Here are the materials in Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers (D.D.C.):
Prior post here.
Fletcher’s “Muskrat Textualism”: McGirt versus Oliphant
Here is “Muskrat Textualism,” available on SSRN. The abstract:
The Supreme Court’s decision McGirt v. Oklahoma confirming the boundaries of the Creek Reservation in Oklahoma was a truly rare case where the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated, and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.
Until McGirt, a “faint-hearted” form of textualism has dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary. Like the miner’s canary, a caged bird used by miners to detect and warn of toxic gasses in a mine, Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government merged with centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments therefore are inferior as well.
Scholars long have decried the Court’s Canary textualism but have rarely offered a better theory. This Article attempts to fill that gap, and to provide a higher level of certainty in federal Indian law textualist doctrine that will help to preclude Canary textualist activism. A far better metaphor than of the miner’s canary would be that of the muskrat, the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation, and ensuring more predictable and just Indian law adjudication.
This Article argues that McGirt – and its embrace of Muskrat textualism – is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.
Here are images of some of the historical gossip I uncovered for this paper:
Minnesota COA Refuses to Shut Down Enbridge Line 3
Here is the order:
Hastings Indigenous Law Center Launch Event: “The Impact of COVID on Native and Indigenous Communities” [Feb. 10, 2021]
UC- Davis Tribal Justice Seminar Series
Friday Job Announcements
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
- position title,
- location (city, state),
- main duties,
- closing date,
- and any other pertinent details such as links to application;
- An attached PDF job announcement.
Big Fire Law and Policy Group
Summer Associate, Winnebago, NE or Omaha, NE (Bellevue). Minimum 2nd year law student. The purpose of Big Fire’s Summer Associate Program is to provide law students with opportunities to develop, challenge and broaden their skills and scope of work. We are committed to the professional development and advancement of our summer associates. Our summer associate program offers challenging assignments, training and mentoring programs, and networking opportunities to help you launch your career. Position closes 3/31/21.
Litigation Attorney, Omaha, NE (Bellevue). 5-10 years experience. Work on cases in a variety of areas including constitutional law, environmental law, real estate, employment, tax issues, corporate/business matters, and complex federal, state and tribal court litigation at both trial and appellate levels. Position closes 2/28/21.
Gaming and Compliance Attorney, Winnebago, NE or Omaha, NE (Bellevue). Minimum 5 years experience possessing a strong background in gaming, regulatory compliance, employment law, transactional law, and general corporate law. Position closes 3/31/21.
Minnesota Center for Environmental Advocacy
Legal Fellow. This fellowship is a one year position from September 2021 to September 2022. JD required. Applicants should apply with resume, cover letter, transcript, and writing sample to hr@mncenter.org. Please see the position description for more information.
Cowlitz Indian Tribe
Paralegal, currently remote, Longview, WA. Perform a full range of duties within the legal department under the direction of the Lead Staff Attorney. Job duties include intake, preparing tax exemption forms, drafting fee to trust applications, processing subpoenas, conducting real estate due diligence, maintaining the filing system, correspondence, and other general office duties. For a complete list of job duties, qualifications, and how to apply, please visit the Careers section on our website and see the position description. Open until filled.
The Navajo Nation Shopping Centers, Inc. (NNSCI)
RFP, Window Rock, AZ. NNSCI, a Navajo Nation owned corporation is soliciting bids for General Counsel Services. NNSCI is a property management company that manages and operates ten (10) neighborhood shopping centers throughout the Navajo Nation. Navajo Nation Bar Association members and applicants in good standing with other state Bar Associations, will be considered. Deadline is Monday, February 8, 2021 at 5 PM. Please see the request for more information.
Kaplan Kirsch & Rockwell
Attorney, San Francisco, CA. Seeks a junior or mid-level associate attorney with experience and interest in environmental and/or Native American matters – particularly, but not exclusively, matters arising under the National Environmental Policy Act, California Environmental Quality Act, National Historic Preservation Act, Indian Reorganization Act, or Indian Gaming Regulatory Act. When pandemic restrictions are lifted, you will have opportunities for travel and client meetings both within and beyond California. Apply here and see the position description for more information.
Coyote Valley Casino
Chief of Staff, Redwood Valley, CA. Plans and directs all administrative, financial, and operational activities for the Tribal Council, CFO, and other executives; Organizes and prioritizes critical issues and required information for the executives to facilitate efficient decision making; Acts as a point of contact or gatekeeper between top management and tribal membership; and more. For more information, please see the position description. Apply here. Position is open until filled.
Saginaw Chippewa Indian Tribe of Michigan
Tribal Prosecutor, Mount Pleasant, MI. Under the supervision of Tribal Council, work closely with tribal law enforcement and judicial officials to effectively administer justice on the Isabella Indian Reservation. Act as Tribal Presenter in Child Abuse and Neglect cases. In order to be considered for this position you must apply at www.sagchip.org click on employment at the top of the page then click apply now. Please 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. Applicants should complete a Tribal Application Form at www.utetribe.com and then mail the completed Tribal Application Form. Please see the position description for more information.
