D.C. Circuit Briefs in Navajo Nation v. United States [ISDEAA Contract Approvals]

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anticommandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.
Yet even if some provisions of ICWA did violate the Tenth, we argue that Section 5 of the Fourteenth Amendment sufficiently authorizes Congress’s enactment of ICWA so as to defeat the anti-commandeering concerns. Strangely, no party ever invoked Congress’s power under Section 5 of the Fourteenth Amendment to assess its constitutionality. ICWA seems like an obvious candidate for analysis under Congress’s enforcement powers under Section 5. States routinely discriminated against American Indian families on the basis of their race and ancestry (and their religion and culture), and ICWA is designed to remedy the abuses of state courts and agencies.
We further have no doubt that the state legislatures that adopted ICWA in whole, in part, or as modified also possessed the power to do so, even in the event the Supreme Court holds all or portions of ICWA unconstitutional.

Amicus Briefs in Haaland v. Brackeen

August 21, 2022Kate Fort

We have a total of 21 pro-ICWA Amicus Briefs. Here they are in some rough categories and some VERY rough summaries. In writing this post, I became overwhelmed at this stunning array of briefs and support for ICWA.

Government Briefs

NARF’s Tribal Government and Organizations Brief : this brief has the sign on of nearly 500 tribes and over 60 tribal organizations. It discusses ICWA as an exercise of the trust responsibility, and the political relationship of tribes.

Congressional Brief : 87 Members of Congress signed this brief defending ICWA in the four principle arguments in the case

State AG Brief : 23 states and the District of Columbia signed on to this brief, which highlights how ICWA allows and encourages tribal-state relations in the area of child welfare.

LA County Brief : from the county counsel at the largest child welfare system in the country, it discusses the importance of ICWA to LA County practice with a focus on relocation in particular

Semi-Party Brief

Bradshaw Brief : This brief is unique in that it primarily tells the story of Robyn Bradshaw, the grandmother who adopted her granddaughter who was the subject of the claims of the Cliffords, one of the three foster family plaintiffs in the case. Because the procedural posture of the case below, the Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.

How Child Welfare Works Briefs

Family Defenders : a brief from parent attorneys/family defenders in more than 8 states, this brief discusses the constitutional rights afforded to parents and families, how those intersect with the child welfare system, and the importance of ICWA in that structure. It directly addresses the arguments made by the other side regarding the child welfare system.

American Bar Association : This brief directly takes on the contention that child welfare is the sole province of the states as well as discussing the legal complexity of the child welfare system.

Casey Family Programs and 26 Other Child Welfare and Adoption Organizations : A continuation of the original, wildly successful, “gold standard” brief from Baby Girl, this brief focuses on child welfare best practices and how ICWA creates, promotes, and supports them.

National Association of Counsel for Children and 30 Other Children’s Rights Organizations : In addition to discussion the Constitutional rights of families, this brief directly addresses how ICWA supports the best interests of children in state proceedings.

Former Foster Children : One of the briefs with a particular place in my heart, this brief allowed Native youth to tell their lived experience to the Court.

How Adoption Works Brief

Non-Native Adoptive Parents : while the plaintiffs in this case were not adoptive parents, this brief directly addresses how ICWA actually works in voluntary adoptions.

Law Professor Briefs

Ablavsky Brief : The originalism brief

Administrative and Constitutional Law Professors : this brief addresses three main issues–federal power, anti-commandeering, and delegation

Indian Law Professors : this brief focuses on the exclusive power of Congress to legislate on behalf of Indians as a political class

American Historical Association : this brief provides historical context, especially around the early efforts (or lack thereof) of state child welfare systems and Native children

Medical Organizations

American Academy of Pediatrics and the American Medical Association : ICWA works directly to address the attendant physical and emotional trauma of federal and state policies designed to destroy tribal families and extended tribal networks

American Psychological Association (specifically including the associations of Texas, Louisiana, and Indianan) and the Society of Indian Psychologists : The benefits for children of being parented by Indian adults

