Scholarship

Student Note on Tribal Consultation and Sacred Sites

Matthew L.M. Fletcher

The University of Colorado Law Review has published “Meaningful Consultation with Tribal Governments: A Uniform Standard to Guarantee that Federal Agencies Properly Consider Their Concerns.” Here is the abstract:

The obligation that federal agencies consult with Indian tribes regarding undertakings that impact tribal interests is grounded in various statutes, implementing regulations, and Executive Order 13,175. Currently, tribes confront a variety of approaches to consultation because each agency develops its own standards for conducting consultation. Once an agency has reached a final decision on a proposed undertaking, any consultation that occurred to comply with Executive Order 13,175 will not be reviewed in court because Executive Order 13,175 and the consultation policy that an agency developed as required by Executive Order 13,175 do not provide tribal governments with a cause of action to challenge the adequacy of consultation. While courts will review tribal-agency consultation mandated by a federal statute or implementing regulation, judicial review tends to focus on the procedural aspects of consultation rather than examining the substantive decision made by an agency. Thus, Indian tribes are unable to challenge whether an agency’s final determination adequately considered the concerns that tribal governments raised during the consultative process. In recognition of the federal government’s general trust responsibility to protect the general welfare of tribes and the government-to-government relationship that exists with Indian tribes, Congress should enact a statute that creates a uniform standard for agency-tribal consultation. The statute will create one standard for conducting tribal consultation. Additionally, the consultation statute will permit judicial review of the procedural and substantive aspects of the interaction between tribal governments and federal agencies. To ensure agency decisions adequately consider tribal interests and concerns, agencies will have to overcome a rebuttable presumption that will be granted to tribal assertions raised during consultation. If an agency cannot produce sufficient evidence to support its determination, a federal court will have the power to overturn the decision. The statutory approach to agency-tribal consultation will ensure the federal government honors the unique relationship it has with Indian tribes.

Michalyn Steele Paper: “Comparative Institutional Competency and Sovereignty in Indian Affairs”

Matthew L.M. Fletcher1 Comment

Michalyn Steele, a Seneca Nation member and soon to be one of only a handful of American Indian tribal member women to be a tenure system law professor (BYU), has published “Comparative Institutional Competency and Sovereignty in Indian Affairs” in the University of Colorado Law Review.

Here is the abstract:

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority—beyond where the United States Supreme Court has held tribal inherent authority to reach—underscores the importance of addressing the question of which branch ought to resolve the issue. This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.

Joel West Williams on American Indian Prisoner Religious Freedoms

Matthew L.M. Fletcher

Joel West Williams of NARF has published “Walking the Red Road in the Iron House” in American Jails (PDF).

Kahente Horn-Miller on Kahnawà:Ke’s Community Decision Making Process

Matthew L.M. Fletcher

Kahente Horn-Miller has posted “What Does Indigenous Participatory Democracy Look Like? Kahnawà:Ke’s Community Decision Making Process” on SSRN. The paper has been published in the Review of Constitutional Studies.

Abstract here:

With the 1979 Community Mandate to move towards Traditional Government, the community of Kahnawà:ke has consistently requested more involvement in decision-making on issues that affect the community as a whole. The Kahnawà:ke Community Decision Making Process is a response to the community’s call for a more culturally relevant and inclusive process for making community decisions and enacting community laws. The Process is a transitionary measure to assist and facilitate the legislative function of Kahnawà:ke governance. This paper examines the development of the process and how it functions in the modern setting of Kahnawà:ke with the goal of illustrating Indigenous participatory democracy in action.

Kyle Whyte on Shifting Interactions between Indigenous and Non-Indigenous Parties in US Climate Adaptation Contexts

Matthew L.M. Fletcher

Kyle Whyte has posted “A Concern About Shifting Interactions between Indigenous and Non-Indigenous Parties in US Climate Adaptation Contexts“on SSRN.

Here is the abstract:

Indigenous peoples everywhere are preparing for or already coping with a number of climate change impacts, from rising sea-levels to shifting harvesting seasons. It is plausible that the capacity for environmental protection of two political institutions will change in relation to certain impacts: treaties and indigenous governmental jurisdictions recognised by the federal governments of nations such as the USA or Canada. This essay explores critically whether current solutions for these changes depend far too crucially on non-indigenous parties’ coming to an appropriate understanding of indigenous culture and self-determination.

