Torres v. Santa Ynez Band of Chumash Indians Cert Petition


Cert Petition

Questions presented:

1. Was Petitioner denied due process of law when the Indian Tribal Chairman Armenta filed a false claim in Bankruptcy as part of a long pattern and campaign of harassment against Petitioner and the Bankruptcy Court refused to impose sanctions, simply because she believed she could not find grounds for sanctions because much of the pattern of the ultra vires conduct of Chairman Armenta did not occur in her court?
2. Has the recent decisions of this court in Bay Mills Indian Community, 572 U.S. ___, 134 S.Ct. 2024 and the Ninth Circuit court of appeals recent case in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribes sovereign immunity to evade liability?
3. Even though the sanction motion had to be brought on its face, against the tribe (who waived tribal immunity in the bankruptcy case), the court was authorized in its inherent jurisdiction to impose sanctions against the improper actions of chairman Armenta even though claimed to have been done on behalf of the tribe.

Ninth Circuit materials:

CA9 Memorandum Order

Answer Brief

Torres Opening Brief

Torres Reply

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

Tulalip Associate Judge Position


Tulalip Associate Judge Job Announcement

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Puyallup Court Administrator Job Posting


Tribal Court Administrator, closes 7.17

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Amici Press Release in Support of Sac & Fox Nation Cert Petition

