Withdrawal of Solicitor’s Opinion Regarding Land into Trust for Alaska Tribes

Kate Fort

A day after Tara Sweeney, an Executive Vice President of Arctic Slope Corporation, was appointed as the Assistant Secretary of Indian Affairs, the Department of Interior Solicitor’s Office withdrew a previous opinion regarding the authority of the government to take land into trust for Alaska Natives pending a (you guessed it) notice and comment period:

The Department allowed only 60 days for comment when it proposed removing the Alaska exclusion from its trust land acquisition regulations in 2014. That is in stark contrast to the three years the Department proposed in 2001 to consider the legal and policy implications of removing the Alaska exclusion. Based on the geographical distribution and cultural diversity of Alaska Native communities, a minimum of six months would seem appropriate to provide adequate notice and a meaningful opportunity to comment on the Secretary’s exercise of his authority to take off-reservation land into trust in Alaska and the issues left unresolved by Sol. Op. M-37043, followed by a further six months to allow the Department to conduct a considered review of any and all comments received.

Twitter coverage of this from Indianz on Friday is here.

Friday Job Announcements

Neoshia Roemer1 Comment

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 Indian law or leadership job, please send a PDF job announcement and a brief description of job to indigenous@law.msu.edu.

Department of the Interior

Associate Solicitor for Water Resources, Washington, D.C. The Associate Solicitor has primary responsibility for managing the Division of Water Resources, which includes the Branch of Water and Power and the Branch of Indian Water Rights. Management of the Division includes working with the Solicitor and the Deputy Solicitor in formulating policies of the Solicitor’s Office with respect to organization, budget, personnel, and legal activities. Applications close on July 23, 2018. Please see the website for more information.

Legal Aid of Nebraska

Staff Attorney, Native American Program, Omaha, N.E. Legal Aid of Nebraska is seeking a Staff Attorney to provide direct legal assistance to low-income patients through the medical-legal partnership (MLP) program at the Fred LeRoy Health and Wellness Center in Omaha, NE, the Nebraska Urban Indian Health Coalition in Omaha and Lincoln, Nebraska, the Ponca Hills Health and Wellness Center in Norfolk, NE, and other locations in and near Northeast and Eastern Nebraska.  Please see the website for more information.

Morongo Band of Mission Indians 

Healing to Wellness Court Coordinator,  Banning, C.A. The Morongo Band of Mission Indians is seeking a Healing to Wellness Court Coordinator to facilitate planning, development and implementation for the Juvenile Healing to Wellness Court program.  The JHTWC is designed to provide court intervention and early access to therapeutic and treatment services to youth that have entered into the criminal justice system and who may be dealing with issues involving alcohol and/or drug use.  In conjunction with Court staff, the Healing to Wellness Court Coordinator is responsible for forming, coordinating, and staffing a multi-disciplinary advisory team, drafting program policy and procedures to screen and determine eligibility of participants, and produce deliverables required by the grant and funder (Department of Justice) in a timely fashion. Please see the website for more information.

The University of California, San Francisco

Senior Complaint Resolution Officer, Office of Diversity and Outreach, San Francisco, C.A. The Senior Complaint Resolution Officer (Sr. CRO) will function as a member of the Office for the Prevention of Harassment and Discrimination (OPHD) and will serve as a campus subject matter expert on sexual harassment, sexual violence, and Equal Employment Opportunity (EEO)-related laws and requirements. The Sr. CRO responds to complaints of discrimination and harassment and discrimination pursuant to the University’s Sexual Violence and Sexual Harassment Policy (SVSH Policy) and the University’s Policy on Discrimination, Harassment, and Affirmative Action in the Workplace Policy (Nondiscrimination Policy) and must possess the ability to exercise independent judgment, assess and negotiate complex, highly sensitive situations, maintain confidentiality, and maintain neutrality when handling matters. The Sr. CRO conducts intake interviews relating to allegations of violations of the SVSH Policy and/or the Nondiscrimination Policy, assesses documentary evidence and information provided during intake interviews, conducts alternative resolutions when appropriate, and conducts thorough and prompt formal investigations of complaints alleging violations of the SVSH Policy and/or the Nondiscrimination Policy. Please see the website for more information.