Interest Groups

ACLU : ICWA is not a race based law

Constitutional Accountability Center : Originalism and anti-commandeering

National Indigenous Women’s Resource Center : The ramifications, specifically to VAWA, if “Indian” is a racial classification

Sen. Abourezk/Lakota People’s Law Project : Passage of ICWA and issues in South Dakota

Friday Job Announcements

August 19, 2022September 2, 2022Arianna Morseau

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

U.S. Attorney’s Office – Western District of Michigan

Assistant United States Attorney. Marquette, MI. The AUSA will handle criminal cases and will work with federal, state, local, and tribal law enforcement agencies to investigate and prosecute a variety of federal offenses. The AUSA will have a caseload of crimes occurring on property owned by, or held in trust for, Native American Tribes. The AUSA may also prosecute a variety of other offenses, including white-collar fraud, crimes involving firearms and explosives, and drug-trafficking offenses. Applications close August 31, 2022.

Squaxin Island Legal

Legal Director. Shelton/Olympia, WA. Supports organizational policies, procedures, and goals. Responsible for budgets including development, tracking, accuracy and compliance for the department. Responsible for following budget process including deadlines and adherence to schedule and direction from Tribal Council, Budget Committee, Tribal Administrator and Comptroller. Provide Travel reports, and annual reports for the department. Participate in Director’s meetings, public meetings and team assignments as requested. Communicate with employees regarding their performance, training opportunities and career development. The application will remain open until filled.

Ziontz Chestnut

Entry-level Associate Attorney Fall 2023. Seattle, WA. The duties include assisting our experienced attorneys on current legal matters including, but not limited to, legal research and writing, litigation, regulatory/administrative and transactional matters. Applications close September 30, 2022.

Akin Gump Strauss Hauer & Feld LLP

Rodney B. Lewis Resident – American Indian Law and Policy. Washington, DC. The key responsibilities of the position include monitoring Congressional legislative activity, political activity, regulatory developments, industry trends and media that impact clients; attending and summarizing Congressional hearings; conduct extensive, time-sensitive research and package findings; research, draft and prepare presentations and reports on select legislative and regulatory issues; and assisting with client meetings, schedules, and projects, including tracking industry events and conferences. This position is open until filled.

Earth Justice

Summer 2023 Clerk Summer 2023. Chicago, IL. Earth Justice fights proposed mines and pipeline projects that threaten the fishing and hunting rights of tribal communities and endanger the region’s treasures, including the Great Lakes and the pristine Boundary Waters. They work with communities impacted by contaminated air, drinking water, waterways, and soil to fight for environmental justice and to develop safer and cleaner neighborhoods in which to live. They are developing work that will promote healthier, more sustainable agriculture and combat climate change. Applications close September 23, 2022.

Spring 2023 Science Externship. Remote. Earthjustice’s Fossil Fuels Program is seeking an undergraduate student in their senior year or a graduate student for one part-time science externship during spring 2023. The student must be eligible to receive course credit through their school or fulfill a graduation requirement for this role. Applications close September 11, 2022.

Spring 2023 Legal Externship. Remote. Various Earthjustice teams are seeking 2L and 3Ls for part- and full-time Spring 2023 (January – May) legal externships. We are seeking those who share a passion for justice and a healthy environment, and who can receive course credit from their law school or fulfill a graduation requirement for their work with Earthjustice. Applications close September 11, 2022.

Hobbs Straus

2023 Summer Law Clerk. Washington DC. Summer internship opportunity to work under the supervision of attorneys on Indian law matters. Applications close September 30, 2022.

Anishinabe Legal Services

Staff Attorney. Cass Lake, MN. Anishinabe Legal Services is looking to hire an attorney to provide civil legal assistance and court representation to program clients before area Tribal Courts, State Courts, and Administrative Forums. This position will be open until filled. Applications close September 30, 2022.

Native American Rights Fund

Project Coordinator. Boulder, CO. The Project Coordinator fulfills a range of administrative and support duties for The Implementation Project. Open until filled with interviews beginning early September.