Key Groups File Amicus Briefs in Support of Supreme Court Petition
To Bring Jim Thorpe Home
Members of Congress, Religious Organizations, NCAI Weigh In to Support Petition by Sac and Fox Nation and Thorpe’s Sons to Return His Remains to Oklahoma
WASHINGTON – A number of groups – including current and former Members of Congress – are expected to file amicus briefs today urging the Supreme Court to hear a case that could significantly impact the civil and human rights of the more than five million Native Americans across the country.
The case centers on the decades-long struggle by Sac and Fox Nation and the sons of American sport legend Jim Thorpe to bring his remains home to Oklahoma for proper burial on his native lands. 
The sons and Sac and Fox petitioned the Supreme Court last month to hear the case. They are seeking to uphold a District Court’s ruling that a 1990 law designed to protect Native American remains and artifacts applied in their bid to return the remains of Jim Thorpe to his tribal lands in Oklahoma.
The briefs filed today were submitted by current and former Members of Congress; the National Congress of American Indians (NCAI); a group of leading religious organizations; and a group of preeminent law school professors.
The current and former Members of Congress include an original sponsor of the law cited in this case – the Native American Graves Protection and Repatriation Act (NAGPRA). This law, sponsored by Senator Ben Nighthorse Campbell and passed by Congress in 1990, states that institutions receiving federal funds must return the remains and sacred objects of Native Americans to their descendants and tribes. The brief makes clear that the Third Circuit’s ruling violates both the text of the law and Congress’ intent in passing it and would have significant negative legal implications for Native Americans across the country.
“NAGPRA is one of the most critical pieces of Native American human rights legislation ever passed by Congress; it protects that which is most sacred to all of humanity: the right to be buried in accordance with your own religion and under the same soil as your relatives. The Third Circuit’s refusal to enforce the plain language of the statute is very concerning,” said Senator Ben Nighthorse Campbell, one of the signers of the amicus briefs filed today by Members of Congress.
The family’s efforts to bring Jim Thorpe home began shortly after his third wife interrupted his burial ceremony on the Sac and Fox Nation in 1953 and took his body. She toured the nation for a year seeking the highest bidder for his remains until two small former coal-mining towns in Pennsylvania offered $500 and a promise to establish the Borough of Jim Thorpe. Despite having no connection to the Pennsylvania towns during his lifetime, Mr. Thorpe continues to be buried there and exploited for tourism – a blatant example of historical and ongoing disregard for Native American traditions and culture in modern American society.
“Since when does a court get to decide that someone’s religious beliefs are absurd?” said Stephanie Barclay, Counsel at the Becket Fund for Religious Liberty. “No American’s faith should be mocked by our courts. Jim Thorpe said he wanted to be buried with his family and his tribe, and that should have been the end of it. Especially given the history of mistreatment of Native Americans by government officials, there should be particular care taken to protect their religious practices.”
“By ruling that NAGPRA’s protections for religious beliefs in the case were absurd, the Third Circuit opened the door for judges across the country to decide, like Goldilocks, what religious beliefs are ‘just right,’” added Barclay. “Judges have no business making those determinations in our diverse American society.”
In 2013, three years after the Sac and Fox Nation and the Thorpe sons first filed their case, a federal District Court agreed that the Pennsylvania borough is an entity covered by NAGPRA because the town’s operations were subsidized by the federal government. NAGPRA routinely applies to other state and local governments, and so the ruling was not remarkable.  However, in 2014, the Third Circuit Court of Appeals invoked a seldom-applied legal theory called the “absurdity doctrine” to overturn the District Court’s decision – a ruling that even the Circuit Court acknowledged contradicted a plain reading of the law. The case raises significant legal concerns about the power of federal courts to disregard the plainly stated intent of laws enacted by Congress.
“In substituting its own views and judicially creating exceptions and requirements, the Third Circuit threatens Native American culture by limiting the process Native Americans utilized to regain sacred cultural items. This Court should grant certiorari to review and reverse that decision,” wrote the National Congress of American Indians (NCAI) in their amicus brief filed today.
In their brief, NCAI also underscored this case’s exceptional importance to the 566 federally-recognized Indian tribes, the 5.2 million individual Native Americans and Alaska Natives, and the 1.2 million Native Hawaiians across America, saying “the Third Circuit establishes dangerous precedent that could have substantial impacts on tribal cultures throughout the nation.”
“This is a critically important case,” said Joshua Segal, Partner at Jenner and Block. “In dismissing the NAGPRA suit brought by Jim Thorpe’s sons, the Third Circuit misused the ‘absurdity doctrine’ and ignored other tools of statutory construction. The Court of Appeals’ decision is dangerous for this vital civil rights statute and warrants the Supreme Court’s review.”
Jim Thorpe, given his Indian name Wa-tha-huk (Light after the Lightning or Bright Path) by the Thunder Clan of Black Hawk, was voted Greatest Athlete of the 20th Century in ABC’s Wide World of Sports poll held in 2000, beating out 14 other athletes including Muhammad Ali, Babe Ruth, Jack Nicklaus and Michael Jordan. His remarkable performance at the 1912 Olympic Summer Games, winning gold medals in the decathlon and pentathlon, was matched by his skills in professional baseball (1913-19) and professional football (1917-29). In 1920, Jim Thorpe was selected as the first president of the American Professional Football Association (APFA), which became the National Football League (NFL) in 1922. Thorpe is a member of ten halls of fame, including the College Football Hall of Fame and the Professional Football Hall of Fame, of which he was an inaugural inductee. In his lifetime, Jim Thorpe also worked to obtain recognition for the rights of Indians and tribes.
The Sac and Fox Nation, Jim Thorpe’s sons and other supporters also launched the “Bring Jim Thorpe Home” campaign last month, which calls for his remains to be returned from the Borough of Jim Thorpe in eastern Pennsylvania to his tribal homelands in Oklahoma, where he wished to be buried. The campaign launched with an event in Oklahoma City in June, and will also include events in St. Paul, Minn., and Washington, D.C., over the coming weeks. More information about the campaign can be found at; on Twitter at and #BringJimThorpeHome; and on Facebook at


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

Two Federal Acknowledgment Determinations–Pamunkey Indian Tribe makes 567

Press release here

Assistant Secretary – Indian Affairs Kevin K. Washburn today issued final determinations for two petitioners under the existing Federal Acknowledgment process. The decisions include a final determination to acknowledge the petitioner known as the Pamunkey Indian Tribe (Petitioner #323) as a federally recognized Indian tribe, and a final determination on remand to decline acknowledgment for the petitioner known as the Duwamish Tribal Organization (DTO) (Petitioner #25).

Final letter to Pamunkey here.
Final determination, Pamunkey here

Final letter to Duwamish here.
Final determination, Duwamish here.

