Wisconsin Federal Court Holds Tax Immunities Do Not Apply to Reacquired Reservation Land

Here are the relevant materials in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers (W.D. Wis.):

153 State Motion for Summary J

171 Towns and Assessors Motion for Summary J

172 Tribe Motion for Summary J

213 Tribe Response to 171

215 Tribe Response to 153

223 State Reply in Support of 153

228 Towns and Assessors Reply in Support of 171

232 Tribe Reply in Support of 172

245 DCT Order

Prior post here.

Montana Indian Law Section CLE (April 23 and May 7, 021)

Registration for Friday, 04/23, Day 1: Health Care Issues and Negotiating 638 Contracts; The Federal Tribal Recognition Process: Successes & Challenges, https://www.montanabar.org/events/EventDetails.aspx?id=1497435&group=

Friday, 05/07, Day 2: The Death Penalty in State & Federal Court; Holistic Responses in the Tribal Justice Systems,  https://www.montanabar.org/events/EventDetails.aspx?id=1497436

Tribal Court Lay Advocates can join the Indian Law Section as an associate member here: https://www.montanabar.org/page/ILSassociatemembership (not required to attend CLE).

Indian Law Section CLE

Presented by the Indian Law Section, State Bar of Montana; 

With the Criminal Law Section, State Bar of Montana 

Friday, April 23, 2021 & Friday, May 7, 2021

(all times MST)

Day 1: Friday, April 23, 2021

12:45 – 1:00: Opening (Lillian Alvernaz, Indian Law Section Chair & Sam Alpert, State Bar of MT)

1:00 – 2:45: Health Care Issues and Negotiating 638 Contracts

  • Panelists:  
    • Monte Mills, Associate Professor & Director of Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana 
    • Annette Brown, Attorney at Confederated Salish & Kootenai Tribes
  • Session Moderator: Maylinn Smith, Civil Prosecutor for the Confederated Salish & Kootenai Tribes
  • Session Overview: Health care in Indian Country combines treaty rights, federal statutory requirements and tribal sovereignty principles.  The panelists will examine the history and foundational concepts supporting Indian health care, the challenges in meeting the current health care needs of Indian people and tribal communities, and the opportunities available to tribal governments when creating health care systems.

2:45 – 3:00: Break

3:00 – 4:45: The Federal Tribal Recognition Process: Successes & Challenges. 

  • Panelists: 
    • Josh Clause (Mohawk Nation), Owner of Clause Law, PLLC
    • Chairman Gerald Gray (Montana Little Shell Chippewa Tribe), Chairman of Montana Little Shell Chippewa Tribe
    • Rebekah Salguero (Ocotillo Law and Policy Partners), General Counsel to Mashpee Wampanoag Tribe
  • Session Moderator: Lillian Alvernaz, Chair, Indian Law Section
  • Session Overview: This presentation will provide an overview of the tribal federal recognition process through congress and executive action. This panel will discuss both successes in obtaining recognition, and address the weighty federal oversight. Specifically, the panel will explore the Little Shell’s journey to become federally recognized and the Mashpee Wampanoag’s recent fight to remain legitimate in the eyes of the federal government. 

4:45 – 5:00:  Closing

Day 2: (presented with the Criminal Law Section, State of Montana)

Friday, May 7, 2021

12:45 – 1:00: Opening (Lillian Alvernaz, Indian Law Section Chair; James Taylor, Criminal Law Section Chair; Sam Alpert, State Bar of Montana) 

1:00 – 2:45: The Death Penalty in State & Federal Courts

  • Panelists: 
    • Michael Donahoe, Deputy Federal Defender, Federal Defenders of Montana
    • SK Rossi, Owner, Central House Strategies 
    • Gary Mitchell, Attorney, ACLU of New Mexico
  • Session Moderator: James Taylor, Managing Attorney, Tribal Prosecutors Office, Confederated Salish & Kootenai Tribes
  • Session Overview: The panel will present an overview of the federal death penalty and the ethical issues in representing someone facing a possible death sentence; the history of the death penalty in Montana with an emphasis on recent changes in the state system; and an in-depth discussion of United States v. Lezmond Mitchell

2:45 – 3:00: Break

3:00 – 4:45: Holistic Responses in the Tribal Justice System

  • Panelists: 
    • Dr. Sarah Deer, Professor, University of Kansas
    • Kathleen Littleleaf, Billings Urban Indian Health & Wellness Center
  • Session Moderators: Robin Turner (ILS Section Member) & Lillian Alvernaz
  • Session Overview: This panel will discuss the impacts of over-policing and incarceration of Native American people and how Tribal justice systems can work to holistically support individuals involved in the criminal justice system. The presenters will also explore the disproportionate victimology of the Native American population and how abiding by non-Indian systems of justice fails Native American people.

4:45 – 5:00:  Closing

Friday Job Announcements

To post an open Indian law or leadership job to Turtle Talk, send the following information to indigenous@law.msu.edu:

  1. In the email body, a typed brief description of the position which includes
    1. position title,
    1. location (city, state),
    1. main duties,
    1. closing date,
    1. and any other pertinent details such as links to application;
  2. An attached PDF job announcement.

