New Scholarship on UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation

Dr. Jesse Hohman has posted “The UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation” on SSRN. It is forthcoming in Oxford Commentaries on International Law – A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples.

Here is the abstract:

The importance of international legal provisions protecting the right to indigenous survival, both individually and collectively, can only be understood in light of the fact that to date, legal standards have not protected indigenous peoples from much of the violence perpetrated against them. Rather, international and domestic laws have often served as instruments to perpetrate cultural and personal extinction and assimilation. From the earliest encounters between Westphalian international law and indigenous peoples, international law operated so as to bring indigenous peoples within its reach, yet deny them the benefits of its protection.

This chapter of a forthcoming Oxford Commentary, considers the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), specifically Articles 7(2); 8 & 43. The paper maps out how these provisions relate to the existing legal landscape of indigenous rights, and assesses what they have added to that landscape.

The specific issues raised by these provisions are the issue of collective rights; the relationship between cultural and individual assimilation; the prohibition of genocide; the legal status of the concept of ethnocide or cultural genocide; the question of legal duties to prevent harms and violence against indigenous peoples and communities; and the concept of minimum standard rights in the context of indigenous peoples’ dignity and well-being.

These provisions of the UNDRIP are, accordingly, some of the most central, if under-examined, of the Declaration.

Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged | Leave a comment

Tink Tinker Article: “Redskin, Tanned Hide — A Book of Christian History Bound in the Flayed Skin of an American Indian”

Here is “Redskin, Tanned Hide: A Book of Christian History Bound in the Flayed Skin of an American Indian: The Colonial Romance, Christian Denial and the Cleansing of a Christian School of Theology” (PDF). It was published in the Journal of Race, Ethnology, and Religion.

Professor Tinker’s website.

 

Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged | Leave a comment

Gun Lake Tribe Hosts Science and Cultural Presentation on Wolves

Here (pdf):

MA Wolf Discussion 10 30 14

 

Posted in Author: Matthew L.M. Fletcher, cultural resources, Michigan Indian, News | Tagged , | Leave a comment

Paskenta Gaming Injunction Case Voluntarily Dismissed

Here are the new materials in State of California v. Paskenta Band of Nomlaki Indians (E.D. Cal.):

32 California Motion for Dismissal without Prejudice

34 Paskenta Notice of Voluntary Dismissal

36 DCT Order Modifying Injunction

37 DCT Order Dismissing Case

We posted on this case here, here, here, and here.

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

National Labor Relations Board Reaffirms Its Jurisdiction over Saginaw Chippewa Indian Tribe

Here is the order and materials:

Board Decision

SCIT Motion to Expedite

SCIT Amended Motion to Expedite

SCIT Supplemental Brief

You may recall this matter is on remand from the Sixth Circuit.

Posted in Author: Matthew L.M. Fletcher, Labor Relations, Michigan Indian, Research | Tagged , , , , , , | Leave a comment

Federal Bankruptcy Court Holds Prairie Band Potawatomi Per Cap is Property of Individual Debtors

Here are the materials in In re McDonald (D. Kan. Bkrcy.):

41 Trustee Brief

42 Debtors Brief

44 Trustee Reply Brief

45 Debtors Reply

47 Order Sustaining Objections

An excerpt:

Debtors, William and Bonnie McDonald and Kliffton and Jeanette Scott, have filed chapter 13 plans that do not propose to pay any amount to satisfy the best interest of the creditors test of 11 U.S.C. § 1325(a)(4) with regard to per capita payments they receive from the Prairie Band Potawatomi Nation Indian Tribe (hereinafter “Prairie Band” or the “Tribe”). Building on governing precedent, the Court concludes that despite changes to the Prairie Band Per Capita Ordinance and Tribal Code since it last ruled on these issues, the per capita payments remain property of the respective chapter 13 estates, and the Debtors’ plans have thus failed to satisfy the best interest of the creditors test with respect to this contingent, unliquidated property.

Debtors William and Bonnie McDonald also seek to exempt the per capita payments from the bankruptcy estate by arguing they are exempt under 11 U.S.C. § 522(b)(3)(A) as “local law that is applicable . . . at the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition.” The McDonalds have stipulated that their domicile is in Topeka, Kansas, however, and they are not domiciled on Prairie Band land. As a result, § 522(b)(3)(A)’s exemption based on “local law” is not applicable. The McDonalds’ other exemption arguments likewise fail.

