Turtle Talk

Tribes Sue over Keystone XL Pipeline

September 11, 2018September 11, 2018Matthew L.M. Fletcher

Here:

ROSEBUD SIOUX TRIBE AND FORT BELKNAP INDIAN COMMUNITY FILE SUIT AGAINST KEYSTONE XL

The Rosebud Sioux Tribe (Sicangu Lakota Oyate) and the Fort Belknap Indian Community (Assiniboine (Nakoda) and Gros Ventre (Aaniiih) Tribes) in coordination with their counsel, the Native American Rights Fund, on September 10, 2018, sued the Trump Administration in the U.S. District Court for the District of Montana, Great Falls Division, for numerous violations of the law in the Keystone XL pipeline permitting process. The Tribes are asking the court to declare the review process in violation of the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA) and to rescind the illegal issuance of the Keystone XL pipeline presidential permit.

On March 23, 2017, the U.S. Department of State granted TransCanada’s permit application and issued it a presidential permit to construct and operate the Keystone XL Pipeline. This decision reversed two previous administrative decisions and was done without any public comment or environmental analysis. The permitting process was completed only 56 days after TransCanada submitted its application for the third time. The State Department provided no explanation in the 2017 decision for its contradictory factual finding; instead, it simply disregarded its previous factual findings and replaced them with a new one. The reversal came as no surprise. According to a 2015 personal public financial disclosure report filed with the Federal Election Commission, then-candidate Trump held between $250,000 and $500,000 worth of stock in TransCanada Pipelines,Trump permitted the Keystone XL pipeline because he wanted to. It was a political step, having nothing to do with what the law actually requires. NARF is honored to represent the Rosebud Sioux and Fort Belknap Tribes to fully enforce the laws and fight this illegal pipeline.”

Snaking its way from Alberta to Nebraska, the pipeline would cross the United States-Canada border in Philips County, Montana, directly adjacent to Blaine County and the Fort Belknap Indian Reservation. The pipeline would cross less than 100 miles from the headquarters of the Fort Belknap Indian Reservation and run directly through sacred and historic sites as well as the ancestral lands of the Gros Ventre and Assiniboine Tribes. In South Dakota, the pipeline would cross through Tripp County, just miles from the boundaries of the Rosebud Indian Reservation and within yards of Rosebud’s trust lands and tribal members’ allotments. These lands are well within the area of impact for even a small rupture and spill. There are countless historical, cultural, and religious sites in the planned path of the pipeline that are at risk of destruction, both by the pipeline’s construction and by the threat of inevitable ruptures and spills if the pipeline becomes operational. Additionally, the Rosebud Sioux Tribe operates its own water delivery system, which is part of the Mni Wiconi Rural Water Supply Project. The pipeline would cross the two sources of water for the Mni Wiconi Project.

Despite all of these facts, throughout the permitting process, there was no analysis of trust obligations, no analysis of treaty rights, no analysis of the potential impact on hunting and fishing rights, no analysis of potential impacts on the Rosebud Sioux Tribe’s unique water system, no analysis of the potential impact of spills on tribal citizens, and no analysis of the potential impact on cultural sites in the path of the pipeline, which is in violation of the NEPA and the NHPA.

William Kindle, who was president of the Rosebud Sioux Tribe in August 2018 when the Tribal Council authorized NARF to finalize and file this lawsuit, stated at that time that, “As President of the Rosebud Sioux Tribe, I want to make it perfectly clear, and give fair warning to President Trump, Secretary Zinke, The United States Army Corps of Engineers, TransCanada and their financial backers and potential investors, South Dakota Governor Daugaard, Representative Noem, and Senators Thune and Rounds that the Rosebud Sioux Tribe opposes the construction of the Keystone XL pipeline. Through our attorneys—the Native American Rights Fund—the Rosebud Sioux Tribe will use all means available to fight in the courtroom this blatant trespass into Sicangu Lakota territory.”

Find out more about the Keystone XL Pipeline and the tribes’ opposition.

Sober Support in Tribal Communities

September 10, 2018Monica Williamson

Do you want to incorporate sober support requirements in your court orders for people who are substance users, but don’t know much about sober support? Are you interested in unique sober support options? Join us for our next FREE webinar on Sober Support in Tribal Communities to learn more!