Summer 2023 Law Clerk. Anchorage, AK. Job duties include assisting NARF attorneys by conducting legal research, drafting legal memorandums, drafting case filings, citation verification, proofreading, assisting in case management, working on special legal projects, and any other legal tasks as requested. Applications close September 9, 2022.

Summer 2023 Law Clerk. Boulder, CO. Job duties include assisting NARF attorneys by conducting legal research, drafting legal memorandums, drafting case filings, citation verification, proofreading, assisting in case management, working on special legal projects, and any other legal tasks as requested. Applications close September 9, 2022.

Summer 2023 Law Clerk. Washington, D.C. Job duties include assisting NARF attorneys by conducting legal research, drafting legal memorandums, drafting case filings, citation verification, proofreading, assisting in case management, working on special legal projects, and any other legal tasks as requested. Applications close September 9, 2022.

Sonosky, Chambers, Sachse, Endreson & Perry, LLP

Legal Assistant. Portland, OR. The legal assistant will file legal documents; maintain knowledge of electronic court filing procedures; create, edit, and compile large, complex, heavily formatted documents; prepare and proofread pleadings, correspondence, memoranda, and other legal documents; prepare attorney and client meeting materials; open new client matters; maintain client and general files; provide overflow and absence coverage assistance for other offices and attorneys; prepare expense reports, reconcile accounts, and enter attorney time; schedule hearings and other client and firm meetings; order supplies, answer phones, travel arrangements, CLE and Bar license compliance, check requests, client bills and other administrative tasks as assigned. Applications will close when position is filled.

Judicial Branch of the Navajo Nation

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.

Lippes Mathias LLP

Indian Law Associate Attorney. Buffalo, NY. The attorney will work with clients to design effective legal strategies, defend tribal rights and formulate innovative approaches to transactional issues. A few of our areas of focus include cannabis, gaming, Indian lands, sovereignty issues and taxation. Applications will close September 15, 2022.

Hobbs, Straus, Dean & Walker, LLP

Paralegal. Portland, Oregon. Hobbs, Straus, Dean & Walker, LLP, a national law firm that specializes in Federal Indian Law, seeks an experienced Paralegal to work out of our Portland, OR office. This position is open until filled.

United States District Court – Western District of Washington

U.S. Magistrate Judge. Tacoma, WA. Conduct most preliminary proceedings in criminal cases. Issue search and seizure warrants. Conduct trials and sentencing hearings in misdemeanor cases. Preside over civil matters upon referral from a United States District Judge. Conduct settlement conferences. Preside over civil cases upon consent of the parties. Applications close September 15, 2022.

The Keweenaw Bay Indian Community

Assistant Tribal Prosecutor/Assistant Tribal Attorney. Baraga, MI. Assist the Tribal Attorney and perform general in-house duties for the Tribal Council as directed. Application process is open until filled.

Big Fire Law & Policy Group LLP

Tribal Government Attorney. Omaha, NE. Work on cases in a variety of areas including representation in tribal governments in tribal, federal, and state courts, before federal and state legislative bodies and agencies, including drafting ordinances, regulations and policies, negotiation, and review of contracts, working on fee to trust matters, and addressing tribal law and order issues.

Finance and Business Transactional Attorney. Omaha, NE. Work on cases in a variety of areas including representation in tribal governments in tribal, federal, or state courts, before federal and state legislative bodies or regulatory agencies, financing, refinancing, small business acquisitions, and tax matters, including experience with tax credit financing.

Tribal Corporate Attorney. Omaha, NE. Work on projects in a variety of areas including representation in tribal governments, tribal corporations and tribal gaming entities in a variety of matters including employment law, construction law, contracts, real property transactions, taxation matters, and SBA government contracting matters.

Choctaw Nation of Oklahoma

Staff Attorney II – Commerce Legal. Durant, OK. Responsible for negotiating, writing, reviewing, summarizing, researching, and executing a wide variety of agreements for business and internal support units. Offer sound legal advice and counsel to Senior Director of Legal and internal clients on strategies, actions, and decisions related to all such transactions and legal matters. Applications will close September 7, 2022.

