Carter and Rotman on Surface Mining Regulation After McGirt

Sam Carter and Robin Rotman have posted “Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After McGirt?,” forthcoming in the Montana Law Review, on SSRN.

Here is the abstract:

Following the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), there has been a surge of litigation from the State of Oklahoma seeking to clarify the scope of the McGirt holding. While the Supreme Court of the United States was clear that the holding in McGirt was limited to criminal jurisdiction under the Major Crimes Act, it has sparked subsequent litigation regarding the scope of tribal authority. The pending case of State of Oklahoma v. United States Department of the Interior, which concerns surface mining regulation in Indian Country in Oklahoma, will test the application of McGirt outside of the criminal context. To this end, our article makes three recommendations: (1) in litigation concerning tribal lands, tribes should be a necessary party for litigation to proceed; (2) Congress should invest in pathways for tribes to build the capacity to create and manage their own programs, and (3) when tribal self-determination is encouraged and jurisdictional boundaries are clear, tribes can retain agency over their energy future and are less susceptible to the social harms that have been associated with the development of energy projects.

Colorado Pro Hac Vice Rule for ICWA Cases

Colorado is the most recent state to add a pro hac rule for ICWA cases. This rule is pretty narrow, and only applies for attorneys representing tribes where the tribe has moved to intervene in the case on behalf of their child. This would not apply to any attorneys representing individuals (like a grandma or auntie) in an ICWA case, nor to any appellate work on behalf of tribes filing amicus briefs. However, the rule only requires a verified motion to avoid both fees and local association, which is great for tribal attorneys.

Friday Job Announcements

To post an open Indian law or leadership job to Turtle Talk, send all of the following information to indigenous@law.msu.edu:

In the email body:

  • A typed brief description of the position which includes:
  • Position title
  • Location (city, state)
  • Main duties
  • Closing date
  • Any other pertinent details, such as a link to the application
  • An attached PDF job announcement or link to the position description

Department of Agriculture Office of the General Counsel

GS-11 Attorney Advisor. Washington D.C. The incumbent serves as an attorney providing legal advice, research, analysis and interpretation of federal, state and local laws, as well as oral and written opinions, memoranda, pleadings, briefs and legal support of all USDA programs and litigation and performs other legal services as assigned. Closing date: 11/07/2022.

Eastern Band of Cherokee Indians

Law Clerk. Cherokee, NC. Law school graduate who assists the Tribal Court in researching issues and drafting court and administrative documents, and ordinances and regulations.  The Law Clerk performs others duties as assigned by the Chief Justice, Chief Judge, or Associate Judge(s). Position is open until filled.

Lower Brule Sioux Tribal Court

Prosecutor.  Lower Brule, SD. The prosecutor is responsible for the prosecution of crimes that occur with the jurisdiction of the Lower Brule Sioux Tribe, including juvenile delinquency cases, child abuse/neglect and status offenses.

Colville Tribal Federal Corporation

Corporate Counsel. Omak, WA. The Corporate Counsel reports to the CTFC Board of Directors with day-to-day supervision from the CTFC Chief Executive Officer (CEO).  The Corporate Counsel works with the CTFC CEO and Executive team providing legal services, representation and advice on legal issues confronting the corporation within the scope established by law. Open until filled with first review on November 1, 2022.

Environmental Law Institute

Senior Manager, Attorney Training. Washington D.C. As a part of ELI’s Education team, the Senior Manager of Attorney Training’s primary objective is to help develop and deliver programs for members consistent with ELI’s mission, with a focus on developing ELI’s Annual Boot Camps and CLE events. Associated tasks involve tracking current events and legal policies relevant to environmental law and policy, as well as developing concepts and write-ups for trainings, master classes, programs, major conferences, and cosponsored conferences. Application Deadline: 11/6/2022.

Choctaw Nation of Oklahoma

Sex Crimes Assistant Prosecuting Attorney. Durant, OK. Responsible for prosecuting criminal, juvenile, quasi-civil, wildlife, traffic and deprived actions on behalf of the Choctaw Nation as assigned by the Lead Tribal Prosecutor. Closing Date: 11/10/2022.

