Turtle Talk

There is a lot going on here, including problematic reasoning over full faith and credit to a tribal court order, but I think it is worth focusing on “ward of the tribal court” language. In 25 USC 1911(a), tribes retain exclusive jurisdiction regardless of the domicile of the child if the child is a “ward of the tribal court.” The weakness in this language was exploited in Rye v. Weasel, the existing Indian family case out of Kentucky (which continues to be one of the few states that upholds this exception).

This opinion essentially creates a definition of “ward”, using the more restrictive language available:

ICWA and the related sections of the Code of Federal Regulations do not instruct as to who should make a finding regarding a child’s status as a tribal court’s ward and North Carolina does not use the term “ward” in the context of adoptions. Black’s Law Dictionary defines a “ward” as “a person, usu[ally] a minor, who is under a guardian’s charge or protection.” Ward, BLACK’S LAW DICTIONARY (11th ed. 2019). More specifically, Black’s defines “ward of the state” as “[s]omeone who is housed by, and receives protection and necessities from, the government.” Ward of the State, BLACK’S LAW DICTIONARY (11th ed. 2019). For purposes of ICWA, we adopt this definition for the term “Tribal Court Ward.” Applying this definition to the relevant provision of ICWA, once a child has stopped being housed by or provided protections and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C. § 1911(a)

In 2011, South Dakota DSS was granted full custody of the children. In 2012, the Tribe was granted renewed jurisdiction over the children’s case and placed the children in the care of their “paternal aunt,” Appellant. There is no evidence the children ever made the reservation their domicile or residence after that point in time, nor is there evidence the Tribe housed them or provided protections or necessities thereafter. In fact, the Appellant sought and obtained guardians for the children from the courts of North Carolina. Having lived most of their life outside the Tribe’s reservation and without provision of protections and necessities therefrom, we hold K.L.J. and K.P.J. were not wards of the Tribal Court. The Tribal Court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911

While I believe this is far too constrained a reading of the text (“protections and necessities” are vague at best, and not required if we were dong a home state analysis of jurisdiction under the UCCJEA, for example), I do think it is a good reminder to tribes to ensure their guardianship codes provide for on-going review of tribal guardianship orders if they wish to maintain the exclusive jurisdiction over the child not living on the reservation. In many states, simply stating that the children are “wards” in the court order is not going to be enough (yes, it should be, but it generally is not).

Federal Court Rejects Effort by Sauk-Suiattle to Reopen US v. Washington 93-01 Subproceeding

July 23, 2019July 23, 2019Matthew L.M. Fletcher

Here are the materials in United States v. Washington (W.D. Wash.), subproceeding 93-01:

172-stipulated-settlement.pdf

183-stipulated-settlement-2.pdf

333-sauk-suiattle-motion-to-vacate.pdf

333-tulalip-response.pdf

337-swinomish-response.pdf

usit-response-to-sauks-motion-to-vacate-1998-agreement.pdf

339-reply.pdf

348-dct-order.pdf

Federal Court Enjoins HUD’s New National Down Payment Assistance Rule

July 23, 2019Matthew L.M. Fletcher

Here are the materials in Cedar Band of Paiutes v. Department of Housing and Urban Development (D. Utah):

59-1-state-amicus-brief.pdf

69-hud-opposition.pdf

72-industry-amicus-brief.pdf

73-reply-in-support-of-motion-for-pi.pdf

News article explaining the injunction here.

We posted the complaint and the motion here.

“Life in the Native American oil protest camps”

July 23, 2019Matthew L.M. Fletcher

From BBC, here.

Tribal Supreme Court Project Update

July 22, 2019Matthew Campbell

Here is the July 19, 2019, Tribal Supreme Court Project Update of Recent Cases.

July 2019 SCP Image

Deb Haaland NYTs Op-Ed: “Trump Wants Immigrants to ‘Go Back.’ Native Americans Don’t.”

July 22, 2019Matthew L.M. Fletcher

Here.

Ninth Circuit Materials in Southcentral Foundation v. Alaska Native Tribal Health Consortium

July 22, 2019June 4, 2020Matthew L.M. Fletcher

Here:

opening-brief-2.pdf

answer-brief.pdf

reply-brief.pdf

Available district court materials (many filings are sealed, including the district court order):

30-motion-to-dismiss-e28094-sovereign-immunity.pdf

31-southcentral-msj.pdf

33-mtd-e28094-standing-and-mootness.pdf

35-anthc-msj.pdf

125-motion-to-withdraw-30.pdf

Friday Job Announcements

July 19, 2019July 18, 2019Monica 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, and closing date;
An attached PDF job announcement.

Please send all job announcements in this requested format.

Michigan State University College of Arts and Letters

Anishinaabe Community Outreach Liaison, East Lansing, MI. The Liaison will work closely with the Less Commonly Taught Language (LCTL) Partnership Indigenous Project Coordinator, the Indigenous Language Liaison, Indigenous Language Specialists and MSU LCTL grant personnel. They will work closely with communities to lead outreach efforts in reservation based and urban Anishinaabe communities. Applications will be reviewed beginning July 26, 2019 until position is filled. For more information please see the job description.

