Turtle Talk

Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:

The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.

In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time.

Friday Job Announcements

June 25, 2021June 24, 2021Monica Williamson

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

In the email body, a typed brief description of the position which includes
1. position title,
2. location (city, state),
3. main duties,
4. closing date,
5. and any other pertinent details such as links to application;
An attached PDF job announcement.

WI Judicare

Elder and Disability Law Position, Wausau, WI. Qualified applicants willing to work remotely in or near the service area are encouraged to apply. Key Responsibilities (1) Maintain caseload on behalf of Indian individuals and groups in matters related to public benefits; (2) Educate and serve Native American Elders in areas of health and income maintenance, estate planning, and exercise of religious freedom, among others; (3) Provide backup services and education to Tribal Benefit Specialists; (4) Participate in tribal court development and community education projects; and (5) Carry out training and coordination of law student and other pro bono service projects. Please see the position description for more information.

Criminal and Civil Tribal Court Position, Wausau, WI. Qualified applicants willing to work remotely in or near the service area are encouraged to apply. Key Responsibilities (1) Maintain caseload on behalf of Indian individuals in both civil and criminal matters in tribal court or arising under federal or tribal law. Civil case areas include CHIPS/ICW, custody/placement, 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. Please see the position description for more information.

SEARHC

Associate General Counsel, Juneau, AK. Southeast Alaska Regional Health Consortium Open until filled. URL to job. Please see the position description for more information.

The Mohegan Tribe

Attorney General, Uncasville, CT. The Mohegan Tribe of Indians of Connecticut is searching for a successor to the retiring incumbent to fill the position of Attorney General. This position is part of the Tribe’s senior executive team and is responsible for executive, managerial and administrative duties to oversee all legal and assigned regulatory departments as well as developing legal strategies to advise the Tribe and its business enterprises. Application closes Friday, July 16^th, 2021. For more information, please see the position description.

Minnesota Center for Environmental Advocacy

Staff Attorney, St. Paul, MN Work with Chief Legal Officer and program staff to serve MCEA’s legal needs, including analyzing potential cases, researching and developing legal strategies, litigating, and providing day to day legal advice; Represent MCEA and other client organizations in administrative and court actions; Engage in legislative and administrative advocacy, including reviewing proposed legislation and rules, meeting with legislators and agency staff, and providing written and oral testimony; and more. Closing Date: July 26, 2021. Please see the position description for more information.

Pueblo of Pojoaque General Counsel

Attorney. Provide legal services under the direct supervision of the Chief General Counsel. Applicant will assume diverse roles while working with the Pueblo people, their government and Pueblo corporations. Position requires a substantial knowledge and understanding of the Pueblo, its departments and businesses and a general understanding of Indian Law and tribal-federal-state relations and the Pueblo of Pojoaque Law and Order Code. A background of federal Indian law is essential. Practice areas include direct legal services, domestic affairs, tribal corporations, water law, litigation, gaming, general civil law, and contracts. Position will be filled within 30 days of this posting. Send resumes via email to lbarnhart@pojoaque.org. Please have resumes submitted by June 30, 2021. For more information please see the position description.

Alaska Legal Services Corporation

Native Law Staff Attorney, Anchorage, Alaska. Provide legal services to Association of Village Council Presidents (“AVCP”) member Tribes and tribal members in. 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 Native law matters on behalf of AVCP Tribes and tribal members. The Anchorage ICWA attorney will be serving clients in the Yukon-Kuskokwim Delta, in cases primarily heard in Anchorage, Alaska courts, but also elsewhere throughout the state. For more information, please see the position description.

Native Law Staff Attorney, Bethel, Alaska. Provide legal services to Association of Village Council Presidents (“AVCP”) member Tribes and tribal members. 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 Native law matters on behalf of AVCP Tribes and tribal members. The Bethel ICWA attorney will be serving clients in cases primarily heard in Bethel, Alaska courts, serving clients in the Yukon-Kuskokwim Delta. The attorney will be supervised and supported by ALSC staff. Travel to both urban and rural areas will be required. For this position, the attorney will either be:

· Housed within the AVCP ICWA department, in Bethel, Alaska; or

· Housed in Alaska Legal Services’ Anchorage-based office, with expenses-paid travel to Bethel, Alaska for approximately one week out of each month, provided COVID-19 precautions allow.

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, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

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, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Navajo Nation Office of the Chief Prosecutor:

Chief Prosecutor, Window Rock, AZ. The Chief Prosecutor performs administrative, managerial, and prosecution work in directing the Office of the Chief Prosecutor and component districts including the Juvenile Justice and White Collar Crime programs. Administers short and long range planning, organizing, directing, strategic planning for annual, external, and supplemental budgets, and related activities of the Office of the Chief Prosecutor. Coordinates and evaluates the overall effectiveness of the assigned program offices and districts. Responsible for adhering to the Plan of Operation and establishing annual goals and objectives, and making necessary amendments. This position serves at the pleasure of the Attorney General. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Navajo Nation Office of the Prosecutor:

