Turtle Talk

26th Annual NNALSA Moot Court Competition

November 6, 2017Matthew L.M. Fletcher1 Comment

National NALSA Moot Court Competition
March 2-4, 2018
Beus Center for Law and Society
111 E. Taylor Street, Phoenix, AZ 85004

Each year, hundreds of law students from across the country take on the challenge of writing and arguing on the most compelling federal Indian law and tribal governance issues. The Native American Law Students Association (NALSA) at Arizona State University (ASU) is proud to partner with the Indian Legal Program at ASU’s Sandra Day O’Connor College of Law and the National Native American Law Student Association (NNALSA) on hosting the 2018 NNALSA Moot Court Competition.

Hosted by: ASU’s Indian Legal Program, Native American Law Students Association, and National NALSA

ASU NNALSA Moot Court website includes the problem, team registration, NNALSA Moot Court rules, agenda and more at: law.asu.edu/nnalsamootcourt

Questions? Contact Sarah Crawford at nnalsa.vicepresident@gmail.com

Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers

November 6, 2017Matthew L.M. Fletcher

Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)

An excerpt:

Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased.

Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.

Differing Scholarly Opinions on the Ethics of Representing Tribes Engaged in Disenrollments

November 6, 2017Matthew L.M. Fletcher

Here is George K. Komnenos, Tribal Advocates as Ministers of Justice: A Potentially Problematic Concept, 29 Geo. J. Legal Ethics 1079 (2016): GeorgeKKomnenosTribalAdvo

An excerpt:

In June 2015, the National Native American Bar Association (NNABA) adopted its first Ethics Opinion entitled Formal Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment (“Opinion”). The Opinion is not intended to prescribe an overarching code of professional conduct for tribal advocates. On the contrary, the Opinion serves as a reminder to attorneys and Indian bar associations that “lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.” The Opinion puts forward the notion that tribal advocates have a dual duty: they are bound not only to their individual clients, but to the Native American community at large. According to the Opinion, “[t]he responsibility of a tribal advocate differs from that of the usual advocate; his or her duty is to further justice in the greater Native American community, not merely to win his or her case.” Though this statement is made in the context of encouraging lawyers to be vigilant in defending their clients’ constitutional rights, it bears grave dangers.

And here is Nicole Russell, “To Further Justice in the Greater Native American Community”: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes, 30 Geo. J. Legal Ethics 911 (2017):

TO FURTHER JUSTICE IN THE GREATER NATIVE AMERICAN COMMUNITY ETHICAL RESPONSIBI

An excerpt:

This Note will explore the ethical challenges faced by attorneys when representing member clients in two contexts. Part I will examine the generally heightened ethical obligations facing attorneys in their representations of tribal clients. This section will provide an analysis of procedural and ethical requirements, detail their variances, and point to recent attempts by tribal coalitions to develop a more coordinated code to guide nonmember representation. The discussion will necessarily involve the Model Rules of Professional Conduct(Model Rules) and their state derivations because many tribes have used these codes as the foundation for their own standards. Part II will examine what has been termed the tribal “disenrollment epidemic” and interrogate the premise that tribal advocates have a duty to distance themselves from disenrollment proceedings. Ultimately, this Note posits that not only are tribal advocates held to more– and sometimes higher–ethical standards than those put forth in the Model Rules, but that they are barred from representing tribes in many of the ongoing disenrollment proceedings which take place without the trappings of due process.

Presidential Proclamation on National Native American Heritage Month

November 6, 2017November 6, 2017Matthew L.M. Fletcher

Here.

Columbia Law School Indigenous Law Conference

November 4, 2017Matthew L.M. Fletcher

Commentary on Ak-Chin Same-Sex Marriage Case

November 3, 2017November 3, 2017Ann Tweedy

Here’s a brief interview of me (Ann Tweedy) by Mark Brodie of KJZZ on the significance of the Ak-Chin same-sex marriage case. Previous coverage is here.

Friday Job Announcements

November 3, 2017November 3, 2017Sarah M Donnelly1 Comment

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

Senate Indian Affairs Committee

Spring 2018 Law Clerk, Washington, D.C. The Democratic staff of the Senate Committee on Indian Affairs is offering an unpaid legal clerkship to a current law student or recent law graduate for the Spring of 2018. The law clerk will be responsible for performing legal research, preparing memoranda for professional staff, participating in preparation for hearings, and composing a variety of written materials. Law Clerks must be able to write quickly and clearly, be flexible in adjusting to changing circumstances and legislative priorities, and be self-starters capable of taking responsibility for ongoing projects. Applicants should have an interest in Federal Indian Law. The clerkship provides an opportunity to gain firsthand knowledge on how a Senate Committee works to pass legislation and conducts oversight on federal agencies, programs and policy implementation. Full-time applicants preferred; part-time applicants welcome. Interested applicants should apply by emailing a cover letter indicating availability (start date and hours per week), a resume, and brief writing sample to resumes@indian.senate.gov. Indicate “Spring 2018 Internship” in the subject line. All application materials must be submitted by 5:00 pm EST on November 9, 2017. No phone calls or drop-ins please.

National Indian Country Training Coordinator

Behavioral Health Program Manager, Washington, D.C. Will work with the Director of Public Health Policy and Programs to implement project activities, conduct evaluation, prepare reports, identify and address areas for program quality improvement, and write grants to ensure the sustainability of current programs and advance the organization’s behavioral health/public health goals.

Chickasaw Nation

Assistant General Counsel, Ada, O.K. Provides legal advice and consultation to various departments, divisions, or programs of the Nation, participates in routine legal actions, may provide support and/or participate in major legal actions, prepares and reviews contracts and other documents for departments of the Nation.

Previous Friday Job Announcements: 10/27/2017

Federal Court Dismisses Challenge to Tulalip Land Use Ordinances for Lack of Ripeness

November 3, 2017November 3, 2017Matthew L.M. Fletcher

Here are the materials in Mitchell v. Tulalip Tribes of Washington (W.D. Wash.):

Interior Delays Tribal Consulation on Proposed Revisions to 25 CFR Part 151 to 2018

November 3, 2017Matthew L.M. Fletcher

Here.

California COA Affirms Tribal Official Immunity in Disenrollment Challenge at Elem Colony

November 3, 2017November 3, 2017Matthew L.M. Fletcher

Here is the opinion in Brown v. Garcia. PDF

An excerpt:

This case is different. As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.”