Who Won Indian Law and Policy 2014? First Round Bracket — 7 of 8

Now we move to Category 4, which is another miscellaneous category of sorts. Thanks for bearing with me through this.

Category 4 — Groups

# 1 1491s

Funny people. Appeared on The Daily Show and had a fine time with some Redskins fans. Went to football game, too.

Also, appeared at Michigan State! Had lunch.

v.

# 16 Borough of Jim Thorpe

Won NAGPRA case in the Third Circuit. Don’t be fooled. They’re not NAGPRA fans.

# 8 Indian country pot growers

Don’t get too excited. They haven’t won anything yet.

v.

# 9 Cobell settlement beneficiaries

Feds are looking for you. Seriously, this time they want to give you money.

# 4 Gray wolves

Brother ma’iingan won one this year. I called it. Not really.

v.

# 13 Dept. of Justice

Wait, we already covered this under Eric Holder.

The real # 13 Senate Committee on Indian Affairs

Always doing stuff.

# 5 Cohen Handbook

Going strong after all these years, maybe more than ever. Cited 27 times by federal and state courts in 2014. Holy moly!

v.

# 12 New Mexico state government

Won several important Indian law cases this year: got the Part 291 procedures invalidated, against Grand River Enterprises, got a criminal conviction affirmed where the non-Indian had originally been arrested by tribal, bunch of other stuff probably.

Who Won Indian Law and Policy 2014? First Round Bracket — 6 of 8

Second part of the third category, people and parties.

# 2 Justice Sonia Sotomayor

Everyone’s favorite Supreme Court Justice. Wrote scholarly and compelling concurrence in the Bay Mills matter. Wrote amazing dissent in the affirmative action case.

v.

# 15 McAllen Grace Brethren Church

Won Fifth Circuit case, along with Lipan Apache members, which held that the Eagle Act regs might violate RFRA.

# 7 Hon. William Canby

Just published the sixth edition of his legendary Nutshell. He’s legendary too.

v.

# 10 Frank Pommersheim

Professor, lawyer, tribal judge, poet. Posted all of his tribal court opinions online, an absolutely incredible resource. Still stirring things up in South Dakota.

# 3 Hon. Keith Harper

Confirmed as Ambassador to the United Nations Human Rights Council. Went right after violence against Indigenous women and girls.

v.

# 14 Chris Deschene

An amazing year, so far unsuccessfully challenging the Diné language requirement to run for tribal office at Navajo.

# 6 Robert A. Williams, Jr.

Probably should get his own category that we could parse out through the years, but this year was on Moyers. Force of nature.

# 11 Dean Stacy Leeds and Prof. Angelique EagleWoman

Yeah, time passes quicker than I thought. Turns out their great book, “Mastering American Indian Law,” was a 2013 masterpiece. Ok.

The real # 11 — Authors of “Structuring Sovereignty”

My favorite book of 2014, Structuring Sovereignty is a wonderful scholarly survey of modern tribal constitutions. Melissa Tatum, Miriam Jorgensen, Mary Guss, and Sarah Deer (a second appearance in the game).

Who Won Indian Law and Policy 2014? First Round Bracket — 5 of 8

In case you weren’t around yesterday, we’ve been playing a little game based on a game Grantland has been playing for a few years — Who Won 2014? Yesterday’s four posts (here, here, here, and here) ask you to vote in the first two categories, Indian nations and Doctrines, Laws, and Issues. Today, we move on to the next two categories.

Category 3 — People and Parties

#1 Hon. Diane Humetewa

The first American Indian woman to serve as a federal judge. ‘Nuff said.

v.

# 16 Kumeyaay Cultural Repatriation Committee

The beneficiary of a Ninth Circuit NAGPRA decision dismissing a brought by disgruntled academics against the University of California.

# 8 Bill Wood

Bill’s a good friend with a great sense of humor, so he might be amused. But who else’s first law review article got quoted by the Supreme Court this year?

v.

