Michael Blumm on Federal Reserved Water Rights

Michael C. Blumm has posted “Reserved Water Rights as a Rule of Law” on SSRN. Here is the abstract:

The reserved water rights doctrine is — and always has been — a controversial doctrine in Western water law circles because it provides a federal trump over state systems of water allocation. First articulated by the U.S. Supreme Court over a century ago, states and their water rights holders have always resisted implementation of federal water rights because the federal government and its trustee Indian tribes often have different water priorities than the states, long committed to diversionary rights largely for irrigated agriculture.

In Idaho, opposition to federal water rights largely succeeded in defeating water for wilderness, national forests, national recreational areas, and other federal conservation lands in the decisions by state courts in the massive Snake River Basin Adjudication (SRBA). Now, in an Idaho Law Review article, two advocates for state water rights who helped defeat federal water rights in the SRBA proffer a theory that, if accepted by other Western states, would export their Idaho victories.

This response to their effort explains why their theory is flawed and should be rejected by Western state courts. Their argument was in fact not adopted by the Idaho Supreme Court, which employed other reasoning for rejecting federal reserved water rights. This essay maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.

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

Save the Date: Apply to Clerk at NARF by September 25, 2015

Founded in 1970, the Native American Rights Fund (“NARF”) is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations, and individuals nationwide. NARF’s practice is concentrated in five key areas: the preservation of tribal existence; the protection of tribal natural resources; the promotion of Native American human rights; the accountability of governments to Native Americans; and the development of Indian law and educating the public about Indian rights, laws, and issues.

Summer Clerkships
NARF is currently seeking candidates for its Summer 2016 Clerkships! Each year, NARF conducts a nation-wide search for law students to participate in its Law Clerk Program. Positions are available in all three of NARF’s offices: Anchorage, AK; Boulder, CO; and Washington, D.C.

Here is the advertisement. The deadline to apply is September 25, 2015.

Posted in Author: Matt Campbell, Education, jobs, News | Tagged , | Leave a comment

Navajo Nation DOJ Job Posting




The Navajo Nation Department of Justice is seeking an energetic and motivated Assistant Attorney General to manages a component “Tax and Finance Unit” The qualified applicant will provide legal advice and representation to various programs, departments and divisions of the Navajo Nation government, regarding a wide range of legal issues, including statutory and regulatory grounds for local authority, contract disputes and procurement issues, and intergovernmental relations.  Emphasis will be in the area of Tax, Retirement, Insurance, Finance and Office of Management and Budget.

Current active state bar licensure in any state is required, with the expectation that within a year of hire, the applicant will obtain licensure in the Navajo Nation as well as one of the following states: Arizona, New Mexico or Utah. Preferred qualifications are current membership in good standing in the Arizona, New Mexico, or Utah State Bar Association and the Navajo Nation Bar Association.

Please direct applicant packets consisting of (1) Letter of Interest with current address, telephone numbers, and e-mail address; (2) Navajo Nation employment application; (3) resume; (4) recent legal writing sample; (5) copy of bar membership certificates; and (6) law school graduation documents to Navajo Nation Department of Justice, Attention: Kandis Martine, Acting Assistant Attorney General, Human Services and Government Unit, P.O. Box 2010, Window Rock, AZ 86515, and to the Navajo Nation Department of Personnel Management, P.O. Box 7080, Window Rock, Arizona, 86515.

Please visit http://www.dpm.navajo-nsn.gov/jobs.html to obtain a copy of the Navajo Nation employment application.  This position number #202237 will soon be listed on the Navajo Nation’s Job Vacancy Announcement document.  Applications are currently being accepted.  For any questions, please contact Ethel B. Branch, Attorney General at 928/871-6345.

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

ABA Young Lawyers Division Panel “YLD Forty Years Later: What is the State of Young Native American Lawyers in the Legal Profession?”

