Consumer Financial Protection Board Proposes to Regulate Payday Lending and Similar Activities

Here is the CFPB fact sheet, with links to outlines of proposals under consideration will be posted.

News coverage here and here.

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

Arizona State Law Journal Symposium: “School-To-Prison Pipeline in Indian Country”

Webcast link here.

Conference materials here.

Featuring our current and former colleagues Tiffani Darden and Laura McNeal!

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

Ninth Circuit Reverses Judgment Favoring Crow Nation against HUD

Here is the opinion in Crow Tribal Housing Authority v. HUD.

From the court’s syllabus:

The panel vacated the district court’s order remanding the case to the Department of Housing and Urban Development (“HUD”) for a hearing, reversed the judgment, and remanded for judgment to be entered in favor of HUD in a case brought by the Crow Tribal Housing Authority, arising from a dispute involving Indian housing block grants made under the Native American Housing Assistance and Self-Determination Act of 1996.

The panel held that the district court erred in ruling that HUD violated Crow Housing’s right to Native American Housing Assistance and Self-Determination Act of 1996’s notice and reporting requirements under 25 U.S.C. §§ 4161 and 4165.

Specifically, the panel concluded that HUD did not act under § 4161, and accordingly, could not have violated a hearing requirement under that section. The panel further concluded that HUD’s actions triggered the opportunity for a hearing under § 4165 when it conducted an on-site review of Crow Housing in August 2004. Finally, the panel held that because Crow Housing did not request a hearing, HUD did not violate its statutory obligation under § 4165 and did not improperly deprive Crow Housing of a hearing under the facts of the case.

Briefs and materials are here.


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

Florida COA Rules against Miccosukee Tribe in Suit against Lewis Tein

Here is the opinion:

Florida COA Opinion

An excerpt:

Once the movants made such a presentation, the burden shifted to the Tribe as the non-movant opposing the motion to either (1) come forward with conflicting evidence that created a disputed issue of material fact which, if decided in favor of the Tribe, would support a judgment for the Tribe; or (2) file an affidavit, pursuant to Florida Rule of Civil Procedure 1.510(f), describing with specificity the additional discovery needed to obtain such evidence. The Tribe did neither. For example, the Tribe’s expert was unable to identify a single invoice by the Lawyers that he believed was fraudulent, illegal, or excessive. 

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

Commentary on Two Different (Unpublished) Notice Cases from California

On average we receive around a case a day out of California that mentions ICWA, and usually in the notice context. We don’t post all of them, and the vast majority of them are unpublished. But over the last couple of days, we’ve received two that demonstrate the large inconsistencies across the state when it comes to determining if the child is an Indian child, and notice procedures. Neither of these cases are outliers from the hundreds that go up each year, other than the difference in treatment caught our eye. This also demonstrates the difficulty in identifying exactly where additional resources need to be dedicated to ICWA enforcement–it’s not on a fifty state level, it’s on a county-by-county level.

In the first, out of the First Appellate District (Del Norte County) mother says her grandma told her their family may be from the “Comanche Nation.” Notice went out to Comanche, and the Nation said the child was not eligible for enrollment. However, on appeal, the court found

As noted, the only information the Department provided for the maternal grandmother—Nina’s mother—was her name and an incomplete address (“Grant’s Pass,Oregon”). The record contains evidence,however, suggesting that with a minimal amount of inquiry, the Department would have been able to obtain additional information regarding the grandmother. First, the family was involved in a dependency proceeding when Nina was a minor. By its own admission, the Department reviewed that file as part of the instant proceeding and, at a very minimum, would have been able to glean the grandmother’s date of birth, which was unquestionably in the file. This directly refutes the Department’s claim that “there is no indication that the social worker left out any available information.”


It was incumbent upon the Department to interview her extended family members to obtain whatever further details it could about the family’s Native American heritage.

In the second case, out of the Fourth Appellate District (San Diego County), mother said her family was affiliated with the “Winnebago Sioux tribe in Decorah, Iowa.” The social worker talked to mother and grandmother about it, and found “no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic.” The court found

We conclude that proper inquiry was conducted to determine whether K.P. was a Native American child within the meaning for ICWA. The court questioned mother and her mother concerning the family’s Native American heritage. According to these relatives, no family members had ever been registered or eligible for enrollment with a tribe and the court was not required to give notice.

