Michigan COA Holds Mackinac Tribe Member May Have Treaty Rights

Matthew L.M. Fletcher

Here is the opinion in People v. Caswell:

Opinion

An excerpt:

Defendant, Walter Joseph Caswell, is a member of the Mackinac Tribe of Odawa and Ojibwa Indians (the “Mackinac Tribe”). In October 2018, a Department of Natural Resources (DNR) conservation officer cited defendant for spear fishing in a closed stream in violation of MCL 324.48715 and MCL 324.48711.1 Defendant moved to dismiss the charges on the ground that he was a member of an Indian tribe or band granted hunting and fishing rights by 1836 and 1855 treaties with the United States federal government. The Mackinac County district court granted defendant’s motion upon concluding that the Mackinac Tribe was entitled to rights under the relevant treaties. On appeal from the prosecutor, the Mackinac County circuit court reversed on the ground that the Mackinac Tribe was not federally recognized and that federal tribal recognition is a matter for initial determination by the United States Department of the Interior. We granted defendant’s delayed application for leave to appeal. For the reasons explained below, we vacate the circuit court’s order and remand the case to the district court for an evidentiary hearing consistent with this opinion.

Briefs:

353537_13_01.pdf-AT Brf

353537_16_01.pdf-AE Brf

353537_19_01.pdf-Reply

353537_29_01.pdf–Amicus 1

353537_32_01.pdf-Amicus 2

Job Announcements

Monica Williamson

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

  1. 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;
  2. An attached PDF job announcement.

The Indigenous Peoples’ Journal of Law, Culture & Resistance

 (3+) Judges for the National Native American Law Students Association’s writing competition. Each judge must have significant knowledge of Federal Indian Law (five or more years experience practicing in the area of Federal Indian Law and/or specializing in Federal Indian Law in academia) and be available to read and judge submissions from March 5th to March 15th, 2021. If you are interested, please send your resume or CV to ipjlcr@lawnet.ucla.edu. Judges will receive a special note of appreciation and recognition in the front matter of Volume 7 of the Journal (forthcoming 2021).

Michigan State University College of Law

Assistant Director of Academic Support, Academic Success Program, East Lansing, MI. More information about this fixed-term, Academic Specialist Advisor position can be found in the posting is on the MSU’s Career website.  Applications are due by Friday, March 5, 2021.

National American Indian Court Judges Association

RFP<a rel="noreferrer noopener" href="http://&lt;!– wp:paragraph –> <p><a href="https://turtletalk.blog/wp-content/uploads/2021/02/conference-coordinator-rfp-20211-1.pdf&quot; target="_blank" rel="noreferrer noopener">https://turtletalk.blog/wp-content/uploads/2021/02/conference-coordinator-rfp-20211-1.pdf</a>RFP, Conference Coordinator. The National American Indian Court Judges Association (NAICJA) invites proposals for a Conference Coordinator for the National Tribal Judicial and Court Personnel Virtual Conference, October 20-21, 2021. The virtual conference will provide quality, culturally-appropriate topics highlighting American Indian, Alaska Native, Native Hawaiian, and First Nations justice systems to more than 200 tribal judges, peacemakers and court personnel, with 20+ presenters, and 10+ vendors and exhibitors.</p> , Conference Coordinator. The National American Indian Court Judges Association (NAICJA) invites proposals for a Conference Coordinator for the National Tribal Judicial and Court Personnel Virtual Conference, October 20-21, 2021. The virtual conference will provide quality, culturally-appropriate topics highlighting American Indian, Alaska Native, Native Hawaiian, and First Nations justice systems to more than 200 tribal judges, peacemakers and court personnel, with 20+ presenters, and 10+ vendors and exhibitors.

Tanana Chiefs Conference

Tribal Development Division Director, Fairbanks, AK. This position provides leadership and direction for the TCC Tribal Development Division, developing and implementing strategies in accordance with organizational plan; incumbent will plan, direct, coordinate, monitor, evaluate the day to day operations of the Tribal Development Division. Open until filled. Apply online and see the position description for more information.

Family and Workforce Services Division Director, Fairbanks, AK. This position will plan, direct, coordinate, monitor, evaluate the day-to-day operations of Client Development programs administered by Tanana Chiefs Conference. Open until filled. Apply online and see the position description for more information.

