Indian Country

Clarkson: “Accredited Indians”

Matthew L.M. Fletcher

Gavin Clarkson posted “Accredited Indians: Increasing the Flow of Private Equity into Indian Country as a Domestic Emerging Market” on SSRN (and BEPRESS). Here’s the abstract:

Indian Country is America’s domestic emerging market, and as in a number of emerging markets, many successful businesses in Indian Country are starving for expansion capital. The US Treasury estimates that the private equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private equity funds deploying capital in Indian Country, the existing securities laws present a significant impediment. In particular, Regulation D of the Securities Act of 1933 does not treat tribes as “accredited investors,” thus denying those tribes the ability to participate in the private equity market. Since there is no principled reason to exclude tribes from the list of accredited investors, this article makes the case for extending accredited investor status to tribes.

US v. Gabrion — Federal Criminal Jurisdiction in Manistee National Forest

Matthew L.M. Fletcher

Here is the opinion in US v. Gabrion. It raises an interesting question whether there is federal criminal jurisdiction in national forests. The court, 2-1, found that the US does have criminal jurisdiction over national forest lands, in this case, the Manistee National Forest. Judge Moore’s concurring opinion delved into federal Indian law in response to the appellant’s claim that state and federal concurrent jurisdiction over national forest lands was a violation of equal protection (it isn’t — just ask an Indian):

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Moses v. State of Michigan (Mich. App.) Materials

Matthew L.M. Fletcher

As we blogged before, the Michigan Court of Appeals recently decided Moses v. State, in which an Indian sought to overturn his conviction on the basis that the land upon which the crime was committed with Indian Country; specifically, Saginaw Chippewa Indian Country.

Here are the briefs:

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Kiowa Cockfighter Appeal Rejected in CA10

Matthew L.M. Fletcher

The Tenth Circuit recently rejected a jurisdictional challenge to a cockfighter’s conviction for illegal gambling in federal court for cockfighting.  Here are the materials for United States v. Gachot:

Appellant Brief

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What Remains of the Yankton Sioux Reservation?

Matthew L.M. Fletcher2 Comments

After a decade of litigation, a federal court (D. S.D.) held a trial and reached a decision as to “what remains of the Yankton Sioux Reservation following the Supreme Court’s decision in South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358 (1998).” Slip op. at 2.

Here are the materials:

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Saginaw Chippewa Treaty Case News Coverage

Matthew L.M. Fletcher

Here’s the news coverage from the Morning Sun:

City, council can join lawsuit

By MARK RANZENBERGER
Sun Online Editor

A federal judge ruled Friday that the city of Mt. Pleasant and Isabella County will be permitted to be part of the federal lawsuit that seeks to define the land inside the traditional boundaries of the Isabella Reservation as Indian Country.

U.S. District Judge Thomas Ludington ruled that the county and city were extremely late in trying to join in the suit, filed in 2005 by the Saginaw Chippewa Tribe against the state. But Ludington, in a ruling released late Friday, said it was within his discretion to allow the two municipalities to join in on the side of the state.

Ludington ruled, however, that the city and county could not bring in their own experts, and would have to abide by all the stipulations already set in the case.

“The court recognizes that the (city and county) have a legitimate interest at stake in this litigation, because an outcome in favor of the Saginaw Chippewas could materially affect their future governmental responsibilities,” Ludington said in his opinion.

The Tribe wants Ludington to declare that all or part of seven townships in Isabella County are “Indian country” as defined by federal law. The Tribe is asking for an injunction to prevent the governor, attorney general and state treasurer from exerting criminal or civil jurisdiction over the Tribe or its members “in a manner not allowed in Indian country.”

The federal government already has joined the case on the side of the Tribe. The county and the city now are part of the case as defendants, on the side of the state.

Both city and county officials say they bear no ill will against the Tribe or Native people, but the suit is a way to define the authority of civil and tribal governments.

Court documents filed by the city say the outcome of the suit could affect, in particular, taxation and zoning.

Tribal attorneys argued that the late intervention was simply a way for the state to buy more time to prepare its case.

Ludington said the city and county could have joined the case soon after it was filed.