# 9 Dollar General Corp.

Yes, the people fighting the jurisdiction of the Mississippi Band of Choctaw Indians. They lost over a downright angry dissent in the Fifth Circuit, but hired Tom Goldstein of  SCOTUSBlog fame and have attracted the Supreme Court’s attention with a CVSG. Now their next hurdle is the OSG. Ah the privilege of opposing tribal interests. Think the tribe would have had the same luck?

# 4 Sarah Deer

Prof. Deer won a coveted MacArthur Foundation Genius grant. If you want to see the lengths people will go to to win one of these (fictionalized), check out Phillip Seymour Hoffman in Synecdoche, New York.

Plus she co-wrote one of the most interesting, compelling, and provocative law review articles of recent times, “Protecting Native Mothers and Their Children: A Feminist Lawyering Approach.” I bet it made ever second year law student articles editor that saw it in the slush pile squirm and quickly turn to another article on Immanuel Kant on evidentiary approaches in 18th-century Bulgaria. Kudos and much appreciation.

v.

# 13 Neal Katyal

Ah, people could be ranked higher, but it’s a competitive game. Prof. Katyal was the victorious orator in the Bay Mills case, and may make another splash with a cert petition he filed for the Seminole Tribe. We’ll know Friday.

# 5 Hon. Kevin Washburn

Ok, let’s see how many feds I can make uncomfortable. How can the Assistant Secretary be seeded so low? It’s like Navajo — there’s an enormous amount of volume, but there’s a lot of bad with the good. This “person and party”, more so than any of the others on this list, is the job more than the person. But this is a great guy, famously self-effacing, humorous (it helps to steal Sam Deloria’s jokes once in a while), kind, generous with his time (UCLA, MSU, Colorado, Fed Bar, Harvard), and individually personable.

But he’s the assistant secretary and a fair percentage of the people reading this blog envision him as sporting devil horns like Tim Curry in Legend.

v.

# 12 Hon. Eric Holder

Fed v. Fed. Another person enveloped by the position. Announced the new ICWA initiative. But also resigned (pending the Senate’s confirmation of his successor).

His agency, the Department of Justice, had an interesting year, opining about marijuana in Indian country, for example.

Suit against Western Sky/Butch Webb to Proceed

Here are the materials in Scherr v. Western Sky Financial (N.D. Ill.):

40-1 Western Sky Motion to Dismiss

47 Response

48 Western Sky Reply

51 DCT Order

Pueblo of Laguna Seeking In-House Counsel

Here:

Attorney 2014-15B

POSITION: ATTORNEY
OPENING DATE: April 22, 2014
CLOSING DATE: Open Until Filled
DEPARTMENT: Governor’s Office / Government Affairs Office
SALARY RANGE: E – 19; $67,692 – $101,537
Position Summary:
Under the direct administrative supervision of the Government Affairs Director, serves as an in-house legal advisor, representative, and counselor to the Pueblo of Laguna including programs and departments. Ensures that all applicable laws are followed to protect and enhance tribal sovereignty. Provides assistance to avoid or prevent expensive legal disputes and litigation and to protect the legal interests of the Pueblo government.

Opening Eleventh Circuit Brief in Seminole Tribe Rental and Gross Receipts Tax Challenge

Here:

Florida Opening Brief

Lower court materials here.

American Indian Law Journal at Seattle Univ. Law Call For Papers

The American Indian Law Journal at Seattle University is seeking content

My name is Jillian Held and I am the Content Editor for the American Indian Law Journal at Seattle University. The American Indian Law Journal is a fairly new academic journal. In an effort to fill a critical gap in the amount of current information available to those interested in the rapidly developing field of Indian law, the Journal employs an innovative online format. Containing a hybrid of shorter, timelier articles, published in parallel with legal developments in the field, as well as traditional, lengthier journal articles analyzing larger topics, the Journal appeals to a broad range of readers.

The Editorial Board is seeking content. This is a formal publication and will be available to practitioners, professors, students, and the general public across the country. If you are interested in providing content please submit articles to me by email. We do have a very limited number of slots open for our Spring 2015 edition, so if you are interested in submitting an article for Spring please email me your articles as soon as possible.

My email is heldj@seattleu.edu.