The University of Montana Alexander Blewett III School of Law

Associate/Assistant/Full-time Professor of Indian Law, of Indian Law, Missoula, MT. Full-time, tenured or tenure-track faculty position beginning in the 2020-2021 academic year. Duties include teaching, scholarship, and service as set forth in the University of Montana Alexander Blewett III School of Law Faculty Handbook. Our primary need is in the area of Indian and/or tribal law, with additional curricular needs in areas such as litigation skills, family law, and clinic. The application period opens on September 13, 2019. Please visit the link to apply.

The Yakama Nation Public Defender-Legal Aid Services

Attorney, Toppenish, WA. The attorney will be assigned both criminal and civil work in Tribal Court as well as municipal, District and/or Superior Courts. Closing date is July 25, 2019. Please use the application on the Yakama Nation website and submit to the Human Resources Department as described.

Pueblo of Laguna

Court Administrator, Dept: Pueblo Courts, Laguna, NM. Closing date for application submission is July 23, 2019. Please visit the Pueblo of Laguna website for more information and application instructions or you can contact the Human Resources office at (505) 552-6654.

Associate Prosecutor, Dept: Pueblo Courts / Prosecutor’s Office, Laguna, NM. This position is open until filled. Please visit the Pueblo of Laguna website for more information and application instructions.

Court Prosecutor, Dept: Pueblo Courts / Prosecutor’s Office, Laguna, NM. This position is open until filled. Please visit the Pueblo of Laguna website for more information and application instructions.

Associate Judge, Dept: Pueblo Courts, Laguna, NM. Closing date for application submission is August 1, 2019. Please visit the Pueblo of Laguna website for more information and application instructions.

National American Indian Court Judges Association

Program Attorney, Boulder, CO. NAICJA seeks an experienced Program Attorney responsible for researching, designing and implementing continuing judicial education programs. Manage and oversee federal grants, including supervision of program coordinator; Oversee the coordination of grant and project deliverables; and more. For more information please see the position description. Closing date is August 5, 2019.

Mashantucket Pequot Tribal Nation

Senior Legal Counsel, Mashantucket CT. Under the direction of the General Counsel, the incumbent assists in providing legal advice and services to the Mashantucket Pequot Tribal Nation, including its departments, arms (including the Mashantucket Pequot Gaming Enterprise), subdivisions, regulatory bodies, committees, entities and business enterprises (MPTN) concerning legal rights, responsibilities and obligations.

McKinley County (NM) District Attorney’s Office

Senior Trial Attorney (DUI Taskforce), Gallup, NM. This is a grant-funded position. Salary is negotiable based on experience. Submit a letter of interest, resume, and references to glee@da.state.nm.us by 5:00 p.m. August 30, 2019.

Assistant Trial Attorney, Gallup, NM. The Assistant Trial Attorney position is ideal for those who have recently taken the bar exam and are interested in gaining experience in criminal prosecution. Salary is negotiable based on experience. Submit a letter of interest, resume, and references to glee@da.state.nm.us by 5:00 p.m. August 30, 2019.

Senior Trial Attorney, Gallup, NM. The Senior Trial Attorney position requires substantial knowledge and experience in criminal prosecution, rules of criminal procedure, and rules of evidence. Salary is negotiable based on experience. Submit a letter of interest, resume, and references to glee@da.state.nm.us by 5:00 p.m. August 30, 2019.

Tohono O’Odham Nation

Assistant Attorney General, Sells, AZ. The Office of Attorney General represents the Tohono O’odham Nation in litigation and other legal matters. Specific areas of need for the Office of Attorney General are healthcare law and contracts. For more information please see the position description.

Martha L. King, P.C.

Associate Attorney, Albuquerque, NM. Associates will assist in 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 other business documents. Closing date is August 18, 2019. Please see the job description for more information.

Hoopa Valley Tribal Court RFQ

Request for Proposals, Northern California, 95546. Develop, compose and facilitate a community needs assessment and strategic plan. Only accepting proposals by Indian owned businesses and contractors. Please see the RFP for more information.

STUDENT OPPORTUNITIES

Native American Rights Fund (NARF)

NARF Clerkship Summer 2020, Positions are available in all three of NARF’s offices: Anchorage, AK; Boulder, CO; and Washington, D.C. Application is due September 13, 2019. Please see the flyer for more information. Other fellowship and internship information can be found here.

Godfrey & Kahn

2020 Summer Associate Program (For 2Ls), Milwaukee, Madison, Green Bay or Appleton Wisconsin offices. Our Summer Associate Program is our most important tool for hiring new associates. Develop tangible skills and gain valuable experience, and leave with a realistic view of what it is like to be a part of the team at Godfrey & Kahn. Tribal affiliation and experience representing Indian tribes are desirable. Please submit a cover letter stating office location of interest, practice group interests (if known); resume; and law school transcript (unofficial copy is okay). Please click here to apply.

See posts from Friday, July 12, 2019.