Here are the materials in State v. Noble (N.C. Ct. App.):
Research
Cert Stage Materials in Makah Indian Tribe v. Quileute Indian Tribe & Quinault Indian Tribe
Here:
united catcher boats amicus brief
Washington dept. fish & game amicus
makah reply in support of petitioner
Question presented:
The question presented is whether the Ninth Circuit—in conflict with the decisions of this Court and other courts—properly held the Treaty of Olympia confers this expansive “fishing” right.
Lower court materials in United States v. Washington subproceeding 09-01 here.
D.C. Circuit Rejects HCI Tax Recordkeeping Immunity Claim
Here is the opinion in Ho-Chunk, Inc. v. Sessions.
Briefs here.
Minnesota Supreme Court Rule Recognizing Tribal Court Orders
Over 15 years ago, the Minnesota Tribal Court/State Court Forum petitioned the Minnesota Supreme Court to adopt a robust rule for recognition of tribal court orders. Due in large part to public concern about the efficacy of tribal courts, the supreme court adopted a more cautious rule, one that provided limited guidance and delegated excessive discretion to district courts. The consequences were delays and inconsistencies in the recognition process.
In 2016, the Forum petitioned the supreme court to amend the rule, arguing that any concerns about today’s tribal courts are unfounded. It asked the Minnesota Supreme Court to enhance the rule and extend due deference and respect to tribal courts. The petition received overwhelming support from state court judges, local attorney associations, and the national Indian law community. In a 4-2 decision on July 2, 2018, the Minnesota Supreme Court granted the Forum’s petition with minor amendments.
Thank you to all of the state and tribal court judges of the Forum for their leadership and thanks also to Peter Rademacher (Hogen Adams PLLC) for his tireless work as scrivener of the Forum.
Update in Williams & Cochrane LLP v. Quechan Tribe
Here are updated materials in Williams & Cochrane LLP v. Quechan Tribe of the Fort Yuma Reservation (S.D. Cal.):
71-1 Motion to File Supplemental Complaint
ADDITIONAL UPDATE (8/27/18):
98 Quechan Opposition to Motion to Strike
105-1 Motion to File Third Amended Complaint
105-2 Proposed Third Amended Complaint
109-1 Rosette Motion to Strike
110-1 Rosette Motion to Dismiss
115-1 Quechan Motion to Dismiss
Prior post here.
A New Film Examines Sexual Violence as a Feature of the Bakken Oil Boom
From The Intercept:
In the mid-2000s, the area surrounding the Fort Berthold Reservation in North Dakota began to undergo a massive transformation after corporations figured out they could access vast wells of oil from the Bakken shale formation using fracking technology. Politicians celebrated as high-paying jobs flooded the area, but women in the community saw a darker side to the boom.
In her film “Nuuca,” Michelle Latimer explores the traits of the Bakken oil boom through the eyes of a young woman who grew up on the reservation. Some of the boom’s features are obvious: the cylinder of the derrick creaking as it pumps in and out of the earth, tanks full of crude oil buzzing with electricity, pipes rusting in a field, gas flares, and huge semi-trucks speeding down country roads, one after another.
HERE.
Northern Michigan Healing to Wellness Court Training
On Monday, July 9, 2018, the Tribal Law and Policy Institute, the Michigan Association of Treatment Court Professionals, and the Little Traverse Bay Bands of Odawa Indians Tribal Court are holding a free one-day Wellness Court and Treatment Court training. The training will be held at the Odawa Hotel in Petoskey, Michigan.
Please visit this website and/or the attached agenda for more information.
Friday Job Announcements
Job vacancies are posted on Fridays. Any posts received prior to 12pm EST on Friday will appear in that Friday’s announcements. If you would like to submit a post for an Indian law or leadership job, please send a PDF job announcement and a brief description of job to indigenous@law.msu.edu.
Department of the Interior
Associate Solicitor for Water Resources, Washington, D.C. The Associate Solicitor has primary responsibility for managing the Division of Water Resources, which includes the Branch of Water and Power and the Branch of Indian Water Rights. Management of the Division includes working with the Solicitor and the Deputy Solicitor in formulating policies of the Solicitor’s Office with respect to organization, budget, personnel, and legal activities. Applications close on July 23, 2018. Please see the website for more information.