Who Won Indian Law and Policy in 2014? First Round Bracket — 4 of 8

Whew, losing steam. Maybe finish round 1 tomorrow.

Here’s the second half of the Category 2 bracket.

# 2 Tribal sovereign immunity

Big winner in the Supreme Court.And perhaps SCOTUS has had its fill by denying some petitions, here, here (filed out of time), and here, and here.

Some other good cases for tribes: no waiver in gaming compact (California), and Minnesota, immunity from state tax foreclosures, immunity from third party subpoenas in federal court litigation, immunity of tribally owned payday lenders, and immunity from simple contract claims.

Some where tribal interests lost: waiver through removal to federal court, waiver by virtue of not being sufficiently governmental, waiver by Congress in Bankruptcy Act, waiver by purchase of insurance, no immunity of tribal governmental organizations, and no immunity from tribal court exhaustion.

And no, Western Sky is not immune from suit.

v. 

# 15 Alternative energy

Solar power is controversial at Colorado River Indian Tribes, and wind energy at Osage. So quit messing with mineral estates and sacred sites, please!

# 7 American Indian education

2014 was the 60th year since Brown v. Board, and so Indian law programs are hosting conferences on Indian education (MSU, Kansas, and now Arizona State but that’s 2015). Dept. of Education did a listening tour. Cobell money. BIE reorganizing.

v.

# 10 Climate Change

Seems odd to seed this so low, but there’s no significant litigation out there pending (unless the Court grants cert in this), no administrative or legislative action. Depressing. There’s this:

Guidelines for Considering Traditional Knowledges in Climate Change Initiatives

UPDATE: Also, there’s this:

2014-12-24 FR CEQ NEPA draft climate effects guidance

# 3 Violence against Women Act

Good news in Alaska. Pascua going ahead full steam. Even Harvard paid attention. 2015 is when others can move ahead.

v.

# 14 Indian criminal sentencing

Sentencing disparities are prevalent. USSG is paying attention. CA8 Judge Bright believes this issue to be the biggest issue he faces.

# 6 Tribal court exhaustion

A solid year for tribal court exhaustion. Penobscot. Thlopthlocco Tribal Town. Caddo. Rosebud Sioux, twice.

v.

# 11 Tribal General Welfare Exclusion Act

Here.

Crowe & Dunlevy Seeks Indian Law and Gaming Attorney

EXPERIENCED INDIAN LAW & GAMING ATTORNEY DESIRED

Crowe & Dunlevy, one of Oklahoma’s largest law firms with offices in Oklahoma City and Tulsa, seeks an attorney with 5-9 years of experience to assist in serving clients and managing and expanding our Indian Law & Gaming practice group. The firm’s Indian Law & Gaming practice group serves numerous tribal governments and their entities and organizations, as well as international gaming companies. Our dedicated service to tribal clients include general counsel, consultation attorney general, prosecution, transactional matters, economic development, gaming regulation, compact negotiation, energy environmental law, intellectual property, and financing, in many forums including the courts and agencies of tribes, states, the federal government, and foreign and international governments. Crowe & Dunlevy seeks an outstanding qualified lawyer for the Tulsa office.

Responsibilities include:

  • Assisting and managing case load transactions and ongoing matters;
  • Mentoring and supervising junior lawyers and support staff;
  • Engaging in negotiating and concluding large financial transactions and contracts;
  • Counseling and representation in tribal corporate law and tribal government;
  • Providing counsel in economic development, business and corporate law;
  • Advising tribal governments and their agencies on tribal gaming and gaming regulation issues; and
  • Litigation in state, federal and tribal arenas.

Requirements include:

  • Juris Doctorate degree from an ABA accredited law school, with a preferred emphasis in Federal Indian Law;
  • Status as an active member in good standing of a bar association of at least one state jurisdiction and an ability and willingness to obtain licensure in Oklahoma and various tribal courts;
  • Minimum of 5-9 years of experience as an associate attorney (or agency or government equivalent) in demanding and high quality practice setting;
  • Demonstrated cultural familiarity, respect and experience in representing tribes, tribal governments and those doing business with tribes and demonstrated experience in establishing trusted relationships with tribes, tribal government and tribal business organizations;
  • Excellent analytical, research and writing abilities;
  • Outstanding academic performance, clerkships and/or law review or similar experience;
  • Proven communication skills, including verbal, written and listening skills, superior interpersonal skills and proven record of maintaining a positive attitude as well as solving problems; and
  • Exercise a high degree of working independently, leadership within a team in a fast paced practice group and large law firm.

