Author: Kate Fort

Harvest Institute Freedman v. Salazar, Sixth Circuit

Kate Fort1 Comment

The Sixth Circuit dismissed the Harvest Institute Freedman Federation’s claim against the Cobell v. Salazar settlement:

The Harvest plaintiffs claim that the Freedmen were wrongfully excluded from ownership of the IIM Accounts due to racism, and that it perpetuates racial discrimination for Congress to not address their claims at the same time that it addresses the claims of the Cobell class. Along with their Complaint, the Harvest plaintiffs moved the district court for a temporary restraining order; the United States responded by filing Rule 12(b)(1) and 12(b)(6) motions to dismiss based on lack of subject matter jurisdiction and failure to state a claim, respectively.

Brief of Appellants

Brief of Appellees (Government)

Reply Brief

Opinion (unpublished)

Toronto Star: Native Youth Encouraged to Consider Law Degree

Kate Fort

Here.

The program is part of a growing bid by universities and colleges to reach out to aboriginal youth, who have among the lowest participation rates in higher education. The program was financed by the U of T law faculty and York’s Osgoode Hall as well as grants from the Law Foundation of Ontario and the Law School Admission Council.

But outreach can work, said U of T law dean Mayo Moran. “Aboriginal youth are hungry for opportunities to learn about the law and post-secondary options; we received double the number of applicants for available spaces.”

Osgoode Dean Lorne Sossin said he hoped that letting students meet aboriginal lawyers and students and even Ontario Court of Appeal Judge Harry LaForme can help students picture themselves in law.

LaForme, a member of the Mississaugas of the New Credit First Nation, didn’t sugar-coat their prospects; he admitted it was lonely being an aboriginal judge but noted that being part of an oppressed minority has made him sensitive to injustice facing others — and helped him craft the landmark ruling in 2002 that legalized same-sex marriage.

Thanks to J.B.P. for sending this to us.

Senate Indian Affairs Oversight Hearing on Federal Recognition

Kate Fort

With a BIA official

OVERSIGHT HEARING

on Federal Recognition: Political and Legal Relationship between Governments

Thursday, July 12 2012
2:15PM
Senate Dirksen Bldg 628
Description:

The purpose of this hearing is to examine the process of recognizing tribes through the Administrative and Congressional processes.

The Honorable Jim Webb
United States Senator, Washington, DC

Witnesses
Panel # 1

Mr. Bryan Newland
Senior Policy Advisor to the Assistant Secretary
Indian Affairs, U.S. Department of the Interior, Washington, DC

Testimony

Panel # 2

The Honorable Stephen R. Adkins
Chief
Chickahominy Indian Tribe, Charles City, VA

Testimony

The Honorable Paul Brooks
Chairman
Lumbee Tribe of North Carolina, Pembroke, NC

Testimony

Mr. John Norwood
Co-Chair
National Congress of American Indian Taskforce on Federal Acknowledgment, Washington, DC

Testimony

Mr. K. Jerome Gottschalk
Staff Attorney
Native American Rights Fund, Boulder, CO

Testimony

Mr. Michael J. Anderson
Owner
Anderson Indian Law, Washington, DC

Testimony

Rare Published California ICWA Notice Case

Kate Fort

This case was originally decided on May 22, 2012 as an unpublished decision. Today the court decided to publish the case.

Decision in Kroner v. Oneida Seven Generations Corp.

Kate Fort

The collected documents from the Kroner decision:

Kroner Opening Brief
OSGC response brief
Kroner Reply Brief
Kroner Opinion

Kroner COA Brief
Oneida COA Brief
COA Decision

SCAO Training on ICWA Qualified Expert Witnesses

Kate Fort

The information is here.

Purpose: This training will help child welfare professionals understand the role of the QEW and will provide practice tips on how to effectively present QEW testimony. This will include testimony on tribal history, tribal perspective on children and childhood, cultural expectations, specific tribal family history, and the unique needs of the Indian child. In addition to improving foundational knowledge on the role of the QEW, the training will also help judges to evaluate the quality of the testimony as well as further aid attorneys in conducting direct and cross examination of the QEW. The morning session will feature a presentation on the role of the QEW in ICWA cases. The afternoon session will offer hands-on exercises demonstrating QEW testimony in an ICWA case.

Target audience: Judges (state and tribal); referees; other court staff; attorneys; DHS caseworkers; other DHS child welfare personnel; and private agency caseworkers.

Memorandum from Judge in ICWA Case out of South Dakota’s Seventh Circuit

Kate Fort4 Comments

We would call this a shocking opinion in case #A12-245 for various reasons, but here is one excerpt:

First, the Tribe does not have a fundamental right to fairness under ICWA, even though the parents and children do. ICWA serves as a procedural prophylactic which permits, or compels, a state court to transfer a child custody proceeding to tribal court so that the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option, could invoke that that jurisdiction and have the case transferred into tribal court. However, it elected not to do so. Consequently, state law prevails in the 48-hour hearing, and Indian parents who appear before the Court are subject to those rules at that stage.

Of course, if ICWA doesn’t apply at the 48 hour hearing, it’s hard to figure out how the Tribe would even know to move to transfer the case.

This is one of those most ICWA hostile opinions we’ve read in a while–especially the parts about proceeding informally, and the endless loop the court creates in not applying ICWA in emergency hearings.

Judge Sherigan to Receive LSC Pro Bono Award

Kate Fort

Judge Angela Sherigan, tribal judge for Little River Band of Ottawa Indians, was selected to receive the Pro Bono Award from Legal Services Corporation. The event will be held at U of M law school on Thursday, July 26 from 1:30-7:30 pm.

The nomination is here.

State Continues to Hold Cigarettes While Challenging Court Order

Kate Fort

News coverage here.

Previous coverage of HCI Distributing v. New York State Police here.

H/T C.G.

In re Alvarez, Unpublished Michigan COA Opinion

Kate Fort

Here.

A strange case with not great language about the non-Indian parent and active efforts.