Legal Aid of Nebraska
Staff Attorney, Native American Program, Omaha, N.E. Legal Aid of Nebraska is seeking a Staff Attorney to provide direct legal assistance to low-income patients through the medical-legal partnership (MLP) program at the Fred LeRoy Health and Wellness Center in Omaha, NE, the Nebraska Urban Indian Health Coalition in Omaha and Lincoln, Nebraska, the Ponca Hills Health and Wellness Center in Norfolk, NE, and other locations in and near Northeast and Eastern Nebraska. Please see the website for more information.
Morongo Band of Mission Indians
Healing to Wellness Court Coordinator, Banning, C.A. The Morongo Band of Mission Indians is seeking a Healing to Wellness Court Coordinator to facilitate planning, development and implementation for the Juvenile Healing to Wellness Court program. The JHTWC is designed to provide court intervention and early access to therapeutic and treatment services to youth that have entered into the criminal justice system and who may be dealing with issues involving alcohol and/or drug use. In conjunction with Court staff, the Healing to Wellness Court Coordinator is responsible for forming, coordinating, and staffing a multi-disciplinary advisory team, drafting program policy and procedures to screen and determine eligibility of participants, and produce deliverables required by the grant and funder (Department of Justice) in a timely fashion. Please see the website for more information.
The University of California, San Francisco
Senior Complaint Resolution Officer, Office of Diversity and Outreach, San Francisco, C.A. The Senior Complaint Resolution Officer (Sr. CRO) will function as a member of the Office for the Prevention of Harassment and Discrimination (OPHD) and will serve as a campus subject matter expert on sexual harassment, sexual violence, and Equal Employment Opportunity (EEO)-related laws and requirements. The Sr. CRO responds to complaints of discrimination and harassment and discrimination pursuant to the University’s Sexual Violence and Sexual Harassment Policy (SVSH Policy) and the University’s Policy on Discrimination, Harassment, and Affirmative Action in the Workplace Policy (Nondiscrimination Policy) and must possess the ability to exercise independent judgment, assess and negotiate complex, highly sensitive situations, maintain confidentiality, and maintain neutrality when handling matters. The Sr. CRO conducts intake interviews relating to allegations of violations of the SVSH Policy and/or the Nondiscrimination Policy, assesses documentary evidence and information provided during intake interviews, conducts alternative resolutions when appropriate, and conducts thorough and prompt formal investigations of complaints alleging violations of the SVSH Policy and/or the Nondiscrimination Policy. Please see the website for more information.
Complaint Resolution Officer, Office of Diversity and Outreach, San Francisco, C.A. The Complaint Resolution Officer (CRO) serves as a subject matter expert on sexual harassment and Equal Employment Opportunity (EEO)-related laws and responds to complaints of harassment and discrimination pursuant to the University’s Sexual Violence and Sexual Harassment Policy (SVSH Policy) and the University’s Policy on Discrimination, Harassment, and Affirmative Action in the Workplace Policy (Nondiscrimination Policy). The CRO is primarily responsible for conducting intake interviews relating to allegations of violations of the SVSH Policy and/or the Nondiscrimination Policy, assessing documentary evidence and information provided during intake interviews, conducting alternative resolutions when appropriate, and conducting thorough and prompt formal investigations of complaints alleging violations of the SVSH Policy and/or the Nondiscrimination Policy. Formal investigations include preparing notices of formal investigation; developing an investigative plan; conducting party and witness interviews; providing parties and witnesses with information about the investigatory process; analyzing documents and information and assessing credibility to determine whether policy violations have occurred, while ensuring that the investigation is neutral, prompt, and thorough; maintaining accurate and thorough investigatory files and reports; and appropriately working with other university offices as needed. Please see the website for more information.
Pokagon Band of Potawatomi Indians
Assistant Prosecutor, Dowagiac, M.I. Under the direction of the Prosecutor/Presenting Officer and the administrative supervision of the General Counsel to the Pokagon Band of Potawatomi Indians, the Assistant Prosecutor represents the Pokagon Band in criminal and child protection matters in the Pokagon Band Tribal Court, and represents the Pokagon Band in child protection matters in state courts. The Assistant Prosecutor performs the duties and responsibilities of the position in a manner that is consistent with applicable ethical standards and will ensure that enforcement of the laws of the Pokagon Band. Occasional travel within and outside Michigan and Indiana will be required. Please see the announcement announcement for more information.