At the time that the (city and county) filed their motions, the posture of this case was long past initial trial preparation,” Ludington’s ruling said. “Moreover, the (city’s and county’s) participation in the past case coupled with the local media coverage, indicate that (they) had sufficient notice of this proceeding.”

The “earlier case” mentioned by was a case involving property taxation, which went all the way to the U.S. Supreme Court before being settled. Tribal members, and the Tribe itself, now pay property taxes on land owned outright; land held in trust is not taxable.

In the current case, the Tribe and the Justice Department say that an 1855 executive order, and treaties signed in 1855 and 1864, created an Indian reservation on five full townships and six half-townships in Isabella County, and it continues to this day.

A date for a trial, which would be conducted without a jury, has not been set.

Saginaw Chippewa v. Granholm Update — Municipalities Allowed to Intervene

Matthew L.M. Fletcher

Judge Ludington has granted the motions of Isabella County and the City of Mt. Pleasant to intervene, but because they were so late in filing (about 2 years after the initial complaint), the judge took the recommendation of the United States to deny these intervenors the right to bring their own expert witnesses.

Here are the materials in this element of the litigation:

Isabella County Motion to Intervene

Mt. Pleasant Motion to Intervene

Tribe’s Response to Motion to Intervene

United States Reponse to Motion to Intervene

State’s Response to Motion to Intervene

Intervenors Reply to United States

Intervenors Reply to Tribe

Order on Motion to Intervene

See our previous post on this case, which includes the complaint and some other preliminary materials.

Sen. Dorgan Concept Paper on Violent Crime in Indian Country

Matthew L.M. Fletcher

From Sen. Dorgan’s office:

November 7th, 2007 – Over the past year, the Senate Committee on
Indian Affairs has held three oversight hearings, a series of
listening sessions, and multiple meetings with tribal leaders to
discuss the longstanding problem of violent crime in Indian Country.
Senator Byron Dorgan, Chairman of the Senate Committee on Indian
Affairs, has developed a concept paper which has been sent to tribal
leaders. The concept paper, found here, is a compilation of comments
from tribal leaders that examines the problems and lists a number of
proposed solutions to law enforcement issues in Indian Country.

The Committee will continue to meet with tribal leaders over the next
few months in the development of legislation to address this issue.
For those who wish to provide additional comments, we invite you to
share your comments and ideas with us through our website. Please
click on the link below and share with us your thoughts on this
important matter. However, if you wish to submit any documents in
addition to your comments, please e-mail comments@indian.senate.gov
with both your comments and attachments. Similarly, you may fax the
information to (202) 228-2589.

http://www.indian.senate.gov/public/_files/Indiancrimeconceptpaper.pdf

Ongoing Denver Post Series: US Attorneys’ Firings

Matthew L.M. Fletcher

From the Denver Post:

Grasping for a way to explain the breakdown of justice on America’s Indian reservations and the role of the Justice Department in that failure, Paul Charlton, the former U.S. attorney in Arizona and a Bush appointee, picks this moment:

Talking with superiors about a gruesome double murder on the Navajo reservation, Charlton was stopped midsentence and asked by a high-level Justice Department official why he was involved in a case on the reservation in the first place.

To Charlton, it was suddenly clear that the official didn’t understand the most basic aspect of federal Indian law — that on most reservations, U.S. attorneys are the sole authority empowered to prosecute felony crime there.

***

Of the eight fired U.S. attorneys, five had played leadership roles pushing for aggressive Indian Country prosecutions or systemic reform — Charlton, David Iglesias of New Mexico, Margaret Chiara of western Michigan, Daniel Bogden of Nevada and John McKay of western Washington, according to testimony before the Senate Indian Affairs Committee.

As U.S. attorney for western Michigan, Margaret Chiara, right, made violent reservation crime a priority but said a bureaucratic culture resisted her efforts. She was one of eight U.S. attorneys whose firings sparked a Capitol Hill uproar. (Grand Rapids Press / Kary Batdorff)

 

 

 

 

 

Chief Justice Roberts & Federal Indian Law

Matthew L.M. Fletcher

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).