Pechanga Band of Luiseno Indians

Deputy General Counsel. Temecula, CA. Provides legal opinions and assistance to the Tribal Council, all departments of the Pechanga Tribal Government, Gaming Commission and Pechanga Development Corporation; oversee work of outside counsel; and limited service to tribal members in matters relating to tribal status. Provides a broad range of legal services in all aspects of American Indian law. This position is open until filled.

National Indian Child Welfare Association

Programs Project Coordinator. Portland, OR. The project coordinator for programs at the National Indian Child Welfare Association (NICWA) is responsible for providing high-level administrative support to the program department and program staff as well as to the events and training team. Applications close September 2, 2022.

Tlingit & Haida

Child Welfare Attorney. Juneau, AK. The Child Welfare Attorney will provide civil legal representation to Tlingit & Haida on child welfare cases and issues. The incumbent’s primary responsibility is to advise the Tribal Family & Youth Services (TFYS) department staff regarding the application of the Indian Child Welfare Act (ICWA) and other State and Federal legislation that impact Tribal families. Applications close August 22, 2022.

Mille Lacs Band of Ojibwe Indians

RFP. Seeking proposals from qualified individuals and legal entities interested in providing legal services to represent individuals seeking to participate in or admitted to the Non-Removable Mille Lacs Band of Ojibwe’s Family Healing to Wellness Court, Noojimo’wiigamig Inaawanidiwag (Healing Journey). Closing date: August 22, 2022, by 5:00 p.m. (central).

Puyallup Tribe Of Indians

Tribal Court Judicial Law Clerk. Tacoma, WA. Under the general direction of the Chief Judge, this position is responsible for researching and analyzing intricate, complex and sensitive legal issues and questions for the Tribal Court Judges. Closing Date: Open Until Filled.

Realty Specialist – Fee to Trust. Tacoma, WA. Primarily responsible for overseeing coordinating the Fee to trust process. Maintains file systems, works with title companies, land surveyors, environmental consultants to help prepare federal requirements for the timely processing of fee property to trust status. Works as part of a team to facilitate fee to trust conversions with the Bureau of Indian Affairs (BIA) and related agencies involved in the Trust Process. Closing Date: Open Until Filled

Nevada Legal Services

Staff Attorney – Indian Law Project. Reno/Northern NV. The Indian Law Project provides a wide range of services to both tribal members and tribal governments based upon the needs expressed by each community. Project attorneys assist tribal governments in ICWA matters as well as act as public defender in a number of tribal jurisdictions. Attorneys also serve individual tribal members in a wide variety of legal matters Including eviction defense, estate planning, dependency representation and economic development activities. Applications close August 22, 2022.

St. Croix Chippewa Indians of Wisconsin

Tribal Court Staff Attorney. Webster, WI. Position is responsible to assist the Tribal Court with legal research, drafting of opinions, collaborating with the Office of General Counsel on projects, code writing/revision, and will assist with the daily Tribal Court operations. Closing date – Until filled.

The Federal Public Defender for the Districts of South Dakota and North Dakota

Assistant Federal Defender. Bismarck, ND. Responsible for preparing briefs, motions, and petitions for rehearing or certiorari in the United States District Courts for the Districts of North Dakota and South Dakota and United States Court of Appeals for the Eighth Circuit. The applicant will present oral arguments in the United States Court of Appeals and may handle post-conviction matters in the district court subject to the needs of the office. Provides research and writing assistance to other Assistant Defenders representing clients at the district court level. Applications close August 26, 2022.

Stanford University

Associate Director of Native American Studies. Stanford, CA. Help build student community within the major and minor, foster student engagement with its intellectual concerns, forge connections with scholars across the University as well as nationally and internationally, and build relationships with members of the community, including alumni. The AD’s time will be focused in several areas: approximately 65% spent teaching (4 courses per academic year); 20% devoted to program development; and 15% to academic administration, student advising, and general administration. Closing Date: August 22, 2022.