Osage Nation
Staff Attorney, Pawhuska, O.K. The Osage Nation is seeking a Staff Attorney, who is a member of the Oklahoman Bar in good standing, to research laws, investigate facts, and prepare letters and documents necessary to assist the Office of the Attorney General in day-to-day activities and litigation. Please see the website for more information.
Dakota Plains Legal Services
Deputy Director, Mission, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Deputy Director position in our Mission, South Dakota, office. DPLS provides free legal services to low income and elderly clients located primarily in the western half of South Dakota and to Native American clients located throughout South Dakota and on the Standing Rock Indian Reservation which extends into North Dakota. Please see the announcement for more information.
Managing Attorney, Eagle Butte, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Managing Attorney position in our Eagle Butte, South Dakota, branch office. The Eagle Butte office serves Cheyenne River Indian Reservation in South Dakota and Dewey, Haakon, Potter and Ziebach counties in South Dakota. Please see the announcement for more information.
Staff Attorney, Mission, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Mission, South Dakota, office. The Missionoffice serves the Rosebud Sioux Indian Reservation and Gregory, Jones, Mellette, Todd and Tripp counties in South Dakota. Please see the announcement for more information.
Managing Attorney, Fort Thompson, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Managing Attorney position in our Fort Thompson, South Dakota, branch office. The Fort Thompson office serves the Crow Creek and Lower Brule Indian Reservations in South Dakota and Brule, Buffalo, Hughes, Hyde, Lyman, Stanley and Sully counties in South Dakota. Please see the announcement for more information.
Staff Attorney, Sisseton, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Sisseton, South Dakota, office. The Sissetonoffice serves the Lake Traverse, Flandreau and Yankton Indian Reservations in South Dakota and Grant, Roberts and Charles Mix counties in South Dakota, as well as Native Americans in the eastern half of South Dakota. Please see the job announcement for more information.
Staff Attorney, Sioux Falls, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Sioux Falls, South Dakota, office. The Sioux Falls office serves primarily Native Americans in the vicinity of Sioux Falls and in the eastern half of South Dakota. This job requires at least two days of travel every week. Please see the job announcement for more information.
Fort McDowell Yavapai Nation
Senior Assistant General Counsel, Fountain Hills, A.Z. The Fort McDowell Yavapai Nation is seeking a Senior Assistant General Counsel to serve under the general oversight of the General Counsel and acts in the General Counsel’s absence with the authority of the General Counsel in fulfilling the duties and responsibilities of the Office of General Counsel; to provide legal advice to the Fort McDowell Yavapai Nation Tribal Council, tribal departments and economic enterprises; and to represent the Fort McDowell Yavapai Nation in matters brought in Tribal, State and Federal court. Please see the job announcement for more information.
Department of Justice
Asssitant United States Attorney, Oklahoma City, O.K. The office is currently seeking applicants to fill one or more Assistant U.S. Attorney positions in the Civil Division. Assignment to the Civil Division may include responsibility for all phases of civil prosecution from providing guidance to law enforcement officers, initiating civil charges, conducting grand jury proceedings and trials, and handling appeals. Responsibilities will increase and assignments will become more complex as your training and experience progress. Applications close on July 12, 2018. Please see the website for more information.
Assistant United States Attorney, Oklahoma City, O.K. The office is currently seeking applicants to fill one or more Assistant U.S. Attorney positions in the Criminal Division. Assignment to the Criminal Division may include responsibility for all phases of criminal prosecution from providing guidance to law enforcement officers, initiating criminal charges, conducting grand jury proceedings and trials, handling appeals, or asset forfeiture matters. Responsibilities will increase and assignments will become more complex as your training and experience progress. Applications close on July 12, 2018. Please see the website for more information.
Assistant United States Attorney, Minneapolis/St. Paul, M.N. Assistant U.S. Attorneys (AUSAs) in the Criminal Division prosecute federal criminal cases in the District. Criminal Division AUSAs advise federal law enforcement agents on criminal investigations, present criminal cases to the grand jury, try criminal cases before the United States District Court, and represent the United States in criminal appeals before the Eighth Circuit Court of Appeals. Candidates should be capable of handling a variety of significant and complex criminal prosecutions. Applications close on July 5, 2018. Please see the website for more information.