The Tohono O’odham Office

Assistant Attorney General, Sells, AZ.  The Office of Attorney General represents the interests of the Tohono O’odham Nation in tribal, state, and federal venues. While the posting is for an Assistant Attorney General IV, the Office of Attorney General will consider applicants with less than eight years of experience. Attorneys enjoy a diverse practice, face challenging jurisdictional issues, and protect tribal sovereignty. While attorneys with expertise in all areas of Indian law will be considered, gaming experience is a plus. Please see the position description for more information. Apply here.

Hopland Band of Pomo Indians

https://turtletalk.files.wordpress.com/2021/04/hbpi-employment-application.pdfTribal Administrator, Hopland, CA. Plan, organize, coordinate, and administer, through management staff, all Tribal functions and activities; provide policy guidance and coordinate the activities of department heads and staff support; foster cooperative working relationships with community groups, inter-governmental agencies, Tribal staff and Tribal membership. Please see the position description for more information and click here for the application.

Navajo Nation Office of the Attorney General

RFP.  Under the direction of the Navajo Nation Attorney General or her designee, the Attorneys, as independent contractors, will provide legal services to the Navajo Nation Office of the Attorney General in connection with the implementation of Treasury, Small Business Administration (“SBA”), and other related programs and funding available under Covid Relief Act of 2020 and the American Rescue Plan Act of 2021, including, but not limited to the State Small Business Credit Initiative. Please see the RFP for more information.

Lummi Nation

Deputy Tribal Prosecutor II, Bellingham, WA. The Deputy Tribal Prosecutor works within the Office of the Reservation Attorney under the direction of the Legal Director and represents the Lummi Nation in criminal and civil proceedings before tribal courts. The Legal Director evaluates the job performance of the Deputy Tribal Prosecutor. To obtain a Lummi Indian Business Council (LIBC) application go to:  https://www.lummi-nsn.gov/widgets/JobsNow.php or request by e-mail libchr@lummi-nsn.gov.

Pueblo of Sandia

Assistant General Counsel- Water Environment & Natural Resources, Sandia Pueblo, NM. The Assistant General Counsel’s responsibilities will cover a wide range of legal matters that would typically confront a tribal general counsel’s office, including: providing a diverse range of legal advice to the Pueblo; performing high level legal research and analysis in various areas of law and policy specifically in relation to water and environmental law and policies; and serving as the primary contact and expert for the Pueblo’s water and natural resource legal matters, subject to the direction and oversight of the General Counsel. 6/1/2021 or until position filled. Website Link to apply here: www.sandiacasino.com/careers.

Oneida Nation (WI)

Family Court Judge, Oneida, WI.  The Family Court Judge is responsible for presiding over family law and child welfare cases; oversees proper management of the Family Court’s calendar and business, including recruiting and training guardians ad litem; supervises the Clerks of Family Court; and assists in developing the annual budget for the Family Court.  The Family Court Judge must (1) have a juris doctor from an accredited law school, (2) have at least 5 years of experience practicing in the area of family law; and (3) be licensed to practice law in the State of Wisconsin or gain admission to the State Bar of Wisconsin within one year of taking office.  For more information, please see the position description or apply at https://oneida-nsn.gov/divisions/hr-employment/job-employment/.  The position is open until filled.

Big Fire Law and Policy Group LLP

Gaming and Compliance Attorney, Omaha, NE or Winnebago, NE.  Seeking candidates with 5-10 years’ experience possessing a strong background in gaming, regulatory compliance, employment law, transactional law, and general corporate law.  This position is a new, unique, and cutting-edge opportunity to work closely with a client on large scale, state-run gaming projects.  Please send resume and cover letter to careers@bigfirelaw.com.  For more information, please see the position description. 

Litigation Attorney, Omaha, NE.  Seeking candidates with 5-10 years of litigation experience to join our metropolitan Omaha, Nebraska office. The right candidate will have the opportunity to work on cases in a variety of areas including constitutional law, environmental law, real estate, employment, tax issues, corporate/business matters, and complex federal, state and tribal court litigation at both trial and appellate levels.  Please send resume and cover letter to careers@bigfirelaw.com.  For more information, please see the position description.

ACLU of Washington

Staff Attorney/Senior Staff Attorney, Seattle, WA. Seeking an experienced attorney for a staff attorney or senior staff attorney position to build, file, and litigate through trial complex civil actions in state and federal courts to protect and advance civil liberties for all Washingtonians. Application deadline: May 27, 2021. Please see the job description for more information.

Department of the Interior, Office of the Solicitor, Northeast Region

Attorney-Advisor, Bloomington, MN (Minneapolis / St. Paul Metropolitan Area). Providing legal advice and counsel on Federal Indian Law to organizations within the Department of the Interior, including the Bureau of Indian Affairs, by writing legal opinions, handling administrative litigation, and providing assistance to the Department of Justice on judicial litigation. Closing Date – Thursday, April 15, 2021. Please see the position description for more information or click here.

