Author: Kate E. Fort

Opinion in Westmoreland v. Dept of Revenue: Taxes Paid to Crow Tribe on Coal Mine Not a State Tax Deduction

Kate Fort2 Comments

Opinion here.

Applying § 15-35-102(11), MCA, to disallow a state tax deduction does not undermine the Tribe’s sovereign authority to tax or govern itself. The Legislature has simply chosen to limit the class of governments to which payment of taxes constitutes a deductible expense for coal producers. By so doing, the Legislature did not implicate tribal sovereignty.
Moreover, as the Department notes, WRI lacks standing to raise a claim implicating the Tribe’s sovereignty. See Northern Border Pipeline Co. v. State, 237 Mont. 117, 128-29, 772 P.2d 829, 835-36 (1989) (Taxpayer corporation had standing to challenge a state property tax, but did “not have standing to assert the Tribes’ sovereign right of self-government in doing so.”). The District Court did not err in so concluding.

Appellant’s Brief

Appellee’s Brief

Reply Brief

Indiana Alternative Medicaid Expansion Plan Rejected for Failure to Consult with Tribe

Kate Fort

Here.

 

A federal agency has asked the Pence administration to resubmit its proposal for an alternative Medicaid expansion because Indiana’s initial application didn’t include input from a band of Potawatomi Indians.

 

The Centers for Medicare and Medicaid Services returned the state’s proposal last month, two weeks after the state submitted the plan. Federal officials wrote that they could not begin their formal review until Indiana consulted the tribe.

“Specifically, at time of submission, the state did not meet the requirements for tribal consultation with the Pokagon Band of Potawatomi Indians,” wrote Angela Garner, the acting director of the federal agency’s division of state demonstrations and waivers.

Two Additional Links of Interest Regarding the Nebraska ICWA Truancy Case

Kate Fort2 Comments

Here is the audio of the oral arguments for the case we posted on here.

And here is a UCLA Law Review Discourse (online) article on the problematic framing of truancy in general.

Nebraska Court of Appeals Overturns Lower Court Removing Child for Truancy Under ICWA

Kate Fort2 Comments

Opinion here (from June 24).

On February 26, 2013, the juvenile court ordered Mischa to be placed into foster care and the case plan was modified to allow for liberal visitation of Mischa with her family. In reaching this decision, the court noted the parents’ argument that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides that foster care placement may not be ordered in the absence of a determination by clear and convincing evidence includ- ing testimony of qualified expert witnesses that continued custody by the parent or Indian custodian is likely to result in serious emotional and physical damage to the child. The court found that serious emotional damage would result to Mischa as a result of insufficient education. The court found, however, that even in the absence of such proof, the statute is unconstitutional as applied in this case, stating that “Indian children are entitled to no less educational opportunity than other children and accordingly, as applied in this particular case, such statute is unconstitutional to the extent that it would deny Mischa educational opportunity even in the absence of serious emotional and physical damage . . . .” The order was silent on whether active efforts had been provided to prevent the breakup of this family. Deanna and Chris subsequently perfected their appeal to this court.

Job Posting at VA Office of Tribal Relations

Kate Fort1 Comment

Here.

This position is located in the Central Office of the  Department of Veterans Affairs in Washington, DC.  The incumbent is the primary staff support resource for the Office of Tribal Government Relations.

Duties included:

-Performs as an advisor within the Office of Tribal Government Relations (OTGR) and is responsible for prioritizing and coordinating issues relating to the Department’s daily relationship with tribal government leaders and representatives.

-Serves as the subject matter expert and secondary liaison with other federal Department and Agency support staff in tribal consultation.

-Researches and keeps abreast of issues and initiatives that may relate to OTGR activities.

-Plan and evaluate topics requiring higher level programmatic attention, developing background information on tribal veteran issues, drafting of office position papers, executive summaries, Congressional correspondence and associated communication documents for higher level review.

-Actively participates in staff and/or management level meetings and discussions pertaining to the activities encompassed in the management functions of OTGR.

-Follows ups on newly implemented or adapted policies and procedures as directed.

-Serves as the action officer for short and long-range efforts and program functions within OTGR.

-Advises management on tribal consultation strategies, sources, and special programs that emphasize affirmative action in conveying program initiatives.

