Justice Scalia’s Indian Law Record

Matthew L.M. Fletcher3 Comments

Justice Scalia’s death allows us to reflect on his Indian law record. If you were an Indian person or an Indian tribe as a party in a Supreme Court matter, it was very unlikely you would have his vote, although he did on occasion surprise.

Overall, during Justice Scalia’s tenure on the Supreme Court (his first case was Iowa Mutual), tribal interests prevailed in 21.4 percent — 12 wins, 44 losses, and 8 split decisions or no decisions. Justice Scalia voted in favor of tribal interests 16.2 percent of the time — I count 8 1/2 votes in favor, and 52 1/2 votes against.

Justice Scalia authored five majority opinions — all of them defeats for tribal interests — and he wrote three dissenting opinions — two of them favoring tribal interests.

Majority Opinions

Justice Scalia’s most important purely Indian law opinion was the opinion for the Court in Nevada v. Hicks. There, the Court held that tribal courts cannot entertain federal civil rights suits against state officials. Scalia’s opinion also purported to extend the Montana analysis onto tribal trust lands, and recognized the authority of state officers to investigate violations of state law on tribal trust lands, neither of which, in my view was necessary to deciding the question.

Justice Scalia’s most important opinion with an Indian law element was the opinion for the Court in Employment Division v. Smith. There, the Court held that a nondiscriminatory state law that burdened religious exercise was constitutional under the First Amendment, abrogating precedents that applied a strict scrutiny analysis to such burdens in favor of a rational basis standard. Congress would attempt to undo that decision in the Religious Freedom Restoration Act.

The next most critical opinion authored by Justice Scalia was Blatchford v. Native Village of Venetie. There, the Court held that the Eleventh Amendment barred Indian tribes from suing states. The case was antecedent to the Court’s earth-shattering Eleventh Amendment decision in Seminole Tribe in 1996.

Justice Scalia wrote the majority opinion in County of Yakima v. Yakima Indian Nation, a case holding that the General Allotment Act effectively authorized states to tax allotted fee lands. Finally, Justice Scalia wrote the majority opinion in United States v. Navajo Nation II, where the Court again rejected a trust breach claim by the tribe arising from the Peaboady Coal-Interior Secretary Hodel ex parte communication.

Dissenting Opinions

Justice Scalia also wrote three short dissenting opinions, at least one of which was a vote in favor of tribal interests that may have surprised observers.. In South Florida Water Management Dist. v. Miccosukee Tribe of Indians, a Clean Water Act case with minimal Indian law questions, he filed a brief dissent objecting to the majority’s analysis, and would have affirmed the lower court. In Adoptive Couple v. Baby Girl, he dissented separately to state he would have recognized the birth father’s rights. In Michigan v. Bay Mills, he joined the primary dissent and wrote separately to acknowledge that he had changed his position supporting tribal sovereign immunity in Kiowa Tribe.

Other Comments

We’ve heard many times over the years that Justice Scalia spoke about Miss. Band of Choctaw Indians v. Holyfield as a vote he most regretted (he voted for the tribe) but felt forced to because of the clarity of the statute. If anyone has video of his comments, please send it along.

For those of you wondering, Justice Scalia voted for tribal interests in Holyfield, Potawatomi (presumably on the immunity issue alone), Sac and Fox (Bill Rice’s case), Kiowa, Arizona v. California (2000), S. Fla. Water Management Dist., Cherokee Nation v. Leavitt, Salazar v. Ramah, and Adoptive Couple.

 

Grand River Enterprises Six Nations v. National Distributors Complaint

Matthew L.M. Fletcher

Here, filed in the N.D. Ga.:

1 Complaint

Flandreau Santee Sioux Prevails in Tax Dispute with South Dakota

Matthew L.M. Fletcher

Here is the order in Flandreau Santee Sioux Tribe v. Gerlach (D. S.D.):

60 DCT Order

Briefs here.

Siletz Tribe Raises Minimum Wage

Matthew L.M. Fletcher

Here (PDF):

Siletz Tribe Raises Minimum Wage

The Siletz Tribal Council has raised the hourly minimum wage for employees of all tribal entities from $9.25 to $11 an hour.

