Turtle Talk

Two Published Colorado Court of Appeals ICWA Cases

May 1, 2018Kate Fort

In this opinion, the Court held ICWA applies to any proceeding that may lead to a foster care placement–even if the child is placed with a parent. These are important cases because the state can have jurisdiction over a family even if the child is placed in the home. Indeed, ICWA is written assuming the state will work to “prevent the breakup” of the Indian family.

The Department initiated this proceeding after an emergency proceeding in which it removed the child from his parents’ care. At the shelter hearing, the court granted the Department’s request to return the child home. But the court was not bound to follow the
Department’s recommendation. That is, although the shelter hearing did not result in foster care placement, it could have. And, because the dependency and neglect action remains open, the Department could request custody and foster care placement at any
time. For purposes of ICWA, it is immaterial that the child is not presently placed out of the home

Unlike other cases that addressed this issue, this is a very straightforward reading of the law and regulations.

In the second opinion, the Court of Appeals raised the issue of inquiry sua sponte (!).

The juvenile court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2017); see also L.L., ¶ 19. Termination of parental rights is one type of child custody proceeding under ICWA. 25 U.S.C. § 1903(1) (2012). The inquiry must be made at the commencement of the proceeding and all responses should be on the record. 25 C.F.R.
§ 23.107(a).

If there was ever a question of whether judicial education (and good clerks with Indian law backgrounds) makes a difference, here you go.

News from the Wisconsin Bar

May 1, 2018Kate Fort

Toni Caldwell: Preserving Menominee Indian Culture

Starlyn Tourtillott elected State Bar secretary

SCOTUS Denies Cert in New Mexico Public Service Co. v. Barboan

May 1, 2018Matthew L.M. Fletcher

Yesterday’s order list is here.

Case materials are here.

Texas v. Zinke (ICWA Challenge) April Update

May 1, 2018May 1, 2018Kate Fort

There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.

Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.

Ohio and Goldwater have filed amicus briefs on the opposition to the motion to dismiss.

Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.

The federal government and the plaintiffs are going back and forth on the scheduling of additional briefing, but there are no orders yet.

Federal Court Holds Utah State Court Has Jurisdiction over Contract Dispute with Former Ute Tribe Contractor

May 1, 2018Matthew L.M. Fletcher

Here are the materials in Ute Indian Tribe v. Lawrence (D. Utah):

52 motion for partial sj

53 motion for partial sj

54 emergency motion

95 becker opposition to emergency motion

101 reply

136 dct order

Tenth Circuit materials here.

Arizona Pro Hac Vice for ICWA Attorneys: UPDATE

April 30, 2018April 26, 2018Kate Fort1 Comment

COMMENTS NEEDED for this rule change–go HERE.

Previous post with questions here. Proposed changes here.

Here’s the clarification–the proposed rule change provides TWO options for out of state attorneys in Arizona ICWA cases:

The first is the change to Rule 38, which requires the course (online, about 6 hours, available here). That rule is for the out of state attorneys who contemplate being involved in a number of ICWA cases in AZ over a two year period (say you’re a tribe that divides up your ICWA cases and responsibilities by region, FOR EXAMPLE).

The second change is to Rule 39 and is for attorneys that have an immediate need and/or the rare case in AZ and only plans on appearing for that case. The course is not required for a Rule 39 exception.

This is a really interesting model. Out of state tribal ICWA attorneys are STRONGLY encouraged to file comments explaining your need for special practice rules, and any suggested changes you think might improve the rules.

Thank you to everyone who helped explain Arizona practice, the UBE, and the distinction to between the rules.

The Guardian: “The US government should cede territory back to Native Americans”

April 28, 2018Matthew L.M. Fletcher

Here.

Boston Globe Profile of Dawnland Doc

April 27, 2018Matthew L.M. Fletcher1 Comment

Here is “Reclaiming a culture, reclaiming a life.”

Film festival site.

Friday Job Announcements

April 27, 2018September 21, 2018Neoshia Roemer1 Comment

Job vacancies are posted on Friday. Additional announcements may appear throughout the week. If you would like your Indian law or leadership job posted on Turtle Talk, please email indigenous@law.msu.edu.

Department of Interior

Attorney-Adviser, Office of the Solicitor, Phoenix. A.Z. The Office of the Solicitor is seeking an Attorney-Adviser to provide legal counsel and representation for the Western Region of the Bureau of Indian Affairs, analyze complex legal issues and provide advice on a broad range of legal issues affecting bureaus within the department, including the Bureau of Indian Affairs, handle all phases of administrative litigation, draft litigation reports and provide other legal support, and handle general law matters. This position pays $74,872 to $136,771 per year, and applications close on May 4, 2018.