Complaint Resolution Officer, Office of Diversity and Outreach, San Francisco, C.A. The Complaint Resolution Officer (CRO) serves as a subject matter expert on sexual harassment and Equal Employment Opportunity (EEO)-related laws and responds to complaints of harassment and discrimination pursuant to the University’s Sexual Violence and Sexual Harassment Policy (SVSH Policy) and the University’s Policy on Discrimination, Harassment, and Affirmative Action in the Workplace Policy (Nondiscrimination Policy).  The CRO is primarily responsible for conducting intake interviews relating to allegations of violations of the SVSH Policy and/or the Nondiscrimination Policy, assessing documentary evidence and information provided during intake interviews, conducting alternative resolutions when appropriate, and conducting thorough and prompt formal investigations of complaints alleging violations of the SVSH Policy and/or the Nondiscrimination Policy. Formal investigations include preparing notices of formal investigation; developing an investigative plan; conducting party and witness interviews; providing parties and witnesses with information about the investigatory process; analyzing documents and information and assessing credibility to determine whether policy violations have occurred, while ensuring that the investigation is neutral, prompt, and thorough; maintaining accurate and thorough investigatory files and reports; and appropriately working with other university offices as needed. Please see the website for more information.

Pokagon Band of Potawatomi Indians

Assistant Prosecutor, Dowagiac, M.I. Under the direction of the Prosecutor/Presenting Officer and the administrative supervision of the General Counsel to the Pokagon Band of Potawatomi Indians, the Assistant Prosecutor represents the Pokagon Band in criminal and child protection matters in the Pokagon Band Tribal Court, and represents the Pokagon Band in child protection matters in state courts. The Assistant Prosecutor performs the duties and responsibilities of the position in a manner that is consistent with applicable ethical standards and will ensure that enforcement of the laws of the Pokagon Band. Occasional travel within and outside Michigan and Indiana will be required. Please see the announcement announcement for more information.

Osage Nation

Staff Attorney, Pawhuska, O.K. The Osage Nation is seeking a Staff Attorney, who is a member of the Oklahoman Bar in good standing, to research laws, investigate facts, and prepare letters and documents necessary to assist the Office of the Attorney General in day-to-day activities and litigation. Please see the website for more information.

Dakota Plains Legal Services 

Deputy Director, Mission, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Deputy Director position in our Mission, South Dakota, office. DPLS provides free legal services to low income and elderly clients located primarily in the western half of South Dakota and to Native American clients located throughout South Dakota and on the Standing Rock Indian Reservation which extends into North Dakota. Please see the announcement for more information.

Managing Attorney, Eagle Butte, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Managing Attorney position in our Eagle Butte, South Dakota, branch office.  The Eagle Butte office serves Cheyenne River Indian Reservation in South Dakota and Dewey, Haakon, Potter and Ziebach counties in South Dakota. Please see the announcement for more information.

Staff Attorney, Mission, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Mission, South Dakota, office.  The Missionoffice serves the Rosebud Sioux Indian Reservation and Gregory, Jones, Mellette, Todd and Tripp counties in South Dakota. Please see the announcement for more information.

Managing Attorney, Fort Thompson, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Managing Attorney position in our Fort Thompson, South Dakota, branch office.  The Fort Thompson office serves the Crow Creek and Lower Brule Indian Reservations in South Dakota and Brule, Buffalo, Hughes, Hyde, Lyman, Stanley and Sully counties in South Dakota. Please see the announcement for more information.

Staff Attorney, Sisseton, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Sisseton, South Dakota, office.  The Sissetonoffice serves the Lake Traverse, Flandreau and Yankton Indian Reservations in South Dakota and Grant, Roberts and Charles Mix counties in South Dakota, as well as Native Americans in the eastern half of South Dakota. Please see the job announcement for more information. 

Staff Attorney, Sioux Falls, S.D. DAKOTA PLAINS LEGAL SERVICES (DPLS), a non-profit legal services program, has an opening for a Staff Attorney position in our Sioux Falls, South Dakota, office.  The Sioux Falls office serves primarily Native Americans in the vicinity of Sioux Falls and in the eastern half of South Dakota.  This job requires at least two days of travel every week. Please see the job announcement for more information. 

Fort McDowell Yavapai Nation

Senior Assistant General Counsel, Fountain Hills, A.Z. The Fort McDowell Yavapai Nation is seeking a Senior Assistant General Counsel to serve under the general oversight of the General Counsel and acts in the General Counsel’s absence with the authority of the General Counsel in fulfilling the duties and responsibilities of the Office of General Counsel; to provide legal advice to the Fort McDowell Yavapai Nation Tribal Council, tribal departments and economic enterprises; and to represent the Fort McDowell Yavapai Nation in matters brought in Tribal, State and Federal court. Please see the job announcement for more information.