Oglala Sioux Tribe

In-House Counsel. Pine Ridge, SD. The In-House Legal Counsel to the Chief of Staff will perform all the duties as set forth in Ordinance 18-18 and is subject to the provisions set forth in Ordinance No. 18-18. The In-House Legal Counsel to the Chief of Staff shall provide legal counsel to the Chief of Staff and shall represent the Tribe in legal proceedings, as assigned. The position shall be directly responsible to and under the supervision of the Chief of Staff as set forth in Ordinance 18-18. The position is a political appointment and served at-will, with a term limit of two years with the possibility of reappointment. Closing date is open until filled.

RFP. Seeking proposals from qualified individuals and legal entities interested in providing Special Counsel Legal Services. Closing date: December 2, 2022 at 4:00 p.m. MST.

Swinomish Tribal Court

Chief Judge/Court Administrator. LaConner, WA. The Chief Judge is the primary judicial officer for all civil and criminal proceedings. The judge sits on the tribe’s adult Healing to Wellness Court. As court administrator the judge leads tribal court operations and program development. The position will be open until filled.

The Nottawaseppi Huron Band of the Potawatomi

Staff Attorney. Fulton, MI. Attend meetings of the Tribal Council, Committees, regulatory board/commissions and Membership meetings. Researches and drafts resolutions, Tribal laws, regulations, and policies for Tribal Council approval. Provides timely legal advice/counsel to, and draft legal opinions for, the Tribal Council and other subdivisions and instrumentalities of the Tribal government on a broad range of legal issues. Prepares legal memoranda and conducts legal research as directed. Develops and implements policies and procedures. Represents NHBP in Tribal court, and before quasi-judicial or administrative agencies of government. Applications due August 24, 2022 at 9:30 a.m.

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. 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. 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. Works closely with technical staff within the Water Rights Unit Staff, Department of Water Resources. 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. 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. 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. Participate in Legislative Branch and Executive Branch meetings. 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. 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. Assists in analyzing, developing, and achieving 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. This position is open until filled.

Attorney, (Human Services and Government Unit). Window Rock, AZ. 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. This position is open until filled.

Attorney Candidate. Window Rock, AZ. Provides legal direction to Navajo Nation Divisions, Departments and offices, regarding a wide range of legal issues; 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.

Attorney (Human Services and Government Unit). Window Rock, AZ. Performs professional legal work in research, trial prep and other legal work. Confers with, gives advice to, and prepares opinions for assigned departments and branches of the government; drafts legal and judicial processes; 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. Assists in routine operations of Department of Justice. This position is open until September 9, 2022 at 5:00 p.m.

Legal Secretary, (Navajo-Hopi Legal Services Program). Tuba City, AZ. Provide general office support by greeting clients, answering telephone calls and directing to appropriate staff; logs incoming/outgoing mail and distributes accordingly; schedules meetings, conferences, conference calls and appointments; and makes travel arrangements for assigned professional staff. Maintains all case files for the Navajo-Hopi Legal Services Program. Assist in logging in documents for review and following up with professional staff on timely completion or review. Attend relevant training, conference and meetings. This position is open until August 22 2022 at 5:00 p.m.

Attorney, Window Rock, AZ. Provides legal assistance to the Division of Economic Development, Division of Community Development, the Navajo Gaming Regulatory Office, and other entities of the Navajo Nation as needed. Represents the Navajo Nation on matters related to state and federal voting; and on matters related to the Navajo Nation’s gaming compacts. This position is open until August 26, 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; 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 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; 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 is open until filled.

Prosecutor, Ramah District. Ramah, 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 is open until August 26, 2022, by 5 pm.

Prosecutor. Chinle, 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 is open until August 25, 2022, by 5:00 pm.

Attorney. Window Rock, AZ. Reviews major crimes cases investigated by the Navajo Department of Criminal Investigation and Federal Bureau of Investigation that are not prosecuted in federal court. Determines whether to recommend to the Chief Prosecutor prosecutions within a relevant Navajo Nation District Court. Considers the weight of the evidence, the importance of the case, the necessity of uniform application of law throughout the Navajo Nation, and other considerations which bear on the advisability of initiating the filing of criminal charges. Prepares memorandum of fact and law where appropriate. Initiates filing of pleadings, petitions and motions with the appropriate Navajo Nation court, prepares and tries the case. This position is open until September 9, 2022 by 5:00 pm.

