cultural resources

N.D. Supreme Court Holds that ICWA Doesn’t Apply to “Initial Custody Determination”

Matthew L.M. Fletcher

Here is the opinion in Schirado v. Foote.

An excerpt:

Second, the Indian Child Welfare Act (“ICWA”) does not control this case. The ICWA grants tribal courts exclusive jurisdiction over “child custody proceeding[s]” involving Indian children. 25 U.S.C.A. § 1911(a). The covered “child custody proceeding[s]” include only foster care placements, terminations of parental rights, preadoptive placements and adoptive placements. 25 U.S.C.A. § 1903(1). Despite Foote’s enrollment in the Three Affiliated Tribes and despite her exhaustive references to the ICWA in her brief and at oral arguments, the ICWA is not applicable because this case concerns an initial custody determination; a proceeding outside the purview of the ICWA. See In re DeFender, 435 N.W.2d 717, 721 (S.D. 1989).

A.A. v. Needville School District — Fifth Circuit Strikes Down School’s Long-Hair Policy

Matthew L.M. Fletcher1 Comment

Incredible opinion: Arocha Opinion July 9, 2010.

Here are the materials.

Omaha Tribe Demands $120 Million from U. Neb. Billion Dollar Fund Raiser

Matthew L.M. Fletcher

From the Rapid City Journal (thanks to V.H.):

MACY, Neb. — The Omaha Tribal Historical Research Project, a multicultural research group for the Omaha Tribe of Nebraska and Iowa, is demanding that the University of Nebraska Foundation set aside 10 percent of its One Billion Dollar Endowment Campaign, saying the university hasn’t compensated the tribe for its for-profit use in research materials of tribal material and intellectual and cultural property.

That would amount to about $120 million for the tribe.

Dennis Hastings, Omaha Tribal Historical Research Project’s founder, sent a letter to Clarence Castner, University of Nebraska Foundation head, saying that the university has commercialized the ancestral and contemporary culture of the sovereign Omaha Tribe of Nebraska and Iowa through the school’s publications, research and academic activities for the university’s growth and academic gain.

Scores of academic initiatives, programs, private, state and federal grants, research articles and books have been generated about the Omaha, all with little tribal consultation or recompense, Hastings said in the letter.

The letter is part of a larger report alleging institutional racism at the university.

No response from the university was available on Sunday.

Oklevueha Native Am. Church v. Holder — Federal Court Declines to Dismiss RFRA Claim

Matthew L.M. Fletcher1 Comment

Interesting case. Not sure if it will go anywhere. The claim is about the federal government’s seizure of cannabis from this organization based in Hawaii. Claims for an injunction against future prosecution and for tort claims related to the seizure were dismissed.

Here are the materials:

Oklevueha v Holder DCT Order

Government Motion to Dismiss

Oklevueha Response

Government Reply

An earlier motion to dismiss on the first complaint was granted (materials here).

Graham and McJohn: “Thirty Two Short Stories about Intellectual Property”

Matthew L.M. Fletcher

Lorie Graham and Stephen M. McJohn have posted their paper, “Thirty Two Short Stories about Intellectual Property,” on SSRN.

Here is the abstract:

In the United States, intellectual property law is usually viewed as serving economics, by providing an incentive for authors and inventors to create works. The incentive policy, however, ill fits the actual contours of intellectual property law and how artists and inventors use it. Adding other approaches offers a fuller explanation. Intellectual property plays a greater role than economic theory suggests in disclosing technology, and in serving to coordinate cultural values in technology. Intellectual property can serve human rights (similar to the moral rights approach in some jurisdictions), by allowing people to control the way that their works are publicly exploited, and by allowing groups (such as indigenous peoples) to implement rights of self-determination, education, and media.

This piece also departs from the typical law review format. In assessing doctrine and theory, deductive reasoning from economic or legal principles is no more important than literary tools, like interpretation and narrative. These points can be illustrated by some stories.

Federal Court Dismisses Tribal Claim to Uproot State Court UCCJEA Jurisdiction

Matthew L.M. Fletcher

The case is Rosebud Sioux Tribe v. Duwyenie (D. Ariz.). The state court opinion is posted here.

