Turtle Talk

It took me a while to read this whole opinion and there are a lot of issues. But to start, I’d note that unlike some arguments in another unnamed federal ICWA case (Brackeen, it’s Brackeen), this case is yet another every day example where a state has to prove the best interests of the child standard and the ICWA standard–the ICWA standard didn’t supplant BIOC.

That said, there is some unnecessary Michigan trash talking in this case as the Court happily finds active efforts is more than reasonable efforts, but unhappily choses to adopt a “futility doctrine” for the active efforts finding. The futility “doctrine” for active efforts is a judicially created standard to excuse the state from providing active efforts to the parent.

Nooksack Update [Updated 2/17/20]

February 3, 2020March 4, 2020Matthew L.M. Fletcher

Here is “A woman took a stand against tribal disenrollment and paid for it” in High Country News.

Updates in pending litigation….

Doucette v. Bernhardt (W.D. Wash.):

Doucette v. Bernhardt 45. 1-29-20 Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Doucette v. Bernhardt 46-1. 1-29-20 Exhibit A

Doucette v. Bernhardt 46-2. 1-29-20 Exhibit B

Doucette v. Bernhardt 46-3. 1-29-20 Exhibit C

Doucette v. Bernhardt 46-4. 1-29-20 Exhibit D

Doucette v. Bernhardt Ninth Circuit 8. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Rabang v. Kelly (W.D. Wash.):

Rabang v. Kelly 175. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

Rabang v. Kelly Ninth Circuit 42. 1-29-20 Notice of Rule 62.1 Motion for Indicative Ruling on Plaintiffs’ Rule 60(b) and 15(a)(2) Motions

UPDATE:

Tribe Response to Motion

U.S. Response

Northern Public Affairs Special Issue on Canadian Indian Treaty Implementation

February 1, 2020Matthew L.M. Fletcher

Here.

Friday Job Announcements

January 31, 2020February 7, 2020Monica Williamson

Any posts for an open Indian law or leadership job received prior to 12pm EST on Friday will appear in that week’s announcement, when the following information is sent 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.

Please send all job announcements in this requested format. For examples, see the job announcements below.

Little River Band of Ottawa Indians

Legal Intern, Manistee, MI. The Intern will assist the ULD in its role as in-house legal counsel to the Little River Band of Ottawa Indians that provides legal services and representation to the Tribal Government and its Enterprises, including Elected Officials, Departments, Commissions, and the Little River Casino Resort. Applications will be reviewed on a revolving basis beginning December 1, 2019 until the position is filled. Application instructions here.

The Nottawaseppi Huron Band of the Potawatomi

Paralegal, Fulton, MI. Develops and maintains archive files for all legal projects and tasks undertaken by the Legal Department; Develops procedures for file management and tracking of open project files for work assigned to the Legal Department; and more. Application closes February 10, 2020 at 8:30am ET. Apply here.

Nisqually Indian Tribe

RFP, Olympia, WA.The Nisqually Indian Tribe seeks interested Law Firms or Attorneys to submit proposals to provide legal advice on Enrollment and Membership issues to the Nisqually Tribal Council and Nisqually Tribal Enrollment Committee. This is a contract position. Monthly billable hours are not generally expected to exceed 20 hours per month. Closing date is February 14, 2020. Please see the description for more information.

The Morongo Band of Mission Indians

Tribal Attorney, Banning, CA. Under general direction of the In-House Counsel, the Tribal Attorney will be part of the Legal Department’s function of delivering legal counsel, advice and support as the legal advisor to the Tribe, including the Tribal Council, General Membership, all Tribal Administrators and department heads, and various committees and commissions. Please see the job description for more information.

Martha L. King, P.C., Native Owned Native Law

Associate Attorney, Albuquerque, NM. Provision of business law services to tribal entities, including developing, amending, advocating, negotiating and/or implementing: governing documents, codes and amendments to support self-governance and economic development; employee handbooks and policies and procedures; intergovernmental agreements; and business documents. Open until filled. For more information please see the position description.