Ute Tribal Court

Prosecutor, Fort Duchesne, UT. The Prosecutor is responsible for independently prosecuting criminal, juvenile, civil, and other cases in the Ute Indian Tribal Court.  The applicant must be a Utah State Licensed Attorney or eligible and have a Juris Doctorate from an ABA accredited law school.  Applicants should complete a Tribal Application Form at www.utetribe.com and then mail the completed application material. Please see the position description for more information.

Pueblo of Isleta

Presenting Officer, Request for Letter of Interest, Pueblo of Isleta, Albuquerque, NM. The Pueblo of Isleta is soliciting for a qualified contracted attorney to serve as a Presenting Officer for its Social Services, Truancy Departments, and Children’s Intervention Officer. The attorney must have experience in criminal and juvenile cases involving children and juvenile delinquents. Details are in the attached advertisement. Letter of Interest responses are due no later than Thursday, February 25, 2021 3:00 p.m. MST.

National Congress of American Indians

Chief Executive Officer, Washington, DC. Founded in 1944, NCAI is the oldest, largest, and most representative American Indian and Alaska Native organization in the country.  NCAI’s CEO is responsible for administering and managing all strategic and operational aspects of the organization under the direction and supervision of the Executive Committee and collaborates with the Committee on creating a vision to support the long-term success of NCAI and the NCAI Fund. Closing date is Feb. 28, 2021. Please visit the website and see the job description for more information.

Policy Analyst, Washington D.C.  Support the policy and advocacy functions of NCAI with respect to human service issues areas. NCAI provides essential information and education on key policy initiatives, enhances coordination and consultation with tribal governments, and leads efforts to unite tribal advocates to promote progressive, proactive Indian policy. NCAI also manages several grants to enhance relationships between tribal governments and the federal, state, and local governments in order to better meet the needs of tribal citizens, and uphold the government-to-government principles that are essential to the autonomy of tribal governments. Position is open until February 12, 2021 or until filled. Please see the position description for more information.

Trinidad Rancheria Tribal Court

Court Administrator, Trinidad, CA. Responsible for management and supervision of daily court operations and management, including assuming responsibility for the development, implementation and maintenance of case management systems, facilities management and security, strategic planning and fiscal activity, including budget development and administration and supervision of other financial matters of the Court. Application here and please see the position description for more information.

Tulalip Tribes

Attorney – Litigation/Environmental, Tulalip, WA. Handles all phases of litigation in tribal, state and federal courts. Provides legal advice and support to Natural Resources, Environmental and Land Use Departments for the Tulalip Tribes. Drafts and revises Tribal Codes, and more. Applications close February 22, 2021. For more information contact Michelle Sheldon at michellesheldon@tulaliptribes-nsn.gov.

Judicial Branch of the Navajo Nation 

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. For more information, please see the position description or to apply, visit http://www.courts.navajo-nsn.gov/vacancies.htm. 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. For more information, please see the position description or to apply, visit http://www.courts.navajo-nsn.gov/vacancies.htm. 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. For more information, please see the position description or to apply, visit http://www.courts.navajo-nsn.gov/vacancies.htm. 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.  For more information, please see the position description or to apply, visit http://www.courts.navajo-nsn.gov/vacancies.htm. This position is open until filled.  

Michigan Indian Legal Services

Intern/Extern.  Traverse City, MI.  Provide assistance to attorneys on a broad range of cases.  Open until filled. Please see the position description for more information.

New Mexico Legal Aid Native American Program

Staff Attorney, the office is located within the Santa Ana Pueblo lands, however, due to COVID-19, NMLA has allowed accommodations for remote work temporarily. NAP attorneys handle cases and matters in several jurisdictions involving federal Indian law and tribal law issues, including representation of low-income individuals in Pueblo and tribal courts and other forums, which may include family law, consumer law, and criminal law matters. Please see the position description for more information and to apply. Deadline to apply is February 19, 2021, otherwise open until filled.

AmeriCorps Member: Native Communities Medical-Legal Partnership Attorney. Practice Areas Children’s Rights, Consumer Protection/Debt/Bankruptcy, Disability Law/Rights, Education, Elder Law, Employment/Labor, Family Law, Native American/Indian/Tribal Law, and more. For more information and to apply, please see the position description. Deadline to apply is February 28th, 2021, however candidates are encouraged to apply sooner as applications will be reviewed on a rolling basis.