As a result of the conclusions discussed more fully herein, the Court sustains the Chapter 13 Trustee’s objections to confirmation and objections to exemption in each case.

 

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

Federal Court Issues Preliminary Injunction in Picayune Casino Dispute

Here are the materials in State of California v. Picayune Rancheria of Chukchansi Indians (E.D. Cal.):

9 McDonald Faction Opposition to TRO

10 Unification Council Response to TRO

25 California Motion for PI

30 Unification Council Response to PI Motion

31 NIGC Materials

33 McDonald Faction Response to PI Motion

42 California Reply in Support of PI Motion

48 DCT Order Granting PI

From the order:

The Court orders that the Tribe, and all if its officers, agents, servants, employees and attorneys, and all persons acting under the Tribe’s direction and control, including all  groups currently claiming to constitute the tribal government, are hereby enjoined and  restrained from:

1. Attempting to disturb, modify or otherwise change the circumstances that were in effect at the Casino as of the afternoon of October 8, 2014. This prohibition includes, without limitation, attempting to repossess, or take control of the Casino in whole or in part. Payments in the ordinary course of business, including mandatory fees to the gaming commission actually supervising the Casino’s operations on October 8, 2014, and per capita tribal distributions based upon the Tribe’s membership list as of December 1, 2010, that are made in equal amounts, are not violative of this Injunction. No discretionary payments shall be made to any group claiming to be the duly constituted tribal council or claiming control over tribal matters.

2. Deploying tribal police or other armed personnel of any nature within 1,000 yards from the Casino, the property on which the Casino is located, and tribal properties surrounding the Casino, including the adjacent hotel and nearby tribal offices (collectively, “Tribal Properties”). This prohibition includes weapons of any nature or sort such as, by way of example but not limited to, firearms, tasers, knives, clubs, and batons. The only armed personnel allowed within the Tribal Properties are members of federal, state, and local law enforcement agencies who are acting within the scope of their official duties.

3. Possessing, carrying, displaying, or otherwise having firearms on the Tribal Properties.

4. Removing documents or other property from the Casino, or continuing to possess, or possessing, documents or other property removed from the Casino during and after the morning of October 9, 2014. All such documents or other property that were removed and have not been returned shall be returned immediately.

5. Operating the Casino unless and until it is established before this Court that the public health and safety of Casino patrons, employees, and tribal members can be adequately protected from the violent confrontations and threats of violent confrontation among the tribal groups disputing leadership of the Tribe and control of the Casino. This prohibition shall have no further force and effect if the NIGC issues an order lifting its Closure Order and, within one-half court day thereof, the State does not object to reopening the Casino.

This preliminary injunction will remain in effect until resolution of the case by settlement or judgment or the Court’s further order.

TRO materials are here and here.

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

Adoptive Couple/ICWA Talk at Mizzou Law

The founding members of Mizzou’s brand new NALSA, Justin Trueblood and Kristen Stallion. Look for them at Moot Court 2016.

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Their first event (with Prof Mary Beck and Kate Fort)

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The administration building and the law school on a gorgeous day.

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Posted in Author: Kate E. Fort, ICWA, Student Activities | Tagged , , | Leave a comment

Federal Court Materials (So Far) in Suit against Seminole Tribe’s Section 17 Corporation

Here are the materials in Lujen Brands LLC v. Seminole Tribe of Florida Inc. (S.D. Fla.):

14 STOFI Motion to Dismiss

15 Lujen Response

18 STOFI Reply

DCT paperless order:

