Ninth Circuit Rules in Favor of Lummi over Klallam Tribes in U&A Litigation

Matthew L.M. Fletcher

Here is the opinion in Lower Elwha Klallam Tribe v. Lummi Nation.

From the syllabus:

The panel reversed the district court’s summary judgment in favor of the Lower Elwha Klallam Indian Tribe, and held that the disputed waters west of Whidbey Island, Washington were included in the Lummi Nation’s right of taking fish at usual and accustomed grounds and stations (“U & A”) under the 1855 Treaty of Point Elliot.

In United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), Judge Boldt developed a framework for determining U & As for Indian signatories to the Treaty. In Finding of Fact 46, Judge Boldt stated that the U & A for the Lummi Indians “included the marine areas of Northern Puget Sound from the Fraser River south to the present
environs of Seattle.” 

To determine whether the waters west of Whidbey Island were included in the Lummi’s U & A, the panel followed a two-step procedure. At step one, the panel held that Fact 46 was ambiguous because it did not clearly include or exclude the disputed waters. At step two, the panel examined the record before Judge Boldt to clarify his intent, and concluded that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district court improperly imposed a heightened standard in holding that logic or linguistics needed to “compel the conclusion” that contested waters be included in a U & A.

Briefs here.

Federal Court Dismisses Habeas Petition by Kickapoo Member for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher

Here are the materials in Darnell v. Merchant (D. Kan.):

1 Habeas Petition

15 Response

17 Reply

33 DCT Order

An excerpt:

Petitioner Bobbie Darnell, a member of the Kickapoo Tribe in Kansas (the “Tribe”), filed a Petition for Writ of Habeas Corpus pursuant to 25 U.S.C. § 1303 seeking relief from her tribal court convictions and sentence. Petitioner requests that the Court issue a writ of habeas corpus commanding her immediate release from jail in Brown County, Kansas, overturning her convictions in Kickapoo criminal cases numbers CRM016-11 and CRM016-23, and staying all further tribal court action against her (Doc. 1). In addition, Petitioner has filed a motion for release on her own recognizance (Doc. 25). As explained below, the Court denies the Petition for Writ of Habeas Corpus because Petitioner has not exhausted her tribal remedies. The Court further denies Petitioner’s motion for release on her own recognizance as moot.

National Indian Law Library Bulletin (11/30/2017)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 11/30/17.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2017-2018update.html
Petitions for certiorari were denied on 11/27/17 in:
Town of Vernon v. U.S. (Land into Trust)
Upstate Citizens for Equality v. U.S. (Land into Trust)
Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Petition for certiorari was filed on 11/20/17 in: Public Service Company of New Mexico v. Barboan, et al. (Condemnation – Rights of Way)

Read the latest Tribal Supreme Court Project update published on 11/30/17.

U.S. Federal Courts Bulletin
http://www.narf.org/nill/bulletins/federal/2017.html
Darnell v. Merchant (Exhaustion of Tribal Remedies; Sentencing)
Allen v. United States of America (Tribal Membership; Federal Recognition)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
Read about a tribal groundwater case in the Land & Water section.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html
We added the following bills and resolutions:
H.R.4443: Urban Indian Health Parity Act.
H.R.4485: To direct the Attorney General to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered Indians, and for other purposes.
H.R.4419: Bureau of Reclamation and Bureau of Indian Affairs Water Project Streamlining Act.
H.R.4436: Caguana Indigenous Ceremonial Park and Tribes Indigenous Ceremonial Center Study Act.
H.R.4448: To provide for an exchange of Federal land and non-Federal land in the State of Idaho, and for other purposes.
S.Res.342: A resolution expressing the sense of the Senate that States, cities, Tribal nations, businesses, and institutions of higher education in the United States should work towards achieving the goals of the Paris Agreement.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2017.html
We feature these articles:
The fairness of tribal court juries and non-Indian defendants.
Access to energy in Indian Counrty: The difficulties of self-determination in renewable energy development.
Continuning to work for Indian Country in the 115th Congress.
The Tribal Labor Sovereignty Act: Do Indian tribes finally hold a trump card?
Indigenous people, human rights, and consultation: The Dakota Access Pipeline.
Yellowbear v. Lampert – Putting teeth into the Religous Land Use and Institutionalized Person Act of 2000.
Salvaging the United Nations REDD Program against the backdrop of international human rights violations.
Making strategic choices: How and why Indian groups advocated for Federal Recognition from 1977-2012.
Legacy in paradise: Analyzing the Obama adiminstration’s efforts of reonciliation with Native Hawaiians.
“Why should I go vote without understanding what I am going to vote for?” The impact of first generation voting.
The case against property rights in old intangible Indigenous cultural property.
Water Security.
To sue and be sued: Capacity and immunity of American Indian Nations.
(Re)Righting history: Deconstructing the Court’s narrative of Hawai’i’s past.
Mitigating state sovereignty: The duty to consult with Indigenous peoples.

Law Scholars Brief in Support of St. Regis Mohawk Patent

Matthew L.M. Fletcher

Here is the brief from Lawrence Tribe, William Eskridge, Erwin Chemerinsky, Joe Singer, and David Orozco:

Brief of Amici Scholars iso of Saint Regis Mohawk Tribe

Profile of Western Mich. U. Artist of the Month, Isa Kip Mani Win

Ann Tweedy

A profile of Oglala musician and music therapy student Isa Kip Mani Win/Cindy Minkler, here. Excerpt below:

When meeting Isa Kip Mani Win/Cindy Minkler, a music therapy student at Western Michigan University who plays both piano and her distinctive cedar flute, two things become immediately evident: she loves making people laugh and she lives her life to a continual soundtrack. Whether finding inspiration from the soaring coastal mountains of Washington’s west coast, her deep and rich Sioux heritage, or Elton John’s addictive melodies, music’s never-ceasing flow keeps her moving.