Department of Justice 

Asssitant United States Attorney, Oklahoma City, O.K. The office is currently seeking applicants to fill one or more Assistant U.S. Attorney positions in the Civil Division. Assignment to the Civil Division may include responsibility for all phases of civil prosecution from providing guidance to law enforcement officers, initiating civil charges, conducting grand jury proceedings and trials, and handling appeals. Responsibilities will increase and assignments will become more complex as your training and experience progress. Applications close on July 12, 2018. Please see the website for more information.

Assistant United States Attorney, Oklahoma City, O.K. The office is currently seeking applicants to fill one or more Assistant U.S. Attorney positions in the Criminal Division. Assignment to the Criminal Division may include responsibility for all phases of criminal prosecution from providing guidance to law enforcement officers, initiating criminal charges, conducting grand jury proceedings and trials, handling appeals, or asset forfeiture matters. Responsibilities will increase and assignments will become more complex as your training and experience progress. Applications close on July 12, 2018. Please see the website for more information.

Assistant United States Attorney, Minneapolis/St. Paul, M.N. Assistant U.S. Attorneys (AUSAs) in the Criminal Division prosecute federal criminal cases in the District. Criminal Division AUSAs advise federal law enforcement agents on criminal investigations, present criminal cases to the grand jury, try criminal cases before the United States District Court, and represent the United States in criminal appeals before the Eighth Circuit Court of Appeals. Candidates should be capable of handling a variety of significant and complex criminal prosecutions. Applications close on July 5, 2018. Please see the website for more information.

Last week’s postings: June 22, 2018.

Reflections on Justice Kennedy’s Indian Law Legacy

Matthew L.M. Fletcher2 Comments

My most enduring memory of Justice Kennedy is no doubt watching him lean over the bench, red faced and angry, screaming/yelling/lecturing at Neal Katyal during the Dollar General oral argument. I concluded then, if I hadn’t already before that moment from his writings, that Justice Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court.

Justice Kennedy was confirmed for SCOTUS in 1988. His first vote in an Indian law case was in Oklahoma Tax Commission v. Graham. His last vote in an Indian law case was in the Upper Skagit matter (he recused in the culverts case). During his tenure, tribal interests cleanly won 15 cases and cleanly lost 40 cases. There were two cases in which there were two or more issues in which tribal interests won and lost. There were three cases decided by 4-4 tie votes (including one which Kennedy was recused), and in which tribal interests had prevailed below. There were two non-criminal cases in which the interests of individual Indians were at play, making it difficult to declare it a clean win or loss for tribal interests. There was one case the Court remanded (not talking about Upper Skagit) without a clear winner. In short, it was/is a bad time for tribal interests — just under a 30 percent win rate for tribes, adding in the tie cases.

Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests. Kennedy voted cleanly in favor of tribal interests 11 times (and that includes Lara, in which he wrote a scathing opinion blasting tribal powers, and nearly half of those votes were in the past few years), and voted cleanly against tribal interests 45 times. There was one case where voted to split issues. We can and should presume he was an anti-tribal vote in both of the 4-4 tie cases (and would have been a deciding vote against the tribes and the US in the culverts case had he not recused). I count just under a 20 percent pro-tribal vote rate for Justice Kennedy.

Justice Kennedy wrote relatively few Indian law opinions, as few as Justice Scalia. It should be clear to observers that during this period, Chief Justice Rehnquist, Justice Thomas, and junior justices carry the conservative side’s laboring oar in Indian law, not right wing stalwarts who write the federalism and anti-civil rights opinions.

The most important majority opinion Justice Kennedy wrote was Duro v. Reina, though Rice v. Cayetano comes in a close second. Duro really shouldn’t be considered an important opinion because it was so clearly wrong on so many levels Congress enacted a temporary Duro fix within weeks of its announcement, making the fix permanent within a year or so. Perhaps because the principles Justice Kennedy advanced in Duro were principles he had been working with in his own mind since at least the 1970s when he dissented as a Ninth Circuit judge in Oliphant [544_f.2d_1007] — this is America where Americans must consent to government and non-Indians cannot choose to be subject to tribal jurisdiction because they cannot be tribal citizens — he seemed to ache to have an opportunity to strike down the Duro fix. His concurring opinion in United States v. Lara lays out how his consent theory would be enough to kill the Duro fix and all but asks the Court to seek a vehicle out for review, a vehicle that never came (sorry Russell Means, you shouldn’t have hired a lawyer). Maybe the biggest problem for Kennedy’s consent theory is that it’s completely farcical and simply not grounded in the Constitution or reality (try driving from Michigan to New Mexico just to vote, not that I would have voted for Gavin even if I could vote — go Deb Haaland!).