Udall Statement on Judge Kavanaugh

September 10, 2018September 10, 2018Matthew L.M. Fletcher

Here:

Udall: Kavanaugh’s Confirmation Hearings Reveal Deeply Troubling Views on Indian Law and Policy

WASHINGTON — Today, U.S. Senator Tom Udall, vice chairman of the Senate Committee on Indian Affairs, issued the following statement expressing his deep concerns about Supreme Court nominee Brett Kavanaugh’s views on Indian law and policy:

“Judge Kavanaugh’s confirmation hearings have only reinforced my serious concern that his confirmation poses a real threat to bedrock federal Indian law and policy principles that have guided the high court for decades. Judge Kavanaugh has shown in his writings, opinions, and emails that he is a jurist who would call into question the basic principles of Indian law and fails to appreciate the rights of indigenous people in the United States.

“From the documents I have reviewed so far, and based on information revealed during the hearings, I am convinced that Judge Kavanaugh is no friend to Indian Country. He openly characterized federal protections for Native Hawaiians as unconstitutional, and argued that ‘any racial group with creative reasoning can qualify as an Indian tribe.’ He even questioned the constitutionality of programs dedicated specifically to Native Americans, a view that could upend decades of progress for Indian Country on everything from housing to government contracting. And considering the sheer number of documents that are still being shielded from public and Senate view, we may have only seen the tip of the iceberg when it comes to Judge Kavanaugh’s willful misunderstanding of the rights held by Native communities, including Alaska Native Villages.

“As vice chairman of the Senate Committee on Indian Affairs, I support the exercise of Tribal sovereignty and work to ensure that the United States upholds its trust responsibility to Indian Tribes, Alaska Native Villages, Native Hawaiians and all Native communities throughout the country. And as a United States Senator, it is my constitutional duty to provide advice and consent for judicial nominations to the Supreme Court. I will vote no on Judge Kavanaugh’s confirmation to the United States Supreme Court, for a variety of reasons. But Judge Kavanaugh’s dismissive, and often outright hostile, view of the federal trust relationship runs contrary to 200 years of Supreme Court precedent and deserves special attention. His confirmation risks unwinding decades of progress for all of Indian Country, from New Mexico, to Alaska and Hawaii, and would lend credibility to unfounded attacks on federal programs that serve all Native communities.

“I believe Judge Kavanaugh poses a serious threat to the rights of Native communities across this nation. I encourage my colleagues on both sides of the aisle who are committed to upholding our trust responsibilities to carefully scrutinize Judge Kavanaugh’s troubling record as they consider whether they can support his confirmation.”

Rare Published Notice Opinion out of California Court of Appeals

September 10, 2018ilpc

In re EH (Fourth District, 1st Div). For reference, so far this year California has had 48 unpublished notice decisions and 19 unpublished inquiry decisions. This is the first published notice case this year.

We agree with Mother that, considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and to provide notice of any such information obtained to the Tohono O’odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O’odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.’s father. Moreover, if Bruno Y. is Sally Y.H.’s father, and E.H.’s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O’odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O’odham Nation, we cannot conclude that the Agency’s errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O’odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3

***

FN 3. Mother also contends that the notice that the Agency provided to the Tohono O’odham Nation was deficient for several additional reasons, including that the Agency erred in listing her current address as being “no information available,” and in failing to update the notice when information about her residence became available. In light of our reversal, we need not consider these contentions, but we direct the juvenile court to ensure that the Agency provides Mother’s correct current address at the time of noticing upon remand, if known.

In addition, Mother contends that the Agency provided the tribe an incorrect address for Sally Y.H. The Agency concedes that the address that it provided for Sally Y.H. contained typographical errors, including listing the city of her residence as ” ‘Alpaso’ ” rather than ” ‘El Paso,’ ” but argues that any errors were harmless. In support of its harmlessness argument, the Agency asks this court to take judicial notice of the fact that “El Paso is a city in the state of Texas and Alpaso is not.” The juvenile court is directed to ensure that the Agency provides Sally Y.H.’s correct current address at the time of noticing upon remand, if known. We deny the Agency’s request for judicial notice as moot.