Attorney, Ramah, NM. Under supervision of the Chief Prosecutor/Deputy Chief Prosecutor represents the interest of the Navajo Nation government. Provides and assists several district prosecutor offices in prosecution of criminal and civil cases representing the interests of the Navajo Nation government. Will attend arraignments, as needed; trials, adjudications, child dependency adjudications, motion hearings, sentencing/disposition hearings, pretrial conferences, preliminary hearings, and other related issues to court attendance; prepares all required legal documents; reviews investigative reports, legal pleadings from defense counsel, law enforcement reports and related documents; determines nature of the criminal offense; establishes case plan with law enforcement personnel from various governmental agencies on most serious criminal offenses such as vehicular homicide, sexual assault, aggravated batteries, child neglect or spousal abuse, etc.; assigns case plans; provides legal guidance and advice to law enforcement personnel in proceeding with investigation; prepares and obtains search warrants as necessary, conducts follow ups on cases and elements of cases, conducts legal research, review criminal complaints, interview witnesses, included but not limited to other legal matters. This position serves at the pleasure of the Chief Prosecutor. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Senior 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 serves at the pleasure of the Chief Prosecutor. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Prosecutor, Crownpoint, NM. 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 July 8, 2021 by 5:00 p.m., please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

See previous posts.

National Indian Law Library Bulletin (6/23/2021)

June 24, 2021Matthew L.M. Fletcher

Here:

The Native American Rights Fund is hiring. Learn more about the vacancies at the NARF website>

NARF also invites 3L law students, recent law school graduates, and those with judicial clerkships to apply for sponsorship for a post-graduate public interest fellowship. Skadden Fellowship deadline is July 9. Learn more>

We have scoured the web. Here are some of the latest materials related to Indian Law. Find all of the latest updates at https://narf.org/nill/bulletins/

U.S. Supreme Court Bulletin

http://www.narf.org/nill/bulletins/sct/2020-2021update.html
One petition for certiorari was denied on 6/21/21:

Club One Casino v. Haaland (Jurisdiction)

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2021.html

Big Sandy Rancheria Enterprises v. Bonta (Sovereign Immunity; Indian Taxation)
Backcountry Against Dumps v. Bureau of Indian Affairs (Trust Relationship; Cultural Resources)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2021.html

In the Matter of the Welfare of the Children of: B.M.S., T.J.R.T., and D.A.M. (Indian Child Welfare Act; Minnesota Indian Family Preservation Act)

Tribal Courts Bulletin
https://www.narf.org/nill/bulletins/tribal/2021.html

Mayes v. Cherokee Nation Election Commission (Tribal Elections)
Morales v. Fort Peck Tribes (Tribal Law)

U.S. Legislation – 117th Congress Bulletin
https://narf.org/nill/bulletins/legislation/117_uslegislation.html

S.2071 – A bill to provide grants to States, territories, Puerto Rico, the District of Columbia, and eligible Tribal entities to promote access to affordable, high-speed broadband and digital equity.
S.2092 – A bill to permanently authorize the Native Community Development Financial Institutions lending program of the Department of Agriculture, and for other purposes.
S.2167/H.R.4052 – A bill to establish a national, research-based, and comprehensive home study assessment process for the evaluation of prospective foster parents and adoptive parents and provide funding to States and Indian tribes to adopt such process.
S.2177 – A bill to amend the Mineral Leasing Act to ensure sufficient bonding and complete and timely reclamation of land and water disturbed by Federal and Indian oil and gas production, and for other purposes.
H.R.4054 – To amend the Internal Revenue Code of 1986 to treat Indian tribal governments in the same manner as State governments for certain Federal tax purposes, and for other purposes.

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2021.html

The sky will not fall in Oklahoma.
A coherent ethic of lawyering in post-McGirt Oklahoma.
Renewable energy depends on tribal sovereignty.
White tape and Indian wards: Removing the federal bureaucracy to empower tribal economies and self-government.
Hawai’i ’78: Collective memory and the untold legal history of the reparative action for Kānaka Maoli.

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
This week, in brief:

Secretary Haaland announces federal Indian boarding school initiative
Yakama Nation celebrates ‘resounding victory’ for treaty lands
Navajo Nation disappointed in lack of Native Americans selected for New Mexico Citizen Redistricting Committee
Pueblo of Acoma signs 15-year agreement with Colorado energy company, makes plans to maintain its own utility
‘We’re just somebody little’: Amid plans to mine lithium deposit, Indigenous, rural communities find themselves at the center of the energy transition
South Dakota Native Homeownership Coalition celebrates upward trend in Native American homeownership during National Homeownership Month
‘Bring us your dreams.’ This Native-led fund aims to ‘decolonize philanthropy’ in the Northwest
There are many unmarked graves of Indigenous kids at US boarding schools too
Decolonize climate adaptation research
Indigenous women invite Deb Haaland to see devastation of Line 3 for herself
Juneteenth from a Black Indigenous perspective

ICRA Habeas Petition by Washoe Tribe Prisoners

June 24, 2021Matthew L.M. Fletcher

Here are the materials so far in Lundy v. Balaam (D. Nev.):

1 Habeas Petition

2 TRO Motion

11 Balaam Motion to Dismiss

12 Response

15 Reply

16 DCt Order

Ninth Circuit Decides Deschutes River Alliance v. Portland General Electric Company in Favor of Tribal Immunity

June 23, 2021Matthew L.M. Fletcher

Here:

CA9 Opinion

Briefs here.

