Turtle Talk

This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture to remind non-indigenous activists and the wider media audience that the protests were an indigenous protest, rather than a purely environmental protest, a distinction that was obscured as the litigation progressed. The NoDAPL protests, the litigation to prevent the completion and later operation of the pipeline, and the social movement that the protests engendered, were an explosive expression of indigenous resistance—resistance to systems that silence and ignore indigenous voices while attempting to extract resources from their lands and communities. As a case study, the protests demonstrate how the use of litigation, while often critical to achieving the goals of political protest, distorts the expression of politics not already recognized within the legal discourse.

Improper Removal Case out of Washington Court of Appeals [ICWA]

September 24, 2019Kate Fort

Today I received a call that went something approximately like this:

Caller: “So with [25 U.S.C.] 1920 …”

Me: “Right, 1922, go on.”

Caller: “Um, ok, so with 1920 . . .”

Me: “I think you mean 1922?”

Caller: “I think I mean 1920?”

Reader, she absolutely meant 25 U.S.C. 1920, and also had the patience to hang in there with me and tell me about the following case:

Here is an opinion from the Washington Court of Appeals decided in January and published in April that I completely missed and is also the only and first case I’ve encountered in five years of reading (nearly) every ICWA case where the court used 25 U.S.C. 1920:

¶30 Both ICWA and WICWA have provisions for the appropriate remedy when an Indian child is improperly removed by the State from his or her home or the State improperly maintains custody. Under ICWA,

[w]here any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.

25 U.S.C. § 1920. Similarly, under WICWA,
[i]f a petitioner in a child custody proceeding under this chapter has improperly removed the child from the custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child’s parent or Indian custodian unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.

RCW 13.38.160.

¶31 Here, the Department has improperly maintained A.L.C’s placement in out-of-home care because the Department has failed to provide active efforts to prevent the breakup of the Indian family. The appropriate remedy is the remedy prescribed by statute. Thus, we remand to the juvenile court to either immediately return A.L.C. or make the statutorily required finding that returning A.L.C. will subject her to substantial and immediate danger or threat of such danger.

Emphasis added.

Domestic Violence and Indian Child Welfare Training

September 24, 2019Monica Williamson

The training is November 1st, 2019 in Livingston, TX and will focus on Domestic Violence and its effects on Indian Children and Indian Child Welfare. Save the Date flyer here. You can register here.