South Dakota SCT Remands American Indian Probate Case to Allow Newly-Enrolled Heir to Reopen BIA Probate Decision

Here is the opinion in In re Estate of Flaws.

An excerpt:

Based upon the plain language of SDCL 29A-2-114 and the foregoing authorities, we hold that the trial court did not err in determining that the methods and time limits in the statute for establishing paternity are exclusive. A question remains, however, as to whether Yvette failed to comply with any of them. The trial court found that Yvette had petitioned the Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals to reopen Donald’s probate to include her as an heir. For that reason, the court initially took this matter under advisement to see if Yvette’s petition would be granted. The court subsequently determined it could take more than a year to have Yvette’s petition heard. For that reason, the court issued its decision and this appeal followed. The day after the filing of Yvette’s appellant’s brief, however, the Bureau of Indian Affairs tribunal issued an order directing any parties opposed to naming Yvette as an heir to Donald’s estate to show cause for their objections within thirty days. Thus, Yvette’s efforts to reopen Donald’s probate may still prove successful, permitting her to comply with SDCL 29A-2-114(c) to establish Donald’s paternity. In the interests of justice, therefore, we remand this matter to the trial court to wait for a reasonable time for the Bureau of Indian Affairs’ decision and to proceed accordingly.

Update in Two Shields Suit: Government’s Reply in Support of its Motion to Dismiss

Here is the government’s reply brief in support of its motion to dismiss:

TWO SHIELDS – U.S. REPLY BRIEF (1-26-12)

William M’Intosh’s Patent

Just for fun, thanks to Property Prof Blog.

City Pulse: Fletcher’s Four Barrier to the Lansing Casino Proposal (and Additional Commentary)

Andy more or less catches my drift (via Pechanga). A few quotes:

In his piece, Fletcher goes on to outline three potentially significant legal obstacles: the Bureau of Indian Affairs’ “trust acquisition hurdles”; language in the Land Claims Settlement Act provision that says the Interior Department “shall be held in trust” (the word “shall” may not mean “has to”); and a provision in the Indian Gaming Regulatory Act that would require the Sault Tribe to submit its application to the Interior Department after “a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility.” 

That last quote is actually from the 1993 gaming compacts.

And fourth:

A fourth hurdle, Fletcher wrote, is that the Sault Tribe “has to exercise governmental authority over the land, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.”

I haven’t really expounded on a possible fifth hurdle, which is really related to the mandatory trust acquisition language. I can assure you Congress would never have intended that the Sault Tribe would be able to use this provision to buy land for off-reservation gaming purposes (especially, way off-reservation gaming purposes. See the legislative history here (Judgment Funds Hearing), which is virtually silent as to gaming. [Although to be fair, Rep. Kildee says his grandfather from the Traverse City area remembers when Indians had more "mobility" than they do now.] Ultimately, legislative history doesn’t trump the plain language. Usually.

Sault Tribe has to worry that a court construing the Secretary’s authority under the so-called mandatory trust acquisition language is unlimited, and perhaps unconstitutional as applied to this circumstance. The judgment funds settle treaty claims related to the 1836 treaty signatories. The 1836 treaty ceded territories do not include Lansing. And frankly, the Sault Tribe and Bay Mills have only a tenuous claim to lower peninsula territory, given that they are located in the Upper Peninsula, and importantly, there are already three federally recognized Lower Peninsula tribes who are 1836 treaty signatories. I mentioned in yesterday’s post that Lansing is small potatoes compared to other metropolitan areas, like Chicago and Cleveland, that don’t have Indian casinos now. Nothing stops Sault Tribe from going there with their casino proposals, and that fact alone will make a court wary of allowing Sault Tribe, Lansing, and Interior (if Interior goes along with it) to set aside trust lands in Lansing.

I recall this comment from the Eighth Circuit in a different context (involving the Secretary’s authority under Section 5 of the Indian Reorganization Act) but it makes the point here as well:

By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course intrust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible “boundaries,” no “intelligible principles,” within the four corners of the statutory language that constrain this delegated authority-except that the acquisition must be “for Indians.” It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.

It’s on page 882 here (SD v DOI). I can easily see a court rejecting the plain language reading the Tribe will want them to make on these grounds. It would be a terrible precedent for all of Indian country. But tribes take risky actions in desperate times, I suppose.

Alaska SCT Remands Alaska Native Village Challenge to Bristol Bay Plan

Here.

Battle Creek Museum Works Toward NAGPRA Compliance

This Livingston Daily article about the Kingman Museum in Battle Creek mentions the need for an intern to assist in returning remains and artifacts. I didn’t find the internship post, but the museum’s website is here.

Tribes and Environmental Groups File Lawsuit Against Navy Over Sonar Use

The AP Story via Koin Local 6 is here.

Politician’s Comments Spark Indigenous Rights Protest in Australia

Here’s a news article describing the protest of an Australian holiday commemorating the invasion/arrival of British colonists in 1788. The protest heated up after a politician made some comments about recent progress on Native issues and the consequent lack of continued need for indigenous Tent Embassy in the Capital.

Upcoming Talk in St. Paul on Practice in Tribal Courts

Professor (and Tribal Judge) Mary Jo Hunter and I will be speaking on practicing in tribal courts at the Minnesota Lavender Bar Association Conference this Saturday. Here’s the full agenda. CLE credit is available.

Ecuadorean Natives Prevail in Second Circuit against Chevron

Here is today’s opinion: Chevron v Naranjo.

The court’s syllabus:

Defendants-appellants – residents of the Ecuadorian Amazon and their American attorney – challenge a preliminary injunction issued by the district court that prohibited them from enforcing or preparing to enforce a potential Ecuadorian judgment against plaintiffappellee anywhere outside of the Republic of Ecuador. Because New York’s Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. §§ 5301-5309, does not authorize affirmative relief of this kind, but only recognizes a defense available when a would-be judgment-creditor first attempts enforcement in New York, we VACATE the injunction and REMAND to the district court with instructions to DISMISS the plaintiffappellee’s complaint.

And some news coverage from How Appealing.

This item explains the import of the decision:

If Chevron was still hoping for a ruling from New York’s federal courts that would make it impossible for Ecuadorean plaintiffs to collect their $18 billion judgment against the oil company, Thursday’s long-awaited opinion by the U.S. Court of Appeals for the Second Circuit puts an end to that strategy. The appellate panel’s30-page opinion – which explains the court’s Sept. 2011 order lifting the worldwide injunction barring enforcement of the Ecuadorean judgment — gives Chevron the chance to argue once again that the Ecuadoreans can’t collect in New York, under the state’s Uniform Foreign Country Money-Judgments Recognition Act. But in no uncertain terms, the Second Circuit advised that even if Chevron eventually persuades a New York judge that the Ecuadoreans procured their judgment through fraud, that judge cannot bar enforcement of the judgment outside of the United States.