-Assist with a variety of one time and recurring projects, reports, and studies relating to the evaluation of a wide variety of personnel management subjects.

Unpublished California ICWA Opinion Reversing for Non-Compliance

Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.

ACLU Blog Post on Oglala Sioux Tribe v. Van Hunnik

Kate Fort

Here.

Previous coverage here.

Training Annoucement from NICWA

Kate Fort

Join us for our upcoming training institutes. These interactive and energetic courses are taught by dynamic trainers who are experts in the field of Indian child welfare. Led by those with an extensive experience working with tribal communities, participants will also enjoy the opportunity to network with other attendees from tribal, state, and national agencies located throughout the country. For more information visit www.nicwa.org/training/institutes/. Contact Lauren Shapiro at lauren@nicwa.org with any questions. Choose from one of the following trainings:

Virtual Classroom: Enhancing Basic Skills for Tribal Child Welfare Workers
Tuesdays, July 15–August 12, 2014, 9:00 a.m.–10:30 a.m. PDT
Wednesdays, October 1–29, 2014, 9:00 a.m.–10:30 a.m. PDT

September 8–10, 2014: Portland, Oregon
Positive Indian Parenting
ICWA Basics and Advanced ICWA

December 1–3, 2014: San Diego, California
Positive Indian Parenting
ICWA Basics and Advanced ICWA

April 23–24, 2015: Portland, Oregon
Positive Indian Parenting
ICWA Basics

Positive Indian Parenting
Positive Indian Parenting prepares tribal and non-tribal child welfare personnel to train American Indian and Alaska Native parents using a culturally specific approach. This two- or three-day train-the-trainer class will draw on the strengths of historic Indian child-rearing patterns and blend traditional values with modern skills.

ICWA Basics & Advanced
ICWA Basics is a two-day training that provides participants with information about the basic legal requirements of the Indian Child Welfare Act of 1978 (ICWA) and the practice issues involved with its implementation. Stay for Advanced ICWA which will provide participants with advanced strategies for implementing ICWA.

Enhancing Basic Skills for Tribal Child Welfare Workers
NICWA is bringing our training institutes to the virtual classroom! New to tribal child welfare? Want to brush up on your tribal child welfare skills? This five-part webinar series is geared toward tribal child welfare workers who want to improve their basic skills.

Two Motions for Partial Summary Judgment in Oglala Sioux Tribe v. Van Hunnik

Kate Fort3 Comments

Brief in Support of First Motion (July 2014)

Statement of Undisputed Facts (First Motion)

As a result of the fact that (a) Defendants allowed no testimony at 48-hour hearings, (b) Defendants allowed no cross-examination at 48-hour hearings, (c) often the only questions asked of the parents in a 48-hour hearing were for purposes of identification and to see if they understood their rights, and (d) Defendants never conducted the inquiries required by 25 U.S.C. § 1922, Defendants’ 48-hour hearings were completed rather quickly. Judging from the length of the transcripts that were produced, the average length of time it took to complete a 48-hour hearing, Plaintiffs estimate, was under four minutes. A number of these hearings appear to have been completed in about sixty seconds.

The brief goes on to describe the many, many individual hearings where children were kept in DSS care for 45 or 60 days with absolutely to no evidence or testimony as to why.

Due Process Motion (Second PSJ)

Due Process Undisputed Facts

Canadian Supreme Court Rules Against Grassy Narrows First Nation

Kate Fort

Decision here.

The central question on this appeal is whether Ontario has the power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.

                    Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.

                    First, although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution. Sections 109 , 92(5)  and 92A  of the Constitution Act, 1867  establish conclusively that Ontario holds the beneficial interest in the Keewatin lands and has exclusive power to manage and sell those lands as well as to make laws in relation to the resources on or under those lands. Together, these provisions give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes such as forestry. Further; s. 91(24) of that same Act does not give Canada the authority to take up provincial land for exclusively provincial purposes.

                    Second, nothing in the text or history of the negotiation of Treaty 3 suggests that a two‑step process requiring federal supervision or approval was intended. The text of the taking‑up clause supports the view that the right to take up land rests with the level of government that has jurisdiction under the Constitution. The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.

                    Lastly, legislation subsequent to the signature of the treaty and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that land by virtue of its control and beneficial ownership of the territory. It did not amend the terms of Treaty 3.