Southern Ute Indian Tribe

Tribal Attorney – Legislative Specialist. Ignacio, CO. The primary responsibility of the Tribal Attorney – Legislative Specialist is to review, revise, and draft the Tribe’s codes and ordinances.  This attorney will develop a plan for regular review of all tribal codes and will develop and establish a process for code prioritization and revision. The Legislative Specialist will also be responsible for maintaining the Tribe’s official code. The person in this position will work with the other attorneys in the Tribe’s growing in-house Legal Department. Requires a minimum of three years of full-time experience practicing law, including significant experience drafting codes, statutes, or ordinances. Position closes December 1, 2022, 5:00 pm MST.

Tribal Attorney. Ignacio, CO. This position works with other attorneys in the Tribe’s in-house Legal Department to provide legal representation, advice, and support to Tribal Council, Tribal officials, and Tribal Departments on a broad range of subjects. A strong command of Federal Indian law and understanding of tribal sovereignty in this position is essential, as is an ability to provide legal advice on a variety of topics in a fast-paced environment. A Tribal Attorney’s primary responsibilities include: (1) Advising on questions that require understanding of, or ability to efficiently research, a broad array of subjects. (2) Drafting Tribal policies, procedures, and resolutions; comment letters on legislation impacting the Tribe; intergovernmental agreements; letters to government officials; and testimony for federal and state governmental hearings. (3) Reviewing routine legal documents.

Alaska Legal Services Corporation

Native Law Staff Attorney. Fairbanks, AK. The Fairbanks attorney will be expected to manage a caseload of state court child in need of aid cases, in addition to some civil and Native law matters. The attorney will also have the opportunity to participate in strategic coordination with state-wide teams, and participate in appellate and impact litigation. A successful applicant will have a background in communicating and interacting effectively in cross-cultural situa­tions, and a commitment to race equity work. Open untiled filled.

Native Law Staff Attorney. Anchorage, AK. This position primarily involves representation of tribal clients in state child welfare proceedings and enforcing the Indian Child Welfare Act and may also involve litigating other matters on behalf of AVCP Tribes and tribal members. The AVCP ICWA attorney will serve clients in cases primarily heard in Anchorage, Alaska courts, serving clients in the Yukon-Kuskokwim Delta, but will also be expected to manage cases arising elsewhere in the state as needed. Open until filled.

Native American Rights Fund

Technical Services Librarian. Boulder CO. The Technical Services Librarian is responsible for providing general library and technical services functions that support the mission of the National Indian Law Library (NILL), which supports the legal work of the Native American Rights Fund (NARF) and the Indian law information needs of the general public. Open until filled.

Cowlitz Tribe

Tribal Court Judge. Ridgefield, WA. Appointed by the Cowlitz Tribal Council, serves as the chief judicial officer for the Cowlitz Tribal Court system. Hears and decides judicial matters within the jurisdiction of the Cowlitz Tribal Court system in a fair and impartial manner and pursuant to the laws of the Cowlitz Indian Tribe. Accomplishes the Court’s strategic objectives by overseeing Tribal Court staff and all operations of the Tribal Court system. Honors and represents the mission, vision, values of CIT and Tribal Courts. Open until filled.

Fort Lewis College

Associate Professor in the Department of Political Science, School of Culture and Environment. Durango, CO/ The teaching load will include undergraduate and graduate courses in public affairs, including courses such as institutions, policy making, justice, and data management and analysis. This position builds on the strengths of a growing area of interest and importance at Fort Lewis College. Application materials received by October 23, 2022, will receive full consideration. The position will remain open until filled.

California Tribal Families Coalition 

2023 Summer Law Clerk. Sacramento, CA/Remote. The 2023 Summer Clerkships are paid positions dependent on resources and experience. Clerkships are flexible but must be no less than 10 weeks between May 15, 2023, and September 8, 2023. Law clerks work 32 hours per week. CTFC may also support clerks seeking class credit for externships. Candidates are preferably rising 3Ls, however, rising 2Ls with relevant experience prior to or while in law school will be considered. The application deadline is November 6, 2022.