Finally, Mother states that the Agency was required to list Mother’s and Sally Y.H.’s telephone numbers on the notice that it provided to the Tohono O’odham Nation. On remand, the juvenile court shall direct the Agency to provide Mother’s and Sally Y.H.’s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that notice sent to a tribe shall include “[a]ll names known of the Indian child’s biological parents . . . and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known”], italics added; unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.)

***

This argument is unpersuasive since the letter from the Tohono O’odham Nation does not indicate the basis upon which the tribe made its determination as to E.H.’s Indian child status. Nor can we agree with the Agency’s suggestion that the fact that the Tohono O’odham Nation did not ask for further information demonstrates that the Agency’s error was harmless. The tribe was not required to ask the Agency to provide information that the record indicates the Agency should have reasonably attempted to obtain and provide to the tribe. Thus, we decline to find the Agency’s error harmless simply because the tribe did not indicate that further information might have altered its determination, particularly given the other noticing errors acknowledged by the Agency.

Tenth Circuit Briefs in Diné Citizens Against Ruining Our Environment v. Zinke [Chaco Canyon Fracking]

September 10, 2018November 15, 2018Matthew L.M. Fletcher

Here:

navajo allottees amicus brief

Lower court materials here.

En Banc Petition Materials in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals

September 10, 2018Matthew L.M. Fletcher

Here:

En Banc Petition

States Amicus Brief

University of Minnesota Brief

University of New Mexico Amicus Brief

Prior posts here.

Dean and Judge Stacy Leeds Letter in Support of Cherokee Supreme Court Nominee Shawna Baker

September 10, 2018Matthew L.M. Fletcher

Here:

LeedsLetterCouncilPDF

The Onion: “Kavanaugh Surprised Senate Not Questioning Fact He Never Went To Law School”

September 8, 2018Matthew L.M. Fletcher

Here.

Friday Job Announcements

September 7, 2018September 14, 2018Neoshia 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 brief description of the job and a PDF job announcement to indigenous@law.msu.edu.

Nottawaseppi Huron Band of the Potawatomi

Tribal Prosecutor/ICWA Attorney, Fulton M.I. The Nottawaseppi Huron Band of the Potawatomi seeks a licensed attorney to serve as Prosecutor/ICWA Attorney for the Tribe to be appointed for an approximate term of four (4) years (January 1, 2019-December 31, 2022). This is a contractual, part-time position and will be compensated on an hourly basis. The NHBP Prosecutor serves as the chief law enforcement officer of the Tribe. Please see the job announcement for more information. Applications due no later than October 5, 2018.

Chief Judge, Fulton, M.I. The Nottawaseppi Huron Band of the Potawatomi seeks a Chief Judge for the Tribal Court to be appointed for an approximate term of four (4) years (January 1, 2019-December 31, 2022). This is a part-time position and will be compensated on an hourly basis. The position does require flexible hours as required to address requests for warrants and hearings requiring emergency or expedited consideration. The NHBP Constitution requires that Supreme Court Justices must: have attained the age of thirty (30); be a licensed attorney in good standing; cannot be a Member of Tribal Council or running for a Tribal Council position or a Tribal employee; and never been convicted of, or entered a plea of guilty or no contest to, a violent crime, felony, or a crime of fraud. Candidates must have experience in the practice of Indian law, whether in tribal, state or federal court(s). Judicial experience and 5 or more years experience as a licensed attorney and/or judge is preferred. Please see the job announcement for more information. Applications close on October 5, 2018.

Associate Justice, Fulton, M.I. The Nottawaseppi Huron Band of the Potawatomi seeks an Associate Justice for the Supreme Court of the Tribe to be appointed for an approximate term of six (6) years (January 1, 2019-December 31, 2024). This is a part-time position and will be compensated on an hourly basis. The NHBP Constitution requires that Supreme Court Justices must: have attained the age of thirty (30); be a licensed attorney in good standing; cannot be a Member of Tribal Council or running for a Tribal Council position or a Tribal employee; and never been convicted of, or entered a plea of guilty or no contest to, a violent crime, felony, or a crime of fraud. Candidates must have experience in the practice of Indian law, whether in tribal, state or federal court(s). Judicial experience and 5 or more years experience as a licensed attorney and/or judge is preferred. Please see the job announcement for more information. Applications close on October 5, 2018.