Last week’s postings: June 22, 2018.
Reflections on Justice Kennedy’s Indian Law Legacy
My most enduring memory of Justice Kennedy is no doubt watching him lean over the bench, red faced and angry, screaming/yelling/lecturing at Neal Katyal during the Dollar General oral argument. I concluded then, if I hadn’t already before that moment from his writings, that Justice Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court.
Justice Kennedy was confirmed for SCOTUS in 1988. His first vote in an Indian law case was in Oklahoma Tax Commission v. Graham. His last vote in an Indian law case was in the Upper Skagit matter (he recused in the culverts case). During his tenure, tribal interests cleanly won 15 cases and cleanly lost 40 cases. There were two cases in which there were two or more issues in which tribal interests won and lost. There were three cases decided by 4-4 tie votes (including one which Kennedy was recused), and in which tribal interests had prevailed below. There were two non-criminal cases in which the interests of individual Indians were at play, making it difficult to declare it a clean win or loss for tribal interests. There was one case the Court remanded (not talking about Upper Skagit) without a clear winner. In short, it was/is a bad time for tribal interests — just under a 30 percent win rate for tribes, adding in the tie cases.
Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests. Kennedy voted cleanly in favor of tribal interests 11 times (and that includes Lara, in which he wrote a scathing opinion blasting tribal powers, and nearly half of those votes were in the past few years), and voted cleanly against tribal interests 45 times. There was one case where voted to split issues. We can and should presume he was an anti-tribal vote in both of the 4-4 tie cases (and would have been a deciding vote against the tribes and the US in the culverts case had he not recused). I count just under a 20 percent pro-tribal vote rate for Justice Kennedy.
Justice Kennedy wrote relatively few Indian law opinions, as few as Justice Scalia. It should be clear to observers that during this period, Chief Justice Rehnquist, Justice Thomas, and junior justices carry the conservative side’s laboring oar in Indian law, not right wing stalwarts who write the federalism and anti-civil rights opinions.
The most important majority opinion Justice Kennedy wrote was Duro v. Reina, though Rice v. Cayetano comes in a close second. Duro really shouldn’t be considered an important opinion because it was so clearly wrong on so many levels Congress enacted a temporary Duro fix within weeks of its announcement, making the fix permanent within a year or so. Perhaps because the principles Justice Kennedy advanced in Duro were principles he had been working with in his own mind since at least the 1970s when he dissented as a Ninth Circuit judge in Oliphant [544_f.2d_1007] — this is America where Americans must consent to government and non-Indians cannot choose to be subject to tribal jurisdiction because they cannot be tribal citizens — he seemed to ache to have an opportunity to strike down the Duro fix. His concurring opinion in United States v. Lara lays out how his consent theory would be enough to kill the Duro fix and all but asks the Court to seek a vehicle out for review, a vehicle that never came (sorry Russell Means, you shouldn’t have hired a lawyer). Maybe the biggest problem for Kennedy’s consent theory is that it’s completely farcical and simply not grounded in the Constitution or reality (try driving from Michigan to New Mexico just to vote, not that I would have voted for Gavin even if I could vote — go Deb Haaland!).
For all my criticism, I have a favorite Kennedy opinion, his lower court opinion in United States v. Finch [548_f.2d_822], a precursor to the Montana v. United States case in which SCOTUS held that the Crow Nation did not possess the Big Horn River. Kennedy wrote strongly in favor of the tribe’s ownership, guaranteed by treaty, an opinion that shows how completely misguided Justice Rehnquist’s Montana decision actually was. If he had been that judge during his tenure as a Supreme Court judge he’d be celebrated, even worshipped, by Indian country. Instead a collective “meh” upon his retirement, Indian country would be mourning the retirement of a great justice.
Thomson Reuters Defends Its Work for ICE, Providing “Identification and Location of Aliens”
The reporters at Reuters have been providing crucial, unfliching coverage of the cruel treatment of would-be immigrants under policies pushed by President Donald Trump. Meanwhile, the news agency’s parent company, Thomson Reuters, has been supplying U.S. Immigration and Customs Enforcement with data from its vast stores as part of federal contracts worth close to $30 million. A letter from a Thomson Reuters executive shows that the company is ready to defend at least one of those contracts while remaining silent on the rest.
HERE.
Turtle Talk 
You must be logged in to post a comment.