California Indian Legal Services

Staff Attorney. Sacramento, CA. Assist in taking on a variety of federal Indian law and Tribal law matters including but not limited to estate planning for trust lands, dependency and conservatorship matters, code drafting, conducting Tribal government elections, community education, and more. Position open until filled.

Judicial Branch of the Navajo Nation

Supreme Court Law Clerk. Supreme Court of the Navajo Nation. Window Rock, AZ. This position analyzes supreme court cases; conducts legal research; drafts opinions and orders; and provides legal advice related to appellate cases, petitions, notices and other documents filed with the Navajo Nation Supreme Court.  This position closes October 31, 2022.

Court Solicitor. Administrative Office of the Courts. Window Rock, AZ. Under the general direction of the Chief Justice or his/her designee, provides a variety of legal advice, counseling, research and related legal services in support of the overall judicial operation of the Navajo Nation Judicial Branch; develops and implements improved court processes and supports courts in their use; provides legal advice, research and drafting documents for court operations; performs related duties as assigned. This position closed October 31, 2022.

Judicial Hearing Officer, Shiprock Judicial District. Shiprock, N.M. Under supervision of the Chief Justice, exercises authority to preside over hearings and dispositions involving the Domestic Abuse Protection Act and Álchíní Bi Beehaz’áannii Act occurring within the respective jurisdiction of the District Courts of the Navajo Nation; performs related work as assigned. The JHO will engage in legal research and writing in child welfare, domestic abuse, temporary minor or adult guardianship, child custody and other family matters. One Year Grant Funded with Benefits. This position is open until filled.

Staff Attorney, Aneth Judicial District, Aneth, UT. This position provides complex legal advice and guidance, conducts legal research, and drafts legal documents in support of judges and other court staff. This position is open until filled.

Staff Attorney, Chinle Judicial District. Chinle, AZ. This position provides complex legal advice and guidance, conducts legal research, and drafts legal documents in support of judges and other court staff. This position is open until filled.

Staff Attorney, Kayenta Judicial District. Kayenta, AZ. This position provides complex legal advice and guidance, conducts legal research, and drafts legal documents in support of judges and other court staff. This position is open until filled.

District Court Judge, Judicial District Court. Navajo Nation Wide. The District Court Judge is responsible in presiding over civil, criminal and family court cases; provides policy direction and guidance in the operation of the Judicial District.  This position is open until filled. 

Anishinabe Legal Services

Staff Attorney. Cass Lake and Ogema, MN. Provide civil legal assistance and court representation to program clients before area Tribal Courts, State Courts, and Administrative Forums.  One position will be housed out of our Leech Lake Reservation office in Cass Lake, and the other out of our White Earth Reservation office in Ogema.  This position will be open until filled.

Office of Legal Counsel

RFB – Legal Aid Services Attorney. NE Oregon in one of the following counties: Umatilla, Gilliam, Morrow, Wallowa or Union. Attorneys bids should identify any or all of matters in which they are interested, indicate availability for in person or remote advising, and availability for court representation.  The practice areas include benefits (social security, veterans, Medicare/Medicaid, assistance for food, general needs and tribal assistance), tribal child dependency, DV protection orders, unemployment compensation, housing, employment disputes, child custody and visitation, consumer rights, probate, civil rights, family law, personal injury, community education and torts. Bids are accepted on a routine basis.

Judicare Legal Aid

Staff Attorney. Wausau, WI.: (1) Maintain caseload on behalf of Native American clients in both civil and criminal matters in tribal court or arising under federal or tribal law. Civil case areas include Indian Child Welfare (ICW), custody/placement, guardian ad litem (GAL), divorce, estate planning; (2) Educate and serve Native Americans statewide on areas of civil and criminal law; (3) Participate in tribal court development, code drafting and community education projects; and (4) Carry out training and back-up assistance to private attorneys. Open until filled.