Mary Smith, Dr. Arin Reeves, Tommy Preston, Makalika Naholowaa, Lauren van Schilfgaarde, and Colleen Lamarre

Mary Smith, Dr. Arin Reeves, Tommy Preston, Makalika Naholowaa, Lauren van Schilfgaarde, and Colleen Lamarre

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

Keepseagle Settlement Modification Materials

Here are selected materials from Keepseagle v. Vilsack (D. D.C.):

779-1 Keepseagle Motion to Modify

782 Plaintiffs Opposition to Motion to Modify

784 Great Plaints Plaintiffs Amicus Brief

786 US Opposition

787 Intertribal Ag Council Amicus Brief

793 Keepseagle Reply

811 DCT Order

Here is Judge Sullivan’s opening commentary:

This case places the Court in the unenviable position of enforcing a five-year-old bargain that nobody likes. The bargain at issue is not any old contract; rather, it is a settlement agreement that resolved a major civil-rights class action, was approved by the Court in accordance with the Federal Rules of Civil Procedure, and was made final by that approval and the lack of appeal therefrom. The story that led this case to its current posture is as unique as it is disappointing. In brief, the $680,000,000 in damages that were awarded under the settlement agreement was intended to compensate Native American farmers who alleged that the United States Department of Agriculture discriminated against them personally. The agreement created a claims process for distributing this money, but the claims process failed and $380,000,000 remains undistributed. The scope of this failure is monumental; the reasons for it remain unclear.
The agreement was finalized before the claims process began, so no one anticipated such a large amount of excess funds. But the parties did anticipate that some money might be leftover, so they included in their settlement agreement a cy presprovision, which directs that all leftover funds be distributed in equal shares to a group of charities that serve Native American farmers and ranchers that were to be chosen by Class Counsel. Now, faced with the prospect of over half of the plaintiffs’ damages being distributed in equal shares to charities nominated by Class Counsel, many class members regret that part of their agreement and want to change it. Principal among those class members is Marilyn Keepseagle, who has asked the Court to modify the agreement to create a renewed claims process to distribute more of the money to individual class members. Others, including Class Counsel, ask to modify only the charitable-distribution procedures to accommodate the large amount of money to be distributed by: (1) allowing it to be distributed in unequal shares scaled to an organization’s capacity; (2) spreading the distribution over twenty years; and (3) placing distribution decisions in the hands of a trust run by Native American leaders.
Unless there is a legal basis for this Court to modify the agreement, the Court must enforce the agreement reached in 2011. Doing so would frustrate all parties’ goals. Contrary to the Keepseagles’s wishes, the funds would remain entirely for charitable distribution. Contrary to the goals of Class Counsel and the government, that charitable distribution would be pursuant to the arguably inefficient procedures that were designed to handle a much smaller amount of money. This result could be viewed as both unjust and inefficient. Over half of the class’s damages would be distributed to third parties, despite the relative ease with which class members could be identified, the claims process reopened, and previously successful claimants permitted to prove that they suffered damages in excess of the compensation they have obtained.
The Court’s role is not to craft a new compromise based upon the Court’s own views about the appropriate amount of compensation due to class members who alleged decades-long, and, in many cases, life-altering discrimination at the hands of their federal government. Nor is it to create a preferred process for distributing the funds to charity. Before the Court is a simple question: Are any of the narrow circumstances in which a court’s final judgment may be modified present in this case?
The avenues proposed by the parties for unilateral modification—Class Counsel’s attempt to realign the charitable-distribution procedures pursuant to Federal Rule of Civil Procedure 60(b)(5), and the Keepseagles’s attempt to reopen the claims process pursuant to the legal doctrine governing unclaimed funds as well as Rules 60(b)(5) and 60(b)(6)—are simply inapplicable, as the Court discusses in detail in Parts II.A and II.B of this Opinion. Absent a way to modify the agreement unilaterally, the parties must come to a consensus themselves, which their settlement agreement defines as “the written agreement of the Parties.” As the Court finds in Part II.C, this language requires more than the agreement of Class Counsel and the government, over the objection of at least one class representative and many class members, which is what is presented by Class Counsel’s proposed modification. It also requires more than an alignment between Class Counsel, the class representatives, and members of the class, who would all prefer that the money be distributed directly to class members. Because there is no consensus within the meaning of the agreement, and because the parties’ proposals for unilateral modification are legally insufficient, the Court DENIES both pending motions for modification of the settlement agreement. The Court expects that there will be review of the legal conclusions reached in this Opinion by appellate courts. Upon resolution of appellate proceedings, if this Court’s legal conclusions are undisturbed, the Court will grant the Parties a period of time to negotiate an agreement that they may jointly present to the Court.
Posted in Author: Matthew L.M. Fletcher, Research | Tagged , , | Leave a comment

Oklahoma v. Hobia Cert Stage Briefing Complete


Petition for a Writ of Certiorari

Hobia Cert Opp

Oklahoma Reply

Lower court materials here.

