federal recognition – Page 11

Draft 25 CFR Part 83 Regs (Office of Federal Acknowledgment)

June 25, 2013June 25, 2013Matthew L.M. Fletcher

Here:

Quick Comments:

This revision strikes me as a response in some ways to the Carcieri decision. The first obvious change is that tribal groups need only to prove existence (for lack of a better word so early in the morning) dating back to 1934 instead of 1900. As a result, some of the substantive criteria has been changed due to the date change, and perhaps even liberalized to the benefit of petitioning groups.

Finally, there appears to be some changes allowing for expedited decisions favoring tribes previously recognized in some contexts, perhaps ala Tejon.

Eighth Circuit Rejects Sandy Lake Chippewa Secretarial Election Appeal — UPDATED with briefs

May 20, 2013May 21, 2013Matthew L.M. Fletcher

Here is the opinion.

The court’s syllabus:

Civil case – Indian law. Because the district court had adjudicated the issue of subject matter jurisdiction in the Sandy Lake Band’s previous suit, and Sandy Lake did not appeal from that decision or exhaust its administrative remedies, the court is bound by the district court’s original determination that it lacked subject matter jurisdiction; the district court’s dismissal order is affirmed, but modified to be without prejudice.

Briefs:

Sandy Lake Opening Brief

Federal Answering Brief

Sandy Lake Reply

Lower court materials here.

Interior Office of Inspector General Questions Recognition of Tejon Indian Tribe

May 1, 2013Matthew L.M. Fletcher

Here. H/T Pechanga.

From the Interior OIG website:

The Office of Inspector General investigated former Assistant Secretary-Indian Affairs (AS-IA) Larry Echo Hawk’s decision to “reaffirm” the Tejon Indian Tribe of California in December 2011 without going through the acknowledgment process set forth in 25 C.F.R., Part 83, “Procedures for Establishing That an American Indian Group Exists as an Indian Tribe.”

We found that the Tejon Tribe, along with several other American Indian groups, submitted petitions requesting reaffirmation by the AS-IA. These petitions were outside the Part 83 acknowledgment process, which is the official process for recognizing Indian groups as tribes and is administered by the AS-IA’s Office of Federal Acknowledgment (OFA). We could not find any discernible process Echo Hawk and his staff might have used to select the Tejon Tribe for recognition above the other groups.

We also found that Echo Hawk and his staff did not consult with OFA or with Bureau of Indian Affairs (BIA) leadership before deciding to reaffirm the Tejon Tribe. Because OFA was not consulted, other American Indian groups with historical, genealogical, and ancestral claims to the original Tejon Indians were left out of the process. In addition, not involving BIA leadership caused budgeting and operational difficulties for BIA, which in turn slowed down the process for providing Federal services to the Tejon Tribe. The AS-IA also denied subsequent requests by BIA for additional FY 2013 funding, which was needed to provide these services for the newly recognized Tribe.

Read the complete report here.

Federal Court Dismisses Winnemem Tribe’s NAGPRA Claims

April 2, 2013Matthew L.M. Fletcher

Here are the materials:

DCT Order Denying Motion But DismissingNAGPRA Claims

USFS Motion to Strike NAGPRA Claims

Winnemem Opposition

USFS Reply

The court previously dismissed the tribe’s cultural property claims.

Federal Court Rejects Challenge to Interior’s Denial of Historic Eastern Pequots Federal Recognition Petition

April 2, 2013Matthew L.M. Fletcher

Here are the materials in Historic Eastern Pequots v. Salazar (D. D.C.):

DCT Order Dismissing Complaint

Historic Eastern Pequot Complaint

Interior Motion to Dismiss

Connecticut Amicus Brief

Plaintiffs’ Opposition

Interior Reply

D.C. Circuit Affirms Interior’s Decision Not to Recognize Muwekma Ohlone

March 1, 2013Matthew L.M. Fletcher

Here is the opinion in Muwekma Ohlone Tribe v. Salazar:

CADC Opinion

Briefs are here.

Lower court materials are here.

Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…

January 21, 2013January 21, 2013Matthew L.M. Fletcher4 Comments

… to a jury beyond a reasonable doubt.

Here are the materials in United States v. Zepeda:

CA9 opinion

CA9 memorandum (related opinion on other issues)

Zepeda Opening Brief

US Answer Brief

Zepeda Reply Brief

US Supplemental Brief

Zepeda Supplemental Brief

The court’s summary:

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.

Schaghticoke Tribal Nation Non-Intercourse Act Land Claims Dismissed

October 10, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. 43.47 Acres of Land, More or Less, Situated in The County of Litchfield, Town of Kent (D. Conn.):

Supreme Court Partially Vacates and Reverses Judgment Favoring Samish Indian Nation

October 9, 2012October 9, 2012Matthew L.M. Fletcher1 Comment

Here is today’s order list. From the order:

The petition for a writ of certiorari is granted. The judgment with respect to all matters relating to respondent’s Revenue Sharing Act claim is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit with instructions to dismiss that claim as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

Lower court materials here.