The Capacity Building Center for Tribes

Tribal Child Welfare and Permanency Planning Specialist. Remote. This position is a full time, exempt position responsible for a range of duties involving the delivery of capacity building services for Tribal child welfare systems. The responsibilities of the Tribal Child Welfare and Permanency Planning Specialist includes working with federal partners and CBCT teams to build supports and improvements for tribes receiving Title IV- b and Title IV-e funding. This position is collaborative in nature, and work is provided as a part of the Tailored Service Area of the CBCT. This position will remain open until filled.

Berkey Williams LLP

Indian Law Fellowship 2023. Davis, CA. Fellows typically engage in legal research and writing, historical research, communication with the firm’s clients, litigation, and legislative advocacy, depending on client needs and the Fellow’s interests. Closing date: October 28, 2022.

Michigan State University College of Law

Assistant/Associate Professor Tenure System. East Lansing, MI. The College of Law invites applications for full-time, entry-level, tenure-track faculty positions. Curricular needs include contracts and commercial law, family law, health care law and policy with an emphasis on inequities in public and private health care systems, race and the law, criminal law, trusts and estates, international law, and constitutional law. Open until filled.

Associate Professor – Tenure System. East Lansing, MI. The College of Law invites applications from entry-level or lateral candidates for the inaugural 1855 Professorship in the Law of Democracy. This full-time, tenure-system position will focus on legal inequities in the democratic process. Open until filled.

Assistant/Associate/Full Professor Tenure System. East Lansing, MI. The College of Law seeks entry-level and lateral candidates with research and teaching interests related to Federal Indian Law, Tribal Law, or the International Human Rights of Indigenous Peoples who will also affiliate with the Law College’s Indigenous Law and Policy Center. Open until filled.

Specialist – Teacher-Fixed Term. East Lansing, MI. The College of Law Special Projects Coordinator will teach in the Global Food Law Program, develop new areas of curricular needs, recruit instructors and an advisory board, develop a web blog and social media outreach plan, assist Advancement with fund-raising efforts as needed, and oversee the application for a partnership with the Food and Agriculture Organization of the United Nations. Open until filled.

Navajo Nation Department of Justice, Office of the Attorney General

Principal Tribal Court Advocate. Window Rock, AZ.  Performs legal work related to representation of the Navajo Nation government, as assigned by the Assistant Attorney General, including legal research, negotiations, legal writing, drafting pleadings, briefs, memoranda, resolutions and other documents for the divisions, departments, or programs assigned. Child Support Enforcement: Present child support enforcement cases before the Office of Hearings and Appeals. Participate in case staffing with Child Support Enforcement officers; provide legal advice and case strategy. This position is open until filled.

Principal Attorney (Water Right Unit). Window Rock, AZ.  Under general direction of the Assistant Attorney General or the Attorney General and Deputy Attorney General, professionally represents the Nation in multiple water rights adjudications pending in state and federal courts, in state administrative water rights matters and in any settlement negotiations concerning the Nation’s water rights. The Principal Attorney works closely with technical staff within the Water Rights Unit Staff, Department of Water Resources and other programs within the Navajo Nation, and with consultants retained to provide technical support to the Nation or to serve as expert witnesses. The Principal Attorney provides legal advice on all water rights matters to the Office of the President and Vice President, the Office of the Speaker, the Navajo Nation council, and its committees and subcommittees and the Navajo Nation Water Rights commission (NNWRC) to ensure that the water rights of the Navajo Nation are effectively pursued and protected.  This position is open until filled.

Principal Attorney. Window Rock, AZ.  Under general direction of the Assistant Attorney General or the Attorney General and Deputy Attorney General, represents the Navajo Nation government; Review documents, such as service contracts, sub-recipient and grant agreements, legislation, proposed policies, etc., for legal sufficiency. Participate in negotiations regarding legal documents/agreements with parties outside of the Navajo Nation. Respond to Request for Services and other legal inquiries from clients. Perform legal research and provide legal advice verbally and in writing. Legal advice and services will include: conducting initial eligibility determination reviews on proposed FRF expenditure plans; interpreting federal, state, and Navajo laws, regulation, policies, and procedures; and advising on legal compliance in the implementation of FRF programs and projects. This position is open until filled.

