Navajo Nation

New Mexico COA Affirms State Conviction of Navajo Member for Crime on Navajo Fee Land (Baca Chapter)

Matthew L.M. Fletcher

Here is the opinion in State v. Vandever.

An excerpt:

Defendant Milroy Vandever was involved in an automobile accident in the checkerboard area of western New Mexico; a highway worker was killed. Defendant filed a motion to dismiss, contending that the district court lacked jurisdiction because he is an enrolled member of the Navajo Nation and the accident occurred in Indian country. The district court denied the motion, and Defendant pled guilty to homicide by vehicle, driving while under the influence of intoxicating liquor or drugs (DWI), and knowingly leaving the scene of an accident involving great bodily harm or death. We affirm the decision of the district court denying the motion to dismiss because Defendant did not meet his burden of establishing that the accident occurred in Indian country.

Amicus Brief Supporting En Banc Petition in Save the Peaks Case

Matthew L.M. Fletcher1 Comment

Here:

AMICUS BRIEF SUPPORTING SHANKER

The petition is here (or will be). The panel opinion is here.

Save the Peaks Coalition Petition for En Banc Hearing

Matthew L.M. Fletcher1 Comment

Here:

Plaintiffs Petition for Rehearing en Banc (7.05.12)

Response by Don’t Waste Arizona to Ninth Circuit’s Sanctioning of Howard Shanker

Matthew L.M. Fletcher

JUNE 25, 2012 /

The message from the Ninth Circuit Court of Appeals was clear: if you are concerned about the environment; if you want to protect Native American sacred areas; or even if you simply want to make sure that the federal government complies with its own environmental obligations, go home. You are not welcome in the Ninth Circuit. You have no right to due process.

Recently a three judge panel of the Ninth Circuit imposed sanctions on a pro bono attorney for the Save the Peaks Coalition. In an opinion issued on June 21, 2012, Ninth Circuit Judges, J. Clifford Wallace, John T. Noonan, and Milan D. Smith, Jr., held that environmental and Indian rights attorney Howard Shanker acted in “bad faith,” that he “grossly abused the judicial process,” and that he “misled his clients.” As a result, according to the Ninth Circuit, Shanker has to personally pay all the costs of the intervenor-defendant Snowbowl Resorts Limited Partnership. Here, however, is the rub. The only thing Shanker is guilty of is providing competent representation to his clients for free (pro bono) on a politically charged matter of public importance.

Nothing in the entire record of this case provides any basis for a finding of bad faith, or an abuse of process, nor does it provide any other indication of unethical or unprofessional behavior on the part of Shanker. Indeed, even the court’s opinion is void of any reference to any specific behavior in the context of the case that could warrant a
sanction. Further, Shanker’s clients are adamant that he never misled them about anything – an allegation that appeared for the very first time in the Ninth Circuit’s opinion.

As Gary Marchant, the Lincoln Professor of Emerging Technologies, Law & Ethics at Arizona State University’s Sandra Day O’Connor College of Law explains, “there is no question that [the San Francisco Peaks case involved] a valid set of claims that could have been decided either way [and] therefore is clearly not a case where sanctions would be appropriate or warranted.” Professor Marchant adds that “applying sanctions in a case such as this would have a chilling effect on the willingness of qualified counsel to take on controversial and important public interest matters of any type.” Continue reading →

Ninth Circuit Personally Sanctions Howard Shanker, Attorney for Save the Peaks Coalition

Matthew L.M. Fletcher4 Comments

Here is today’s from the Ninth Circuit panel that decided Save the Peaks Coalition v. USFS (materials here). And the pleadings leading up to today’s order:

Save the Peaks En Banc Petition

Arizona Snowbowl Motion for Attorney Fees

Save the Peaks Opposition to Motion

Arizona Snowbowl Reply

An excerpt from today’s order:

Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney’s fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate.

***

As an appropriate remedy, we hold Shanker “personally liable for excessive costs for unreasonably multiplying proceedings.” Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney’s fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl’s favor against Shanker.

FBI News Stories: Journey Through Indian Country, Part 1

Matthew L.M. Fletcher

Here.

Agent at Shiprock
A special agent overlooks the Shiprock land formation on the Navajo Nation in New Mexico. The reservation, the largest in the country, is one of about 200 federally recognized Indian reservations where the FBI has investigative responsibilities.

Utah SCT Dismisses Navajo ICWA Tribal Court Transfer Denial Suit as Moot

Matthew L.M. Fletcher

Here is the opinion:

AdoptLO1223041312

An excerpt:

This case involves a dispute over the Division of Child and Family Services’ (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation’s direct appeal of the juvenile court’s denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation’s consent to the child’s adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.

 

 

N.M. SCT Remands State Redistricting Matter (Navajo Area Voting Rights Act-Compliant Plan)

Matthew L.M. Fletcher1 Comment

Here is the court’s opinion in Maestas v. Hall.

Paul Spruhan on the Meaning of Due Process at Navajo

Matthew L.M. Fletcher

Paul Spruhan (Navajo DOJ) has posted his chapter, “The Meaning of Due Process in the Navajo Nation.” This is a chapter from “The Indian Civil Rights Act at Forty.”

Here is the abstract:

The article is a contribution to the Indian Civil Rights Act at Forty, and describes the Navajo Nation’s approach to the concept of due process under the Indian Civil Rights Act and the Navajo Bill of Rights. It traces the evolution of the Navajo Supreme Court’s views on due process from direct application of federal definitions to the development of a unique Navajo doctrine informed by federal constitutional doctrine, but ultimately reflecting Navajo values of fairness. Based on the discussion of the development of Navajo due process, the article suggests the Navajo Nation’s approach in synthesizing federal doctrine with tribal values can be a model for other tribes grappling with developing modern court systems that emphasize jurisprudential sovereignty through the development and application of unique tribal law.

Window Rock School District Sues to Enjoin Navajo Labor Commission Actions

Matthew L.M. Fletcher1 Comment

Here is the complaint.

Here are the materials in a similar case, Red Mesa USD v. Yellowhair, decided in 2010.