Utah Appeals Court Denies Transfer to Tribal Court

Kate Fort

Granted, it’s a strange and short decision about voluntary relinquishment. But we post it as another example of what state courts do when a tribe allows a case to go forward in state court and then moves to transfer at a later date.

After monitoring the case for approximately one year, the Tribe filed a motion to transfer the case to its tribal court. In response to the motion, the juvenile court found that good cause existed not to transfer jurisdiction to the tribal court due primarily to the fact that the case was in an advanced stage of litigation and all relevant witnesses resided in Utah.

Opinion here.

Nebraska Court of Appeals: Active Efforts Required When Children Under State Jurisdiction are In Parental Home

Kate Fort

Opinion here.

Case law in this state has clearly established that the active efforts standard in this section requires more than the reason- able efforts standard that applies in cases not involving ICWA. See, In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). See, also, Neb. Rev. Stat. § 43-292(6) (Cum. Supp. 2012).
The question presented to us in this case is whether ICWA’s active efforts standard applies when the State, through DHHS, has legal custody of the children, but the children are placed in the parental home. Nebraska appellate courts have not spe- cifically addressed this question. David argues that case law from other jurisdictions should lead this court to conclude that ICWA’s protections are applicable at all stages of a juvenile court proceeding.

***

In reaching the conclusion that active efforts should be pro- vided during periods that placement of the children is with the parent or parents, we recognize that the active efforts required may certainly be different from those required during a period of removal from the home. As discussed by the Nebraska Supreme Court in In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008), the active efforts standard requires a case-by-case analysis. See, e.g., In re Interest of Louis S. et al., supra (where further rehabilitative efforts would be futile, requirement of active efforts is satisfied); T.F. v. State, Dept. of H & S Services, 26 P.3d 1089 (Alaska 2001); People ex rel. D.G., 679 N.W.2d 497 (S.D. 2004); In re Cari B., 327 Ill. App. 3d 743, 763 N.E.2d 917, 261 Ill. Dec. 668 (2002) (degree of active efforts required to prevent Indian familial breakup reduced by parent’s incarceration).

Databook of the US Censuses and the American Community Survey 1990 – 2010

Matthew L.M. Fletcher

Randall K.Q. Akee & Jonathan B. Taylor have published “Social and Economic Change on American Indian Reservations: A Databook of the US Censuses and the American Community Survey 1990 – 2010.”

An excerpt from the summary:

The fortunes of Indians on reservations continue to lag those of other racial and ethnic groups tracked by the census in the United States. The per capita income of Indians on reservations, for example, has been less than half the US average, consistently falling far below that of Hispanics, African Americans, Asian Americans, and Indians living elsewhere. Nonetheless, in recent decades, tribes have made progress in income growth and other measures. This databook—research made possible with funding from the Sycuan Institute on Tribal Gaming—documents how and where change has taken place.

New Book: “Our Cause Will Ultimately Triumph”

Matthew L.M. Fletcher

“Our Cause Will Ultimately Triumph”:Profiles in American Indian Sovereignty, edited by Tim Alan Garrison, has just been published by Carolina Academic Press.Our Cause Will Utimately Triumph

Here is the blurb:

“Our Cause Will Ultimately Triumph” examines the history of American Indian tribal sovereignty from a peoples’ perspective. An impressive group of historians and legal scholars offer up engaging biographies of the courageous leaders who helped establish and protect the autonomy of their people. Subjects range from early nineteenth-century leaders such as Alexander McGillivray (Creek) and John Ross (Cherokee), chiefs who helped bring their nations into the modern age of tribal sovereignty, to Ada Deer, Mary and Carrie Dann, and Elouise Cobell, women who worked for the benefit of all Indian people.

MSU ILPC alum Adrea Korthase wrote the chapter on Michigan tribal judge Michael Petoskey.

Comments on the BIA Guidelines from AAIA, NICWA, NARF, NCAI, and Indian Law Professors

Kate Fort1 Comment

The comments are in response to the Dear Tribal Leader letter we posted about here.

Here from AAIA, NICWA, NARF, NCAI

Here from Indian law professors.

Here from Craig Dorsay.