2018 ICWA by the Numbers

Kate Fort

Here’s our annual contribution to the ICWA data discussion. I’m nearing to the final set of 2018 ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. I collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. I’m also still cleaning some of these numbers, so take this as it is–a quick and dirty survey of the cases.

These are standard state court ICWA cases, and  do not include any of the ongoing federal litigation. This is our fourth year writing this post (2015 and 2016 and 2017). Last year Addie Smith and I managed to get a survey completed and published for 2017. This year, we are dreadfully behind, but are still planning to have this into the American Indian Law Journal later this month. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases).  Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.

In California, the cases further breakdown as follows. The Second District and Third District both reported 2 cases, and the Fourth District reported 5 for a total of nine. The remaining 116 cases are spread through out the state, thought the Fourth, Second, and First have the highest number of appealed cases, followed by the Third, Fifth, and Sixth with the fewest. California is the only state where we track by appellate districts at this time.

Supreme Courts reported ICWA decisions in 17 cases this year, including in Alaska (3), Montana (7), Michigan (1), Nebraska (1), Nevada (1), North Dakota (1), South Dakota (2),  (of course some of these states don’t have an intermediate court of appeals–the remaining 11 unreported Supreme Court cases all come out of Alaska and Montana, for example).

125 of the cases affirmed the lower court, while 79 were remanded or reversed.

Top litigated issues across both reported and unreported cases were as follows: Notice (86), Inquiry (43), Placement Preferences (9), Active Efforts (13), Termination of Parental Rights (18), Foster Care Proceeding (4), Transfer to Tribal Court (1), and QEW (1). Also the cases determining if there is an Indian child are up (7), and cases involving California’s Tribal Customary Adoption popped up (4). Only 2 cases involved placement preferences this year. This year 44 of the Notice cases and 23 of the Inquiry cases were remanded for proper notice. The Notice cases are down from last year, and the other issues are up.

59 different tribes were named as the first named tribe in a case. In 27 cases the tribe was unknown (parent did not know name of tribe). In 24, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, not a single one was appealed by a tribe (that I can find). Cases  were appealed by mom, dad, mom AND dad, the guardian ad litem, aunt, prospective adoptive couple, and the state.

Cases I have been specifically highlighting in my presentations this year are as follows:

Colorado (Notice and Appellate Instruction)

Colorado (Foster Care Proceeding)

Minnesota (QEW)

Oklahoma (reason to know)

Ohio (transfer to tribal court)

South Dakota (application of Texas v. Zinke/Brackeen v. Zinke)

Other major ICWA stories this year that are not reflected in this post include, obviously, Texas v. Zinke, the dismissal of the Oglala Sioux class action case by the Eighth Circuit, and the spread of ICWA pro hac vice rules.

Climate Justice Webinar: Municipal, Tribal, and Legal Action

Monica Williamson

ABA’s Native American Resources Committee is sponsoring a webinar on climate justice, from the perspective of local actors driving change. More information is available here.  Wednesday, January 23, 2019, 12:00 PM – 1:30 PM ET.

St. Regis Mohawk v. Mylan Pharma Cert Petition

Matthew L.M. Fletcher

Here:

cert-petition-1.pdf

Question presented:

Whether inter partes review before the Patent Trial and Appeal Board is the type of proceeding in which tribal sovereign immunity may be asserted.

Lower court materials here.

Update:

Mylan BIO

St. Regis Reply

VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case

ilpc

From NARF:

Dear tribal leaders and tribal counsel,

Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days.  This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.

As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional.  The case is currently on appeal to the Fifth Circuit Court of Appeals.

The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states.  All federally recognized Tribes are invited to sign on to the brief in a show of unity.  Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.

If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT).  Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.

If your Tribe would like to sign on, we will need an email that provides the following:

  1. A statement from an individual (chairperson, executive director, general counsel, etc.) or body (tribal council, etc.) authorized to do so, asking to be added as a signatory on the brief.  A statement via email is fine; and
  2. The full name and correct spelling of the Tribe as it should appear on the brief.

The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.

Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.

Thank you again for your commitment to defending ICWA.

Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund

Pre-Law Advisor Training Conference – Registration Deadline Extended

Monica Williamson

PLAT 2018 new deadline_01.png

The registration deadline has been extended to January 25, 2019 for the Pre-Law Advisor Training Conference. Advisors with an array of titles and responsibilities are encouraged to join us February 5-6, 2019.

Lodging and travel reimbursements are available for Tribal Education Departments and Tribal Colleges and Universities.

Please visit the event page or call (505) 277-5462 for more information about registration, travel reimbursements and the agenda.

 

 

Atlantic Profile of the Herrera v. Wyoming Case

Matthew L.M. Fletcher

“Can Congress Void a Tribal Treaty Without Telling Anyone?” here.

Ninth Circuit Briefs in Swinomish v. BNSF

Matthew L.M. Fletcher

Here:

BNSF opening brief

Swinomish answer brief

Tribal Amicus

State Amicus

BNSF Reply

Other posts here.

Oral argument audio here.

