Here is the opinion in In re Greektown Holdings LLC.
Briefs:
Lower court materials and prior posts here.
Alaska Supreme Court on Active Efforts [ICWA]
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]
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.
American Indian Law Section Bar Study Scholarship
Please share with any 3L who may be interested in the AILS Bar Study Scholarship.
Federal Court Rejects Yakama Nation Jurisdictional Claims against Local Governments
Here are the materials in Confederated Tribes and Bands of the Yakama Nation v. City of Toppenish (E.D. Wash.):
California Appellate Court Holds State Taxes Imposed on Tribal Member Not Preempted
Here are the materials in People ex rel. Becerra v. Huber (Cal. Ct. App.):
appellant-supplemental-brief.pdf
Washington Appellate Court Holds Tribal Gaming Commission Immune from Suit
Here are the materials in Long v. Snoqualmie Gaming Commission (Wash. Ct. App.):
Wilson v. Horton’s Towing Cert Petition [Montana; Exhaustion; Civil Forfeiture]
Here:
Questions presented:
1. Does an Indian Tribe have authority under the second exception of Montana v. United States, 450 U.S. 544 (1981), to forfeit automobiles owned by non Native Americans for violation of tribal drug laws while on tribal land?
2. If so, does the Tribe have authority to seize a motor vehicle off reservation if it has probable cause to believe that the automobile previously contained illegal drugs while on tribal lands?
Lower court materials here.
New Scholarship on Religious Liberty Land Use Claims
Here is “Trespass or Vandalism or Protecting That Which is Holy? Religious Liberty Land-Use Claims,” published in the Columbia Law Review Online, by Edward K. Olds.
Friday Job Announcements
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.
Michigan State University
Pre-Doctoral Fellowship in American Indian and Indigenous Studies (AIIS), East Lansing, MI. Applicants must be finished with all doctoral work, except the dissertation; actively working in American Indian and Indigenous Studies; and committed to a career in Indigenous Studies. For more information please see the job description. Review of applications begins on March 11, 2019.
More about the American Indian and Indigenous Studies program, as well as a list of previous fellows, can be viewed at http://aisp.msu.edu/. Questions can be directed to Dr. Dylan Miner, Director of American Indian and Indigenous Studies, at dminer@msu.edu.
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 Nation, including its departments, arms, subdivisions, regulatory bodies, committees, entities and business enterprises concerning legal rights, responsibilities and obligations. Excellent ability to communicate legal concepts and analysis to MPTN, to patrons, vendors or any other person necessary to resolve a matter is required. Please see the job description for more information.
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. The ideal candidate will have a JD, MSW, or relevant graduate-level degree, or previous experience delivering technical assistance to tribal justice systems. Candidates with previous experience working with tribal justice systems are strongly encouraged to apply.
New Mexico Tourism Department
Cultural Heritage Coordinator, This position is important to our Department, our Pueblos and Nations, and to our State. Seeking an energetic individual who will grow and foster dynamic relationships with tribal and cultural entities in growing tourism within our communities and growing our economies. There is a link to our State Personnel Office page to apply online. Application closes February 25, 2019.
The Native Village of Afognak
Tribal Administrator, Kodiak, AK. Under the direction of the Native Village of Afognak (NVA) Tribal Council, the Tribal Administrator will serve as the Chief Executive Officer to coordinate and oversee the Tribal Government and manage the day-to-day operations of the Tribe. Strong familiarity with Tribal history and Indigenous governance is required, as well as some knowledge of cultural and environmental issues. Please see the job description for more information.
The Menominee Indian Tribe
Assistant Prosecutor, Keshena, WI. Under the direction and supervision of the Prosecutor, the purpose of the position is to assist the Prosecutor with legal research, court appearances and to handle caseloads as assigned. See the job description for more information and apply online at www.menominee-nsn.gov. The closing date is March 13, 2019.
Mille Lacs Band of Ojibwe
Legislative Staff Attorney, Onamia, MN. The duty of the Chief Legislative Counsel is to provide legal analysis on issues that come before the Legislative Branch, draft and update the Band’s legislation, review contracts The Legislative Staff Attorneys are to assist Chief Legislative Counsel in the amending, revision, and creation of statutes for the Legislative Branch while remaining vigilant of the Band’s traditions and beliefs. For more information please see the job description. Application closes March 5, 2019.
Staten Island Legal Services
Housing Attorney, New York City, New York. We are seeking a staff attorney to work in our Housing Unit assisting low-income tenants throughout the borough in avoiding displacement through a range of legal avenues. For more information please see the job description.
Kickapoo Traditional Tribe of Texas
Foster Home Attendant, Eagle Pass, TX. Provide social services and assistance to improve the social and psychological function of children and their families and to maximize the family well-being and the academic functioning of children. Employment Applications may be submitted in person at the Human Resource Department, or you may fill out an application at: kickapootexas.org. If you have any questions please call 830-773-2105.
Martha L. King, P.C.
Summer Law Clerk, Albuquerque, NM. This is a rare opportunity for a law student with strong research and writing skills to develop thoughtful, professional, and well-analyzed work product and gain invaluable practical legal experience. For more information please see the description. Application closes March 15, 2019.
Part-Time Associate Attorney, Albuquerque, NM. We are a peer rated professional services law firm providing business law services to tribal entities. Requirements: experience in business law, corporations, and employment law; strong writing and analytical skills; and driven by a sincere desire to make a lasting impact in and out of Indian country. Please see the job description for more information. Application closes March 15, 2019 at 5pm.
See posts from February 15, 2019.
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