The ex parte application for injunction here. Hearing on the application is this afternoon.
Affidavit of a general manager of Penn West, with supporting documentation (PDF, 100+ pages).
Thanks to and via @LandOccupations
Scholarship
Lorinda Riley on the Federal Recognition Process
Lorinda Riley has published “Shifting Foundation: The Problem with Inconsistent Implementation of Federal Recognition Regulations” (PDF) in the NYU Review of Law & Social Change.
Here is the abstract:
The establishment of federal recognition is the cornerstone of federal Indian law. All rights, including criminal jurisdiction, tax status, gaming rights, and hunting and fishing rights, stem from this initial acknowledgment. Yet prior law review articles have focused only on the overarching process of federal recognition without closely examining the actual administrative findings of the Department of the Interior.
This article will provide an in-depth examination of the regulations governing whether an Indian entity is entitled to the benefits of a government-to-government relationship with the United States. Specifically, this article examines the regulatory process for filing a federal recognition petition and critiques four of the criteria that petitioning Indian entities consistently fail to meet. By reviewing Department of the Interior decisions, this article demonstrates the inconsistencies in regulatory interpretations and guidance documents as well as the inherent biases in the current regulatory framework.
Finally, the article discusses potential solutions to these problems and identifies the first step necessary in order to fully understand the depth of this regulatory issue.
New Scholarship on Montana Indian Students and the “Prison Pipeline”
Melina Angelos Healey has published “The School-to-Prison Pipeline Tragedy on Montana’s American Indian Reservations” in the NYU Review of Law & Social Change.
Here is the description:
American Indian adolescents in Montana are caught in a school-to-prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. This phenomenon has been well documented in poor, minority communities throughout the country. But it has received little attention with respect to the American Indian population in Montana, for whom the problem is particularly acute. Indeed, the pipeline is uniquely disturbing for American Indian youth in Montana because this same population has been affected by another heartbreaking and related trend: alarming levels of adolescent suicides and self-harm.
The statistical evidence and tragic stories recounted in this report demonstrate beyond doubt that American Indian children on the reservations and elsewhere in Montana are moving into the school-to-prison pipeline at an alarming and tragic rate. The suicides of so many children is cause for despair, and the complicity of the education system in those deaths, whether through deliberate actions or through inattention, is cause for serious self-reflection and remediation. This article has been written in the hope that the people of Montana, government officials at all levels, teachers and school administrators, and public interest lawyers will have some of the information they need to take action. Despair, prison, and untimely death should not and need not be the ending places of public education for our most vulnerable children.
New Scholarship on the HEARTH Act
Elizabeth Kronk Warner has posted “Tribal Renewable Energy Development Under the Hearth Act: An Independently Rational, But Collectively Deficient Option,” forthcoming in the Arizona Law Review, on SSRN.
The abstract:
Increased domestic energy production is of enhanced importance to the United States. Given the growing focus on domestic energy development, many, including tribal governments, have increasingly looked to Indian country for potential energy development opportunities. Such attention is warranted, as abundant alternative and renewable energy sources exist within Indian country. Many tribes are increasingly exploring possible opportunities related to alternative and renewable energy development. Despite this interest, large alternative and renewable energy projects are virtually absent from Indian country. This article explores why, despite the great potential for alternative and renewable energy development in Indian country and strong tribal interest in such development, such little development is occurring.
Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in July 2012 to address one of the obstacles to alternative and renewable energy development in Indian country — federal approval for leases of tribal lands. In brief, the HEARTH Act allows tribes with tribal leasing provisions pre-approved by the Secretary of the Interior to lease tribal land without Secretarial approval required for each individual lease.
To fully understand the potential implications of the HEARTH Act, this Article explores obstacles to effective energy development in Indian country, what the HEARTH Act is and how it supposedly addresses those obstacles, and some significant problems associated with enactment of the HEARTH Act — specifically, the mandatory environmental review provisions and waiver of federal liability, and the impact of the liability waiver on the federal government’s trust responsibility to federally recognized tribes. The article ends with some concluding thoughts on how the HEARTH Act and potential future reforms to the existing federal regulatory scheme applicable to energy development in Indian country might better address tribal sovereignty and the federal trust responsibility to Indian country.
New Scholarship on Tribal Membership and UNDRIP
Shin Amai and Kate Buttery have posted “Indigenous Belonging: A Commentary on Membership and Identity in the United Nations Declaration on the Rights of Indigenous People,” forthcoming in Oxford Commentaries on International Law: A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples, on SSRN.
Here is the abstract:
The recognition of indigenous peoples’ right to determine their own membership is crucial to the survival of indigenous groups and for their ability to meaningfully exercise their right to self-determination. This chapter will begin with a discussion of who indigenous peoples are, and will then proceed to review the specific provisions of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) as they pertain to indigenous-determined group membership and duties: Articles 9 (right to belong); 33 (right to determine membership); 35 (right to determine responsibilities of members); and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of indigenous peoples to define themselves, both in terms of membership and geographic scope. These rights are not absolute, however, and are constrained by Articles 44 (gender equality) and Article 46 (compliance with international human rights standards).