House Committee on Natural Resources

Member Services Coordinator. Reporting to the Director of Outreach & Engagement, the Member Services Coordinator plays a lead role in ensuring that the needs and priorities of the committee’s members are incorporated into its outreach and engagement activities, and actively cultivates opportunities to highlight and feature members and their interests. Please see the position description for more information.

Staff Assistant, Washington DC. The Democratic staff of the HNRC seeks an organized, enthusiastic, and detail-oriented Staff Assistant (SA). Candidates should be passionate about issues within the Natural Resources Committee’s jurisdiction, possess basic knowledge of the Committee process, have excellent time management and multitasking skills, and display an active willingness to learn. Full job description and instructions on how to apply can be found here and the attached job description. Deadline to apply is Wednesday February 17, 2021.

ACLU Montana

Policy Director, Advocacy and Policy Department. This is an opportunity for a visionary professional to build on the success of the premier civil liberties and civil rights organization in Montana. Application reviews begin March 8, 2021. Applications after that date are encouraged and will be accepted on a rolling basis until the position is filled. Please see the position description for more information.

Environmental Law Institute

Intern(s), research and publications departments, remote. Interns work directly with staff attorneys, editors, scientists, and economists on a variety of projects. Substantive areas of focus include domestic and international policy and law such as: land use, biodiversity, air quality, public health, and more. Positions are available throughout the academic year (minimum 15 hours/week during the fall and spring semesters) and during the summer (full-time). This position is for summer 2021 and will be fully remote. Compensation is not available. Applications for the summer internship will be accepted until 11:59 pm EST Friday, March 5, 2021. For more information, please visit ELI’s application system and visit www.eli.org.

Earthjustice

Associate Attorney, Chicago, IL, New York, NY or Philadelphia, PA. The Coal Program at Earthjustice is now accepting applications for an Associate Attorney to join our team of lawyers and advocates who are working to end the U.S.’s dependence on coal-fired power, stop proposed gas-fired power plants, and advance a just and equitable clean energy transformation. As Earthjustice handles coal litigation around the country, the position may entail significant travel. Please see the position description for more information.

Rosette, LLP

Associate Attorney, Grand Rapids, MI. Seeking an associate with office with 1-3 years’ experience in corporate law and governance, business transactions, federal consumer protection law, and/or working with Indian tribes.  Experience in Federal Indian Law is preferred.  Open until filled. Please see the position description for more information.

See posts from February 5, 2021.

Hon. Steve Hager Passes

Kate Fort

Because honestly it was just too much to post about both Judge White and Judge Hager on the same day.

He always wanted to stop and talk about ICWA with me, and I was lucky for that.

Here.

NAICJA’s Statement:

The National American Indian Court Judges Association is heartbroken to announce the death of Judge C. Steven Hager, Board of Directors Region 1. Judge Hager served as an elected board member since 2017. Judge Hager was the Chief Judge for the Kickapoo Nation in Kansas and served on the Supreme Court for the Kaw Nation of Oklahoma. During his tenure on the Board of Directors, Judge Hager was an invaluable resource to our Tribal Civil and Criminal Legal Assistance Project and thoughtful jurist who helped shape NAICJA’s goals and visions.Judge Hager was a Senior Attorney at Oklahoma Indian Legal Services for over 30 years. He was an adjunct professor at the University of Oklahoma’s College of Law, teaching in the Masters of Law and L.L.M. programs. Judge Hager was also on the board of the Kansas Tribal-State Judicial Committee.

“Steve was a dedicated judge and member of our community who we will miss dearly,” stated President Richard Blake. His good friend and long-time colleague, Judge Greg Bigler, recalled, “Steve Hager was a great friend, and he was a pleasure to watch in court. We never knew if he would be at tribal court with some interns from OILS, or on his own. He was generous with his time and great legal knowledge to those in training. In court, I always knew when he stood up and started to take off his glasses that he was about to make a well taken point. It was usually about the law or concern over his juvenile clients, but it could also be a dry humorous comment about the current state of affairs we all suffered. He will be missed by the courts he practiced in, because he was a unique and talented friend. We could use more judges and lawyers with his dedication, caring, and spirit that could brighten any room. Steve would also want everyone to know that he always wanted to be a lumberjack.”NAICJA sends condolences to his wife, son, family and the communities where he served and practiced.

