Here are the materials in Wilmington Savings Fund Society v. Fryberg (W.D. Wash.):
Spokane County Bar Association Indian Law Bar Prep Scholarship
Link: SCBA ILS bar prep scholarship flyer and application [PDF]
Deadline for applications is January 31, 2018.
Kirsten Matoy Carlson on Strategies for Federal Recognition
Law and Society Review has published Kirsten Matoy Carlson’s article, “Making Strategic Choices: How and Why Indian Groups Advocated for Federal Recognition from 1977 to 2012.” The full article is at http://onlinelibrary.wiley.com/doi/10.1111/lasr.12299/full.
Navajo Nation Sues Wells Fargo over Fake Accounts
Here is the complaint in Navajo Nation v. Wells Fargo & Co. (D. N.M.):
Gregory Ablavsky on the Phrase “With the Indian Tribes” in the Commerce Clause
Gregory Abalvsky has posted “‘With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings,” forthcoming in the Stanford Law Review.
Here is the abstract:
Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.
The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.
This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.
These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.
Did This Just Actually Happen? “Dan Snyder honors Native Americans, changes team mascot to Washington Redhawks”
From ESPN here. [Not a real espn website….]
Old Redskins website, which says nothing about this.
Update (11:13 AM) — Nope. Didn’t happen. Ha!
Federal Court Denies Reconsideration and Grants Attorney Fees in Enerplus v. Wilkinson
Here are the new materials in Enerplus Resources (USA) Corporation v. Wilkinson (D.N.D.):
98 Enerplus Motion for Atty Fees
101 Response to Motion for Atty Fees
104 Reply in Support of Motion for Atty Fees
Prior posts here.
Standing Rock Children’s Code RFP
REQUEST FOR PROPOSALS
The Standing Rock Sioux Tribe (Tribe) is now accepting Proposals from qualified individuals, organizations or firms for the development of a Children’s Code for the Standing Rock Sioux Tribe’s Code of Justice. The Tribe currently has a Children’s Code but the current version is in need of revision to reflect changes in the law and current practices.
The successful Proposal should reflect experience working with Tribes and Tribal Courts. Experience in Code drafting and development, knowledge of the issues facing Children’s Courts, knowledge of the law as it pertains to Abuse and Neglect proceedings, Delinquency, Status offenses, Indian Child Welfare proceedings, Custody, Termination and Adoptions issues/ proceedings and Title IVE requirements. The Tribe also seeks to implement traditions and customs where applicable or necessary.
Requested Information: A) Cover Letter B) Outline of Experience working with: (1) Abuse & Neglect cases; and, (2) Title IV(e). C) Two (2) years minimum experience in each case type is recommended but not required. D) Whether the Bidder is Tribal or Indian Owned. Copies of tribal identification cards must be included to support the statement. Indian owned is defined as any business that is at least fifty-one percent (51%) owned by an individual who is an enrolled member of a federally recognized tribe; E) detailed breakdown of cost(s) of preparation; and, F) References.
Deadline for submission is January 19, 2018 at 4:00pm CST. The Tribe reserves the right to select, any bid or no bid. Proposals should be submitted in PDF format via email to: dagard@standingrock.org. Sealed proposals will be received in person at SRST Tribal Court, c/o Melvin White Eagle Building, 101 Agency Avenue, Fort Yates, ND 58538 or mailed to SRST Court, P.O. Box 363 Fort Yates, ND 58538, Attn. D. Agard, Court Administrator.
Keepseagle v. Perdue Cert Petition
Here:
Questions presented:
1. Whether the application of cy pres to this class action settlement is inappropriate because the class members have not been adequately compensated and whether this adequate compensation is best accomplished by awarding all settlement funds to the class.
2. Whether the district court failed to meet its obligation pursuant to FRCP 23(e)(1)(C) by ensuring a fair, reasonable, and adequate distribution to the class members.
3. Whether the class representatives and the class counsel engaged in self-dealing, collusion, and fraud; as well as, breaches of fiduciary duty to the class and whether those breaches should result in disgorgement of fees and incentive awards.
4. Whether it is time to set aside cy pres in class action settlement agreements because such provisions promote hidden objectives, give unfettered authority to non-parties, are unfair as a general matter, and the goals of selected entities [*9] fail to correspond to the interests of the class.
Unpublished ICWA Case from MN, Judge Jesson Concurrence
Here. This is an unpublished termination of parental rights out of the Minnesota Court of Appeals. Here is the concurrence in its entirety::
With a backdrop of historical trauma and a high number of Indian children being removed from their families and tribes by nontribal agencies, Congress passed the Indian Child Welfare Act (ICWA). See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989) (detailing the background for ICWA). Government must meet a high bar to terminate a parent’s parental rights in any case. ICWA and the Minnesota Indian Family Preservation Act require an even higher standard to terminate parental rights to an Indian child: proof beyond a reasonable doubt that returning the children to the parent will likely result in serious emotional or physical harm to the child. 25 U.S.C. § 1912(f) (2016) (ICWA); Minn. Stat. § 260.771, subd. 6(a) (2016)
Scant attention was given to this high standard during trial. This is troubling. Only one witness was asked to opine on the ultimate question of proof beyond a reasonable doubt. And, as the majority points out, that witness equivocated. And even after this court remanded the case to the district court, asking the court to directly address this question, the district court did not elaborate on the critical issue. It simply amended the findings to state that “[c]ontinued custody of [the children] by [mother and father] is likely to result in serious emotional or physical damage to the Children.”
I expect more when it comes to termination of parental rights for Indian children. We all should.
Yet I concur with the majority’s decision despite my view that, based on the nature of the expert testimony, this is a close case. I concur because the majority is correct that when we dive deep into the record we see children who suffered serious emotional damage with no realistic path to a different future with their parents. I concur because the tribe was unwilling to accept a transfer of jurisdiction to tribal court. I concur because the tribe supports termination of parental rights. And, most fundamentally, I concur because these children, like all children, deserve a permanent home, without additional delay.
But I remain concerned. In a state in which out-of-home placement for Indian children far exceeds the percentage for any other group of children, we need greater diligence in adhering to the high standards dictated by ICWA and the Minnesota Indian Family Preservation Act.
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