Wilton Rancheria
Self-Help Attorney, currently remote, Elk Grove, CA. This is a new service and this position will include program development with assistance from the Wilton Rancheria Tribal Court leadership. The self-help attorney will be expected to provide advice and assistance to tribal members on a variety of legal matters both within the Tribal Court and other forums including family law, social services, and government/administrative law. The self-help attorney must be able to commit sixteen (16) hours per month to the position. The closing date for submission is February 26, 2021 at 5:00pst. Please see the position description for more information.
Association of Village Council Presidents
Associate General Counsel, Bethel, AK. The Associate General Counsel (AGC) is the primary attorney responsible for reviewing, drafting, and negotiating contracts, subawards, and other agreements for AVCP departments and divisions; serves on AVCP’s negotiation team for federal and state compacts; and monitors compliance with contracts and other agreements. The AGC will also participate in legal advocacy initiatives typical of a tribal non-profit. Applications considered on a rolling basis. Please view the job announcement for more information. To apply, send cover letter and résumé to janderson@avcp.org and complete the online application for employment.
Yurok Tribal Court Reentry Program
Case Worker, Klamath, CA. Responsible for an ongoing case load of Reentry participants to include youth, adults, and/or families in the Yurok Tribal Court. The Reentry Case Worker will also work closely with the Reentry Program Attorney and Wellness Program staff to manage and providing programming. Open until filled. Apply here and see the position description for more information.
Tribal Law and Policy Institute
Program Assistant, will be remote/virtual (Oklahoma City, OK; Twin Cities, MN; Albuquerque, NM; Los Angeles, CA preferred). Responsible for a range of administrative and program support duties to assist the Tribal Youth Resource Center project, a project of the TLPI. Closing date is February 28, 2021. To apply Submit your application via email to Jessica Harjo, Operations Director, at Jessica@tlpi.org.
Shakopee Mdewakanton Sioux Community Court
Clerk of Court, The Shakopee Court and the Court Clerk’s Office, Prior Lake, MN. The Clerk’s duties include maintaining all of the Court’s files and the Court’s case-status database; filing all pleadings and papers that the Court receives; scheduling all Court proceedings and preparing and transmitting the requisite notices for those proceedings; and more. For more information please see the description. Deadline for Applications February 26, 2021 at 5:00 p.m. CST.
The Native American Rights Fund
Communications Specialist, currently remote, Boulder, CO. Create strategic, informative, and compelling content such as web pages and blog articles, social media, infographics and fact sheets, email newsletters, videos, case descriptions, press releases, and print publications. Emphasis for this position will be on creative graphic design and digital outreach strategies and content. Please see the position description for more information.
Department of Justice Journal of Federal Law and Practice — Missing or Murdered Indigenous Persons: Law Enforcement and Prevention
Here.
Trauma Informed Benchbook from St. Paul Tribal Court
From the inimitable Judge Voluck:
The recent St. Paul Island project – Tanaam Awaa: ‘Our Community’s Work’ Trauma-Informed Benchbook for Tribal Justice Systems is better in hand … with that said the Tribe has produced a digital version for free download on their Aleut Community of St. Paul Island Tribal Government website.
Now he says “Free” but go ahead and donate some dollars if you can to keep up this good work.
Downloadable here.
Crow Tribe Attempts to Reopen Crow Treaty Rights Suit
Here is the motion in Crow Tribe v. Repsis (D. Wyo.):
An excerpt:
But that was not the end of the story. In 2014, Clayvin B. Herrera, a Crow Tribe member, along with other Crow Tribe members in his hunting party, took three elk in the Bighorn National Forest. Mr. Herrera was cited for, and convicted of, violations of Wyoming hunting laws. Mr. Herrera’s case went all the way to the U.S. Supreme Court, which held that the Crow Tribe’s off-reservation treaty hunting right was not extinguished by Wyoming’s statehood. Herrera v. Wyoming, 139 S. Ct. 1686, 1700 (2019). In so doing, the Court also held “that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.” Id. at 1697. Today, this Court has the opportunity to relieve the Crow Tribe from the judgment, based on Race Horse, that it entered more than 25 years ago.
This is precisely the sort of circumstance that Federal Rule of Civil Procedure 60 was written to remedy. This Court’s Repsis judgment remains in force; but that judgment was based entirely on a case that has been expressly and entirely repudiated by the U.S. Supreme Court, which affirmed the vitality of the very same treaty right that that this Court and the Tenth Circuit found extinct. To allow this Court’s Repsis judgment—which might have been correct when it was made, but now has been unequivocally repudiated by the Supreme Court—to bar the Crow Tribe and its members from legally exercising their off-reservation treaty hunting rights would be a profound injustice. Equity requires that the Crow Tribe, and by extension its members, be relieved from this Court’s Repsis judgment, which this Court should now vacate.
Ninth Circuit Materials in Paskenta Band Suits against Financial Institutions
Here are the briefs in Paskenta Band of Nomlaki Indians v. Umpqua Bank:
Here are the materials in Paskenta Band of Nomlaki Indians v. Associated Pension Consultants:
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