UPDATE: ca9.pdf 

BNSF Letter Brief

Swinomish Response

 

Conference: Identify, Advise and Support Native American Pre-Law Students

Monica Williamson

Registration is still open for the Pre-Law Advisor Training Conference. Visit the event page for more information about registration, travel reimbursements, and the agenda.

Up to 30 lodging and travel reimbursements (up to $800) are available for Tribal Education Departments and Tribal Colleges and Universities.

See below for Day 2 conference details.

plat 2018 day 2 schedule

Friday Job Announcements

Monica 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.

Ho-Chunk Nation Department of Justice

Tribal Counsel, Black River Falls, WI. Perform a wide variety of legal work representing the Nation as a government, its departments, boards, and commissions. The Tribal Counsel will prepare pleadings for hearings and other legal proceedings; perform legal research; and more. Interested applicants should submit an application, resume and transcripts if they are within 2-5 years. This position is open until filled. See the application here and please see the job description for more information.

Fond du Lac Band of Lake Superior Chippewa

Right of Way Specialist, Cloquet, MN.  The Right-of-Way Specialist, located at the Band’s Natural Resource/Tribal Court building, performs all tasks relating to trust and fee right-of-way activities for the Fond du Lac Band of Lake Superior Chippewa. This includes the subjects of deeds, leases, acquisitions, easements, mapping, surveying, legal descriptions, data management, document recording, planning, National Environmental Policy Act, land use, zoning, and project management. Please see the job description for more information and find the application here or email Lisa at lisashabaiash@fdlrez.com.

Michigan Indian Legal Services, Inc (MILS)

Staff Attorney, Southwest Michigan. 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 a range of tribal and federal Indian law cases. The ideal applicant will be licensed to practice law in Michigan or eligible to be admitted by waiver and have three to five years relevant experience. Please see the job description for more information.

Staff Attorney, Traverse City, MI. MILS represents individuals, families, tribes and organizations in cases that span a range of tribal and federal Indian law cases. This position will focus on tribal and state law legal issues; with an emphasis on tribal court child welfare and criminal defense matters. This position will require overnight travel in the Upper Peninsula. Please see the job description for more information.

Tohono O’odham Nation

Attorney General, Sells, AZ. Provides legal advice and representation to all officials, agencies, departments, divisions and branches of the Tohono O’odham Nation. The attorney general represents the Nation in all legal proceedings, and in other matters that affect the legal interests of the Nation; advises senior management and tribal officials; and supervises assistant attorneys general and contract attorneys. Please see the job description or visit this link for more information. Application closes February 1, 2019.

ACLU of Montana

Indigenous Justice Legal Internship Program, Missoula, MT. Seeking applications from current law students. Current top priority areas include: Indigenous Justice, criminal justice reform, and immigrants’ rights. We work on a range of additional issues including reproductive justice, voting rights, freedom of speech and religion, LGBTQ rights, and informational and digital privacy. Applications will be considered on a rolling basis, with initial review beginning on January 25, 2019. Interested students are encouraged to apply as early as possible. Please see the position description for more information.

Pueblo of Isleta

Chief Judge, Isleta, NM. Achieves the Tribal Court’s goals and objectives by adjudicating all criminal and civil cases brought before the Isleta Tribal Court in accordance with the legal code of the Pueblo of Isleta. Duties include conducting court sessions and hearings, reviewing procedural content, providing advice as needed to people of the community, and more. Please see the job description for more information. Application closes February 6, 2019.

Associate Judge, Isleta, NM. Works with the Chief Judge in achieving the Tribal Court’s goals and objectives by adjudicating all criminal and civil cases brought before the Isleta Tribal Court in accordance with the legal code of the Pueblo of Isleta. Manages and oversees all Tribal Court staff. Please see the job description for more information. Application closes February 6, 2019.

Tribal Prosecutor, Isleta, NM. Presents criminal complaints and prosecutes individuals accused of violating civil and/or criminal laws. Serves as presenting officer in persons at risk cases. Please see the job description for more information. Application closes January 18, 2019.

Mescalero Apache Tribe

Chief Judge, Mescalero Apache Tribal Court, Mescalero, NM. The Chief Judge is responsible for fairly and impartially hearing and deciding judicial matters within the jurisdiction of the Mescalero Apache Tribal Court and ensuring the efficient and effective operation of the Court. Please see the position description for more information, and a full position description is available upon request.

University of Wisconsin – Madison

Asst Professor – Native American Environment, Health and Community, Madison, WI. The faculty member in this position will conduct research and participate in teaching that addresses environmental components essential to a healthful and culturally rich environment. Please see the position description for more information. Application closes February 1, 2019.

Havasupai Tribe

General Counsel, Flagstaff AZ.  The General Counsel provides professional legal counsel and representation to the Havasupai Tribal government as indicated by the Tribal Council. The General Counsel works closely and independently with the Tribal Council and the Tribal Government staff. Please see the description for more information. This position is open until filled.