Federal Public Defender, District of New Mexico

CJA Panel Administrative Assistant, Las Cruces, NM.  The office represents individuals charged with federal crimes.  This position helps manage cases assigned to the CJA panel and assists panel attorneys in various procedural aspects involving the court.  We represent a large population of Native American and Latin American communities. The closing date of the position is May 17, 2021.  All applicable information is in the attached job announcement.

Navajo Nation Department of Justice, Office of the Attorney General:

Principal Attorney, Window Rock, AZ.  Under general direction of the Assistant Attorney General, Attorney General, and Deputy Attorney General, provides professional legal work and advice to the Navajo Nation Office of the Controller (OOC), Office of Management & Budget (OMB), Office of the Navajo Tax Commission (ONTC), Navajo Tax Commission (NTC), Department of Retirement Services (NDRS), Retirement Plan Administration Committee (RPAC), Budget and Finance Committee (BFC), Investment Committee (IC), and as required, to the Navajo Nation Council, Oversight Committees, the Executive, Legislative and Judicial Branches, and Chapters regarding a wide range of legal issues.  This position is open until filled, please see the position description for more information or to apply.

Senior Attorney (2 positions), Window Rock, AZ.  Under general direction of Assistant Attorney General or the Attorney General, and Deputy Attorney General.  Provides legal direction to Navajo Nation Division, departments, Navajo Nation Council and committees regarding a wide range of legal issues, including statutory and regulatory compliance, contract and procurement issues, and intergovernmental relations; performs professional legal work in research, trial and other legal work; and performs related duties as required.  This position is open until filled, please see the position description for more information or to apply.

Office of the Chief Prosecutor:

Chief Prosecutor, Window Rock, AZ.  The Chief Prosecutor performs administrative, managerial, and prosecution work in directing the Office of the Chief Prosecutor and component districts including the Juvenile Justice and White Collar Crime programs.  Administers short and long range planning, organizing, directing, strategic planning for annual, external, and supplemental budgets, and related activities of the Office of the Chief Prosecutor.  Coordinates and evaluates the overall effectiveness of the assigned program offices and districts.  Responsible for adhering to the Plan of Operation and establishing annual goals and objectives, and making necessary amendments.  This position serves at the pleasure of the Attorney General.  This position is open until filled, please see the position description for more information or to apply.

2021 Summer Law Clerk – Intern Positions Available with the Navajo Nation Department of Justice:

The Navajo Nation Department of Justice (NNDOJ) provides legal services to the Navajo Nation government, including the Executive, Legislative, and Judicial Branches, and to the 110 local governing chapters.The Navajo Nation Department of Justice (NNDOJ) seeks energetic and motivated candidates for funded summer law clerk positions in the following areas of practice: Natural Resources, Tax and Finance, Litigation, Employment, Human Services/Government Services, Economic Development, Water Rights, Chapter (local) government, Relocatee Benefits. To apply, please submit the following: 1) a letter of interest; 2) resume; 3) law school transcript; and 4) a brief (5-10 page) writing sample to DOJ at general@nndoj.org.  Complete applications are due on Friday, April 30, 2021 at 5:00 p.m. Mountain Time.

Hufford and Horstman

Attorney, Flagstaff, Arizona. Provide general representation to public school districts, tribally controlled grant schools, and charter schools. Applicants must be admitted to the Arizona Bar or capable of admission within six months, and admission to the Navajo Nation Bar Association is preferred. Recruitment will continue until the position is filled. Please see the job announcement for more information and application instructions.

See posts from April 2, 2021.

OMB Withdraws Sale of Seattle National Archives For Want of Tribal Consultation

Here are new materials in State of Washington v. Fairweather:

Doc 52

OMB Memo_Withdrawing Approval for Sale of Seattle NARA Building

Prior post here.

New Scholarship on Substantial Burdens on Native Religious Exercise

Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:

Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.

The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.

This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.

The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.

New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems

Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.

The abstract:

Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.

2021 Inaugural Morelli Colloquy — Belonging and Difference: Interdisciplinary Perspectives

Here. My presentation materials are here: Anishinaabe Gaganoozh Comic Book.

Schedule

Welcome and Introductions | 9:00-9:15 a.m.

Opening Keynote Conversation | 9:15-10:15 a.m.

Break | 10:15-10:30 a.m.

First Panel | 10:30 a.m.-12:00 p.m.

Lunch Break | 12:00-1:00 p.m.

Second Panel | 1:00-2:30 p.m.

  • Sahar Aziz (Rutgers Law School)
  • Chandra Frank (University of Cincinnati College of Arts and Sciences)
  • Khary Oronde Polk  (Amherst College, Departments of Black Studies and Sexuality, Women’s & Gender Studies)

Closing Conversation | 2:30-3:30 p.m.

Planning Committee

Emily Houh
University of Cincinnati College of Law
Co-founder, Jones Center for Race, Gender, and Social Justice

Kristin Kalsem
University of Cincinnati College of Law
Co-founder, Jones Center for Race, Gender, and Social Justice

Sunnie Rucker-Chang
University of Cincinnati College of Arts & Sciences
Assistant Professor of Slavic, Director of European Studies