Attorney (Litigation Unit). Window Rock, AZ.  Legal work related to federal, Navajo Nation, and state court and administrative tribunal representation of the Navajo Nation Government, as assigned by the Assistant Attorney General of the Litigation Unit or the Office of the Attorney General, and Deputy Attorney General, including legal research, pleading drafting, and settlement negotiation for Litigation Unit of the Department of Justice. Review of proposed disciplinary actions by Navajo Nation government programs for compliance with Navajo Nation Personnel Policies Manual and Navajo Preference in Employment Act. Drafting of proposed Navajo Nation legislation, regulations, and policies. Other duties as assigned.  This position is open until filled.

Senior Programs and Projects Specialist. Window Rock, AZ.  Under the supervision of the Attorney General and Deputy Attorney General will provide high level assistance to the Office of the Attorney General/Department of Justice (DOJ) with program/project management related to DOJ’s work with Fiscal Recovery Funds (FRF) matters. Assists in analyzing, developing, and achieving short and long term goals and objectives; establishes performance criteria; and plans, evaluates and improves program delivery; Attends a variety of meetings related to FRF/ARPA; assists OAG with preparation for meetings and events; coordinates program activities and communications with other Navajo Nation offices and the general public. Administers FRF funding for DOJ in compliance with FRF and American Rescue Plan Act requirements, policies and procedures under federal and Navajo Nation law. Assists in development of budget. Assists with procurement of goods and services pertaining to DOJ’s FRF-related work; reviews contracts; troubleshoots issues with procurement and vendors; monitors expenditures; prepares funding reports.  This position is open until filled.

Attorney (Human Services and Government Unit). Window Rock, AZ.  Under general direction of the Assistant Attorney General or the Attorney General and Deputy Attorney General, represents the Navajo Nation government in reviewing documents, such as services contracts, sub-recipient and grant agreements, legislation, proposed policies, etc., for legal sufficiency. Participates in negotiations regarding legal documents/agreements with parties outside of the Navajo Nation. Respond to Request for Services and other legal inquiries from clients. Perform legal research and provide legal advice verbally and in writing. Legal advice and services will include: conducting initial eligibility determination reviews on proposed FRF expenditure plans; interpreting federal, state, and Navajo laws, regulation, policies, and procedures; and advising on legal compliance in the implementation of FRF programs and projects.  This position is open until filled.

Attorney Candidate. Window Rock, AZ.  Under general direction of the Assistant Attorney General, the Attorney General, or the Deputy Attorney General, provides legal direction to Navajo Nation Divisions, Departments and offices, regarding a wide range of legal issues, including statutory and regulatory authority, contracts and procurement issues, and intergovernmental relations; Assists Attorneys; prepares and presents civil cases in tribal court and administrative bodies; confers and provides guidance, and prepares advisory opinions for assigned departments and branches of the government; prepares interpretations of new legislation and judicial decisions; reviews contracts, leases, permits and related documents; interviews witnesses, complainants, and others on a variety of legal matters; conducts legal research, prepares briefs, pleadings and other legal documents.  This position is open until filled.

Senior Attorney (Tax and Finance Unit). Window Rock, AZ.  Respond to Requests for Services and other legal inquiries from clients, particularly in the area of the American Rescue Plan Act (ARPA) and federal Fiscal Recovery Funds (FRF). Perform legal research and provide legal advice orally and in writing.  Legal advice and services will include: conducting initial eligibility determination reviews on proposed FRF expenditure plans; interpreting federal, state, and Navajo laws, regulations, policies, and procedures; as well as advising on legal compliance in the implementation of FRF programs and projects. Participate in Legislative Branch and Executive Branch meetings, including Standing Committee meetings and Council Sessions, regarding approval of FRF expenditure plans and the planning and implementation of FRF programs and projects, in order to respond to legal questions pertaining ARPA and the use of FRF.  This position is open until filled.

