Federal Court Denies Injunction against Enforcement of Indian ROW Regs

Matthew L.M. Fletcher1 Comment

Here are the materials in Western Energy Alliance v. Dept. of Interior (D.N.D.):

21 Opposition to PI Motion

23 Reply

31 WEA Motion to Stay

32 Federal Response to Motion to Stay

34 DCT Order

An excerpt:

After a careful review of the entire record, and a careful consideration of all of the Dataphase factors, the Court finds that Western Energy has not met the burden of establishing the necessity of a preliminary injunction. The Dataphase factors, when viewed in their totality, weigh against the issuance of a preliminary injunction. The Court notes that both parties presented very well-reasoned legal arguments in support of their respective positions. Suffice it to say the need for this new Final Rule is unclear at best, particularly when the long-established process for obtaining BIA grants of rights-of-way across tribal lands seems to have worked relatively well for more than 60 years. The undersigned is very familiar with the process for obtaining grants of rights-of-way on reservation lands in North Dakota, as a direct result of significantly increased oil field activity in western North Dakota. Although the current regulations may arguably have been in need of some updates and “modernization,” the Final Rule will likely create far more confusion, chaos, and litigation than what the Department of the Interior ever contemplated. However, the Court finds the Dataphase factors, and the equities, weigh against the granting of the extraordinary remedy of a preliminary injunction. Accordingly, Western Energy’s motion for a preliminary injunction (Docket No. 9) is DENIED. Western Energy’s emergency motion for a stay (Docket No. 31) is DENIED as moot.

Complaint (and the main thrust of the injunction motion) here.

 

Nooksack Appellate Filings Seeking Mandamus Writ Ordering Tribe to Appoint Judge to Hear Disenrollment & Election Matters

Matthew L.M. Fletcher

Here are the new filings in Belmont v. Kelly (Nooksack Ct. App.):

Belmont v Kelly Michelle Roberts Pro Se Petition for Writ of Mandamus

Belmont v Kelly Pro Se Declaration of Michelle Roberts in Support of Motion for Writ of Mandamus

Prior filings here.

Mass. High Court Rejects Easements by Necessity that would Favor Wampanoag Tribe

Matthew L.M. Fletcher1 Comment

Here are the materials in Kitras v. Town of Aquinnah:

Aquinnah Gay Head Amicus Brief

Kitras Brief

Kitras Reply Brief

Kitras Supplemental Brief

Martha’s Vineyard Land Bank Commn Brief

Mass SJC Opinion

Massachusetts Brief

Pill Amicus Brief

Real Estate Bar Assn Amicus Brief

Vineyard Conservation Society Brief

Wampanoag Tribe Amicus Brief

Excerpts from the opinion:

In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).4 Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus. At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).5 When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty6 by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked. The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants. We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of access and, therefore, no easements by necessity exist.7

And:

The Land Court judge assumed that the plaintiffs satisfied the elements of a presumption of an intent to establish an easement by necessity but concluded that the defendants submitted sufficient evidence to rebut the presumed intent of the parties. The judge concluded that (1) tribal custom and usage of the land, (2) other rights granted, and (3) the condition of the land at the time of partition provided sufficient evidence to rebut the presumed intent. We agree.

Attorney Position Available with Wagenlander & Heisterkamp, LLC, in Denver

Sarah M Donnelly

Download job announcement here.

Oral Argument Transcript in United States v. Bryant (and Commentary)

Matthew L.M. Fletcher3 Comments

Here.

Background materials here.

Quick commentary:

This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117. 

If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.

Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.

The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter). 

 

 

BIA Indian Highway Safety Program’s Child Safety Seat Grant

Sarah M Donnelly

2017 CPS Cover Letter

Instructions for FY 2017 CPS Applications

2017 CPS Application

Applications due May 15, 2016.

Seattle U. Law School Honors Eric Eberhard

Matthew L.M. Fletcher1 Comment

He’s moving across town to U Dub.

Ninth Circuit Briefs in Tribal Disenrollee (San Pasqual Band of Diegueño Mission Indians) Suit against Interior

Matthew L.M. Fletcher1 Comment

Here are the briefs in Alto v. Jewell:

Alto Opening Brief

Federal Answer Brief

San Pasqual Band Amicus Brief

Reply Brief

Lower court briefs here.

Ninilchik Subsistence Gillnetting Suit Continues

Matthew L.M. Fletcher

Here are the materials in Ninilchik Traditional Council v. Towarak (D. Alaska):

10 US Motion to Dismiss

20 DCT Order re Judicial Notice

21 Opposition

32 Reply

37 DCT Order re Judicial Notice

40 DCT Order

Indigenous Law & Policy Center Fellow Job Announcement

Matthew L.M. Fletcher

The Indigenous Law & Policy Center welcomes applications for the 2016–2017 Fellow position.

Position Summary

The ILPC Fellowship is a flexible position that offers one new law grad each year the chance to work in a setting that is both academic and clinical in nature. Depending on the particular interests of the Fellow, there may be more time spent developing academic articles, researching and writing briefs, interacting with students and legal professionals, or attending conferences centered on Indian law.

Duties and Responsibilities

The following duties and responsibilities are an approximate list of the duties and responsibilities of past Fellows. The Fellow chosen will have the opportunity to spend more time in areas that interest them, but may have to complete additional duties as required by the ILPC.

  1. Maintain a weekly study skills and community-building meeting with 1L students interested in the Indigenous Law & Policy Certificate.
  2. Co-teach the Indian Law Clinic class and the NNALSA Moot Court class.
  3. Act in a staff attorney capacity, researching and writing on problems of federal Indian law as they arise, especially in the ICWA Appellate Project of the Indian Law Clinic.
  4. Assist with the preparation of party and amicus briefs handled by the ILPC.
  5. Publish or work towards publishing a scholarly article, white paper, or working paper based on independent research.
  6. Help with the organization and facilitation of the annual ILPC conference.

Qualifications

  1. Recent graduate of an ABA accredited law school.
  2. Taken a course or have experience in Federal Indian Law.
  3. Commitment and availability to hold the Fellow position from July 2016–June 2017, as well as a willingness to travel occasionally to conferences.
  4. Bar passage is not required, but Fellows are encouraged to take the bar exam.

Compensation

$42,099, plus Michigan State University College of Law full time staff benefits.

Application Requirements

Please submit a cover letter outlining your interest and personal goals, a current resume and writing sample, and two references to Sarah Donnelly at donnel93@law.msu.edu via PDF attachment by May 1, 2016.