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

Alaska Attorney General Publishes Opinion Regarding State Enforcement of Tribal Protection Orders

Link to full press release here  .

Attorney General Craig Richards published a formal Attorney General Opinion today regarding whether state and local law enforcement can enforce a tribal protection order that has not been registered with the court system. The opinion had been requested by Commissioner Folger, Department of Public Safety in order to provide clarity to the State Troopers in carrying out their duties.

This Opinion concludes that a tribal protection order does not need to be registered with the court system before a State trooper or other officer can enforce it. The protection order will be immediately enforceable if it meets the criteria outlined in the federal Violence Against Women Act (VAWA).

“This Opinion provides clear direction to officers on the ground as well as the victims they seek to protect,” said Attorney General Richards. “There should now be no doubt that these protection orders must be enforced.

Opinion available here Opinion Alaska Tribal Protection Orders

News coverage here .

Posted in Author: Victoria Sweet, News | Tagged , , , | Leave a comment

Wisconsin v. Ho-Chunk Nation Cert Petition re: e-Poker


Wisconsin v. Ho-Chunk Nation Cert Petition

Question presented:

The Indian Gaming Regulatory Act (IGRA) defines authorized Indian gaming as Class I, Class II, or Class III. 25 U.S.C. § 2703. Unlike Class III gaming, Class II is not subject to tribal-state gaming compacts. 25 U.S.C. § 2710. Class II gaming includes card games that “are not explicitly prohibited by the laws of the State.” 25 U.S.C. § 2703(7)(A)(ii)(II). Wisconsin’s Constitution prohibits the state legislature from authorizing any form of gambling, including poker. See Wis. Const., art. IV, § 24(1).
Prior to Congress enacting IGRA, the Court held that a state cannot enforce its gambling laws on Indian land when its policy toward gambling is civil and regulatory, rather than criminal and prohibitory. California v. Cabazon Band of Mission Indians,480 U.S. 202, 210 (1987). Here, the Seventh Circuit applied Cabazon to interpret IGRA. It concluded that the electronic poker offered by the Ho-Chunk Nation is Class II, not Class III, when Wisconsin’s policy toward gambling and poker is regulatory, rather than prohibitory. Under this approach, the Nation can offer e-poker in Madison, Wisconsin despite the parties’ compact, which does not authorize Class III gaming in Madison.
The question presented is:
Whether Cabazon’s “regulatory/prohibitory” test that pre-dates IGRA applies to determine whether a game is Class II or Class III gaming under IGRA?

Lower court materials here.

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

Alex Skibine on Federal Control over Tribal Property and The New Equal Protection

Alex Tallchief Skibine has published “Using the New Equal Protection to Challenge Federal Control over Tribal Lands” in the Public Land and Resources Law Review.

Here is an excerpt of the conclusion of the article:

Indian tribes and their members are probably the only people who are subject to federal restrictions on the management of their own lands because of their status. While the law prevented Indians from successfully challenging these restrictions on equal protection grounds, recent development in equal protection jurisprudence has opened new possibilities. This article [argues] that while congressional restrictions imposed on Indians pursuant to the Indian Commerce Clause do not create racial classifications, these laws can be successfully challenged on equal protection grounds alleging that they were either enacted pursuant to unconstitutional animus or are not rationally tied to the true congressional purpose behind the legislation.

Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged , | 1 Comment

Chemehuevi Tribe Sues San Bernardino Count Sheriff for Interfering with Tribal Police Operations

Here is the complaint in Chemehuevi Tribe v. McMahon (C.D. Cal.):

1 Complaint

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