Legal Secretary (Litigation Unit). Window Rock, AZ. Provides customer service by greeting clients and answering phone calls. Provides general office support by distributing incoming/outgoing mail; schedule meetings, conferences, conference calls and travel arrangements for assigned professional staff. Maintains all case files for the Litigation Unit. Finalizes pleadings to be submitted for filing in a tribal, federal, state or administrative tribunal. Files documents in-person and via fax, email, and internet. Assists in maintaining office files in accordance with the Department of Justice filing system which includes but is not limited to: logging in documents for review and following up with professional staff on timely completion or review, securing all necessary signatures, scanning all documents, contacting the program to retrieve the reviewed documents. This position is open until October 21,2022 at 5:00 p.m.

Legal Secretary (Water Rights Unit). Window Rock, AZ. Operates a variety of office equipment, including transcribing machines, calculators, copiers, facsimile machines, scanners, binding machines, printers, paper shredders and other types of equipment as technology changes. Schedules meetings, conferences, conference calls and other types of appointments. Prepares agendas and meeting materials. Prepares and assists in the preparation of notices, petitions, pleadings, complaints, briefs, summons, orders, affidavits and other legal forms and documents. Transcribes hearings, depositions, and minutes for use by attorneys. Develops and maintains case files for the Water Rights Unit. Prepares and/or assists with travel arrangements and required and related travel documents for Unit staff. Assists with administrative duties of other NNDOJ Units when assigned. Participates in general building maintenance in partnership with other NNDOJ Units. Other duties as assigned. This position is open until October 21,2022 at 5:00 p.m.

Principal Attorney (Human Services and Government Unit). Window Rock, AZ. Provides legal direction to other attorneys and advocates in providing complex legal representation of Navajo Nation Divisions, Departments, and Programs regarding a wide range of legal issues. Some legal issues may include statutory and regulatory review, contract disputes and procurement issues, and intergovernmental relations; performs professional legal work, research; presents cases in court and performs related duties as required; confers with, gives advice to and prepares opinions for various departments and branches of the Navajo Nation; drafts legal and judicial processes; prepares interpretations of new legislation and judicial decisions; reviews contracts, mortgages, leases, permits and related documents; conducts interviews on a variety of legal matters; conducts legal research, prepares briefs, pleadings and other legal documents. Advises clients and members of the various oversight committees of the Navajo Nation Council, as is required, on legal questions. Provides opinions on Navajo Nation law and policies and/or legislations/resolutions that may impact the Navajo Nation. Assist in routine operation of the Department of Justice. This position is open until filled.

Attorney, (Human Services and Government Unit). Window Rock, AZ. Represents the Navajo Nation government in reviewing documents, such as services contracts, sub-recipient and grant agreements, legislation, proposed policies, etc., for legal sufficiency. Participates in negotiations regarding legal documents/agreements with parties outside of the Navajo Nation. Respond to Request for Services and other legal inquiries from clients. Perform legal research and provide legal advice verbally and in writing. Legal advice and services will include: conducting initial eligibility determination reviews on proposed FRF expenditure plans; interpreting federal, state, and Navajo laws, regulation, policies, and procedures; and advising on legal compliance in the implementation of FRF programs and projects. This position is open until October 28, 2022 at 5:00 p.m.

Attorney, (Human Services and Government Unit). Window Rock, AZ. Represents the Navajo Nation government in reviewing documents, such as services contracts, sub-recipient and grant agreements, legislation, proposed policies, etc., for legal sufficiency. Participates in negotiations regarding legal documents/agreements with parties outside of the Navajo Nation. Respond to Request for Services and other legal inquiries from clients. Perform legal research and provide legal advice verbally and in writing. Legal advice and services will include: conducting initial eligibility determination reviews on proposed FRF expenditure plans; interpreting federal, state, and Navajo laws, regulation, policies, and procedures; and advising on legal compliance in the implementation of FRF programs and projects. This position is open until October 28, 2022 at 5:00 p.m.

