Author: Kate E. Fort

Final Rule on Tribal Veteran Service Officers

Kate Fort

Here. With apologies for the lateness of this post, this rule was promulgated at the end of the Obama Administration:

The Department of Veterans Affairs (VA) is amending its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. In addition, the final rule allows an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a County Veterans’ Service Officer (CVSO) may become accredited through a recognized State organization. The effect of this action is to address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations.

Effective Date: This rule is effective February 21, 2017.

CRST’s Request for a Temporary Restraining Order against DAPL is Denied

Kate Fort1 Comment

There are a lot of moving parts on the legal side of the NoDAPL fight. This latest is in Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-cv-01534, which was started in July. Those initial materials are here. Most recently in that case, the intervenor-plaintiff tribe, Cheyenne River Sioux, filed a motion for a temporary restraining order. Yesterday there was a hearing on the motion and the judge ruled from the bench:

MINUTE ORDER: As discussed at today’s status hearing, the Court ORDERS that: 1) CRST’s 99 TRO Application is DENIED; 2) Dakota Access shall provide an update on February 21, 2017, and every Monday thereafter as to the likely date that oil will begin to flow beneath Lake Oahe; 3) The Court will hold a hearing on CRST’s Motion for Preliminary Injunction on February 27, 2017, at 2:00 p.m.; 3) Oppositions to such Motion shall be due by February 21, 2017, with any Reply due by February 24, 2017; 4) SRST’s Motion for Partial Summary Judgment shall be filed by February 14, 2017, with Oppositions due by March 7, 2017, and any Reply due by March 21, 2017; 5) The Government may have a two-week extension to oppose Dakota Access’s Motion for Protective Order; and 6) Defendants may have a 30-day extension to respond to the Tribes’ Motions to Amend Complaint. Signed by Judge James E. Boasberg on 2/13/2017. (lcjeb3) (Entered: 02/13/2017)

The motion for a preliminary injunction the judge references is here.

As we posted yesterday, Oglala Sioux has also filed a lawsuit against the Army Corps (Oglala Sioux Tribe v. Army Corps of Engineers, No. 17-cv-00267), which has been assigned to the same judge.

Article on Mental Health Outcome Disparities for AI/AN Populations

Kate Fort

Identifying and Reducing Disparities in Mental Health Outcomes Among American Indians and Alaskan Natives Using Public Health, Mental Healthcare and Legal Perspectives

Hannah E. Payne  · Michalyn Steele  · Jennie L. Bingham  · Chantel D. Sloan

National Council for Adoption Case Vacated and Remanded

Kate Fort

This case was the challenge to the 2015 BIA ICWA Guidelines. The case was dismissed at the district court level, and NCFA appealed the case to the Fourth Circuit. Earlier this week, the appellants motioned to vacate, and today the court granted it. Given the BIA withdrew the 2015 Guidelines and they are no longer in effect, this makes sense.

Motion to Vacate

Order

This does mean the lower court decision is no longer precedent, to the extent we used it as such.

The Atlantic on the Presidential Memorandum on DAPL and KXL

Kate Fort1 Comment

Here.

“It’s the flip-side of the question everyone was asking last year, ‘Why doesn’t Obama just put the kibosh on Dakota Access?’” said Sarah Krakoff, a professor of tribal and resources law at the University of Colorado Boulder. “Well, it’s not really his role. It’s the Army Corps’s role, and that’s still true today.”

“Trump can’t, with the stroke of a pen, just make the Dakota Access pipeline happen. He just can’t. He doesn’t have that authority. It’s his agency’s authority, and he can’t revoke the laws that the agency just found that it has to comply with,” she added.

She added too that the executive orders seemed to be written in a typical way. Instead of commanding agencies to ignore congressionally passed law, the orders request that they expedite or reconsider previous judgments. “Executive orders are legal orders—they’re law—but they can’t contravene legislative enactments. So an executive order can’t say, ‘Ignore the [National Environmental Policy Act] and give me a pipeline,’” she told me.