ORDER DENYING WITHOUT PREJUDICE Seminole Tribe of Florida, Inc., Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 14 Motion to Dismiss Complaint With Prejudice for Lack of Subject Matter Jurisdiction; DENYING WITHOUT PREJUDICE the STOFI Defendants’ 31 Motion for Scheduling Conference; and GRANTING Plaintiff’s 32 Motion to Compel Initial Disclosures. On May 2, 2014, the STOFI Defendants filed a 14 Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that they are immune from suit by virtue of the doctrine of tribal sovereign immunity. In its 15 Response, Plaintiff requested jurisdictional discovery. It is ORDERED AND ADJUDGED that Plaintiff shall have forty-five (45) days to conduct jurisdictional discovery narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ 14 Motion to Dismiss. Discovery may not stray to merits issues. The Parties are directed to confer and cooperate in good faith in determining the logistics of the discovery. After the forty-five (45) day jurisdictional discovery period, the STOFI Defendants may, if they choose, refile their Motion to Dismiss for Lack of Subject Matter Jurisdiction. It is further ORDERED AND ADJUDGED that all parties shall proceed to merits discovery at the conclusion of the forty-five (45) day jurisdictional discovery period. This entry constitutes the ENDORSED ORDER in its entirety. Signed by Judge Joan A. Lenard on 8/22/2014. (jn) (Entered: 08/22/2014)

38 STOFI Motion for Reconsideration

46 Lujen Response

48 STOFI Reply

DCT Order:

ORDER GRANTING Seminole Tribe of Florida, Inc. (STOFI), Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 38 Motion for Reconsideration of the Court’s August 22, 2014 Paperless Order. In their Motion, the STOFI Defendants argue that the Court’s August 22, 2014 Order (D.E. 33) implies that if they were to re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds at the close of jurisdictional discovery, they would nevertheless have to participate in merits discovery before the Court issued a ruling on the issue of subject-matter jurisdiction. (See D.E. 38 at 2). The STOFI Defendants further argue that if the Court were to order them to engage in merits discovery prior to resolution of the issue of sovereign immunity, the Court would be infringing on their tribal sovereign immunity and that such an order would constitute error. (Id.). Plaintiff asserts no argument on this issue in its Response. (See D.E. 46). The Court is permitted to resolve the issue of sovereign immunity before allowing discovery. See Caraballo-Sandoval v. Honsted, 35 F.3d 521, 524 (11th Cir. 1994). Accordingly, it is ORDERED that, at the close of jurisdictional discovery, should the STOFI Defendants re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds, the Court will stay this action as to the STOFI Defendants pending the resolution of the Motion to Dismiss.

The STOFI Defendants also argue in their Motion that the Court should more precisely define the boundaries of jurisdictional discovery. In its August 22, 2014 Order, the Court stated that “jurisdictional discovery [shall be] narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ [May 2, 2014] Motion to Dismiss. Discovery may not stray to merits issues.” (D.E. 33). STOFI argues that, because it has sovereign immunity unless it waives such immunity in its Charter or by contract, the only proper jurisdictional discovery against it concerning sovereign immunity goes to waiver, not to whether it is a subordinate economic entity of the Seminole Tribe of Florida. (See D.E. 38 at 8). The Court agrees. In accordance with binding precedent, STOFI is entitled to sovereign immunity unless and until it waives such immunity. Maryland Cas. Co. v. Citizens Nat. Bank of W. Hollywood, 361 F.2d 517, 520-22 (5th Cir. 1966); see also Inglish Interests, LLC v. Seminole Tribe of Florida, Inc., No. 2:10cv367FtM29DNF, 2011 WL 208289, at *5-6 (M.D. Fla. Jan. 21, 2011). Accordingly, it is ORDERED that jurisdictional discovery regarding STOFI is limited to the issue of whether STOFI waived sovereign immunity. Jurisdictional discovery shall not be permitted on the issue of whether STOFI is a subordinate economic entity of the Seminole Tribe of Florida, because, in the Eleventh Circuit, that issue is irrelevant with respect to whether STOFI has sovereign immunity. See Maryland Cas. Co., 361 F.2d at 520-22. Jurisdictional discovery shall be permitted on the issue of whether Ulizio and Osceola are also entitled to sovereign immunity.

It is further ORDERED that the forty-five day jurisdictional discovery period is to begin from the date of this order, as requested by the parties. Accordingly, the parties shall have until and including November 3, 2014, to complete jurisdictional discovery. This entry constitutes the ENDORSED ORDER in its entirety.

Signed by Judge Joan A. Lenard on 9/18/2014. (jn) (Entered: 09/18/2014)

Posted in Author: Matthew L.M. Fletcher, economic development, Research, sovereign immunity | Tagged , , | Leave a comment

Puyallup passes same-sex marriage

This happened over the summer.  Here’s the news article from Tacoma Weekly.

Posted in Author: Ann Tweedy, marriage equality, News | Tagged | Leave a comment