Navajo Nation Office of the Prosecutor

Prosecutor. Kayenta, AZ.  Represents the interest of the Navajo Nation in juvenile adjudications, dependencies, Children in Need of Supervision (CHNS); research and study of litigation of juvenile proceedings and child neglect cases including appellate cases, reviews police, social service, and related reports/complaints, and other law enforcement documents and reports; prepares oral arguments, gathers facts and data; determines if sufficient evidence exists to support the charges; attends juvenile related hearings in Navajo Nation Courts; conducts legal research; drafts complaints, motions and/or other legal proceedings; prepares a legal strategy; identifies and subpoenas witnesses, records and other information required to present the case, prepares legal memoranda, briefs, motions and other required documents for court presentation; performs extensive legal research. Makes decisions in sensitive case and seeks assistance as needed in the juvenile matter.  This position serves at the pleasure of the Chief Prosecutor.  This position is open until filled.

Prosecutor. Window Rock, AZ.  Represents the interest of the Navajo Nation in juvenile adjudications, dependencies, Children in Need of Supervision (CHNS); research and study of litigation of juvenile proceedings and child neglect cases including appellate cases, reviews police, social service, and related reports/complaints, and other law enforcement documents and reports; prepares oral arguments, gathers facts and data; determines if sufficient evidence exists to support the charges; attends juvenile related hearings in Navajo Nation Courts; conducts legal research; drafts complaints, motions and/or other legal proceedings; prepares a legal strategy; identifies and subpoenas witnesses, records and other information required to present the case, prepares legal memoranda, briefs, motions and other required documents for court presentation; performs extensive legal research. Makes decisions in sensitive case and seeks assistance as needed in the juvenile matter.  This position serves at the pleasure of the Chief Prosecutor.  This position is open until filled.

Senior Prosecutor. Crownpoint, NM. Represents the interest of the Navajo Nation in prosecuting individuals alleged to have violated provisions of the Navajo Nation Code and present major and complex litigation in District and Family Courts. Reviews citations, arrest sheets and other law enforcement documents and reports; interviews witnesses, gathers facts and data; determines if sufficient evidence exists to support the charges; conducts legal research; drafts complaints, motions and/or other legal proceedings; prepares a legal strategy; gathers and compiles evidence; identifies and subpoenas witnesses, records and other information required to present the case. Prepares and presents criminal and civil cases in the Navajo Nation and appellate courts; prepares legal memoranda, briefs, motions and other required documents for court presentation; collaborates with law enforcement agencies; and negotiates settlement with opposing parties. This position serves at the pleasure of the Chief Prosecutor.  This position is open until filled.

Prosecutor. Crownpoint, NM.  Represents the interest of the Navajo Nation in prosecuting individuals alleged to have violated provisions of the Navajo Nation Code; reviews citations, arrest sheets and other law enforcement documents and reports; interviews witnesses, gathers facts and data; determines if sufficient evidence exists to support the charges; conducts legal research; drafts complaints, motions and/or other legal proceedings; prepares a legal strategy; gathers and compiles evidence; identifies and subpoenas witnesses, records and other information required to present the case. Prepares and presents criminal and civil cases in the Navajo Nation and appellate courts; prepares legal memoranda, briefs, motions and other required documents for court presentation; performs extensive legal research.  This position serves at the pleasure of the Chief Prosecutor.  This position is open until filled.

Prosecutor. Window Rock, AZ.  Represents the interest of the Navajo Nation in prosecuting individuals alleged to have violated provisions of the Navajo Nation Code; reviews citations, arrest sheets and other law enforcement documents and reports; interviews witnesses, gathers facts and data; determines if sufficient evidence exists to support the charges; conducts legal research; drafts complaints, motions and/or other legal proceedings; prepares a legal strategy; gathers and compiles evidence; identifies and subpoenas witnesses, records and other information required to present the case. Prepares and presents criminal and civil cases in the Navajo Nation and appellate courts; prepares legal memoranda, briefs, motions and other required documents for court presentation; performs extensive legal research.  This position serves at the pleasure of the Chief Prosecutor.  This position is open until filled.

Click here for last week’s job announcements!

