I’ll be presenting a talk titled “At the Margins of the Constitution: Native Voting Rights.” The talk draws from this short paper.
Author: Matthew L.M. Fletcher
Split Virginia SCT Applies Best Interests of Child Analysis in ICWA Case
Here is the opinion in Dinwiddie Dept. of Social Services v. Nunnally.
The dissenters point out that 14 (now 15) state courts have addressed whether to use the best interests of the child analysis:
Most states that have confronted the issue we face today have held that a “best interests” consideration is inappropriate under the “good cause” analysis in Section 1911(b). Eight states have conclusively adopted this position, including Colorado, Illinois, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, and Texas.2Link to the text of the note People ex rel. J.L.P., 870 P.2d 1252, 1258 (Colo. Ct. App. 1994); In re Armell, 550 N.E.2d 1060, 1065-66 (Ill. App. Ct. 1990); In re Child of: R.L.Z. and R.G.L, 2009 Minn. App. Unpub. LEXIS 1015, at *14-16 (Minn. Ct. App. 2009) (unpublished); C.E.H. v. R.H., 837 S.W.2d 947, 954 (Mo. Ct. App. 1992); In re Interest of Zylena R. v. Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012) (overruling its decision to allow a “best interests” consideration in In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992)); In re Guardianship of Ashley Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993); In re Interest of A.B. v. K.B., 663 N.W.2d 625, 633-34 (N.D. 2003); Yavapai-Apache Tribe, 906 S.W.2d at 169-71.
Only a minority of six states allow a “best interests” consideration in the Section 1911(b) “good cause” analysis, including Arizona, California, Indiana, Montana, Oklahoma, and South Dakota.3Link to the text of the note In re Maricopa Cnty. Juvenile Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. Ct. App. 1991); In re Alexandria P., 228 Cal. App. 4th 1322, 1355-56 (Cal. Ct. App. 2014); In re Adoption of T.R.M., 525 N.E.2d 298, 308 (Ind. 1988); In re T.S., 801 P.2d 77, 79-80 (Mont. 1990); Carney v. Moore (In re N.L.), 754 P.2d 863, 869 (Okla. 1988); In re Guardianship of J.C.D., 686 N.W.2d 647, 650 (S.D. 2004).
Four other state courts have acknowledged the issue, but avoided resolving it because the issue was not properly before the court. Ex parte C.L.J., 946 So.2d 880, 893-94 (Ala. Civ. App. 2006); In re C.R.H., 29 P.3d 849, 854 n.24 (Alaska 2001); In re J.L.A., 2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App. 2007) (unpublished); In re Guardianship of J.O., 743 A.2d 341, 348-49 (N.J. Super. Ct. App. Div. 2000).
Fodder for a law student note….
Kate posted the lower appellate court decision here.
Michigan SCT Justice Mike Cavanagh OpEd: “Inaugural tribal-state court forum addresses child welfare issues”
Justice Cavanagh’s op/ed is available here.
An excerpt:
Our inaugural Tribal State Federal Judicial Forum meeting this week focused on issues of Indian child welfare, on outlining the scope of the Forum’s work, and on organizing our leadership. We examined what forums in other states are doing to find examples of best practices and innovations. Also, we delved into the ICWA as the “gold standard,” as well as the importance of judicial leadership and collaboration.
Because we can’t know where we should be headed if we don’t know where we are now, the Forum also received updates on Michigan Indian child welfare data, and child welfare services and resources from the State Court Administrative Office.
Most importantly, the Forum finalized our Naakonigewin, or Charter, which defines our make-up, appointment process, and governance. The Charter will not only solidify and formalize a valuable, long-standing relationship, but it also will lay the groundwork for future collaborations among the courts. The Charter will guarantee that while the names may change, the mission will continue.
As we opened our meeting with a traditional tribal pipe ceremony and drums, I had the honor of sharing some reflections on my lifelong commitment to improving relations between our sovereign governments and our people. I am also excited to hand over my role as Supreme Court Tribal Liaison Justice to the Forum to Justice Bridget McCormack. I have no doubt she will bring even more passion and dedication to the task.
I am positive that the Forum, under the guidance of Justice McCormack, its tribal and state judge co-chairs, and the participation of many of the state’s and tribes’ most dedicated jurists, will continue to find common ground to accomplish wonderful things for all our children. The measure of our success will be reflected in strong relationships, linking our peoples, learning from the lessons of the past and leading our children to a better future.
Alex Skibine on Indian Law and the New Equal Protection
Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.
Here is the abstract:
There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”
Highly recommended!
CMU Native American Heritage Month Schedule
2015 NNALSA Moot Court Problem Released
For Immediate Release
October 31, 2014
CONTACT:
Alex Kitson, NNALSA Public Relations Director
nnalsa.publicrelations@gmail.com
Moot Court Press Release
The National Native American Law Students Association is pleased to announce the release of the 2015 National Native American Law Students Association Moot Court Competition Problem. The problem and additional information about the competition can be found at http://www.law.arizona.edu/iplp/moot_court/.
The 23rd Annual NNALSA Moot Court Competition will be held on March 6-7, 2015, at The University of Arizona James E. Rogers College of Law campus in Tucson, Arizona.
New Scholarship on UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation
Dr. Jesse Hohman has posted “The UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation” on SSRN. It is forthcoming in Oxford Commentaries on International Law – A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples.
Here is the abstract:
The importance of international legal provisions protecting the right to indigenous survival, both individually and collectively, can only be understood in light of the fact that to date, legal standards have not protected indigenous peoples from much of the violence perpetrated against them. Rather, international and domestic laws have often served as instruments to perpetrate cultural and personal extinction and assimilation. From the earliest encounters between Westphalian international law and indigenous peoples, international law operated so as to bring indigenous peoples within its reach, yet deny them the benefits of its protection.
This chapter of a forthcoming Oxford Commentary, considers the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), specifically Articles 7(2); 8 & 43. The paper maps out how these provisions relate to the existing legal landscape of indigenous rights, and assesses what they have added to that landscape.
The specific issues raised by these provisions are the issue of collective rights; the relationship between cultural and individual assimilation; the prohibition of genocide; the legal status of the concept of ethnocide or cultural genocide; the question of legal duties to prevent harms and violence against indigenous peoples and communities; and the concept of minimum standard rights in the context of indigenous peoples’ dignity and well-being.
These provisions of the UNDRIP are, accordingly, some of the most central, if under-examined, of the Declaration.
Tink Tinker Article: “Redskin, Tanned Hide — A Book of Christian History Bound in the Flayed Skin of an American Indian”
Gun Lake Tribe Hosts Science and Cultural Presentation on Wolves
Paskenta Gaming Injunction Case Voluntarily Dismissed
Here are the new materials in State of California v. Paskenta Band of Nomlaki Indians (E.D. Cal.):
32 California Motion for Dismissal without Prejudice
34 Paskenta Notice of Voluntary Dismissal
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