Turtle Talk

March 1, 2019

Gov. Whitmer Appoints Wenona Singel as Deputy Legal Counsel to the Office of the Governor

LANSING, Mich. – Gov. Gretchen Whitmer appointed longtime educator and activist, Wenona Singel, as the deputy legal counsel to the Office of the Governor. Singel is the first American Indian to hold this position in Michigan.

Her position of deputy legal counsel includes serving as the advisor to the Governor on tribal affairs. While serving in this role, she will work to strengthen the government-to-government relationship between Michigan’s twelve federally-recognized tribes and the State of Michigan.

“I’m thrilled to work with Wenona on strengthening our relationships with Michigan tribes,” said Whitmer. “As a first step, I directed each state department to develop a tribal consultation policy.”

Before her appointment, Wenona Singel was an associate professor at Michigan State University College of Law and Associate Director of the Indigenous Law and Policy Center. She is a magna cum laude graduate of Harvard College, and she received a J.D. from Harvard Law School.

Previously, she served as a board member of the Saint Lawrence Seaway Development Corporation following a presidential appointment by President Barack Obama with Senate confirmation. Wenona is an enrolled citizen of the Little Traverse Bay Bands of Odawa Indians and a member of the American Law Institute, and she has two children with her husband, Matthew Fletcher.

The appointment is not subject to the advice and consent of the Senate.

Friday Job Announcements

March 1, 2019Monica Williamson

Job vacancies are posted on Fridays. Any posts received prior to 12pm EST on Friday will appear in that Friday’s announcements. If you would like to submit a post for an open Indian law or leadership job, please send a brief description of the position (which includes position title and location) as well as a PDF job announcement to indigenous@law.msu.edu.

Student Opportunities

Wisconsin Judicare, Inc.

Indian Law Office Summer Intern, Wausau, WI. (1) Assist Indian Law Office Attorneys with their cases. (2) Appear in Tribal Court on behalf of eligible clients. (3) Research relevant Indian Law Issues. (4) Participate in Indian Law office projects. Please see the position description for more information.

Michigan Indian Legal Services, Inc

(3) Summer Interns, Southwestern Michigan and Traverse City, MI. Michigan Indian Legal Services (MILS) is a statewide provider of free legal services to low income Indians and Indian tribes. MILS represents Indian individuals, families, tribes and organizations in cases that span the complete range of federal Indian law and tribal representation. For more information please see the internship position descriptions.

Job Opportunities

Zuni Tribe

Tribal Prosecutor, Zuni, NM. This position will provide prosecutor service for the Zuni Tribe in all classes of criminal offenses as well as investigate and prosecute criminal matters and related legal issues of crimes that occurred within the exterior boundary of the Zuni reservation. This position is open until filled. Please see the job description for more information.

The Legislative Branch for the Mille Lacs Band of Ojibwe

(2) Legislative Staff Attorneys, Onamia, MN. Assist the Chief Legislative Counsel in the amending, revision, and creation of Band Legislation. In order to aid in the development of progressive and practical legislation for the Band, Legislative Staff Attorneys are required to collaborate on committees with staff from all three branches of the Band’s government, attend legislative sessions, and occasionally travel to the Band’s multiple districts within the state of Minnesota. Application closes March 6, 2019. Please see the description for more information.

The Hopi Tribe

Chief Prosecutor, AZ. This position is responsible for executive and administrative control of the Hopi Office of the Prosecutor (“Office”), as well as the investigation and prosecution of crimes committed by adult and juvenile offenders within the exterior boundaries of the Hopi Reservation, and presentation of minor in need of care matters in the Hopi Children’s Court. Please see the job description for more information.

Redding Rancheria

Paralegal/Court Facilitator, Redding, CA. The Paralegal will provide legal advice on court process to litigants in tribal court. Consults directly with the Tribal Attorney and Judge and as directed with the Chief Executive Officer and the Executive Team. Processes home loan program files for Tribal Members as directed. Application closes Friday, March 8, 2019 at 3:00 pm. Please see the attached job postings. If you have any further questions, please contact the Redding Rancheria Human Resources Department (530-225-8979).

Legal Services of South Central Michigan (LSSCM)

Lansing Staff Attorney, Lansing, MI. The staff attorney position is in the Lansing – Legal Services of South Central Michigan (LSSCM) – office, serving Ingham, Eaton, Clinton, Livingston and Shiawassee Counties. The staff attorney will provide a range of individual advocacy and impact work as a generalist, including family, consumer, public benefits and housing law. This position is opened until filled. Please see the description for more information.

Waséyabek Development Company

Executive Assistant, Grand Rapids, MI. Provide high-level administrative support to the Chief Operating Officer of WDC as well as company executives and staff by conducting researching, preparing statistical reports, handling information requests and performing clerical functions such as preparing correspondence, receiving visitors, arranging conference calls and scheduling meetings. Please see our website to apply: www.waseyabek.com

Puyallup Tribe of Indians

Associate Judge, Tacoma, WA. Serve as a hearing judge in accordance with trival Judicial Administrative Code. The term of the Associate Judge shall be three (3) years from the date of appointment by the Tribal Council. A judge may be reappointed at the expiration of a term in the discretion of the Tribal Council. Please see the job description for more information. Application closes April 1, 2019.

Center for Court Innovation

Senior Program Manager, NYC, NY. The Center for Court Innovation is seeking two Senior Program Managers to provide Technical Assistance to tribal courts. Duties will include working on a variety of tribal justice projects such as strategic planning, alternatives to incarceration, juvenile justice, tribal corrections, tribal/state relationships, healing to wellness courts, and other problem-solving initiatives. For more information please see the description. Application closes March 6, 2019.