Indian Child’s Tribe Determination out of Alaska Supreme Court

Here is the decision. sp7628

The facts of this case were a little unusual, where a foster family attempted to have a child in their care made a member of one tribe when he was already a citizen of another. The holdings, however, are  useful both for clarity in the regulations for the determination of an Indian child’s tribe, and for keeping state courts out of tribal citizenship decisions.

Court decisions reflect the same rule of deference to the tribe’s exercise of control over its own membership. The U.S. Supreme Court has long recognized tribes’ “inherent power to determine tribal membership.” In John v. Baker we recognized that “the Supreme Court has articulated a core set of [tribes’] sovereign powers that remain intact [unless federal law provides otherwise]; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.” We have also “long recognized that sovereign powers exist unless divested,” and “ ‘the principle that Indian tribes are sovereign, self-governing entities’ governs ‘all cases where essential tribal relations or rights of Indians are involved.’ ”

Chignik Lagoon’s argument would require state courts to independently interpret tribal constitutions and other sources of law and substitute their own judgment on questions of tribal membership. This argument is directly contrary to the directive of 25 C.F.R. § 23.108.

The Indian Law Clinic at MSU College of Law provided research and technical assistance to the Village of Wales in this case.

Greg Ablavsky Responds to Rob Natelson’s “Cite Check” of Ablavsky’s “Beyond the Indian Commerce Clause”

Gregory Ablavsky’s “Beyond the Indian Commerce Clause: Robert Natelson’s Problematic ‘Cite-Check’” is at the Stanford Law School blog, Legal Aggregate.

An excerpt:

Here’s that context: In 2007, Mr. Natelson wrote a law review article on the original understanding of the Indian Commerce Clause. Justice Thomas later cited Mr. Natelson’s article in a 2013 concurrence questioning Congress’s authority to enact the Indian Child Welfare Act (ICWA). In 2015, while a graduate student finishing my J.D./Ph.D. in American Legal History at Penn, I published Beyond the Indian Commerce Clause in the YLJ, which revisited original understandings of the sources of federal power over Indian affairs. In the article, I argued that the Founders thought that the federal government’s authority rested not just on the Indian Commerce Clause but on the interplay between multipleconstitutional provisions, including the Treaty Clause, the Territory Clause, the war powers, the law of nations, and the Constitution’s limits on state authority. The article also challenged Justice Thomas’s and Mr. Natelson’s conclusions in what Mr. Natelson later conceded was a “generally respectful” tone. Since the article, a number of subsequent articles by other scholars, some right-of-center and others disagreeing with my conclusions, have similarly challenged Mr. Natelson’s views.

Recommended reading. Professor Ablavsky is the leading legal historian of federal Indian law right now and filed a compelling amicus brief in Brackeen (here).

Harvard Native Alums Letter on the Harvard Steering Committee on Human Remains in University Museum Collections Report

Here:

The report is here.

What would the ancestors say?

Minnesota Tri-Bar Event: The Shifting Jurisdictional Landscape in Indian Country: SCOTUS’s Decision in Oklahoma v. Castro-Huerta

Register here.

Oklahoma Federal Court Finds No Jurisdiction in Contract Dispute Involving Seneca-Cayuga Nation

Here are the materials in The Queens LLC v. Seneca-Cayuga Nation (N.D. Okla.):

2 Complaint

10 Motion to Dismiss — Immunity

13 Response

14 Reply

17 Surreply

32 Motion for Determination of Federal Court Jurisdiction

35 Response

37 Reply

38 DCT Order

Photo by Pavel Danilyuk on Pexels.com

Oklahoma Tax Commission Reverses Administrative Law Judge, Holds McGirt Doesn’t Offer Tax Immunities to Tribal Members because of Castro-Huerta (kinda)

Here is the opinion:

Prior opinion here.

The tax man has spoken

SCOTUS Denies Cert in Oklahoma Indian Status Case

Here is yesterday’s order list.

The Oklahoma case was Oklahoma v. Wadkins. Lower court materials here.

The Court also denied cert in the Clarkson case.