Here. Fletcher et al. papers to be discussed (“Tribal Disruption and Indian Claims“; “(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community“; and “Tribal Disruption and Labor Relations“), and panel:
Plenary 1: Innovations in Law
- Kristen A. Carpenter, Associate Professor of Law, Co-Director of American Indian Law Program, University of Colorado, Boulder
- Carole E. Goldberg, Vice Chancellor, UCLA Academic Personnel, and Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
- Matthew L.M. Fletcher, Professor of Law, Director of the Indigenous Law & Policy Center, Michigan State University
- Moderator: Angela R. Riley, Professor, UCLA School of Law, and Director, UCLA American Indian Studies Center
A slightly different list than our first post, this post looks at the top cases in Indian law based on hits to the post on Turtle Talk. These can include posts about preliminary matters in the case. Cases will only make one appearance on the list at their highest spot (adding the total number of hits from all posts on a case would not change the top ten list). We made a note when materials from a case made it into the top 20 most downloaded documents of the year.
1. Wells Fargo v. Lake of Torches EDC, post with materials on the case (the final decision post would be number 6 on this list; the final opinion is the 10th most downloaded document of the year).
2. Red Earth LLC v. United States, preliminary injunction in PACT Act case (additional materials in this case would be number 10 on this list).
3. United States v. Fred Paquin, indictment of former Sault Tribe chief of police (the indictment is the 8th most downloaded document of the year).
4. Miranda v. Nielson, federal court rejects tribal stacked sentencing.
5. Saginaw Chippewa Tribe v. Granholm, boundary settlement materials.
6. United States v. Cavanaugh, federal district court dismissal of indictment as previous uncounseled convictions in tribal court could not be used as evidence of “habitual offender” status.
7. Menominee Tribal Enterprises v. Solis, OSHA applies to tribal enterprise (the decision in this case is the 20th most downloaded document for the year).
8. Pacheco v. Massengill, federal district court grants ICRA habeas petition.
9. Attorney’s Process and Investigation Services v. Sac and Fox Tribe, federal court upholds tribal jurisdiction over nonmember.
10. United States v. Tohono O’odham Nation, Supreme Court grants cert.
Based on numbers of hits, and a nice review of the year, here is the First Top Ten Indian Law Stories of the Year:
- Wells Fargo v. Lake of the Torches EDC. The effort by the bank to force Lac du Flambeau to pay its obligations had been shut down by the conclusion of a federal court that the trust indenture was a gaming management contract. A Seventh Circuit appeal was briefed and argued, and is pending. Posts are here and here.
- Tribal Law and Order Act. Congress finally passed a piece of legislation geared at dealing with a national problem — the incredible rise of violent crime in Indian Country, and most especially violence against Indian women. Top posts are here and here.
- Challenges to the PACT Act. Congress’s effort to destroy what remains of Indian country tobacco sales over the internet was initially enjoined, but that injunction was lifted. The cases are now pending in the Second Circuit. Top posts here and here.
- Gun Lake Band Casino news. The Gun Lake Band finally began construction on its casino after more than a decade of legal challenges, only to face a difficult financing market. Posts are here and here.
- Bay Mills Indian Community opens casino in Vanderbilt, MI on fee land. Would probably be number 1 or 2 if it happened earlier in the year. Posts here and here.
- Chief Justice Roberts dissent in North Carolina v. South Carolina. Mountain out of a molehill? Maybe, but still…. Post here.
- Bloomberg report on Foxwoods default. Old news, but continuing to be important. Post here.
- Elena Kagan Appointment to Supreme Court. Plenty of speculation here on her (lack of an) Indian law record. Top posts here and here.
- Supreme Court 2010 October Term Preview. Here.
- Possible Keith Harper Appointment to Tenth Circuit. Here.
Honorable mentions include the indictment of former Sault Ste. Marie tribal official Fred Paquin; Walter Echohawk’s new book; federal court challenges to consecutive sentences by tribal courts; the Saginaw Chippewa reservation boundaries settlement, and the passing of Phil Frickey.
Update (2:30 PM): Obviously, as Alex Skibine noted in the comments section, the Cobell settlement was a huge story for the year, while probably happening too late in the year to generate enough hits to make the top ten list. Same goes for President Obama’s announcement of support for the UN DRIP.
Here is the order: DCT Order Approving Settlement.