Senior Legal Secretary. Window Rock, AZ. Provides legal office administrative support to prosecutorial office. Drafts legal correspondence and reports, develops and maintains legal case files; proofreads all legal documents for accuracy, completeness, and conformance; maintains and prepares for destruction legal documents with applicable policy and regulations; receives criminal complaints/police reports and juvenile referrals and processes them (via Justware) for prosecutor review and filing. Receives incoming motions and pleadings, generates subpoenas, affidavits, and notice for submission to the courts. Meets with prosecutors on case management support and assist in communicating with witness, defense council and victims for upcoming court hearing, Collects and compiles statistical information from Justware and related sources for special and quarterly reports and projects. Maintains court hearing dockets and court schedule for calendaring. This position is open until August 19, 2022, by 5:00 pm.

Senior Prosecutor. Crownpoint, NM. 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 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 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 is open until filled.

Dylan Hedden-Nicely on Castro-Huerta

August 19, 2022August 23, 2022Matthew L.M. Fletcher

Dylan Hedden-Nicely has posted “The Terms of their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country” on SSRN.

The abstract:

For over two hundred years the “whole course of judicial decision” in the United States has recognized that American Indian tribes possess inherent sovereignty to govern their lands and people. Federal recognition of that sovereignty was memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. Throughout that same period, and with only minimal exception, the judiciary faithfully applied those treaties to protect tribal property rights, recognize tribal sovereignty, and to bar states from imposing jurisdiction within Indian Country.

The jurisprudence in this arena has shifted, however, over the past few decades. Although the Supreme Court continues to faithfully apply its longstanding treaty analysis to protect tribal property rights, it has moved away from using that same analysis when evaluating tribal sovereignty and the scope of state jurisdiction in Indian Country. Instead, as demonstrated by its recent decision in Oklahoma v. Castro-Huerta, the Court has articulated a preemption test that is determined by judicial balancing of the tribal, federal, and state interests in the subject matter the state seeks to regulate. The approach has long been criticized for allowing courts to usurp the legislative power of Congress to make policy in federal Indian law in order to “reach outcomes consistent with their own notions of how much tribal autonomy there ought to be.” The purpose of this article is to establish that this so-called balancing test has no basis in the foundational principles of federal Indian law. Instead, the broad sweep of the field demonstrates that tribal freedom from state jurisdiction within Indian Country should proceed as a treaty right analysis.

That analysis requires courts to determine whether the treaty at issue preempts state law within the reservation. In making that determination, courts must interpret the treaty consistent with background principles of tribal sovereignty, which necessitates that ambiguities be resolved in favor of the tribe and that any sovereignty not expressly ceded has been retained. Applying these principles, the Supreme Court has repeatedly found that the treaty right to a “permanent home” implicitly included the right for tribes to “govern themselves, free from state interference.” Once established, a treaty right may only be taken away by Congress. Once again, however, there remains a strong presumption against the abrogation of tribal sovereignty. Thus, the Court has consistently required there be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”

This article seeks to demonstrate that the Court’s treaty-based analysis of tribal sovereignty should be applied by the judiciary moving forward. It is preferable not only because it is more consistent with foundation principles of federal Indian law but also bedrock constitutional principles as well as basic twenty-first century domestic and international norms related to the treatment of indigenous peoples and self-determination.

Highly recommended!

New, Important Scholarship on the Post-Dobbs Abortion Access in Indian Country Controversy from van Schilfgaarde, Hoss, Tweedy, Deer, and Leeds

August 19, 2022Matthew L.M. Fletcher

Lauren van Schilfgaarde, Aila Hoss, Ann Tweedy, Sarah Deer, and Stacy Leeds have posted “Tribal Nations and Abortion Access: A Path Forward,” forthcoming in the Harvard Journal of Law and Gender, on SSRN.

HIGHLY RECOMMENDED.