NIGC Not Held in Contempt for Refusal to Reconsider Decision on Fort Sill Apache New Mexico Casino

Here are the materials in Fort Sill Apache Tribe v. National Indian Gaming Commission (D.D.C.):

60 Stipulated Order

67 Fort Sill Motion to Enforce

67-1 NIGC Letter

68 Opposition

69 Reply

70 DCT Order on Motion to Enforce

We posted the complaint here.

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

Introducing the new Tribal Court Indian Law Bulletin from the National Indian Law Library

“The American Indian Law Clinic is excited to collaborate with NILL for the Indian Law Bulletin, in the spirit of our longstanding relationship with the Native American Rights Fund. Tribal jurisprudence is a vital component of Indian law for lawyers, judges, and students alike, and this bulletin will ensure access to these important legal resources.”
Carla Fredericks
Carla Fredericks, Director
Colorado Law School’s American Indian Law Clinic and Program

The National Indian Law Library (NILL), in partnership with the University of Colorado Law School Indian Law Clinic, is pleased to introduce the new Tribal Courts Bulletin.  This new bulletin will feature selected tribal court opinions of value to Indian law practitioners, educators, and students.  The Tribal Courts Bulletin will complement the state and federal case bulletins published by NILL since 2001.

To date, the NILL Indian Law Bulletins have focused primarily on federal and state law relating to Native Americans. By adding some of the most important current tribal court opinions, NILL strives to offer a more complete Indian law update service.

See the new bulletin along with our other Indian Law Bulletins at http://www.narf.org/nill/bulletins/  and read about the selection and publishing criteria at http://www.narf.org/nill/bulletins/tribal/about.html. As with all of our bulletins, you can search for past materials using the search features on our website. We welcome your comments on this new bulletin.

If you are a tribal court judge or tribal attorney and would like more information about submitting your tribe’s court opinions, please contact David Selden at dselden@narf.org, 303-447- 8760.

American Indian Law Program, University of Colorado Law School

Posted in Research | Leave a comment

Federal Court Dismisses Employment Claims against Lac du Flambeau Ojibwe

Here are the materials in Bruguire v. Lac du Flambeau Band of Lake Superior Chippewa Indians (W.D. Wis.):

14 Motion to Dismiss

15 Opposition

16 Reply

22 DCT Order

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

Ninth Circuit Decides Klamath-Trinity River Flow Dispute in Favor of Feds and Tribes

Here is the opinion in San Luis & Delta-Mendota Water Authority v. Haugrud.

From the court’s syllabus:

The panel affirmed in part and reversed in part the district court’s judgment, and held that the Bureau of Reclamation had the authority to implement the 2013 release of Trinity River water from the Lewiston Dam, above and beyond the amount designated in the applicable water release schedule.

Reversing the district court, the panel held that the Act of August 12, 1955, gave the Bureau the authority to implement the 2013 flow augmentation release to protect fish in the lower Klamath River. Affirming the district court, the panel also held that the 2013 flow augmentation release did not violate Central Valley Project Improvement Act (“CVPIA”) section 3406(b)(23), which called for a permanent water release that would serve only the Trinity River basin. The panel further held that the 2013 flow augmentation release did not violate California water law and, in turn, did not violate the Reclamation Act of 1902 or CVPIA section 3411(a), both of which require the Bureau to comply with state water permitting requirements.

Briefs here.

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

Neil Gorsuch Senate Judiciary Committee Questionnaire

Here.

And yes Judge Gorsuch mentions Yellowbear v. Lampert as one of his top 10 decisions (see pages 30-31).

Our post on Judge Gorsuch’s Indian law record is here.

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

Fletcher on Statutory Divestiture of Tribal Sovereignty

“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.

The abstract:

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

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

NYTs: “Border Wall Would Cleave Tribe, and Its Connection to Ancestral Land”

Here.

Posted in News | Tagged | Leave a comment

PBS: “Native Americans brace for impact as EPA undergoes changes”

Here

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

Sixth Circuit Decision on Title IV-E Maintenance Payments to Kinship Placements

Here.

Not an ICWA/Indian child case, but one that is important nonetheless given its ruling ensuring Title IV-E maintenance payments. The lack of these payments sometimes make kinship care very difficult on relative placements–Title IV-E maintenance payments cover, among other things, the child’s food, clothing, and shelter. 42 U.S.C. 675(4)(A). After determining that the aunt/foster parent established a cause of action, the court held that:

The family argues that the Cabinet approved R.O. [child’s aunt] to be a foster parent. Prior to placement, the Cabinet verified that R.O. met relevant non-safety standards by conducting a home evaluation and a background check. After determining that her home was safe, the family court moved the children from another foster provider to her care. R.O. therefore argues that the Cabinet “approved” her as a foster parent for the children.

Kentucky offers several arguments in response. Kentucky distinguishes between “foster care” and “kinship care.” According to Kentucky, “foster care” refers to licensed foster family homes. “Kinship care,” by contrast, refers to relative caregivers. Although the Cabinet must remit maintenance payments to foster parents, the Cabinet need only pay kinship care providers “[t]o the extent funds are available.” Ky. Rev. Stat. Ann. § 605.120(5) (West 2016). Due to inadequate appropriations, Kentucky ceased funding its kinship care program.

To the extent the Cabinet’s failure to make maintenance payments turns on the distinction between relative and non-relative foster care providers, it plainly violates federal law. In Miller v. Youakim, 440 U.S. 125 (1979), Illinois placed two children with their older sister, Linda Youakim, and her husband. Id. at 130. “The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes . . . .” Id. Yet, “[d]espite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim.” Id. The Court reviewed the definition of “foster family home.” Id. at 130–31. After noting that the statute “defines this phrase in sweeping language,” the Court found that “Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision.” Id. at 135.

If anyone wants the briefs on this, let me know.

Posted in Author: Kate E. Fort, Child Welfare | Tagged , , , , , , | Leave a comment

Updated ICWA Defense Project Memo

It’s been a couple of months, so here is the updated ICWA Defense Memo on the cases we are monitoring.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , | Leave a comment