New Yorker: Supreme Court’s Contempt for Congress
Here.
“The Roberts Court has lost faith in the democratic process,” Professor Karlan wrote, noting that the conservative justices, at least in practice, reject the idea that the political branches have a “special institutional competence” in addressing certain questions. In his argument in the voting-rights case, Solicitor General Donald Verrilli tried this line, too, insisting on “the deference that Congress is owed… because, frankly, of the superior institutional competence of Congress to make these kinds of judgments.” This is probably a losing proposition on its face, unless one is talking about Congress’s superior competence at walking in circles with its shoes tied together. But when the legislative branch is not only disrespected but disabled—when the Court waves away the intent of Congress and takes away its tools to redress social and economic inequities—then Congress may well go to hell, and we’re going with it.
The post does not mention federal Indian law, or Adoptive Parents v. Baby Girl, or the oral arguments in the Bay Mills case, the inclusion of which would only make the argument stronger. And is yet another in a long list of reasons why this Court is no friend to Indian tribes.
No Judicial Immunity For Pre-Signed Removal Orders
Not an ICWA case, or even involving an Indian child, but this decision illustrates some disturbing removal practices in Wayne County. The U.S. Eastern District court found that because the judge left pre-signed removal orders for juvenile officials, she is not entitled to judicial immunity. This practice created an administrative procedure, not a judicial one:
It is not Hartsfield’s actions in signing the form of order that plaintiffs complain about.
Rather, it is Hartfield’s actions in putting in place a policy which allowed a pre-signed removal form to be filled in and docketed by non-judicial personnel, without judicial review, for a petition submitted to the family court after normal business hours. These actions, if true, are administrative. Hartsfield essentially signed pieces of paper that had no vitality until a third party–in this case a probation officer–filled in certain information on the paper. At the time the form of order was signed by Hartsfield, there were no parties before the court nor were there any active child custody proceedings. Her actions therefore could not have been “judicial acts.”
This is the federal case filed by the parents in the “Mike’s Hard Lemonade” removal case where the father accidentally gave his child alcoholic lemonade at a baseball game, leading to the child’s removal from the home, and the father having to leave the home so the child could return. The case will go forward against the judge, but not against the individual DHS workers in their individual capacities.
Call for Papers, Walking with Our Sisters
CALL FOR PAPERS
Walking with Our Sisters is seeking submissions for an edited collection tentatively entitled Keetsahnak, Our Sisters.
They are seeking scholarly and non-fiction essays that will contribute to the understanding of missing and murdered Indigenous women in Canada, the United States, and other colonial contexts worldwide.
Submission of a 300 word abstract is due January 24, 2014.
See full announcement here: Call for Papers WWOS.
More information on the Walking with Our Sisters project including tour dates and pictures of the moccasin vamps here.
Illinois Law Review Student Note on Uncounseled Tribal Court Convictions and ICRA
The University of Illinois law Review has published “Uncounseled Tribal Court Convictions: The Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act.”
Here is the abstract:
Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration of more than one year. State and federal courts require the opportunity of representation for all defendants in criminal proceedings. This discrepancy between the rights afforded in tribal courts and in state and federal courts lead to unique legal issues for Native American defendants indicted in federal court after being convicted without counsel in a tribal court.
Native Americans prosecuted under federal re-peat-offender statues could be exposed to harsher penalties based on prior uncounseled tribal con-victions. Thus, even if a Native American lacked representation in tribal court, those convictions might be used as predicate offenses for the purposes of federal repeat-offender laws. Different approaches to this issue are presented from the Eighth, Ninth, and Tenth Circuits. This Note ad-dresses the reasoning of each Circuit and offers a Recommendation that balances tribal sovereignty concerns, Sixth Amendment ramifications, and justice implications for both victims and defendants in the tribal court system.
Fletcher & Fort: “Indian Children and Their Guardians ad Litem”
Kate Fort and I published a short paper for a Boston University Law Review mini-symposium on Adoptive Couple v. Baby Girl: “Indian Children and Their Guardians ad Litem.”
An excerpt:
One of the primary goals of the Indian Child Welfare Act (ICWA) is to limit the influence or bias of state workers in decisions placing American Indian children out of their home and community.1 While this focus usually concerns state social workers, the officials who most often seek removal of a child, or the courts, the body that issues the orders and opinions, guardians ad litem (GALs) receive less attention.2 Despite this lack of attention, GALs exert a similar level of influence as state social workers. In Adoptive Couple v. Baby Girl,3 the role of the GAL was unusual but critical – the GAL, while officially appointed by the court, was handpicked by the adoptive parents.4 The role of the GAL remains understudied in the ICWA literature, though GALs continue to exert enormous influence in the courts. Unfortunately, many GALs throughout the nation subvert the national policy embodied by the ICWA by advocating against the implementation of the statute in case after case.5
There are three other papers in the symposium:
Perspective I by Professor Barbara Ann Atwood is available here,
Perspective II by Professor James G. Dwyer is available here, and
Perspective III by Professors Naomi Cahn and June Carbone is available here.
Turtle Talk 
You must be logged in to post a comment.