“If the federal law gives decision-making authority to a particular official, that official has to make the decision,” said John Leshy, a professor of real property law and a former general counsel to the U.S. Department of the Interior. “But there’s some murkiness about what the president can do. The decision maker can say no, and then the president can fire them and replace them with someone who would. But that takes time.”

Krakoff added that it would attract judicial suspicion if the Army Corps of Engineers suddenly decided that it didn’t have to make an environmental-impact statement for the Dakota Access pipeline after saying that it did just weeks ago.

“It would be hard for them to turn around on a dime and say, ‘We got this piece of paper from the president and now we don’t think that’s necessary,’” she said. “If the agency were to take a different route, legally, now, I would strongly suspect that that would be subject to litigation.”

Presidential Memorandum on the Dakota Access Pipeline

Kate Fort4 Comments

We spend a lot of time waiting for official documents to post to make sure the information out there about them is correct. Sarah and I were waiting all afternoon for an “official” link to this memorandum, and then I realized the link would be to the website of the White House Press Office. So. For the record, I personally saw the actual document first on Twitter from Lael Echo-Hawk (@laeleh), and then on Facebook from Bryan Newland, who had it from Nicole Willis. It does appear from the text that it will eventually be published in the Federal Record, probably tomorrow or the next day.

Here is the Memorandum (technically not an Executive Order. For the quick and easy explanation of the difference you can look here, but probably should know that President Obama’s actions in Bristol Bay, for example, were also a memorandums).

This Memorandum does not itself try to eliminate the Environmental Impact Statement (EIS) process for DAPL, but asks the U.S. Corps of Engineers to expedite it and to consider rescinding or modifying the December 4th Memorandum posted here.

Standing Rock’s press release in response is here.

Order from North Dakota Supreme Court Regarding Out of State Lawyers

Kate Fort1 Comment

Here. This order is issued after receiving more than 16,000 comments on the proposed temporary rule, which was in response to the large number of arrests during the DAPL protests late last year (and which are ongoing–law enforcement clashed with water protectors over the MLK weekend). The full order is worth reading, but here are the requirements:

In criminal cases pending in the South Central Judicial District arising from arrests made during the protests of the Dakota Access Pipeline between August 1, 2016 and until further order of this Court, a lawyer authorized to practice law in another state, and not disbarred, suspended or otherwise restricted from practice in any jurisdiction, may provide legal services in North Dakota on a temporary basis. The legal services must be provided on a pro bono basis, without payment or the expectation of payment of a fee. This Order does not prohibit a lawyer providing legal services under authority of this Order from being reimbursed from nongovernmental funds for actual expenses incurred while rendering services under this Order. The following requirements, processes and procedures shall apply:

1) The lawyer seeking pro hac vice admission must complete a form available through the Clerk of the Supreme Court and file it with the North Dakota State Board of Law Examiners;

2) The lawyer seeking pro hac vice admission must file the above referenced form with a certificate from his or her resident state licensing authority certifying the lawyer is admitted, currently licensed, eligible to practice and in good standing;

3) The lawyer seeking pro hac vice admission must associate with a licensed North Dakota lawyer as required under N.D. Admission Prac. R. 3. We excuse the requirement that the North Dakota associate lawyer appear in-person and remain in court for all proceedings unless the district judge presiding in the case enters an order, based on a case-specific reason, requiring the presence of the North Dakota associate lawyer;

4) The pro hac vice filing fee is waived;

5) Upon receipt of the completed form and required materials, the North Dakota State Board of Law Examiners will provide the lawyer seeking pro hac vice admission an identification number that must be included on all pleadings filed with any court regarding these matters;

6) Each business day the Clerk of the Supreme Court shall provide the Court Administrator for the South Central Judicial District with a listing of all lawyers who have been granted pro hac vice admission as provided in this Order;

7) Lawyers admitted pro hac vice must access the North Dakota Odyssey electronic case management system through the associate lawyer unless the associate lawyer does not subscribe to North Dakota’s Odyssey case management system. If the associate lawyer does not subscribe to Odyssey case management system, the lawyer admitted pro hac vice may email filings to the clerk of court;

8) The lawyer admitted pro hac vice under this Order is not by virtue of that admission limited in the number of appearances or representations he or she can make regarding these matters;

9) The lawyer admitted pro hac vice under this Order must remain licensed and in good standing in the lawyer’s state of licensure, and must verify in writing to the North Dakota State Board of Law Examiners no later than January 5, 2018, their licensure  status and provide a listing of pending cases for which they are acting under this Order; and

10) Any allegations of misconduct by a lawyer admitted pro hac vice under this Order that is reported to the Disciplinary Board of North Dakota will be provided to the lawyer’s state of licensure, and may be grounds for revocation of pro hac vice admission under this Order.