The new minimum wage applies to Chinook Winds Casino Resort, including the hotel, golf course and fitness center. It also applies to all employees of the Tribal government and tribally owned entities, including the Siletz Tribal Business Corporation, Internal Audit Department and the Siletz Tribal Gaming Commission.

Tribal Council approved the raise effective Jan. 1, 2016, which will result in a small retroactive payment for employees currently making the tribal minimum wage. Annually, the increase means an extra $2,704 for a minimum wage employee working 30 hours a week. This additional income will help with the rising costs of groceries, gas, heath care, utilities, rent and recreation, which also benefits the local economy.

According to Tribal Chairman Delores Pigsley, “The Tribal Council sees the new tribal minimum wage as one way to help employees and their families to make ends meet.”

February is Teen Dating Violence Awareness Month

Victoria Sweet1 Comment

One in three adolescents in the U.S. is a victim of physical, sexual, emotional or verbal abuse from a dating partner. One in five tweens knows a victim of dating violence. (For citations to these and more statistics see Break the Cycle’s Dating Violence research available here.)

The National Indigenous Women’s Resource Center has a project called Native Love, designed to educate Native teens on this very real problem.

Native Love is defined by our traditional ways of caring for each other and values as Native peoples of respect, honor, kindness, family and compassion. Our NativeLove project encourages youth to rethink what Native Love means to them, and empower them to define healthy relationships for themselves This is with the aim of promoting non-violent, respectful, safe relationships among Native youth, their families, communities, cultures, & Nations

A link to the project can be found here

In addition, the National Council of Juvenile and Family Court Judges has been publishing guest blogs by judges discussing a judicial perspective on the epidemic of violence among teens and the need for awareness of this problem from the bench. Judge Anne McKeig, White Earth member and state court judge, wrote about her observations of the impact of family violence on Native children and how some of these kids have eventually ended up in her court as victims of dating violence – unable to break out of the cycle of violence.

The need to address dating violence among Native teens is critical. Forty percent of suicides by Native Americans are committed by those between the ages of 15 and 24.[10] While the cause of suicide is complex, untreated trauma is a known factor. Addressing the problem is also not easy. The occurrence of violence among Native teens is complicated by many factors – lack of culturally appropriate resources, historical trauma, high rates of alcohol and drug abuse, poverty, and the normalization of violence within the culture, to name a few. The “system” is viewed by the Native community as untrustworthy and in many cases, has contributed to the historical trauma endured by Native American families. Courts must commit to building trust with the Native community; building relationships to engage in meaningful dialogue; and creating a welcoming and accessible presence for Native victims to obtain help. Without that commitment there will be no change.

Blog post available here

Nottawaseppi Band Working Group Visits Sault Ste. Marie Tribal DV Court

Image Sarah M Donnelly
Notawaseppi WG
The Notawaseppi Huron Band of the Potawatomi tribal working group touring the Sault Ste. Marie tribal domestic violence court. The NHBP working group thanks the Court and staff for hosting us. (click to enlarge)

Eighth Circuit Affirms Indian Country Habitual DV Offender Conviction

Matthew L.M. Fletcher

Here is the opinion in United States v. Harlan.

University of Tulsa College of Law’s Tribute to Bill Rice

Sarah M Donnelly2 Comments

Rice

G. William Rice (1951-2016)

Professor Bill Rice passed away on February 14, 2016 after an extraordinary career in practice and as an academic focusing on issues and rights of American Indians and indigenous people around the world. Professor Rice, a member of the United Keetoowah Band of Cherokee Indians in Oklahoma, served as the Attorney General for the Sac and Fox Nation, Chief Justice for the Citizen Potawatomi Nation, Assistant Chief and Chief Judge for the United Keetoowah Band of Cherokee Indians in Oklahoma, and Associate Justice for the Kickapoo Nation of Indians in Kansas.  He was a tireless advocate for Indian tribes and Indian peoples, successfully arguing on behalf of the Sac and Fox Nation in the United States Supreme Court in Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993). He played an active role in the United Nations Working Group on the Rights of Indigenous Peoples, which led to the U.N. General Assembly’s Declaration on the Rights of Indigenous Peoples. When he began this work, Bill would frequently say “indigenous people — that’s ME!” with a twinkle in his eye.  Clearly, his impact reaches from central Oklahoma to Geneva, Switzerland.  His passing is a great loss to many.

