Federal Court Dismisses Koniag Effort to Evict Airline and Cabin from Its Lands

Here are the materials in Koniag Inc. v. Andrew Airways (D. Alaska):

1 Complaint

36 Motion to Dismiss

39 Opposition

42 Reply

81 DCT Order

An excerpt:

At Docket 36, Defendant Alicia L. Reft (“Reft”) filed a Motion and Memorandum to Dismiss Complaint against Alicia Reft in her Capacity as President of Karluk Tribal Council and Individual Capacity. At Docket 39, Plaintiff Koniag, Inc. (“Koniag”) filed its Opposition to Reft’s Second Motion to Dismiss and Reft filed a reply at Docket 42. Oral argument was held on January 7, 2014.1 Thereafter, the parties attempt to settle the dispute for several months but the discussions ultimately appear to have been unsuccessful.2 For the following reasons, the Court will grant Reft’s motion.

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Federal Court Affirms Interior Withdrawal of Grand Canyon Lands from Uranium Mining

Here is the order in Yount v. Jewell (D. Ariz.):

Doc 238 SJ Order in Yount v Jewell 9-30-14

Briefs here. Other materials here.

Posted in Author: Matthew L.M. Fletcher, cultural resources, Environmental, Research, trust relationship | Tagged , , , , , , | Leave a comment

Ninth Circuit Reaffirms that Uncounseled Tribal Court Convictions Resulting in Jail Time May Not Be Used to Enhance Federal Sentences

Here is the opinion in United States v. Bryant.

From the court’s syllabus:

The panel reversed the district court’s denial of a motion to dismiss an indictment charging the defendant, an Indian, with two counts of domestic assault by a habitual offender, in
violation of 18 U.S.C. § 117(a).

Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right. Because the defendant’s tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in federal or state court, the panel concluded that it is constitutionally impermissible to use them to establish an element of the offense in a subsequent prosecution under § 117(a), which is an ordinary recidivist statute and not a criminal enforcement scheme for a civil disability.

Concurring, Judge Watford wrote separately to highlight
why Ant warrants reexamination.

Judge Watford correctly notes that a circuit split on this issue has arisen with the Eighth and Tenth Circuits:

It’s perhaps unsurprising that our decision in this case conflicts with decisions from two of our sister circuits. Faced with almost identical scenarios—prior, uncounseled tribal court convictions that would have violated the Sixth Amendment in state or federal court and that were used as predicate offenses under 18 U.S.C. § 117—the Eighth and Tenth Circuits pointedly disagreed with us. See United States v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011). As our colleagues on the Eighth Circuit noted, “Supreme Court authority in this area is unclear; reasonable decisionmakers may differ in their conclusions as to whether the Sixth Amendment precludes a federal court’s subsequent use of convictions that are valid because and only because they arose in a court where the Sixth Amendment did not  apply.” Cavanaugh, 643 F.3d at 605. Given this circuit split and the lack of clarity in this area of Sixth Amendment law, the Supreme Court’s intervention seems warranted.

If nothing else, the case at least may generate support for en banc review. We posted materials on these two cases here (the Supreme Court denied cert). I wrote about this issue a few years ago in a paper titled “Sovereign Comity.”

Here are the briefs:

Bryant Opening Brief

US Brief

Bryant Reply Brief

Bryant Supplemental Brief

US Supplemental Brief

Posted in Author: Matthew L.M. Fletcher, Criminal, Research, tribal courts | Tagged , , , , , , , , | Leave a comment

Oglala Sioux Tribe v. Van Hunnik Briefing Complete


Brief in Support of First Motion (July 2014)

Statement of Undisputed Facts (First Motion)

Due Process Motion (Second PSJ)

Due Process Undisputed Facts

Exhibit 1 (Hearing Transcripts) 502 pp

Exhibit 2 (Custody Orders) 113 pp.