Oregon Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys

Kate Fort

Here is the proposed rule:

{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:

(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in a child custody proceeding as defined by 25 U.S.C. §1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq.;

(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and

(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}

The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids. 

Supreme Court Denies Cert in R.P. v. LA County (Alexandria P. Case)

Kate Fort2 Comments

Order List here.

16-500 R. P., ET UX. V. LA CTY. DEPT. CHILDREN, ET AL. The motion of respondent The Minor, Alexandria P. for leave to proceed in forma pauperis is granted. The motion of respondent Father J.E. for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

This means the Supreme Court will not be hearing the case.

There are still a few issues in the California courts being litigated, so we will keep an eye on it, but this should (hopefully) be the end of this case.

 

 

2016 ICWA Appellate Cases by the Numbers

Kate Fort1 Comment

Here’s our annual contribution to the ICWA data discussion. While a few cases might yet come in, we have our final list of 2016 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation. We did this last year as well. Sadly no, I haven’t yet published this anywhere but Turtle Talk, and yes, it is next on the to-do list. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 175 appealed ICWA cases this year, down 74 from last year. There were 30 reported ICWA cases this year. As always, California leads the states with 114 cases, 10 reported. Michigan is second with 13, 2 reported. Texas, which didn’t have any cases we could find last year, had 7 cases this year, 1 reported. Then Iowa with 6, 1 reported, Oklahoma with 4 reported, Nebraska with 3, 2 reported, and Alaska and Arizona with 3, 1 reported each. States with 2 appealed ICWA cases include Arkansas (none reported), Indiana (none reported), Ohio (none reported), Oregon (2 reported), Washington (1 reported), Illinois (1 reported). Finally the following states had 1 ICWA case: Idaho, New Jersey, New Mexico, South Dakota, Utah, Kansas, North Carolina, Vermont, Kentucky, and Massachusetts.

In California, the cases further breakdown to 37 in the 4th Appellate District, 33 in the 2nd, 24 in the 1st, 9 in the 5th, 6 in the 3rd, and 3 in the 6th. California is the only state where we track by appellate districts at this time.

Supreme Courts in Oklahoma (2), Alaska (2), Idaho, Nebraska (2), South Dakota, California (2), Vermont and Washington all decided ICWA cases this year.

Of the 175 total appeals, 90 were affirmed, 67 were remanded, 14 were reversed, and the four remaining were affirmed in part and reversed in part (1), denied as moot (1), dismissed (1), vacated and remanded (1).

Top litigated issues were as follows: Notice (106), Inquiry (21), Placement Preferences (10), Active Efforts (8), Determination of Indian Child (8), Burden of Proof (5), Transfer to Tribal Court (5), Intervention, Termination of Parental Rights, Existing Indian Family, (2 cases for each one). The other cases with 1 each: Qualified Expert Witness, Indian Custodian, Tribal Customary Adoption, Application to Divorce, Ineffective Assistance of Counsel, Foster Care Placement

52 different tribes are represented in the first named tribe in a case. There were 56 cases involving claims of Cherokee citizenship. Of those appeals, 48 involved issues of notice and inquiry. In 21 cases the tribe was unknown (parent did not know name of tribe). In 14, the tribe was unnamed (court did not record name of tribe in the opinion).

4 cases were appealed by tribes (Cherokee Nation, Gila River, Shoshone Bannock). 92 were appealed by mom, 49 by dad, and 24 by both. Other parties who appealed include agency (1), child’s attorney (1), foster parents (1), great aunt and uncle (1), Indian custodian (1), and state and foster mother (1).