Here are the materials:

State Judicial Defendant Motion to Dismiss

Duwyenie Motion to Dismiss

RST Response to State

RST Response to Duwyenie

State Judicial Defendant Reply

Duwyenie Reply

DCT Order Dismissing Claim

Did I say ICWA? Oops. I meant UCCJEA….

NYTs on Shinnecock Recognition

Matthew L.M. Fletcher

From the NYTs:

There’s no irony or attitude at the Shinnecock Nation Cultural Center and Museum, just the whaling artifacts, the carved elk on the front door, the portraits and memorabilia of a people whose history on Long Island goes back thousands of years.

Still, only a deity with a perverse sense of humor could have written the story of the Shinnecocks, which entered a new era on Tuesday when a 32-year legal effort culminated in the formal federal recognition of the tribe.

You could start with the locale: how the bays and beaches the Shinnecocks and their ancestors fished and nurtured for millennia morphed into not just the Hamptons, but some of the richest and snootiest precincts there. That left the Shinnecocks strangers in their own land, a largely poor tribe of 1,200 with an 800-acre reservation tucked amid the lime-green slacks, the $36 lobster roll (Silver’s on Main Street) and the perma-tan, perma-thin habitués of this playground of the seriously rich.

Then there’s been the long legal dance and periodic skirmishes over the tribe’s nuclear option: its threat to build a casino on the reservation that could have turned the standard East End gridlock into a graveyard of permanently immobilized Lexuses, Range Rovers and BMWs.

And now, with the economy still in the tank and development hard to come by, the outsiders at the banquet are the ones holding all the chips. The courting and wooing for what could be one of New York State’s biggest economic projects in many years have been going on quietly for some time.

But the action begins in earnest next month, when, 30 days after the designation, the tribe can start taking official steps to build what could be New York’s answer to Connecticut’s mega-casinos.

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Michigan COA Affirms Termination of Parental Rights under ICWA

Matthew L.M. Fletcher

Here is the unpublished opinion: In the Matter of MPT.

Oklahoma Supreme Court Orders Transfer of Indian Child Welfare Case to Puyallup Tribal Court

Matthew L.M. Fletcher

Here is the opinion in In the Matter of M.S.

The court’s syllabus:

The Puyallup Tribe of Indians moved to transfer jurisdiction of a case involving two Puyallup Tribe Indian children to tribal court or, in the alternative, to change placement to a tribal member after the termination of the parental rights of their parents. The trial court denied relief, finding “good cause” for denying transfer existed because of the length of time the State had exercised jurisdiction prior to the Tribe’s motion, the relationships the children had developed and the relevant evidence located in Oklahoma. The Tribe appealed, and the Court of Civil Appeals affirmed. This Court previously granted certiorari.

EPA Visits Eagle Rock

Matthew L.M. Fletcher

From ICT, via Pechanga:

BIG BAY, Mich. – As the top government official who oversees Great Lakes water quality stood on the edge of sacred Eagle Rock, overlooking a pristine expanse of the Yellow Dog Plains, she gained a better understanding about why the state-owned land is sacred to Michigan’s Ojibwa.

“I very much understand what their concerns are – and that is one of the things we are considering as we moved forward on this,” said Tinka Hyde, Water Division director for Environmental Protection Region 5. “We realize that Eagle Rock is of cultural and religious importance to the tribe.”

Hyde was one of three EPA regional bosses from Chicago and the agency’s tribal liaison for Michigan who were given a tour of the area May 13 by officials from the Keweenaw Bay Indian Community during a two-day visit to Michigan’s Upper Peninsula.

Members of numerous tribes including Ojibwa, Cherokee and Lakota had been camping at the base of Eagle Rock since April 23 in hopes of preventing Kennecott Eagle Minerals from building a nickel and copper sulfide mine – named the Eagle Project. At the company’s request, state and local police officers raided the encampment May 27 arresting two campers.

Under federal treaties, Ojibwa have rights to hunt, fish and gather on the state of Michigan owned land. The state leased the land to Kennecott with the understanding that all permits must be approved.

Hyde said any ruling the EPA makes about the withdrawal of state and federal permit applications by Kennecott subsidiaries will be based solely on environmental protection laws, primarily the 1974 Safe Drinking Water Act.

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