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Crow Allottees Challenge to Crow Water Compact Dismissed on Federal Immunity Grounds

Here are the materials in Crow Allottees Association v. Bureau of Indian Affairs (D. Mont.):

35 BIA Motion for Judgment on the Pleadings

38 Response

42 BIA Reply

59 DCT Order

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Repost: National ICWA Attorney Survey

On days where I spend my most of my time connecting tribes in one state with attorneys in another state, I’m going to repost this survey. Thank you for passing it on/filling it out/providing legal services in states with no tribal governments, but plenty of Native children.

In an attempt to better protect ICWA, tribes, and AI/AN families,
NICWA and the ILPC have put together a short survey to collected ICWA attorney information nationwide. If you are in-house or outside counsel, if you are a parents’ attorney interested in taking ICWA cases, if you are legal aid agency who represents tribes, if you stumbled on this post and would be willing to represent a tribe from another state in an ICWA proceeding, please fill this out this poll.

The information will be sent to NICWA, and not sold or otherwise distributed beyond what is indicated. Please forward this questionnaire to the ICWA attorneys in your network and encourage them to submit their information as well.

Here is the link.

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

Amicus Briefs in Support of Cert Petition in Sac & Fox Nation v. Borough of Jim Thorpe


15-07-01 Members of Congress Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

NCAI Amicus Brief

15-07-02 Religious Groups Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

15-07-02 Scholars Amicus Brief (Sac & Fox Nation v. Borough of Jim Thorpe, No. 14-1419)

Petition is here.

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

Dollar General v. Mississippi Band of Choctaw Indians Background Materials

In anticipation of the briefing of Dollar General v. Mississippi Band of Choctaw Indians, the Supreme Court’s next foray in tribal civil jurisdiction, we provide some background materials on the cases and tribal civil jurisdiction in general.


Mississippi Choctaw Supreme Court Opinion

CA5 Panel Opinion

CA5 Amended Opinion

CA5 Order Denying En Banc Petition

Cert stage briefs

Dollar General Cert Petition

Mississippi Choctaw Cert Opposition

Dollar General Reply

Mississippi Choctaw Supplemental Brief

SG Invitation Brief

Dollar General Response to SG Brief

Fifth Circuit panel materials

Dolgen Opening Brief

Tribal Appellee Brief

Dolgencorp Reply Brief

Fifth Circuit en banc materials

DOLGENCORP En Banc Petition

Tribal Response

Federal District Court summary judgment materials

Dollar General Motion for Summary J

Mississippi Band Opposition

Memorandum Opinion and Order

Federal District Court TRO materials


Miss Band Choctaw SCT Opinion





Law review articles on the Dollar General case

Harvard Law Review Comment, Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians Fifth Circuit Disclaims Independent Obligation to Ensure that Tribal Courts Have Subject Matter Jurisdiction in Disputes Involving Nonmembers

Recent law review articles on tribal civil jurisdiction and tribal courts

Berger, Justice and the Outsider Jurisdiction over Nonmembers in Tribal Legal Systems

Carlson, Jurisdiction and Human Rights Accountability in Indian Country

Christensen, Creating Bright-Line Rules for Tribal Court Jurisdiction over Non-Indians The Case of Trespass to Real Property

Fletcher, A Unifying Theory of Tribal Civil Jurisdiction

Fletcher, Indian Courts and Fundamental Fairness Indian Courts and the Future Revisited

Fletcher, Tribal Justice Systems

Florey, Beyond Uniqueness Reimagining Tribal Courts Jurisdiction

Krakoff, Tribal Civil Judicial Jurisdiction over Nonmembers A Practical Guide for Judges

Miller,The Shrinking Sovereign-Tribal Adjudicatory Jurisdiction Over Nonmembers In Civil Cases

Nesper, Ordering Legal Plurality Allocating Jurisdiction in State

O’Connor, Lessons from the Third Sovereign Indian Tribal Courts

Schlosser, Tribal Civil Jurisdiction over Nonmembers

Sixkiller, Procedural Fairness Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank

Skibine, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes,

Tinker, In Search of a Civil Solution Tribal Authority to Regulate NonMembers

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Split Sixth Circuit Panel Affirms NLRB Jurisdiction over Saginaw Chippewa’s Soaring Eagle Casino

Here is the opinion:

2015-07-01 Soaring Eagle Decision

Briefs here.

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