DOI: “Secretary Haaland Announces Federal Indian Boarding School Initiative”

June 23, 2021Matthew L.M. Fletcher

Here.

Related Secretarial Memo here:

Secretarial Memo

Federal Court Enjoins Pinoleville Pomo Nation Tribal Court Designed to Challenge Federal Court RICO Judgment

June 23, 2021Matthew L.M. Fletcher

Here is the order in JW Gaming Development LLC v. James (N.D. Cal.):

363 DCT Order

An excerpt:

Shortly after judgment was entered in this case, PPN constituted its Tribal Court for the first time; there is no evidence that it ever existed in any meaningful way until then. Days after the newly appointed judge issued standing orders, PPN filed a civil complaint in that Tribal Court that seeks to (1) declare the judgment issued in this case invalid, (2) limit and control—indeed, vitiate—the scope of enforcement of that judgment, and (3) impose roughly eleven million dollars in liability on JW Gaming for alleged fraud stemming from the same loan agreement here. The lawsuit names not only JW Gaming but its attorneys in this matter and the bank at which PPN maintains accounts that was recently subpoenaed in the course of enforcement of the judgment. It is the first (and, as far as the record shows, only) case brought in the Tribal Court. Remarkably, up until the eve of the hearing on a temporary restraining order (“TRO”) against the proceeding, which I ultimately denied, JW Gaming could not find publicly available information about how appear in that proceeding (despite being served with a summons), who the judge was, or what the rules were.

JW Gaming moved for an order to show cause why an injunction should not issue, which I denied. It then moved for the TRO, which I converted into a motion for a preliminary injunction once PPN’s counsel committed to placing the Tribal Court proceeding on hold. That motion is now ripe for decision.

It is critical that federal courts respect tribal sovereignty and tribal court jurisdiction. Tribes are sovereign nations. Their ability to govern themselves and enjoy the full benefits of sovereignty is unquestioned. Tribal courts, as arms of the tribe, are entitled to substantial comity and deference under established federal law. I previously denied JW Gaming’s motion for an order to show cause why an injunction should not issue out of these concerns. I remain vigilant about the compelling interest that PPN has in maintaining its sovereignty.

Those concerns, however, do not prevent an injunction against a Tribal Court proceeding that seeks to invalidate or interfere with the judgment entered in this Court. There are compelling interests in ensuring that enforcement of valid federal-court judgments is not interfered with, that JW Gaming is not required to litigate a lawsuit precision-engineered to invalidate and interfere with this one, and that third parties are not exposed to court orders or liability for simply enforcing a judgment or attempting to comply with the procedures for enforcing it. To the extent the lawsuit seeks to invalidate the judgment or interfere with enforcement, it is unquestionably meritless: a tribal court lacks authority to invalidate a federal court’s judgments or to dictate the scope of executing that those judgments. JW Gaming has shown it is entitled to a preliminary injunction to the extent that the Tribal Court proceedings attempts to invalidate, interfere with, or thwart the judgment entered here. I possess jurisdiction to enter this injunction to protect and effectuate the judgment. The doctrine of tribal court exhaustion does not apply because PPN exercised its sovereign power to clearly, expressly, and unequivocally waive it.

Briefs and related materials here.

Florida Court Awards Nominal Attorney Fees to Miccosukee Tribe in Long-Running Dispute with Lewis Tein Firm

June 22, 2021June 22, 2021Matthew L.M. Fletcher

Here are the materials in Lewis Tein P.L. v. Miccosukee Tribe of Indians of Florida (Miami-Dade Cir. Ct.):

Prior post here.

SCOTUS Denies Cert in Club One Casino v. Haaland

June 21, 2021Matthew L.M. Fletcher

Here is today’s order list.

Here are the cert stage briefs in Club One.

NABA-DC Summer Programs

June 21, 2021Matthew L.M. Fletcher

Every summer, the Native American Bar Association – DC (NABA-DC) organizes events and programs for summer interns interested in the field of Indian law and policy. The NABA-DC programs include the Brownbag Program and Mentorship Program. Through each program, interns will be able to meet and engage with professionals currently working in DC on issues impacting Indian Country.

The Brownbag program provides summer interns an opportunity to attend lunches hosted by offices such as government agencies, law firms, and non-profit organizations. For more information on the NABA-DC Brownbag Program, please contact nabadcbrownbag@gmail.com.

The mentorship program provides summer interns an opportunity to engage one-on-one with professionals in the DC Indian Law community. For more information on the NABA-DC mentorship program, please contact nabadcmentorship@gmail.com.

Students and summer interns may sign-up to participate in the summer programs here: https://forms.gle/v3vXjtkcJnr3DSE3A

Indian Country Professionals may sign-up to volunteer as a mentor here: https://forms.gle/voueFjKZZCPfcset7