Crowe & Dunlevy offers the ideal candidate a competitive salary and bonus opportunity, contribution to 401k, excellent benefits and superior support staff and technical and logistical support.

Send your resume/curriculum vitae, cover letter with salary requirements, several writing samples, law school transcripts and five references to Lisa Rose, Director of Human Resources, Braniff Building, 324 N. Robinson, Suite 100, Oklahoma City, OK 73102; email: lisa.rose@crowedunlevy.com; phone (405) 235-7777.

This position will have the potential to lead to shareholder membership within the firm based upon experience and performance. Applications for this position will be accepted until February 15, 2015, although the position may be filled prior to that date with the right candidate.

Who Won Indian Law and Policy in 2014? First Round Bracket — 3 of 8

Now we move to category 2 (sounds like a hurricane) — Doctrines, Laws, and Issues (aka, grabag or miscellaneous). The first four contests there….

# 1 Indian Child Welfare Act

It’s been a big year for ICWA a year after Baby Girl (we miss you so much). The Attorney General announced the Department of Justice’s commitment to the statute, the South Dakota class action filed by the Oglala Sioux Tribe is currently pending after much drama about whether Judge Davis was refusing to disclose evidence, and DOJ intervened as an amicus in an important Alaska case (as well as the South Dakota matter). Alaska will now give full faith and credit to Alaska tribal courts on ICWA matters.

The Virginia SCT issued a split opinion on what parts of state law on best interests are trumped by ICWA here, and the Kentucky Supreme Court reaffirmed its commitment the existing Indian family exception (not good, Kentucky). Montana’s Supreme Court issued a few troubling opinions expressing an infatuation with the Adoptive Couple v. Baby Girl decision.

State courts from around the country published opinions on a wide variety of ICWA subjects: tribal court transfer (Nebraska — that was a good one), father’s rights in contested adoption (Alaska), qualified expert witnesses (Arizona, Alaska), active efforts (Nebraska, Montana), termination of parental rights (Texas), placement preferences (California, and again), truancy (Nebraska), application (Oregon, North Dakota), and notice, notice, notice (Kansas COA, California –three times here, North Carolina COA, Michigan COA, California COA again, Nebraska COA, Michigan COA again

Important-ish unpublished opinions involved ineffective assistance of counsel (Michigan), active efforts (Michigan), burden of proof (Michigan), placement preferences (California), customary adoption (California), and … you guessed it … notice (Michigan COA, California COA, another Michigan COA, and yet another)

You might see a lot of Michigan here (here’s another), and that’s thanks to MIFPA.

v.

#16 Federal Indian law preemption

The Chehalis/Great Wolf Lodge matter from 2013 helped bring federal Indian law preemption back from the dead. The State of Washington was still feeling the consequences this year. The real impact may be in the BIA leasing regulations.

# 8 Rule 19

My favorite FRCP. Lots of Rule 19 action again this year, including a close call at the Supreme Court, which denied cert in the Buena Vista matter. Other cases involved Jamul Indian Village, payday lending cases, and Skokomish.

v.

# 9 Indian country voting rights

Lots of pre-election voting rights activity in South Dakota, and a big win in a voting rights trial in Alaska. And another in Montana.

# 4 Indian gaming

Billions a year for tribal communities. Relentless litigation. Enough said.

v.

# 13 Internet gaming

So far, pretty much nothing for tribal communities.

# 5 Intra-tribal disputes

This is the bad news part of the game.

Chukchansi. Timbisha-Shoshone. Caddo. Paskenta. Cayuga. Meherrin. Oglala Sioux. Pala Band. Saginaw Chippewa. Nooksack. Shingle Springs.

v.

# 12 Human trafficking

Bakken. Circumpolar region.