Spokane County Sues to Stop Spokane Tribe Casino

Here is the complaint in Spokane County v. Dept. of Interior (E.D. Wash.):


An excerpt:

Spokane County, Washington (“County”) brings this action seeking review of and relief from a June 15, 2015 decision by the Department of the Interior (“Department”) approving a proposal by the Spokane Tribe of Indians to build its third casino directly below Fairchild Air Force Base’s (“Fairchild AFB”) VFR traffic pattern for Fairchild’s primary runway. The Department’s determination that this casino will not be detrimental to the surrounding community violates federal statutes governing such decisions, overrides the opposition of the vast majority of officials elected to represent the interests of the surrounding community, is belied by the record evidence and long-standing agency policy, and defies basic common sense.

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

Cert Petition in Washington State Dept. of Licensing v. Cougar Den Inc.


Cert Petition

Questions presented:

Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.

Lower court materials here.

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

National Indian Law Library Bulletin (6/21/2017)


The National Indian Law Library added new content to the Indian Law Bulletins on 6/21/17.

U.S. Supreme Court Bulletin
Opinion was issued in Matal v. Tam (Trademarks; Free Speech) on 6/19/17.

U.S. Federal Courts Bulletin
French v. Starr (Tribal Jurisdiction; Eviction)
Darnell v. Merchant (Witnesses)

State Courts Bulletin
In Interest of L.M.B. (Indian Child Welfare Act – Expert Witnesses)

News Bulletin
In the Culture and Tradition section, we feature an article about the U.S. Supreme Court decision striking down a ban on disparaging trademarks.

Law Review & Bar Journal Bulletin
The following articles were added:
Bringing it home: North American genocides.
The model tribal probate code: Opportunity to correct the problems of fractionation and legacy of the Dawes Act.
The Indian Health Service: Barriers to health care and strategies for improvement.
Casting a wide net: Why it is incumbent upon the Environmental Protection Agency to expand the scope of its cost-benefit analysis to include Native American populations and cultural fishing practices in the aftermath of Michigan v. EPA.
Changing currents: Climate change and stakeholder involvement in the Colorado River basin.
The Antiquities Act & national monuments: Analysis of geological, ecological, & archaeological resources of the Colorado Plateau.

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

Bob Chang: “Derogatory trademarks aren’t about free speech. They’re about discrimination.”

From WaPo, here.

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Second Circuit Rejects MGM Challenge to Connecticut Gaming Law

Here are the materials in MGM Resorts International v. Malloy:

CA2 Opinion

MGM Brief

Connecticut Brief


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The President’s Budget Cuts for Treaty Rights Funding Affect Jobs

Leaders from across Indian country have expressed concern and criticism over the President’s proposed Indian Affairs budget. The President has proposed to slash the budget across the board for tribal programs. The effects of this proposal have been detailed by former Assistant Secretary Kevin Washburn, former Acting Assistant Secretary Larry Roberts, and Reporter Mark Trahant.

I want to take some time to focus on the impact of one particular cut in the President’s budget proposal: Rights Protection Implementation. You can read the entire proposed budget for Indian Affairs here (Rights Protection Implementation begins at page “TNR 10”).

As with all FedSpeak, the term “Rights Protection Implementation” may appear uninteresting on its face. But, it’s actually really important.

Bear with me for a bit, as this requires some explanation.

Rights Protection Implementation – or, “RPI” in FedSpeak – is a line item in the Federal Budget that directly funds the implementation of court orders relating to tribal treaty rights.   This funding is used by 49 different tribes across the United States. The President’s budget proposal itself describes the purpose of this line item:

The Rights Protection Implementation program supports the implementation of Federal court orders that resulted from decisions in complex, off-reservation treaty rights litigation. These cases were based on large land cession treaties in which the signatory tribes conveyed land to the United States and reserved the right to hunt, fish, and gather within the territory ceded. These rights apply beyond particular reservation boundaries and are shared among multiple tribes. Therefore, they have intertribal co- management implications as well as implications for management with other jurisdictions. The Federal Government has generally been a party to or a supporter of the tribes’ claims.

The court orders referenced by the President include federal court decisions in these cases: United States v. Washington; United States v. Oregon; and, United States v. Michigan.

In each of those cases, the Federal Government, as the trustee, brought lawsuits against states on behalf of Indian tribes to protect and enforce tribal treaty rights for hunting and fishing. The courts uniformly recognized that tribal sovereignty means a lot, including not only the authority to exercise the reserved right, but the reserved authority to manage the resource. In each of these lawsuits, the United States negotiated settlement agreements (often called “consent decrees”) on behalf of the tribes. Those agreements require the tribes and the states to fulfill certain responsibilities to ensure that tribal rights are protected and exercised in a meaningful way.

For example, in the case of United States v. Michigan, the Federal Government (and the tribes) reached a consent judgment with the State of Michigan in 2000. As part of that agreement, the tribes take on a number of responsibilities. They include:

  • Providing law enforcement of fishing activities over thousands of square miles in Lake Huron, Lake Michigan, and Lake Superior (look at a map to see just how big this area is);
  • Collecting data on the fishery in Lake Huron, Lake Michigan, and Lake Superior; and,
  • Tracking the sale of harvested fish.

These activities require specially trained employees – such as law enforcement officers, judges and court staff, and biologists. In other words, these activities cost money. The same is true in other consent decrees in similar cases, which is why the Federal Government agreed to provide funding for these activities in the consent decrees.