Exhibit 7 (ICWA Affidavits) 145 pages

Exhibit 8 (Petitions for Temp Custody) 7 pages

DOJ Amicus Brief

128 Defendants Response to 1922 Motion

129 Defendants Response to Due Process Motion



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NYTs Editorial: “Delayed Justice for the Navajos”


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Cert Petition in Seminole Tribe of Florida v. State of Florida Dept. of Revenue


Seminole Cert Petition

Here is the question presented:

This Court established in Ex parte Young, 209 U.S. 123 (1908), that a plaintiff may sue state officials for prospective injunctive relief against the enforcement of an unconstitutional state law. In the intervening years, this Court and most courts of appeals have repeatedly held that Ex parte Young allows federal courts to enjoin the future enforcement of state tax schemes that violate federal law or the Constitution. This Court has also observed that an injunction requiring a state’s future compliance with federal law does not violate state sovereign immunity, even if it has a “substantial ancillary effect on the state treasury.” Papasan v. Allain, 478 U.S. 265, 278 (1986).
In this case, however, the Eleventh Circuit concluded otherwise. It departed from this Court’s precedent, and “create[d] a circuit split,” Pet. App. 24a (Jordan, J., concurring in part and dissenting in part), when it held that Ex parte Young does not permit the Seminole Tribe of Florida to seek injunctive or declaratory relief against the future unconstitutional enforcement of Florida’s fuel tax scheme. The court’s holding turned on the fact that Florida precollects this tax from a third party, which means that an order barring future enforcement against the tribes might require the state to issue tribal consumers refunds “from state coffers,” supposedly in violation of the Eleventh Amendment. Pet. App. 12a.
The question presented is whether sovereign immunity bars an American Indian tribe from seeking Ex parte Young relief from the unconstitutional enforcement of a state tax scheme merely because that relief might require refunds for taxes unlawfully collected in the future.


Lower court materials and my commentary here.

Posted in Author: Matthew L.M. Fletcher, Research, Supreme Court, taxation | Tagged , , , , , , | 1 Comment

News Coverage of Navajo Speaker Johnny Naize’s Resignation

Here is “APNewsBreak: Navajo legislative leader resigns.”

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Navajo SCT Decision in Chris Deschene Candidacy Matter

Here is the opinion in Tsosie v. Deschene:


We posted on this issue here.

Posted in Author: Matthew L.M. Fletcher, Research, Tribal Codes, tribal courts, tribal election | Tagged , , , | Leave a comment

Interior Solicitor’s Office Job Posting


Job Title:Attorney – Advisor, GS-0905-13/14, KD-Exc Svc

Department:Department Of The Interior

Agency:Office of the Solicitor

Job Announcement Number:SOL-2014-0044


$89,033.00 to $136,771.00 / Per Year


Monday, September 29, 2014 to Monday, October 6, 2014




Excepted Appointment Permanent – Full-Time




FEW vacancies – Washington DC, DC View Map


United States Citizens


Public Trust – Background Investigation




About the Agency

With an emphasis on high ethical standards, excellence in public service and the delivery of quality legal services, the Office of the Solicitor performs the legal work for the United States Department of the Interior, manages the Department’s Ethics Office and resolves FOIA Appeals. With more than four hundred total employees, three hundred of which are attorneys licensed in forty states, the Office strives to provide sound legal services to fulfill the Department’s diverse and wide-ranging mission.
What General Information Do I Need To Know About This Position?
The Office of the Solicitor has determined that the duties of this position are suitable for telework and the selectee may be allowed to telework with supervisor approval. The official worksite for the selectee is the duty location identified in this vacancy announcement. The selectee will typically report to this location on a regular and recurring basis.
For additional information on telework you may access the Department of Interior’s Telework Handbook at http://www.usgs.gov/humancapital/pb/documents/teleworkhandbookOctober2012.pdf.

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Anishinabe Legal Services Job Posting

Anishinabe Legal Services is seeking a full-time staff attorney to provide civil legal assistance and court representation to program clients before area Tribal Courts, State Courts and Administrative Forums. (PDF)

BACKGROUND: Anishinabe Legal Services (ALS) is a Legal Services Corporation (LSC) funded 501(c)(3) organization providing free legal assistance and court representation to low-income individuals living on or near the Leech Lake, White Earth, and Red Lake Indian Reservations in northern Minnesota. Legal services are provided through grants and contracts with federal, state, and tribal governments, along with generous funding support from various foundations.

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