Very prestigious. Congratulations to Charles! 
Notice here.
Museum at Warm Springs Awards Charles Wilkinson with the Twanat Award
Very prestigious. Congratulations to Charles!
Notice here.
Author: Matthew L.M. Fletcher
Highlights from Wisconsin ILSA’s 2013 Coming Together of Peoples Conference
Sorry for delay, but this happened over last weekend. Chi-miigwetch again to the Wisconsin ILSA law students, especially Jason Sanders for inviting me. And for my troubles (there just weren’t any), I received possibly the greatest gift any speaker can receive — a gargoyle. And it all happened as the ajijaak returned:
Please see after the fold for my not-so-competent pics of the speakers:
Marcia Zug on the Adoptive Couple Case
Marcia Zug has published “Adoptive Couple v. Baby Girl: Two-and-a-Half-Ways to Destroy Indian Law” in Michigan Law Review’s First Impressions.
The synopsis:
In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (“ICWA”) mandated Veronica’s return. However, the court’s decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act’s repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court’s decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not legally complex. Therefore, the Court’s interest is surprising and likely means that this case will determine more than the fate of a single child.
The court returned Veronica Capobianco to her biological father because the termination of his parental rights and the subsequent adoption attempt did not comply with the requirements of ICWA. South Carolina law would have permitted the involuntary termination of Brown’s parental rights, but ICWA supersedes state law and forbids such involuntary terminations. Consequently, because Brown never relinquished his rights, the family court held that Veronica was not eligible for adoption and that she must be returned to Brown. The South Carolina Supreme Court subsequently affirmed this decision. The court agreed that under the clear language of the Act, Brown qualified as a “parent” and that the termination of his parental rights must comply with ICWA.
GAO Recommends Intergovernmental Agreements between Dept. of Homeland Security and Border Tribes
Here is the report.
The summary:
The Department of Homeland Security (DHS) is coordinating in a variety of ways with tribes, such as through joint operations and shared facilities and Operation Stonegarden—a DHS grant program intended to enhance coordination among local, tribal, territorial, state, and federal law enforcement agencies in securing United States borders. However, the Border Patrol and tribes face coordination challenges. Officials from five tribes reported information-sharing challenges with the Border Patrol, such as not receiving notification of federal activity on their lands. Border Patrol officials reported challenges navigating tribal rules and decisions. Border Patrol and DHS have existing agreements with some, but not all, tribes to address specific border security issues, such as for the establishment of a law enforcement center on tribal lands. These agreements could serve as models for developing additional agreements between the Border Patrol and other tribes on their specific border security coordination challenges. Written government-to-government agreements could assist Border Patrol and tribal officials with enhancing their coordination, consistent with practices for sustaining effective coordination. DHS established an office to coordinate the components’ tribal outreach efforts, which has taken actions such as monthly teleconferences with DHS tribal liaisons to discuss tribal issues and programs, but does not have a mechanism for monitoring and overseeing outreach efforts, consistent with internal control standards. Such monitoring should be performed continually; ingrained in the agency’s operations; and clearly documented in directives, policies, or manuals to help ensure operations are carried out as intended. Implementing an oversight mechanism could help enhance DHS’s department-wide awareness of and accountability for border security coordination efforts with the tribes while identifying those areas that work well and any needing improvement.
Consolidated Tribal Health Project Inc. v. US — Complaint against IHS for Constract Support Costs
Here:
An excerpt:
This is a suit against the United States for breach of contract and statute by the Indian Health Service (“IHS”), an agency in the Department of Health and Human Services (“HHS”). Plaintiff, the Consolidated Tribal Health Project, Inc. (“CTHP”), seeks money damages under the Contract Disputes Act, 41 U.S.C. § 7101 et seq. (“CDA”), based on the Secretary’s repeated violations of CTHP’s contractual and statutory right to the payment of full funding of contract support costs (“CSC”) for contracts entered under the Indian Self-Determination and Education Assistance Act (“ISDEAA”), Pub. L. No. 93-638, as amended, 25 U.S.C. § 450 et seq.
Federal Court Finds Unkechauge Reservation Smoke Shops Liable for Violations of Federal Law in City of New York v. Golden Feather Smoke Shop
Here are the materials:
Remaining Defendants’ Cross-Motion
An excerpt:
For the reasons below, the Court grants the City summary judgment as to defendants’ liability under the CCTA and the CMSA. With respect to relief, the Court (1) grants the requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use”; (2) awards damages as against the Peace Pipe and TDM defendants; (3) awards civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (4) awards the City attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Vera Scanlon by report and recommendation.
And the bad news (liability):
For the reasons stated, the Court concludes the following: As to defendant Phillips, the City is directed to clarify whether it is still seeking monetary relief against him, and if so, to submit further damages briefing that identifies the amounts the City is seeking against Phillips only. As to the Peace Pipe, TDM, and Red Dot defendants, the Court finds that the City is entitled to summary judgment on (1) defendants’ liability under the CCTA and the CMSA, and (2) its requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use.” In addition, the Court awards to the City (1) damages in the amount of $10,041,075 as against the Peace Pipe defendants and $450,000 as against the TDM defendants; (2) civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (3) attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Scanlon by report and recommendation.
Texas Dept. of Criminal Justice Response Brief in Fifth Circuit Religious Freedom Case
South Dakota SCT Remands Conviction Appeal for Hearing on Potential Batson Violation (Race Discrimination in Jury Selection)
Here is the opinion in State v. Scott.
An excerpt:
Defendant was convicted of aggravated assault. On appeal, he alleges multiple errors in his trial. We affirm all issues but one. On that issue, we remand for further proceedings on a potential Batson violation.
Federal Court Rules Against King Mountain Tobacco in Dispute with Washington State
Here are the materials in King Mt. Tobacco Co. v. McKenna (E.D. Wash.):
Washington AG Motion for Summary J
King Mountain Tobacco Motion for Summary J
An excerpt:
Based on the finding above that the finished cigarettes and roll-your-own tobacco [24] are not directly derived from trust land, King Mountain can prove no set of facts in support of the claim that Washington’s escrow statutes are in conflict with the Treaty or federal law which would entitle Plaintiffs to relief. Escrow is required for all non-exempt sales subject to the State’s cigarette taxes, regardless whether those sales occur on or off the reservation. Escrow isnotrequired for tax exempt King Mountain sales of cigarettes purchased directly by enrolled members of federally recognized Indian tribes from an Indian tribal jurisdiction of the member’s tribe for the member’s own use. If there were any past sales that were exempt from state excise tax, but for which King Mountain has deposited money into escrow anyway, King Mountain has failed to offer evidence in support of a refund claim and the court expresses no opinion concerning the same. Accordingly, King Mountain, a NPM, is required to comply with the escrow statute for all past and future sales deemed “units sold.”
Schimmel Family Documentary (“Off the Rez”) Reairs Tuesday, April 9
“Off the Rez,” the documentary about the Schimmel family, will be re-airing this Tuesday, April 9th, at 6:00pm Eastern Time on Discovery’s Fit and Health Network.
NPR coverage from 2011 here.
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