See posts from February 22, 2019.

National Indian Law Library Bulletin (2/28/2019)

February 28, 2019Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 2/28/19.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2018-2019update.html
Petition for certiorari was filed on 2/14/19 in:
Wilson v. Horton’s Towing, et al. (Exhaustion of Tribal Court Remedies)

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2019.html

Trespass and vandalism or protecting that which is holy? The missing piece of religious liberty land-use claims.
Presidential permitting for pipelines: Constitutionality and reviewability.
The Dakota Access Pipeline and the destruction of cultural heritage: Applying the crime against humanity of persecution before the ICC.
Bridging the jurisdictional void: Cross-deputization agreements in Indian Country.
Immunity inconsistency at the patent and trademark office: A case study for sovereign immunity in administrative adjudications.
International indigenous economic law.
A tiered approach to rights in traditional knowledge.
International indigenous economic law.
Dawn of a new day? The evolving relationship between the convention on biological diversity and international human rights law.
The fallacy of defensive protection for traditional knowledge.
Why is traditional knowledge different form all other intellectual property?
New dialogues, new pathways: Reframing the debate on intellectual property and traditional knowledge.
Traditional knowledge and genetic resources: Observing legal protection through the lens of historical geography and human rights.

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2019.html
In re Greektown Holdings, LLC (Tribal Sovereign Immunity; Bankruptcy)
Stanko v. Oglala Sioux Tribe (Exhaustion of Tribal Court Remedies)
Energy Transfer Equity, LP v. Greenpeace International (Oil Pipeline; Racketeer Influenced and Corrupt Organizations Act)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2019.html
Long v. Snoqualmie Gaming Commission (Land into Trust; Gaming)
The People ex rel. Becerra v. Huber (Jurisdiction)
Matter of S.R. (Indian Child Welfare Act – Application of)
In re. L.D. v. M.J. (Indian Child Welfare Act – Tribal Intervention)

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
In the Land & Water section, we feature an article about the State of Alaska seeking to takeover subsistence management.

U.S. Legislation Bulletin
https://www.narf.org/nill/bulletins/legislation/116_uslegislation.html
The following were added:
H.R.1416: To protect the legal production, purchase, and possession of marijuana by Indian tribes, and for other purposes.
H.R.1351: To amend the Victims of Crime Act of 1984 to secure urgent resources vital to Indian victims of crime, and for other purposes.
S.582: To amend the duties of the Financial Crimes Enforcement Network (FinCEN) to ensure FinCEN works with tribal law enforcement agencies, protects against all forms of terrorism, and focuses on virtual currencies.

Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2019.html
The Department of the Interior, Bureau of Indian Affairs, published a notice of the deadline for submitting completed applications to begin participation in the Tribal Self-Governance Program in fiscal year 2020 or calendar year 2020.

Santa Ynez Band of Chumash Mission Indians Trust Land Acquisition Docs

February 28, 2019February 28, 2019Matthew L.M. Fletcher

Here are the materials in Crawford-Hall v. United States (C.D. Cal.):

69 notice

69-1 asia decision

69-3 2017 asia decision

69-4 2014 nod

Prior post here.

Split Sixth Circuit Panel Confirms Tribal Immunity in Bankruptcy Act Proceedings

February 27, 2019Matthew L.M. Fletcher

Here is the opinion in In re Greektown Holdings LLC.

Briefs:

buchwald-brief.pdf

sault-tribe-brief.pdf

buchwald-reply.pdf

Lower court materials and prior posts here.

Alaska Supreme Court on Active Efforts [ICWA]

February 26, 2019Kate Fort

Here.

I very nearly made an inadvertent broken record pun here, but seriously, I do talk about making a clean record a lot. OCS didn’t even manage to document state law requirements in this case. And in the continuing theme of this afternoon’s ICWA cases–the requirements of ICWA stand regardless of whether the agency finds the parents cooperative or not.

Like the superior court, we are underwhelmed by the quality of OCS’s testimony. We agree with the court’s observation that OCS “made a rather lackadaisical effort” and “put on a skeletal case about [its] required active efforts.” The superior court was rightly concerned to doubt OCS’s demonstration of active efforts. We acknowledge that the superior court concluded that OCS met its burden due in large part to “the consideration the Court is to give to the parents’ demonstration of an unwillingness to change or participate in rehabilitative efforts.” While this principle remains valid, the parents’ lack of effort does not excuse OCS’s failure to make and demonstrate its efforts. Even considering the parents’ lack of participation, there is simply insufficient evidence in the record to show that OCS made active efforts. It was legal error for the superior court to conclude by clear and convincing evidence that OCS made active efforts to reunify the family.

***
A related but distinct problem is OCS’s failure to document its active efforts in detail in the record. While documentation is related to OCS’s duty to make active efforts, documenting those efforts is a separate responsibility. The act of documentation is not itself an “active effort”; rather, it is a mechanism for OCS and the court to ensure that active efforts have been made. Documentation is required by ICWA and is critical to compliance with ICWA’s purpose and key protections. The CINA statute also requires OCS to document its provision of family reunification support services. But such documentation is woefully missing here.

Montana Supreme Court on Reason to Know [ICWA]

February 26, 2019Kate Fort

Here.

And a long excerpt:

Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal. Rptr. 3d at 802; Kahlen, 285 Cal. Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. App. 2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal. Rptr. 3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen 285 Cal. Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S. Ct. at 1609-11; Kahlen, 285 Cal. Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal. Rptr. at 512.