Briefing in Attempt to Enjoin Copper Mining Project at Chi’chil Biłdagoteel [Oak Flat]

Matthew L.M. Fletcher

Here are the materials in Apache Stronghold v. United States (D. Ariz.):

1 Complaint

7 Motion for TRO

18 US Response

23 Reply in Support of 7

50 US Closing Brief

51 Apache Stronghold Closing Brief

56 Amicus Brief

Trevor Reed on Indigenous Dignity and the Right to be Forgotten

Matthew L.M. Fletcher

Trevor Reed has posted “Indigenous Dignity and the Right to be Forgotten,” forthcoming in the BYU Law Review, on SSRN.

Here is the abstract:

Indigenous cultural documentation amassed over more than two centuries currently occupies the shelves and databases of American museums, universities, archives and other institutions. Field notes, photographs, sound recordings, maps, kinship charts, and all manner of other cultural materials collected from Tribal members constitutes what is perhaps America’s first instance of “big data.” While often touted by collectors and institutions as rich historical and cultural resources, I argue that some of these collections have become toxic in their preserved forms, separated from their communities’ modes of care. These materials are among those that Indigenous groups should have the right to remove from settler archives, museums, digital repositories, and other institutions and if necessary, erase, delete, or destroy. The kind of Indigenous right to erase sensitive cultural material held by settler institutions, the contours of which I begin to etch out in this symposium essay, is not unlike the right to be forgotten and other data privacy rights already adopted by the European Union, and to some extent, the State of California. While much of the debate surrounding the right to be forgotten in the United States has focused on tensions between personal autonomy and the right of the public to be informed, the collective rights of Indigenous peoples to maintain cultural dignity and sovereignty in the wake of colonization, I argue, provides a compelling case for recognizing an Indigenous right to be forgotten.

Hon. Claudette White Walks On

Kate Fort

Here.

Words I’ve seen describing Claudette this week: a leader, a good good person, a force, a problem solver, a giant for tribal courts, a kind judge, a fighter, a singer, a dancer, a dear friend, a sister, a mom. She was all that and more, and we are heartbroken to lose her.

Here (starting at 1:21) she is kicking off the Inauguration.

Here is the documentary Tribal Justice with her and Judge Abinanti.

Here is the announcement from the National American Indian Court Judges Association: Claudette White Announcement

Tribal Law Journal Volume 20

Matthew L.M. Fletcher

Here:

PDF

Santa Clara Pueblo v. Martinez in the Evolution of Federal Law
Richard B. Collins

PDF

Tribal Justice: Honoring Indigenous Dispute Resolution (Symposium Keynote Address)
Deb Haaland

PDF

Native American Oral Evidence: Finding a New Hearsay Exception
Max Virupaksha Katner

PDF

Tribal Opposition to Enbridge Line 5: Rights and Interests
John Minode’e Petoskey

Stephanie Hall Barclay & Michalyn Steele on Protections for Indigenous Sacred Sites

Matthew L.M. Fletcher

Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.

Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Judge Bradley Letts on the Cherokee Court System

Matthew L.M. Fletcher

Judge Bradley Letts has published “The Cherokee Tribal Court: Its Origins and Its Place in the
American Judicial System” in the Campbell Law Review.

Highly recommended.

Stacy Leeds and Lonnie Beard on the Tax Implications of McGirt v. Oklahoma

Matthew L.M. Fletcher

Stacy Leeds and Lonnie Beard have posted “A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development,” forthcoming in the Tulsa Law Review, on SSRN. Here is the abstract:

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous nations as one of the most powerful judicial statements in the history of federal Indian law. “On the far end of the Trail of Tears was a promise.”

For that promise to be fully realized, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal government and the impacted Indigenous nations, collectively known as the “Five Tribes.” The promise at the end of the wholesale removal and relocation of Five Tribes was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including powers of taxation. With the re-affirmation of reservation boundaries and the re-assumption of many governmental responsibilities, the Five Tribes necessarily have the power to raise meaningful revenue to govern.

The promise must also include diverse economic development strategies conceived of and implemented by the Five Tribes in order to take advantage of and fully realize McGirt’s newly reaffirmed reservation status. If this challenge is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.

This article explores the tax implications of the McGirt decision with detailed analysis of what has changed, and what remains the same, for purposes of federal, tribal and state taxing authority. The article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate a long-term economic strategy that will take advantage of tax attributes that attach to the various reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments.

McGirt has been heralded as ushering in substantial changes for the eastern half of Oklahoma. If tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country.