Rosette, LLP

Attorney, Oklahoma City, OK. Rosette, LLP, a national law firm that specializes in Federal Indian Law seeks Attorney for the Firm’s Oklahoma City office. This position is open until filled. Please see the Job Announcement for all the details regarding this position.

The Federal Reserve Bank of Minneapolis

Attorney_Senior AttorneyAttorney/Senior Attorney, Minneapolis, MN. The position involves advising and working with Bank management as well as regular interaction with attorneys from other Federal Reserve Banks and the Board of Governors of the Federal Reserve System. Areas of practice within the department include the typical in-house areas such as procurement/contracts, intellectual property and other general corporate matters. There is no closing date. Apply here. For more information please see the job description.

Navajo Nation Department of Justice

Office of the Attorney General

Principal Attorney, Window Rock, AZ Under general direction of the Assistant Attorney General or the Attorney General and Deputy Attorney General, provides professional legal work and advice to the Navajo Nation Office of the Controller (OOC), Office of Management & Budget (OMB), Office of the Navajo Tax Commission (ONTC), Department of Retirement Services (NDRS), Budget and Finance Committee (BFC), and Investment Committee (IC), and, as required, to the Navajo Nation Council, Oversight Committees, the Executive, Legislative and Judicial Branches, and Chapters regarding a wide range of legal issues. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Attorney, Window Rock, AZ Under general direction of Assistant Attorney General or the Attorney General, and Deputy Attorney General, provides legal direction to Navajo Nation Division of economic/Community Development Chapters and Navajo Nation Gaming Regulatory Office regarding a wide range of legal issues, including statutory and regulatory compliance, contract disputes and procurement issues, and intergovernmental relations; performs professional legal work in counseling, research, trial and other legal work; present case in courts; and performs related duties as required. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Assistant Attorney General, Window Rock, AZ Under general direction of the Attorney General or the Deputy Attorney General, manages the “Human Services and Government Unit” of the Office of the Attorney General; provides legal direction to other attorneys and advocates in providing complex legal representation to Navajo Nation Divisions, Departments, and Local governmental units regarding a wide range of legal issues, including the Divisions of Education, Health, Social Services, General Services, Human Resources, Public Safety, Veteran Affairs, and the Judicial and Legislative Branches. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Principle Attorney, Window Rock, AZ Under the general direction of the Assistant Attorney General, Attorney General or the Deputy Attorney General, the position is assigned to the “Humans Services & Government Unit” of the Office of the Attorney General; Provides legal direction to other attorneys and advocates in providing complex legal representation of Navajo Nation Divisions, Departments, and Local governmental units regarding a wide range of legal issues, including the Divisions of Education, Health, Social Services, General Services, Human Resources, and the Judicial and Legislative Branches of the Navajo Nation. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Office of the Prosecutor

Prosecutor, Tuba City, AZ Under the general supervision of the Chief Prosecutor, this position 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. 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, Shiprock, NM Under the general supervision of the Chief Prosecutor, this position 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. 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 Under the general supervision of the Chief Prosecutor, this position 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. This position serves at the pleasure of the Chief Prosecutor. This position is open until 2/11/2020, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

Water Rights Unit

Assistant Attorney General, Window Rock, AZ The Assistant Attorney General (AAG) for the Water Rights Unit is the lead water rights attorney for the Navajo Nation, representing 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 AAG directs and supervised the work of all attorneys within the Unit and contract attorneys representing the Navajo Nation on water rights matters. This position is open until filled, please see the position description or to apply, visit http://www.dpm.navajo-nsn.gov/jobs.html.

See posts from January 24, 2020.

New Fletcher Paper, “Textualism’s Gaze”

January 31, 2020Matthew L.M. Fletcher

Available on SSRN, here.

Here is the abstract:

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.