Chief Judge, Supai, AZ. The Tribal Chief Judge presides over a broad range of civil and criminal cases for the Havasupai Tribal Court.  This position would require an individual to review a broad range of civil and criminal matters, and render decisions under Havasupai laws. Please see the description for more information. This position is open until filled.

Little River Band of Ottawa Indians

Request for Proposals, Manistee, MI. Little River Band of Ottawa Indians Election Board would expect the Attorney to become familiar with election regulations and procedures, provide assistant for election disputes, and provide legal defense to actions initiated against the Election Board. Please see the description for more information. Proposals are due January 25, 2019.

Spokane Tribe of Indians

Prosecuting Attorney, Wellpinit, WA. The Tribal Prosecutor represents the Spokane Tribe of Indians in Tribal Court in all criminal prosecutions, both adult and juvenile, dependency actions, exclusion proceedings, truancy filings, and certain civil code violations. Please see the job description for more information. The application closes February 7, 2019.

Yavapai-Apache Nation

Chief Judge, Camp Verde, AZ. The Chief Judge presides over and ensures the proper operation for the Yavapai-Apache Nation Tribal Court. The Chief Judge is the primary judicial officer of the Tribal Court and administrator of the Nation’s Courts. Please submit your resume and application to: hrfrontdesk@yan-tribe.org. Application close Janaury 28, 2019. See the description for more information.

Judicial Branch of the Navajo Nation

Associate Attorney, Supreme Court of the Navajo Nation, Window Rock, AZ. This position provides a variety of legal advice, research and related legal services in support of the overall operation of the Navajo Nation Judicial Branch; assists with judicial administrative functions, such as researching and recommending policy changes and improvements for overall Judicial Branch. For more information, please see the position description or to apply, visit http://www.navajocourts.org. This position is open until filled.

Court Solicitor, Supreme Court of the Navajo Nation, Window Rock, AZ.  This position provides a variety of legal advice, counseling, research and related legal services in support of the overall operation of the Navajo Nation Judicial Branch; assists with judicial administrative functions, such as recommending policy changes and improvements for overall Judicial Branch; shall supervise and oversee all licensed attorneys, law clerk, hearing officers, supreme court clerk, and law clerk interns of the Judicial Branch.  For more information, please see the position description or to apply, visit http://www.navajocourts.org. This position is open until filled.

District Court Judge, Judicial District Court, Navajo Nation Wide. The District Court Judge is responsible in presiding over civil, criminal and family court cases; provides policy direction and guidance in the operation of the Judicial District.  For more information, please see the position description or to apply, visit http://www.navajocourts.org. This position is open until filled.

Associate Justice, Supreme Court of the Navajo Nation, Window Rock, AZ. This position shall perform work of unusual difficulty, hear arguments, read briefs and conduct research necessary to pass judgment and issue rulings on cases brought before the Navajo Nation Supreme Court.  For more information, please see the position description or to apply, visit http://www.navajocourts.org. This position is open until filled.

Hoopa Valley Tribal Court

RFP, Northern California, 95526. The Hoopa Valley Tribal Court is soliciting proposals to develop, compose and facilitate a community needs assessment and strategic plan. These two deliverables are sequential and interlinked. The Hoopa Valley Tribe encourages Indian owned businesses and contractors to submit proposals and provides a preference. The proposal is due January 25, 2019. Please see the description for more information.

Columbia Riverkeeper

Staff Attorney, Hood River or Portland, OR; possibility of working remotely from Olympia or Seattle, WA. The Staff Attorney is responsible for working with Riverkeeper’s staff to develop and execute Riverkeeper’s legal and policy work, including representing Riverkeeper in litigation and administrative processes. The Staff Attorney’s work plan focuses on campaigns to protect the Columbia from fracked gas, oil-by-rail, and other fossil fuel infrastructure. Please see the position description for more information. The application closes February 6, 2019.

Puyallup Tribe of Indians

Law Clerk, Tacoma, WA. Under the general direction of the Chief Judge, this position is responsible for researching and analyzing intricate, complex and sensitive legal issues and questions for the Tribal Court Judges. Application closes February 14, 2019. Please see the position description for more information.

DNA- People’s Legal Services, Inc.

The following positions are vacant. To apply email Hresources@dnalegalservices.org, or visit https://dnalegalservices.org.

• Managing Attorney, Public Defender, Keams Canyon, AZ
• Staff Attorney, Public Defender, Keams Canyon, AZ
• Managing Attorney (Civil), Keams Canyon, AZ
• Staff Attorney (Civil), Keams Canyon, AZ
• MLP Attorney, Tuba City, AZ
• Receptionist, Flagstaff, AZ
• (2) Staff Attorney, Farmington, NM
• MLP Managing Attorney, Farmington, NM
• NMVOCA Project Attorney, Farmington, NM
• Director of Litigation, Window Rock, AZ
• Director of Information Technology, Window Rock, AZ
• Community Outreach/Legal Education Coordinator, Window Rock, AZ

 

See posts from January 4, 2019.

NCAI Applauds Decision by Little League International to Ban Racially Offensive Team Names and Mascots

Monica Williamson

Here.