Sonosky, Chambers

Summer Associate, Washington D.C. Sonosky, Chambers, Sachse, Endreson, & Perry LLP is a national law firm dedicated to representing Native American interests in a wide range of endeavors including trial and appellate litigation, federal Indian law, tribal law, Indian self-determination and self-governance matters, transportation and infrastructure, natural resources, and economic development, among others. The firm’s practice includes representation of tribal interests in federal, tribal and state courts, and before Congress, state legislatures, and federal and state agencies. Sonosky, Chambers is recruiting 2L students for 2019 summer associate positions. Interested applicants should see the job announcement linked above for more information. Applications close on August 31, 2018.

Pechanga Band of Luiseño Indians

Associate General Counsel, Temecula, C.A. The Associate General Counsel will work in the Office of the General Counsel under the direct supervision of the General Counsel for the Pechanga Band of Luiseño Indians. The Associate General Counsel will work with the General Counsel and Deputy General Counsel to provide legal services, representation and advice on legal issues confronting the Tribal Government, its entities and enterprises; provide guidance and assistance to Tribal Government departments; and provide limited service to tribal members in matters relating to tribal status. Please see the job announcement for more information and how to apply.

Water Protector Legal Collective

Strategic Planning, Mandan, N.D. The Water Protector Legal Collective (WPLC) is seeking proposals from professional qualified consultants to provide services to WPLC for the development of a three to five year strategic plan. All proposals should clearly define how they will work with WPLC to assist in a comprehensive, participatory planning process. Applications close on May 4, 2018. Please see the job announcement for more information and how to apply.

National Congress of American Indians

Project Attorney, Washington, D.C. The National Congress of American Indians has an opening for a Project Attorney in the Washington, DC office. The Project Attorney will have responsibility for day to day management of NCAI’s VAWA implementation technical assistance project. This project is focused on supporting tribes as they implement Special Domestic Violence Criminal Jurisdiction pursuant to the Violence Against Women Act of 2013. The Project Attorney will work closely with senior NCAI staff assigned to the project, with an inter-tribal working group of tribal stakeholders, and with other project partners. Applications close on May 31, 2018. Please see the website for more information and how to apply.

Swinomish Indian Tribal Community

Staff Attorney, Swinomish Village, W.A. The Swinomish Indian Tribal Community is seeking a Staff Attorney to provide legal advice and representation, document drafting and collaboration with a wide range of Swinomish Indian Tribal Community policy committees, departments and entities. Work may include contract preparation, drafting ordinances and policies, treaty hunting/fishing rights and management, environmental protection and habitat restoration, land management, Indian gaming and gaming regulation, housing and utilities, health care and/or social welfare programs, employment or taxation. Qualified applicants must be licensed, or have the ability to become licensed within six months, to practice in Washington. We are seeking an energetic attorney, preferably with at least three years of experience, with excellent written, oral, research and analytical skills, strong interpersonal communication and negotiation skills, and an ability to work hard and thrive in an interdisciplinary and cross-cultural environment; bring flexibility to a fast-paced and dynamic work setting; enjoy and excel at creative problem solving; have demonstrated a commitment to working with Native or other minority communities and/or restorative justice; and a commitment to reside on or near the Swinomish Reservation.

Qualified applicants must have experience or demonstrated expertise in one or more of the following: drafting and negotiating contracts; drafting statutes, policies and procedures; litigation, preferably in Federal Court; representing public or private entities; gaming regulation or operations; and Indian law, including protection of treaty rights, as well as expertise in several of the substantive fields of law listed above. Compensation DOE. For application and complete job description please provide your contact information to Wendy Otto, 11404 Moorage Way, LaConner, WA 98257; (fax) 360-466-5309; email wotto@swinomish.nsn.us. Applications will be accepted until suitable candidate is found. Native American hiring preferences under Swinomish Tribal Code 14-01.120 will be in effect during the selection of candidates. Applicants must pass a background check and a drug test.

Department of Justice

Assistant United States Attorney, Anchorage, A.K. The Anchorage Office is seeking two (2) AUSAs to work in its Criminal Division. The successful candidate primarily will be responsible for handling the investigation and prosecution of federal crimes. This will include prosecuting a wide range of cases such as firearms offenses, drug crimes, child exploitation and other violent crimes, fraud, embezzlement and other white collar crimes. In addition, the candidate may also be called upon to assist in the prosecution of a wide variety of other criminal cases as needed to address the districts priorities. Assistant United States Attorneys work their cases from inception through appeal, and thus, in addition to district court work, the successful candidate will be responsible for drafting appellate briefs and presenting oral arguments. This position pays $72,987 to $164,100 per year, and applications close on May 9, 2018. Please see the website for more information.

Last Week’s Post: April 20, 2018.