Turtle Talk

New Scholarship on IP and Traditional Knowledge in Tribal Codes

September 14, 2018Matthew L.M. Fletcher

Dalindyebo Bafana Shabalala has posted “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes” on SSRN.

Here is the abstract:

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.

New Scholarship on the Tohono O’odham Legal Systems

September 14, 2018Matthew L.M. Fletcher

Kyle Fields has posted “Tohono O’odham Legal Systems” on SSRN.

Here is the abstract:

This short essay surveys the Tohono O’odham’s legal system through three periods. First, it discusses the traditional O’odham legal system, which relied on himdag (culture or way of life). Second, it reviews how the Spanish, using an inquisitorial system based on Christian religious law, altered the O’odham’s legal system. Third, it analyzes how the secular American adversarial system changed the O’odham’s legal system.

Bay Mills Objections to Modified Consent Decree in United States v. Enbridge

September 13, 2018Matthew L.M. Fletcher

Here:

consent-decree-objections-9-13-18.pdf

Tribal Comments Needed for Notice for Proposed Model Family Foster Home Licensing Standards

September 13, 2018September 13, 2018Kate Fort

Here is the link. Comments are due by October 1.

By April 1, 2019, title IV-E agencies, which include all states and 12 tribes, must provide the HHS specific and detailed information about:

○ Whether the state or tribal agency foster family home licensing standards are consistent with the model licensing standards identified by HHS, and if not, the reason; and

○ Whether the state or tribal agency waives non-safety licensing standards for relative foster family homes (pursuant to waiver authority provided by section 471(a)(10)(D) of the Act), and if so, how caseworkers are trained to use the waiver authority and whether the agency has developed a process or provided tools to assist caseworkers in waiving these non-safety standards to quickly place children with relatives.

At this stage, HHS is trying to identify the model by which the state and direct IV-E tribes will be measured against. In this notice, the Children’s Bureau provides what they would like to use as that model: “We are proposing one set of standards for comment to apply to relatives and non-relatives, as well as state and tribal title IV-E agencies.”

The model appears problematic at best and is causing concern among both state and tribal IV-E workers and attorneys. As just one example, “i. A continuous supply of safe drinking water. ii. A properly operating kitchen with a sink, refrigerator, stove, and oven;”. We have families in Michigan that do not have a continuous supply of safe drinking water right now. What does “continuous supply” mean if you have to haul water? What is “properly operating”. There are many, many provisions like this in the model (like a functional literacy requirement), and if your tribe is concerned about getting homes licensed by either state or direct tribe IV-E agencies, this will affect you. I don’t see any comments submitted yet, or cannot access them, but if we receive good models or see ones submitted, I will post them as examples.

NICWA’s website further states: “There is no penalty for states or tribes that use different foster care standards than the national ones, but NICWA has raised concerns about how these will be used in future technical assistance and training with tribes by ACF. In addition, the national standards have not adequately taken into consideration unique cultural issues for AI/AN children and families and issues related to tribal authority to establish foster care standards.”

NYT: Interest Groups [Alaska Native Tribes Mostly] Turn Up Pressure on Senators Before Kavanaugh Vote

September 13, 2018Kate Fort

From the New York Times

“We view ourselves in solidarity with our native Hawaiian brothers and sisters,” said Richard J. Peterson, the president of the Tlingit and Haida Indian tribes. “The fact that he questions their validity tells us that he is going to do the same with us.”

***

Alaska Natives have been strong supporters of Ms. Murkowski. The Alaska Federation of Natives, the largest statewide Native organization in Alaska representing 186 federally recognized tribes, raised $1.6 million dollars and grass-roots support for her in 2010, when she ran a write-in campaign for re-election after a Tea Party challenger beat her in the Republican primary.

“We helped most Alaskans learn how to spell ‘Murkowski,’” Mr. Peterson joked.

ICWA/MIFPA Case from the Michigan Court of Appeals

September 13, 2018September 13, 2018Kate Fort

We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.

In re Beers/LeBeau-Beers

The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).

In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:

Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.

***

We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.

2018 World Indigenous Law Conference

September 13, 2018Monica Williamson

The purpose of the 2018 World Indigenous Law Conference is to bring together lawyers, judges, academics, Knowledge Keepers, policy experts, community leadership, community advocates, students and all interested parties to embark on and share in conversation and discourse about the implementation of Indigenous Law into western contemporary legal systems and highlighting Indigenous Laws that already exist in Indigenous communities and Nations.

Register online: https://events.attend.com/f/1383784704

This program contains 12 hours of EDI Professionalism Content.

Split Ninth Circuit Panel Approves Voting Rules in Arizona Intended to Make Voting Harder for People of Color

September 13, 2018September 13, 2018Matthew L.M. Fletcher

Here is the opinion in Democratic National Committee v. Reagan.

An excerpt from Chief Judge Thomas’ dissent:

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Our right to vote benefits government as much as it benefits us: a representative democracy requires participation, and the people require representatives accountable to them. Arizona’s electoral scheme impedes this ideal and has the effect of disenfranchising Arizonans of African American, Hispanic, and Native American descent.

Arizona’s policy of wholly discarding—rather than partially counting—votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups. It violates § 2 of the Voting Rights Act (“VRA”), and it unconstitutionally burdens the right to vote guaranteed by the First Amendment and incorporated against the states under the Fourteenth Amendment.

National Indian Law Library Bulletin (9/12/2018)

September 13, 2018Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 9/12/18.

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)

http://www.narf.org/nill/bulletins/lawreviews/2018.html

• I see you- A story from the Haudenosaunee.

• Indian Child Welfare Act annual case law update and commentary.

• August 2016-August 2017 case law on American Indians.

• CDIB: The role of the certificate of the degree of Indian blood in defining Native American legal identity.

• Tribal Exclusion Authority: Its sovereign bases with recommendations for federal support.

• Native American rights and adoption by non-Indian families: The manipulation and distortion of public opinion to overthrow ICWA.

• Racial anxieties in adoption: Reflections on adoptive couple, white parenthood, and constitutional challenges to the ICWA.

Federal Courts Bulletin

http://www.narf.org/nill/bulletins/federal/2018.html

Forest County Potawatomi Community v. United States (Gaming Compact – Approval)
Kialegee Tribal Town v. Zinke (Jurisdiction; Indian Gaming Regulatory Act)

United States of America v. Uintah Valley Shoshone Tribe (Hunting and Fishing Rights)

Comanche Nation of Oklahoma v. Zinke (Lands; Gaming)

Tribal Courts Bulletin

http://www.narf.org/nill/bulletins/tribal/2018.html

Moon v. Hoopa Valley Tribe (Employment – Wrongful Termination)

State Courts Bulletin

http://www.narf.org/nill/bulletins/state/2018.html

In re E.H. (Indian Child Welfare Act – Notice)

News Bulletin

http://www.narf.org/nill/bulletins/news/currentnews.html

In the Environment and Energy section, we feature an article on a law suit filed by tribes against the Keystone XL pipeline permit.

U.S. Legislation Bulletin