riley and Professor Carpenter  situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.”  It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.