There are other court decisions funded by this budget line item where the Federal Government wasn’t a party to the litigation. They include: Lac Courte Oreilles v. Voigt, Minnesota v. Mille Lacs and Grand Portage v. Minnesota. Federal funding is necessary for these cases as well, because the tribes must comply with court orders in order to exercise the rights they protected under treaties with the Federal Government.

The RPI line item provides tribes with the funding they need to meet court-ordered requirements in exercising treaty rights. In many cases, the Federal Government agreed to those requirements on tribes’ behalf (or nudged tribes to accept those requirements). This funding is necessary for tribes to continue to be able to exercise the treaty rights they reserved and, later, fought to protect in court.

Now that you have a basic understanding of the purpose of this funding, we can begin to understand the impact of the President’s proposed budget cuts.

President Trump has proposed to cut this line item by a whopping 24%. At any level of government, a 10% budget cut would be considered drastic. Cuts at this level – especially when paired with budget cuts to law enforcement, conservation, wildlife, etc. – will impair the ability of tribes to fully implement their treaty rights. If tribes cannot comply with those court orders their treaty rights are put into jeopardy. So are real jobs.

Tribal treaty rights protect more than cultural and spiritual values, which are invaluable in their own right. They protect the ability of tribal members to earn a living. They also benefit the economy in areas around Indian country in the Great Lakes and the Pacific Northwest.

In Michigan alone, there are 209 tribal fishermen who are licensed to fish under the 1836 Treaty of Washington and the court orders in United States v. Michigan. In economically depressed areas like northern Michigan, these can be good-paying jobs (albeit, demanding and dangerous jobs). Those fishermen buy gas, gear, and goods for their operations at local stores, and their catch is bought by restaurants and markets across the region.

Treaty rights are economic rights. As the Supreme Court stated in the 1905 case of United States v. Winans, those rights “were not much less necessary to the existence of the Indians than the atmosphere they breathed.”

The 2000 consent decree in United States v. Michigan expires in 2020 – just three years from now. The Federal Government and the tribes must negotiate a new agreement with the State of Michigan to take its place. A 24% funding cut to Rights Protection Implementation will hurt the ability of tribes to collect the data necessary to protect their interests in those negotiations. It will also affect conservation enforcement activities, which will subject the tribes to claims that they aren’t fulfilling their end of the bargain. At the end of the day, this will lead to job losses and economic damage in an area of the country that voted for the President.

The RPI funding item in the Federal Budget lies at the heart of the relationship between the Federal Government and Indian tribes because it deals directly with the exercise of treaty rights.

The Federal Government agreed that Indian tribes should take a lead in managing the resource for current and future generations in exercising those rights, but now seeks to frustrate the ability of tribes to fulfill those obligations through a 24% funding cut (much in the same way the President has proposed dramatic cuts to contract support cost funding for tribes). And, in Michigan at least, this proposed cut comes at a time when tribes are preparing to negotiate a new consent decree to protect treaty rights and jobs.

Congress must act to protect this funding. Doing so will protect jobs, resources, and rights for thousands of people across the United States.

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Tenth Circuit Dismisses Nonmember Challenge to Tribal Court Jurisdiction for Lack of Article III Standing (Nonmember Won on the Merits in Tribal Court)

Here is the unpublished opinion in Board of Education for Gallup-McKinley Schools v. Henderson.

Briefs and lower court materials here.

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Federal Manslaughter Conviction Stands over Alleged Bad Acts by Rocky Boy’s Police Officer

Here are the materials in United States v. Henderson (D. Mont.):

74 Motion to Set Aside Verdict

80 Response

87 DCT Order

An excerpt:

The Court agrees with Henderson that if the jury would have heard the undisclosed impeaching evidence relating to Cabanas, they may have changed the way they viewed Cabanas’s testimony. The Court finds, however, that the absence of such evidence had no impact on the jury’s verdict given the relative insignificance of Cabanas’s testimony compared to the other witnesses, and the overwhelming weight of evidence against Henderson provided by other witnesses.

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Georgia Appellate Court Vacates Arbitration Award against Guidiville Band of the Pomo Indians

Here is the opinion in Churchill Financial Management Corp. v. ClearNexus Inc. (Ga. Ct. App.):

Ga Ct App Opinion

An excerpt:

Most courts that have addressed this issue have determined that tribal sovereign immunity extends to entities known as chartered tribal corporations when they are “arms of the tribe.” Whether a corporation is an “arm of the tribe” protected by tribal sovereign immunity generally is determined based on a consideration of tribal involvement in the creation and control of the entity, intent to clothe the entity with immunity, and whether the entity serves tribal sovereign interests such as economic development.

Although neither the arbitrator nor the superior court engaged in an analysis based on any factors to determine whether Churchill is an arm of the Tribe, ClearNexus has conceded that Churchill is an arm of the Tribe. Additionally, Churchill’s articles of incorporation stated that “[t]he Corporation shall be wholly owned by the Tribe for the benefit of the Tribe and its members” and is clothed with the immunity of the Tribe. Therefore, we need not adopt a particular approach to determine this issue at this time, and we need not remand in order for the superior court to make this determination.

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

Nooksack Casino Closes after NIGC Issues NOV

Here is the NOV. NIGC presser here.

News coverage here and here.

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