For all my criticism, I have a favorite Kennedy opinion, his lower court opinion in United States v. Finch [548_f.2d_822], a precursor to the Montana v. United States case in which SCOTUS held that the Crow Nation did not possess the Big Horn River. Kennedy wrote strongly in favor of the tribe’s ownership, guaranteed by treaty, an opinion that shows how completely misguided Justice Rehnquist’s Montana decision actually was. If he had been that judge during his tenure as a Supreme Court judge he’d be celebrated, even worshipped, by Indian country. Instead a collective “meh” upon his retirement, Indian country would be mourning the retirement of a great justice.

National Indian Law Library Bulletin (6/28/2018)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 6/28/18.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2017-2018update.html
Petition for certiorari was granted in Washington State Department of Licensing v. Cougar Den (State Taxation) on 6/25/18.
Petition for certiorari was granted in Herrera v. Wyoming (Treaty Hunting Rights) on 6/28/18.
Petitions for certiorari were denied in Eastern Shoshone Tribe v. Wyoming, et al. and Northern Arapaho Tribe, et al. v. Wyoming, et al. (Reservation Diminishment) and in Sharp Image Gaming, Inc. v. Shingle Springs Band of Miwok Indians (Indian Gaming Commission – Collateral Agreements) on 6/25/18.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2018.html

  • Polar opposites: Assessing the state of environmental law in the world’s polar regions.

Tribal Courts Bulletin
http://www.narf.org/nill/bulletins/tribal/2018.html
Spurr v. Spurr (Harassment – Personal Protection Order)

State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2018.html
Matter of IW (Indian Child Welfare Act – Expert Witnesses)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Intergovernmental section, we feature an article about U.S. Supreme Court end of term action on Native American law cases.

News Profiles [from the left] on Justice Kennedy’s Legacy

Matthew L.M. Fletcher

Turtle Talk will, of course, in time, have it own post on the retirement of Justice Kennedy, but for now, check out these profiles:

The Intercept: FAREWELL TO ANTHONY KENNEDY, AUTHOR OF SOME OF THE MOST LUDICROUS PRONOUNCEMENTS IN SUPREME COURT HISTORY

ThinkProgress: Justice Kennedy deserves this nasty, unflinching sendoff

ATL’s Elie Mystal: Justice Anthony Kennedy Is Retiring — Fresh off of helping white supremacists defend bigotry towards gays, Muslims, and blacks, Kennedy is peacing out

New Republic: Anthony Kennedy Was No Moderate

NBC Think: Justice Kennedy’s retirement cements his legacy as an enabler of Trump’s pro-business, racist, anti-woman agenda

If you’re somehow curious as to how the right thinks of Justice Kennedy….

Commentary: Justice Kennedy’s Mystical Jurisprudence

National Review: Good Riddance, Justice Kennedy

Thomson Reuters Defends Its Work for ICE, Providing “Identification and Location of Aliens”

Teresa Walrod

The reporters at Reuters have been providing crucial, unfliching coverage of the cruel treatment of would-be immigrants under policies pushed by President Donald Trump. Meanwhile, the news agency’s parent company, Thomson Reuters, has been supplying U.S. Immigration and Customs Enforcement with data from its vast stores as part of federal contracts worth close to $30 million. A letter from a Thomson Reuters executive shows that the company is ready to defend at least one of those contracts while remaining silent on the rest.

HERE.

SCOTUS Grants Herrera v. Wyoming

Matthew L.M. Fletcher

Here is today’s order list.

Here is the tag for Herrera v. Wyoming.

New Mexico’s Children’s Law Institute Conference Call for Presentations

Kate Fort

2019 Call for Workshop Proposals

I was just asked to speak at this event, and they also forwarded the call for presentations. So submit something, and we can hang out while we educate!

We are looking for 1.5 hour long workshops that relate to child welfare, juvenile justice, service providers, advocates, educators, and legal professionals in those systems. Workshops can be geared toward one or more professions. We are seeking intermediate and advanced presentations for experienced professionals and volunteers. Academic paper proposals are not likely to be accepted.

The New Mexico Children’s Law Institute (CLI) is seeking proposals for inspirational, skill building, and solution focused workshops for the 26th annual conference in Albuquerque, New Mexico, January 9-11, 2019.

Deadline for proposal submission is August 17, 2018

 

More Comments Needed! Now on Title IV-E/Families First Developments

Kate Fort

Here. DUE JULY 22.

This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).

In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.

Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:

1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs

“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:

Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial

Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”

The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.

This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.

Judge Byrne’s Essay on Family Separation in Time

Kate Fort

Here.

Judge Byrne has been a leader at NCJFCJ, an ally to tribal judges through NAICJA, and a strong proponent and supporter of ICWA. She’s also a state court judge in Texas.