In both cases, the claims were attenuated. But regardless, the claims received very different treatment between the two trial courts–in the first, where the Department did not do enough inquiry, notice at least went out to the Comanche Nation. In the second, no one notified Winnebago (nor Ho-Chunk, for that matter), nor allowed either Nation to determine whether this family might be related. And then on appeal, both received very different treatment from the appellate courts. In the first, the court had to do better notice. In the second, the court didn’t have to do any notice.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , , , , , | 1 Comment

Federal Defender Positioning United States v. Drapeau to Force Circuit Split over Use of Prior Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement

Here is the opening brief in United States v. Drapeau:

Drapeau Opening Brief

An excerpt:

Santana Drapeau was convicted of two counts of domestic assault by an habitual offender. In support of those charges the United States offered evidence of Drapeau’s three prior domestic abuse convictions in Crow Creek Tribal Court. In each instance Drapeau entered a no contest plea; in two of the three he did so without a lawyer. Over Drapeau’s objection under Federal Rules of Evidence 402, 403, and 404, the District Court admitted testimony about the underlying facts giving rise to those convictions. The District Court admitted that evidence based on a flawed understanding of whether the court or the jury decided what was a qualifying predicate offense under 18 U.S.C. § 117.
The District Court denied Drapeau’s motion for judgment of acquittal based on the use of no contest pleas obtained without counsel as qualifying predicate offenses. Drapeau acknowledges that this issue is controlled by United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), but presents it here in order to preserve it for review by this Court en banc and through petition for writ of certiorari.

We’ve commented on this issue extensively here and here. Right now, there is no circuit split as both the Eighth and Tenth Circuits have allowed use of the tribal court convictions under 18 U.S.C. § 117, a habitual offender statute. The cases are Cavanaugh and ShavanauxThere’s a Ninth Circuit case from the 1980s — United States v. Ant (882_F.2d_1389) — that is in disagreement with these cases but in a different context (confessions).

Ah, there is a clean split that I forgot about! United States v. Bryant in the CA9.

A case worthy of watching.

I wrote a short paper about these issues more generally a while back: Sovereign Comity

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

North Fork Rancheria Sues California Alleging Violation of IGRA Good Faith Negotiation Obligation

Here is the complaint in North Fork Rancheria of Mono Indians of California v. State of California (E.D. Cal.):

1 Complaint

An excerpt:

The Indian Gaming Regulatory Act (“IGRA”) requires states, upon request by an Indian tribe, to “negotiate with the Indian tribe in good faith to enter into” “a Tribal-State compact governing the conduct of gaming activities” on the tribe’s “Indian lands.” 25 U.S.C. § 2710(d)(3)(A). IGRA also confers jurisdiction on this Court over “any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith.” Id. § 2710(d)(7)(A)(i). This action is brought pursuant to § 2710(d)(7)(A)(i) and seeks a declaration that Defendant the State of California (“the State” or “California”) has failed to comply with § 2710(d)(3)(A)’s requirement that the State negotiate in good faith with Plaintiff North Fork Rancheria of Mono Indians of California (“the Tribe”) to enter into an enforceable tribal-state gaming compact, and an order directing the State to conclude an enforceable compact with the Tribe within 60 days or submit to mediation, see id. § 2710(d)(7)(B)(iii)-(iv).

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

Yakama/Umatilla Prevail against Fish and Wildlife Service in Sacred Sites Question

Here are the materials in Confederated Tribes and Bands of the Yakama Nation v. Fish and Wildlife Service (E.D. Wash.):

1 Complaint

49 Umatilla Motion for Summary J

50 Yakama Motion for Summary J

52 FWS Motion for Summary J

54 Yakama Reply

55 Umatilla Response

56 FWS Reply

60 DCT Order

An excerpt:

Although the NHPA and its accompanying regulations do not mandate a particular substantive outcome, its procedural requirements are obligatory. This Court would be derelict in its duties if it failed to enforce the minimal procedural protections guaranteed the Tribes. True, the Service, after reopening consultation with the parties, may reasonably conclude that the expanded program of wildflower tours will have no adverse effect on the Lalíik TCP. But this hypothetical cannot influence the Court’s current analysis. Instead, the relevant focus is whether the Service complied with the relevant statute and regulations: did the Service “stop, look, listen,” and carefully consider tribal input before moving ahead with the greatly expanded undertaking? Or, instead, did the Service stop, look at past tribal consultations on similar proposals, and inappropriately assume that each Tribe would merely voice its blanket opposition rather than providing additional insight to or suggested mitigation measures for the expanded undertaking? Because this Court concludes the latter occurred here, the only remedy is to set aside the Agency’s no adverse effect finding on the updated proposal and order the Service to reengage in the consultation process before conducting any additional wildflower tours within the Lalíik TCP, if it still chooses to pursue the undertaking.

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

Mishewal Wappo Tribe Loses Trust Breach/Federal Recognition Claim

Here is the order in Mishewal Wappo Tribe  of Alexander Valley v. Jewell (N.D. Cal.):

197 DCT Order

Briefs are here.

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

Quinault Moves to Dismiss Claims against Estate of Edward Comenout; Counterclaims Dismissed, Too

Here are the materials in Quinault Indian Nation v. Comenout (W.D. Wash.):

59 Quinault Motion to Dismiss Counterclaims

62 Opposition

67 Reply

72 DCT Order

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