Of note, the court addressed Michigan AG Cox’s objection relating to Nevada v. Hicks, in which the AG argued that the establishment of a “Tribal Enclave” violated Hicks:
The Attorney General next objects to any limitations on the ability of state police officers to enter the “Tribal Enclave” for law enforcement purposes. The Tribal Enclave is a small parcel within the Isabella Reservation, which includes land owned by the Tribe and viewed by the Tribe as essential to its sovereignty. State police can enter the Tribal Enclave only if they are responding to an emergency call, in “fresh pursuit” of a suspect, or with authorization from the Tribal Police. The Attorney General contends that the restrictions are inconsistent with Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). In Hicks, the Supreme Court held that a tribal court’s jurisdiction is limited with respect to non-Indian actors, even as to events that took place within Indian country and on land owned by a tribe. Id.at 358-60. Accordingly, a tribal member cannot sue a state game warden in tribal court for executing a search warrant within Indian country where the game warden was seeking evidence of a crime that occurred outside Indian country.
The procedures described in the law enforcement agreement are consistent with Hicks and the interests of the public. The agreement does not limit the authority of the state police to enforce state law within the Tribal Enclave. Rather, it simply requires that the state police officers follow certain procedures before entering the Tribal Enclave. The state police will still be able to execute state-issued search warrants within the Tribal Enclave after obtaining authorization from the Tribal Police. In the event of an emergency, however, pre-authorization is not required. The agreement is a compromise that enables the Tribe to retain a higher degree of sovereignty within the Tribal Enclave without sacrificing public safety. Accordingly, the Attorney General’s second objection is also reasonably addressed by the settling parties.
From the Mount Pleasant Morning Sun:
Expert: settlement could bring clarity
By MARK RANZENBERGER
An expert in the law of Indian country says the agreements that could end the Indian country lawsuit could bring some sense and clarity to where, and to whom, Tribal jurisdiction applies.
“Indian country in Michigan is a mess,” said Michigan State University Law School professor [Matthew] Fletcher, who teaches in the indigenous law program. “Most lands that could be considered Indian lands are checkerboarded, with multiple jurisdictions asserting authority over lands dependent on who owns them, Indian or non-Indian individuals or entitles.”
The settlement agreements hammered out in 20 months of closed-door negotiations define Indian country in Isabella County as all of Deerfield, Denver, Isabella, Nottawa and Wise townships, the north halves of Chippewa and Union townships, and a small portion of federal trust land south of Remus Road in Chippewa Township.
“This settlement starts from scratch, and reinstates settled boundaries that everyone can recognize and understand from Day One,” Fletcher said.
Those boundaries are among the items in the settlements being challenged by Michigan Attorney General Mike Cox. He argues that not all the land within the boundary area is part of the historic Isabella Reservation, because it had already been sold off to private owners or given to the state of Michigan before the treaties of 1858 and 1864, which allocated land to members of the predecessor bands of the Saginaw Chippewa Indian Tribe.
“Attorney General Cox objects to the settlements involving the state, but the city and county are nonetheless affected by the state’s agreement,” said Joy Yearout, Cox’s spokeswoman. “The proposed settlement necessarily subsumes the city and the county because they are both affected by any resolution of the establishment of a reservation and the determination of what is or is not included on the reservation.”
From the Mt. Pleasant Morning Sun (an excerpt):
Isabella County commissioners on Tuesday agreed to a settlement in the lawsuit filed by the Saginaw Chippewa Indian Tribe.
Following in the footsteps of the federal government, the state, the Tribal Council and the city of Mt. Pleasant, commissioners agreed to the the settlement in a 6-1 vote, with Commissioner John Haupt dissenting.
Citing the Tribe’s planned water park on east Pickard Road, Haupt said he is concerned that the county will have to foot the bill for the infrastructure for the project,
which he said will also contain restaurants that could put existing eateries out of business.
Essentially identical to the settlement approved by the Mt. Pleasant City Commission on Monday, the agreement provides for cross-deputization of city and state police officers, and Isabella County Sheriff’s officers.
Tribal Police officers have historically been deputized but state, county and city officers have not been cross-deputized to enforce Tribal and federal law.
The agreement calls for thos officers to begin enforcing those laws and gives the Tribe jurisdiction over Tribal members and other Native Americans within the boundaries of the Isabella Reservation, which includes Deerfield, Denver, Isabella, Nottawa and Wise townships, and the northern halves of Chippewa and Union townships.