tribal membership – Page 16

New Complaint in Nooksack Disenrollment Saga

January 19, 2016Matthew L.M. Fletcher

Here:

Belmont v Kelly II Complaint

Disenrollee Suit to Recover Children’s Trust Funds

November 30, 2015November 30, 2015Matthew L.M. Fletcher

Here is the complaint in Rash v. Jeff Davis Bancshares Inc. (W.D. La.):

Complaint

An excerpt:

Defendant, Jeff Davis Bancshares, Inc., d/b/a under the tradename Jeff Davis Bank and Trust Company (“Jeff Davis Bank”) accepted in 2000 and 2001 the trusteeship over substantial funds placed in trust by the Coushatta Tribe of Louisiana (the “Coushatta Tribe”) for the benefit of certain minor children, to be held in trust until such then-minor beneficiaries attained the age of twenty-one (21) years. Each trust is an irrevocable trust with the Coushatta Tribe as Settlor and one child, who was a minor at the time the trust was established, as the sole income and principal beneficiary (the “Beneficiary”) of said trust, which trust bears the name of said Beneficiary (each a “Children’s Trust” and collectively the “Children’s Trusts”). At the time each Children’s Trust was established and Jeff Davis Bank accepted the trusteeship, the minor child Beneficiaries were legally members of the Coushatta Tribe,

Zepeda v. United States Cert Petition

November 24, 2015Matthew L.M. Fletcher1 Comment

Here:

Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is:

Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.

Opinion here. En banc materials here, here, and here. Panel materials and other materials here, here, and here.

California Court of Appeals Holds ICWA Doesn’t Apply Where Pala Band Member Child is Disenrolled During Adoption Proceedings

November 12, 2015Matthew L.M. Fletcher

Here is the unpublished opinion in In re K.P.:

In re K.P.

An excerpt:

Michelle T., a member of the Pala Band of Mission Indians, contends that the juvenile court violated the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. by terminating her parental rights to her children, K.P. and Kristopher P., under section 366.26.

Throughout most of their dependency cases, K.P. and Kristopher were eligible for membership, or were enrolled, in the Pala Band of Mission Indians (Pala Band). At the children’s first section 366.26 hearing, the Pala Band did not consent to the children’s adoption and the juvenile court ordered a plan of guardianship. Several years later, when the children’s cases proceeded to a second section 366.26 hearing, the juvenile court learned that the Pala Band of Mission Indians had disenrolled K.P. and Kristopher, and others, on the ground that they lacked the blood quantum necessary for membership.

Michelle argues that in view of a pending appeal in the United States Court of Appeals for the Ninth Circuit challenging the validity of the Pala Band’s enrollment ordinance that resulted in the disenrollment of K.P. and Kristopher and the others, the juvenile court erred when it found that K.P. and Kristopher were not Indian children within the meaning of the ICWA and declined to apply ICWA’s substantive and procedural protections at the children’s second section 366.26 hearings. Michelle also argues that enrollment in a tribe is not required to be considered an Indian child, and that the Pala Band did not provide written confirmation that enrollment is a prerequisite for Pala Band membership.

We conclude that the juvenile court correctly ruled that the Indian tribe has the sole authority to determine its own membership and that the juvenile court must defer to the membership decisions of an Indian tribe. Under federal and state law, the Indian tribe’s membership determination is conclusive. The record shows that enrollment is a prerequisite for Pala Band membership, and that the Pala Band determined that K.P. and Kristopher are not members of its tribe. Therefore, the juvenile court did not err when it determined that K.P. and Kristopher are not Indian children within the meaning of the ICWA and terminated parental rights without applying ICWA’s heightened substantive and procedural protections. We affirm.

Grand Ronde Disenrollees’ Appeal Denied by Tribal Court

November 10, 2015November 10, 2015Matthew L.M. Fletcher

Here is the order in Alexander v. Confederated Tribes of Grand Ronde:

ORDER 10-27-15-2-2

“Nooksack tribal members facing disenrollment win records fight”

November 9, 2015Matthew L.M. Fletcher1 Comment

News coverage from the Bellingham Herald here.

Materials on the St. Germain v. DOI case here.

Rina Swentzell Walks On

November 3, 2015Matthew L.M. Fletcher

We’ve known for a few days that our great friend and inspirational leader Rina Swentzell had walked on, but we’ve taken a few extra days to collect our thoughts on how to best represent her.

We invited Rina to Michigan State’s annual Indian law conference in 2008 and she was very gracious in accepting our invitation. That year’s conference was dedicated to the 40th anniversary of the Indian Civil Rights Act legislation, and would eventually lead to a volume of edited essays on the Act published in 2012, the misleadingly titled book, The Indian Civil Rights Act at 40.

We knew about Rina from her prior appearances at law school conferences, but mostly from her compelling talk (published as a law review article), “Testimony of a Santa Clara Woman.” The talk remains for us one of the most compelling pieces of legal scholarship, cutting through the theoretical doctrines of law we hold so dear to the muscle and bone of what federal Indian law means to the Indian people it affects. In some ways she might not have understood at the time (although I suspect she might have), her testimony was a powerful and yet gentle rebuke to commentators critical and even supportive of the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, which had held that there was no federal forum to challenge a tribal law that discriminated against on its face against Indian women and their children.

At our 2008 conference, we invited several American Indian women from all over the country to talk about the Martinez decision, its legacy and its impact on their lives — Rina, Eva Petoskey, Rebecca Miles, Francine Jaramillo, and Gloria Valencia-Weber — as well as Catharine MacKinnon, one of the decision’s most critical detractors. To our surprise, all of the Indian women voiced strong support for the decision, despite the outcome. Rina was the center of that discussion. We published the commentaries of the Indian women next to Professor MacKinnon’s paper in the book in 2012.

Rina’s argument, over spirited objections, that the federal courts, even the Supreme Court, was no place to force change on tribal government and tribal law eventually prevailed. In 2014, the people of the Santa Clara Pueblo changed the tribal law in question in Martinez to be more reflective of tribal norms. Rina was a driving force in that tribal political movement.

We are terribly sad to hear of Rina’s passing, but we celebrate what she taught us.

Here is “Rina Swentzell, 1939-2015: Daughter says Santa Clara artist, activist fought for all but put family first.”