Turtle Talk

Here’s our annual contribution to the ICWA data discussion. It’s looking like we have the final 2017 data set of appealed ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case.

These are standard state court ICWA cases, and do not include any of the ongoing federal litigation or SUPREME COURT cert petitions (maybe that’s another post entirely) This is our third year writing this post (here and here). This year, THOUGH, Addie Smith and I have a plan to publish a longer version of this, hopefully on an annual basis. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 214 appealed ICWA cases this year, up 39 from last year. There were 34 reported ICWA cases this year. As always, California leads the states with 152 cases, 5 reported. Alaska is second with 6, 3 reported. Michigan has 5, 2 reported. So did our new favorite state, Texas (5/2). Kansas (4/2), Arizona (4/3), and Washington (4/0) all had four cases. Arkansas (3/0) and Utah (3/3) both had three. Montana (2/1), North Carolina (2/1), and Minnesota (2/0) had two. Finally the following states had 1 ICWA case: Connecticut, Indiana, Iowa, Massachusetts, Nebraska, Nevada, Ohio, Oregon, South Dakota, and Missouri, Vermont, North Dakota, Illinois, and Wisconsin.

In California, the cases further breakdown to 52 in the 4th Appellate District, 46 in the 2nd, 23 in the 3rd, 10 in the 1st, 16 in the 5th, and 5 in the 6th. California has considerably more cases this year, but half the number of reported cases. The numbers by district have also shifted considerably over last year. California is the only state where we track by appellate districts at this time.

Supreme Courts in Alaska (6), Montana (2), Arizona, Nevada, Utah, South Dakota, Vermont and North Dakota all decided ICWA cases this year (of course some of these states don’t have an intermediate court of appeals).

Of the 214 total appeals, 105 were affirmed, 97 were remanded, 6 were reversed, 2 were dismissed as moot, 2 were vacated and 2 dismissed.

Top litigated issues were as follows: Notice (132), Inquiry (29), Placement Preferences (7), Active Efforts (10), Termination of Parental Rights (9), Transfer to Tribal Court (4), and QEW (4). This year 73 (more than half) of the Notice cases were remanded for proper notice.

57 different tribes were named as the first named tribe in a case. In 26 cases the tribe was unknown (parent did not know name of tribe). In 17, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, only three were appealed by tribes (Navajo Nation, Nenana Native Village, and Gila River Indian Community).

Federal Court Allows Bishop Paiute Suit against Inyo County re: Tribal Law Enforcement Authority to Proceed

January 11, 2018Matthew L.M. Fletcher

Here are the materials in Bishop Paiute Tribe v. Inyo County (E.D. Cal.):

Sixth Circuit Affirms Denial of Permissive Intervention by Saginaw Chippewa in Bay Mills v. Snyder

January 10, 2018Matthew L.M. Fletcher

Here is the order:

BMIC v. Snyder CA6 Unpublished Opinion

Briefs here.

Federal Court Enjoins Cherokee Nation Tribal Court Suit against Opioid Companies

January 10, 2018Matthew L.M. Fletcher

Here is the order in McKesson Corp. v. Hembree (N.D. Okla.):

138 DCT Order

An excerpt:

Oklahoma is among the states with the highest number of opioid prescriptions per one hundred people and has a high overdose death rate. Tribal communities have been tragically affected, as have other communities in Oklahoma. Numerous cities, counties and states throughout the country, including the state of Oklahoma, have filed lawsuits against various opioid manufactures, pharmaceutical distributors, and other businesses allegedly responsible for the proliferation of opioid drugs. This proceeding concerns a lawsuit by the Cherokee Nation against a number of opioid distributors and pharmacies. However, the question before the Court is not the merits of the Cherokee Nation’s lawsuit but rather the boundaries of tribal court jurisdiction. The Attorney General of the Cherokee Nation has filed suit not in state court but in the tribal district court of the Cherokee Nation. Do the tribal courts of the Cherokee Nation have jurisdiction over this particular action? The Court finds they do not.

Briefs here.

Univ. of Arizona IPLP Spring 2018 Events

January 9, 2018Matthew L.M. Fletcher

Here:

IPLP’s Spring 2018 Events at University of Arizona

Here are upcoming events hosted by the Indigenous Peoples Law and Policy (IPLP) Program at the James E. Rogers College of Law. All IPLP speaker series events are free and open to the public. If you would like to attend, please RSVP to law-iplp@email.arizona.edu.

Food Sovereignty and International Political Economy
January 10, 12:15-1:15 PM
Ares Auditorium, Room 164

1201 E. Speedway

Tucson, Arizona 85721

Join the Indigenous Peoples Law and Policy (IPLP) Program for a presentation by Michael Fakhri, Associate Professor of Law and Co-Director of the Food Resiliency Project at the University of Oregon, School of Law. Professor Fakhri will discuss how the food sovereignty movement has been a powerful force that, over the past several decades, has changed international trade institutions, property rights, and human rights law.

Indian Civil Rights Advocacy and Litigation
February 22, 12:15–1:15 p.m.
Rountree Hall, Room 204

1145 N Mountain Avenue

Tucson, AZ 85721

IPLP graduate Gabe Galanda (’00) is Partner and Founder of Galanda Broadman, PLLC, a leading law firm specializing in complex litigation, bet-the-company business matters, and regulatory disputes for tribal governments, enterprises, and citizens. Gabe specializes in defending tribes and Indian-owned enterprises against legal attack by local, state, and federal government and private parties; advocating for tribal members in disenrollment or civil rights defense; and representing tribal plaintiffs and defendants in catastrophic personal injury lawsuits.

Human & Civil Rights Advocacy at the Water Protector Legal Collective
March 19, 12:15–1:15 p.m.
Rountree Hall, Room 204

1145 N Mountain Avenue

Tucson, AZ 85721

IPLP graduate Terry Janis (’89), will discuss his work as executive director of the Water Protector Legal Collective (WPLC), the on-the-ground legal team for the ceremonial resistance camps at Standing Rock. Terry (Oglala Lakota) has worked extensively on Native American and international indigenous education and human rights issues. Working through organizations such as WPLC, University of Arizona, Indian Law Resource Center, and Northern Arizona University, Janis has consistently combined education and law to work with Indian leaders and students to advocate for indigenous rights.

Coalition Building in Federal Policy and Law Making

March 29, 12:15-1:15 PM

Rountree Hall, Room 204

1145 N Mountain Avenue

Tucson, AZ 85721

IPLP graduate Akilah Kinnison (JD ’12, LLM ’13) is an Associate at Hobbs Straus Dean & Walker, a leading law firm in the practice of federal Indian law. Akilah works alongside IPLP alumni Katie Klass and Joshua Proper in the firm’s Washington, D.C. office. At the firm, Akilah’s practice areas include health care and education, cultural and environmental resource protection, tribal gaming, and international repatriation. She assists the firm with coalition building and legal advocacy around these issues.

Beyond a Zero-Sum Federal Trust Responsibility
April 12, 12:15–1:15 p.m.
Rountree Hall, Room 204

1145 N Mountain Avenue

Tucson, AZ 85721

Monte Mills is Assistant Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. Monte will discuss his recent article on the federal government’s trust responsibility in the context of tribal energy development and how lessons from that policy arena could reshape the intersection of natural resource development and indigenous cultural preservation.