Fort McDowell Yavapai Nation

Senior Assistant General Counsel, Fountain Hills, A.Z. The Fort McDowell Yavapai Nation is seeking a Senior Assistant General Counsel. Some of the duties of the Senior Assistant General Counsel include: serve as legal advisor to the Tribal Council, tribal government departments and economic enterprises; perform high level legal research and analysis in numerous areas of law and policy related to Federal Indian and Indian Law; provide legal advice and analysis of tribal, State and Federal laws and regulations, specifically in relation to water and environmental law and policies; draft and revise the Tribal Constitution, Law and Order Code, other tribal laws, ordinances, and policies; work at hours and times outside of normal business hours and days; draft, review and recommend changes to various contracts; review other agreements, proposals; represent the Fort McDowell Yavapai Nation in Tribal, State and Federal court actions; and perform other duties as assigned or required. Please see the job announcement for more information. Applications close on October 2, 2018.

Wisconsin Judicare

Staff Attorney, Indian Law Office, Wausau, W.I. Wisconsin Judicare’s Indian Law Office has an immediate opening for an attorney to represent Native American individuals and groups on a variety of issues including criminal defense representation in tribal courts and Indian law litigation in tribal and state courts. Attorney must be admitted to practice law in Wisconsin; have good communication skills; knowledge of Native American issues is preferred. Attorney must have experience or a strong interest in poverty law and be willing to provide brief services and/or representation to eligible low-income Wisconsin residents and Native Americans. All staff attorneys are expected to share responsibility for the development and maintenance of good working relationships with community groups, as well as with state and local bar associations. Travel may be required. Please see the job announcement for more information.

Tlingit and Haida Indian Tribes of Alaska

Magistrate, Juneau, A.K. The Tlingit and Haida Indian Tribes of Alaska are seeking a Magistrate. The Magistrate will hear and decide, as well as enter judgments and orders, on judicial matters on paternity, child support, and enforcement of child support orders. Please see the job announcement for more information.

Court Coordinator, Juvenile Healing to Wellness Court, Juneau, A.K. he Tlingit and Haida Indian Tribes of Alaska are seeking a Juvenile Healing to Wellness Court Coordinator. The Coordinator will facilitate planning, development, and implementation for the Juvenile Healing to Wellness Court. Please see the job announcement for more information.

Oglala Sioux Tribe

In-House Counsel, Pine Ridge, S.D. The Oglala Sioux Tribe has three (3) In-House Counsel positions open. The In-House Counsel(s) will work for the OST Council, the Executive Committee and with two (2) Tribal Council Standing Committees each as listed below: Land Committee, Health and Human Services Committee, Education Committee, Economic and Business Development Committee, Law and Order Committee and Finance Committee. Salary based on experience and budget. Must have a minimum of 5 years of experience specializing in Indian Law.

Please submit:

Letter of Intent
Resume with three references
Certificate of Good Standing,
Copy of valid state bar license(s)
State and Federal background checks and hair follicle drug test results mailed directly from the facility to the Legal Department.

CLOSING DATE: OCTOBER 31, 2018.

SUBMIT DOCUMENTS TO: Lisa Cummings, OST Legal Department, PO Box 1204, Pine Ridge, SD 57770 – EMAIL: LisaC@ostlegal.org or FAX: 605-867-2140.

Nisqually Indian Tribe

Tribal Prosecutor, The Nisqually Indian Tribe is seeking a Tribal Prosecutor. The Tribal Prosecutor will represent the Tribal in all criminal matters in Tribal, State, and Federal jurisdictions. The Prosecutor will advise the Tribal Council and other departments on criminal matters. The Prosecutor will also represent the Tribe in Indian Child Welfare cases in Tribal and State court, and advise the Indian Child Welfare Department. The position will also be expected to assist with other civil matters, and occasional in-house legal duties as requested. The position is expected to be full-time. Please see the job announcement for more information.

Last week’s postings: August 31, 2018.