Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Matthew L.M. Fletcher3 Comments

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.

Still, there will certainly be an appeal. The case is limited only to the parties involved.

Federal Court Rules against Tulalip Tribes’ Quil Ceda in Tax Dispute with State of Washington

Matthew L.M. Fletcher

Here is the order in Tulalip Tribes v. State of Washington (W.D. Wash.):

dct-order.pdf

Prior posts here.

The Guardian: “While Nestlé extracts millions of litres from their land, residents have no drinking water”

Matthew L.M. Fletcher

Here.

Provide Comments on WI Pro Hac Vice for ICWA Attorneys Pending Rule

Kate Fort

Well, since I did the California post yesterday on this, multiple people from Wisconsin reminded me that we all need to submit supportive comments there. Many thanks to NL for spelling it out in an email so I can just cut and paste it here (ie making it easy for me):

Over in Wisconsin, we have a pending ICWA pro hoc vice rule petition that could use some more supporting comments, especially from adjacent states!  You can find the petition here (https://www.wicourts.gov/scrules/1804.htm).

The process for submitting a comment is as follows:

To submit a comment:

I. Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.

A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at clerk@wicourts.gov and carrie.janto@wicourts.gov.

II. Contents of comment
The comment shall identify the rule petition to which it relates.

III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.

https://www.wicourts.gov/scrules/1804.htm

 

Indian Law-Related Docs from the Brett Kavanaugh Document Dump

Matthew L.M. Fletcher

09-13-18-gwb-document-release-murkowski-sullivan.pdf

hr1166-assistance-provided-by-small-business-development-centers-to-na.pdf

These documents could be significant.

1. During his confirmation hearing when Senator Hirono asked him if he was thinking of the Rice v. Cayetano case when he sent these emails, found here.

The nominee said he couldn’t remember whether he was thinking of Rice or if Rice had anything to do with his thoughts. The 69 pages of emails and documents that are attached here may show Kavanaugh’s thinking on Indian law issues — Rice is mentioned a few times.

2. When the nominee met with Sen. Murkowski he told her (here):

“He was the first to admit that in terms of broader Indian law he hasn’t had that much opportunity in the D.C. Circuit court to really engage on these issues, so this is not a body of law that he is often exposed to,” she said. “And he was very direct with that.”

Again, the emails show the nominee’s involvement in Indian law.

3. The letter included here is related to a Tom Udall bill that was passed unanimously by the House. The bill was to provide services to NA, Alaska Natives, and Native Hawaiians from the SBA. The letter likely was to be cleared by the nominee. The letter states the administration’s opposition to portions of the bill on constitutional grounds, relying on Rice.

ILPC/TICA Conference Nov 14-16: Second Panel

Monica Williamson

Unsure of whether to attend the ILPC/TICA Conference this fall? Here’s a peek at the second panel. Register and come visit us on the banks of the Red Cedar this fall:

Panel Promo Effective Partnering Fed Trustee_02

Sponsored by:

IELG logo

 

And remember, the ILPC/TICA 15th Annual Indigenous Law Conference will fulfill the following CLEs: 10 standard, 1.5 ethics, 1 elimination of bias

 

Rapid City News Article on Pennington Co ICWA Procedures

Kate Fort

Sometimes the results change a little even when a court decision goes the wrong way: County to Stick with Current ICWA Hearing Procedures

Press Release: Udall, Senate Democrats Introduce Native American Voting Rights Act

Neoshia Roemer

NEWS FROM THE UNITED STATES SENATE

For Immediate Release

October 3, 2018

Contact: Ned Adriance

202.228.6870 | news@tomudall.senate.gov | @SenatorTomUdall

 

Udall, Senate Democrats Introduce Native American Voting Rights Act

Landmark legislation to ensure equal access to the ballot box for Native peoples

WASHINGTON — Today, U.S. Senator Tom Udall (D-N.M.), vice chairman of the Senate Committee on Indian Affairs, along with U.S. Senators Elizabeth Warren (D-Mass.), Martin Heinrich (D-N.M.), Heidi Heitkamp (D-N.D.), Catherine Cortez Masto (D-Nev.), Amy Klobuchar (D-Minn.), Tina Smith (D-Minn.), Kamala Harris (D-Calif.), Dianne Feinstein (D-Calif.), Chris Van Hollen (D-Md.), Jon Tester (D-Mont.), Cory Booker (D-N.J.), and Mazie Hirono (D-Hawaii) are introducing the Native American Voting Rights Act of 2018, landmark legislation to provide the necessary resources and oversight to ensure Native Americans have equal access to the electoral process.

The full text of the bill is available HERE. A summary of the legislation is available HERE. Continue reading →

New Scholarship on Tribal Bankruptcy

Matthew L.M. Fletcher

Laura Coordes has posted “Beyond the Bankruptcy Code: A New Statutory Bankruptcy Regime for Tribal Debtors,” forthcoming in the Bankruptcy Developments Journal, on SSRN.

Here is the abstract:

Native American tribes and tribal businesses play an important role in U.S. commerce, but many of these entities are effectively prohibited from filing for bankruptcy relief when financial distress occurs. This Article demonstrates how and why the Bankruptcy Code is a poor fit for these “tribal debtors” and suggests that Congress enact a new statutory regime to provide structured debt relief for these entities rather than modify the Bankruptcy Code.

Although this proposal is novel with respect to tribal debtors, Congress has looked beyond the Bankruptcy Code to provide debt relief when use of the Code would be inapt on two other recent occasions: the passage of the Dodd-Frank Act and PROMESA. Using tribal debtors as an example, this Article investigates whether and how this practice might continue and what it might mean for the bankruptcy system writ large.

Tribal Law and Policy Institute is Hiring!

Kate Fort

Announcement here: Program Specialist Job Announcement_Tribal Law and Policy Institute

Education and/or Experience:

Required: Bachelor’s degree; experience or demonstrated expertise in tribal justice systems and/or problem-solving courts

Preferred: Juris Doctorate, Master’s degree, or other applicable advanced degree

Strongly preferred: Four (4) years of programmatic development/implementation and/or direct services delivery; previous experience with American Indian and Alaska Native communities; basic knowledge of federal Indian Law and polices; and experience and/or demonstrated expertise in at

  •  Healing to Wellness Courts
  •  historical trauma and trauma-informed care
  •  cultural adaptations to evidence-based practices and programming
  •  strategic planning and action plan development
  •  tribal-state collaboration coordination
  •  prevention, intervention, and treatment programs
  •  systemic, community-wide, public health strategies and responses