Professor Rice joined The University of Tulsa College of Law in 1995 teaching Constitutional Law, Jurisprudence, International Indigenous Law, Native American and Indigenous Rights, Tribal Government, and Tribal Gaming Law.  He treated his students with great compassion and kindness while challenging them to achieve at the highest levels.  In addition to TU Law, Professor Rice taught at Cornell Law School, University of North Dakota School of Law, University of Oklahoma, University of New Mexico, and at Antioch School of Law’s Indian Paralegal program.

Professor Rice’s book, Tribal Governmental Gaming Law (Carolina Academic Press, 2006) is the first law school casebook for use in Indian gaming law classes. He contributed to the two latest revisions of Felix Cohen’s classic Indian law treatise, the Handbook of Federal Indian Law, and wrote extensively in the field of Indian law. Regularly called upon to speak at scholarly and governmental meetings, his speaking engagements included presentations to the United Nations’ Workshop on Indigenous Children and Youth, the University of Paris VII – Denis Diderot, The Federal Bar Association’s Indian Law Conference, the Oklahoma Supreme Court’s Sovereignty Symposium, and numerous appearances at functions sponsored by government agencies, major university law schools, and Indian Tribes.

Professor Rice’s great passions were the implementation of the UN Declaration on the Rights of Indigenous Peoples and the revitalization of the legal and political systems of Indian Tribes. He was the founding Director of the LL.M. Degree in American Indian and Indigenous Law and the Master of Jurisprudence in Indian Law, and served as Co-Director of the Native American Law Center at The University of Tulsa College of Law.

Professor Rice was a teacher and mentor to generations of Indian lawyers. He had enormous influence on the field of Indian law. John LaVelle, his colleague from the University of New Mexico, best expressed what Professor Rice meant to those who knew him: “Bill was a champion for Indian people in heart, mind, and soul. I am honored to have known and worked with him.”

On a personal note, Bill was one of the best. He was a man of towering intellect and vision, and a generous, kind, down-to-earth friend and colleague. He was a consummate story-teller, who loved a good joke. His joy was infectious.

Professor Rice is survived by his wife Annette, his children, grandchildren, and extended family. He will be greatly missed by the TU Law community.

Saginaw Chippewa v. NLRB Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Saginaw Cert Petition and Appendix- Filed

Questions presented:

For more than sixty years, the National Labor Relations Board correctly declined to exercise jurisdiction over tribal operations on tribal lands. But in recent years, the Board has belatedly asserted the extraordinary power to regulate the on-reservation activities of sovereign Indian tribes, precipitating a three-way circuit split in the process. Nothing in the text of the National Labor Relations Act changed in that interval; it contains no language granting the Board authority over Indian tribes. Nor has the language of various Indian treaties, like those between the Saginaw Chippewa Indian Tribe and the United States, changed; they continue to recognize the Tribe’s authority to exclude non-members. And despite the Board’s complete lack of expertise in Indian law, the Board now dictates that some tribal operations are subject to the NLRA and others are not based on its evaluation of the centrality of certain functions to tribal sovereignty and subtle differences in treaty language. 

This case presents two questions, both of which have divided the courts of appeals:

(1) Does the National Labor Relations Act abrogate the inherent sovereignty of Indian tribes and thus apply to tribal operations on Indian lands? 

(2) Does the National Labor Relations Act abrogate the treaty-protected rights of Indian tribes to make their own laws and establish the rules under which they permit outsiders to enter Indian lands?

Lower court materials here.

 

Karuk Housing Authority Atty Posting

Matthew L.M. Fletcher

Here:

3.11.2016GeneralCounselRFQ