Source: Music keeps Western Artist of the Month, Isa Kip Mani Win, moving

Sierra Teller Orneas: “Donald Trump Would Make a Terrible Navajo”

Matthew L.M. Fletcher

In the NYTs, here.

Grand Traverse Band Statement on the Navajo Code Talkers

Matthew L.M. Fletcher2 Comments

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GTB Statement to Honor the Navajo Code Talkers

To the Editor:

On behalf of the Grand Traverse Band of Ottawa and Chippewa Indians, I wish to express gratitude to the Navajo Nation’s Code Talkers for their service in World War II, and for their recent poise and grace in the face of the President’s cultural insensitivity.

In front of a backdrop portrait of Andrew Jackson—an Indian antagonist whose forced removal of Indian Tribes, commonly known as the Trail of Tears,—President Trump attempted to betray the Code Talkers by invoking a political slur against Senator Elizabeth Warren, who like many Americans, claims tribal descendancy. America’s Indian heritage should be a source of pride for all Americans.
The Navajo Code Talkers signify America’s constructive historical experience: Their Navajo/Diné language served as an unbreakable military code without which America would not have won World War II. Rather than praising the Code Talkers for the achievement, Trump debased himself during the ceremony by using an unnecessary slur in the presence of these Elder Navajo War Heroes.

Although the President obscured the message, the point of the ceremony has not been lost: It is to honor the Navajo Code Talkers as unique to America, and to recognize that they represent the pain and promise of American history. As Americans, we should embrace our shared history. For bearing this message, the Grand Traverse Band thanks the Navajo Code Talkers.

California COA Rejects Defamation Claim by Tribal Disenrollees against Elem Indian Colony Pomo Tribe

Matthew L.M. Fletcher

Here are the available materials in Brown v. Garcia:

Garcia Brief

Opinion

Friday Job Announcements

Sarah M Donnelly1 Comment

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

Southern Ute Indian Tribe

Legal Department Director, Ignacio, C.O. Will lead a well-established staff of three Tribal Attorneys, a Deputy Director, and a Legal Assistant. Position closes at 5:00 pm Mountain Standard Time on 12/18/2017.

Native American Program of Legal Aid Services of Oregon (NAPOLS)

Tribal Domestic Violence/Sexual Assault Program Specialist, limited-duration, Portland, O.R. Will work with the Burns Paiute Tribe to strengthen the Tribe’s response to DV, SA, dating violence, and stalking.

Havasupai Tribe

Chief Judge, Supai, A.Z. Presides over a broad range of civil and criminal cases for the Havasupai Tribal Court.

Sac & Fox Tribe of the Mississippi in Iowa

Associate Judge, Tama, I.A. Responsible for fairly and impartially hearing and deciding judicial cases and matters at the Trial Court level within the jurisdiction of the Sac and Fox Tribal Court pursuant to the Sac and Fox Tribe of the Mississippi in Iowa tribal laws, codes, rules and regulations.

Morongo Band of Mission Indians

Tribal Attorney, Banning, C.A. Represents the interests of the Morongo Tribe, Morongo Tribal Government, Morongo Tribal Administration, and Morongo Tribal programs, including but not limited to direct representation in tribal and state court of Morongo Tribal government / programmatic interests as directed by the In House General Counsel.

Sitka Tribe of Alaska

Family Law Attorney, Sitka, A.K. Provides holistic legal representation to Native American victims of domestic violence and sexual assault – Salary DOE –  Full-time benefitted. Grant-funded position that will begin in January 2018 and continue for approximately three years. Applicants should submit a cover letter, resume, and writing sample to naomi.palosaari@sitkatribe-nsn.gov or by mail to Sitka Tribe of Alaska, 456 Katlian St., Sitka, AK 99835. Electronic applications preferred. First review November 27th, 2017.

Ho-Chunk Nation

Tribal Attorney, Black River Falls, W.I. Performs a wide variety of legal work representing the Nation as a government, its departments, boards, and commissions. The Tribal Attorney will prepare pleadings for hearings and other legal proceedings, perform legal research, provide court representation; and other duties as assigned. Applicants may visit the Ho-Chunk nation website to apply.

Kilpatrick Townsend & Stockton LLP

Associate, Native American Affairs Group, Washington, D.C. Seeking to hire an associate with 1-3 years of experience and a background or interest in Indian law and litigation.

Department of the Interior

Supervisory-Attorney Adviser, Federal and Indian Royalties Section, Office of the Solicitor, Lakewood, C.O. Oversees the provision of legal services to the offices and programs of the ONRR with particular emphasis on legal issues related to the appropriate interpretation and implementation of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), codified as amended at 30 U.S.C. §§ 1701 et seq., and what is commonly known as the Mineral Leasing Act of 1920, codified as amended at 30 U.S.C. §§ 181 et seq.

Other jobs posted this week:

Alaska Fellow, Native American Rights Fund (11/29/2017)

Previous Friday Job Announcements: 11/17/2017

News Profile on Judge Abby Abinanti

Matthew L.M. Fletcher

From Rebecca Clarren of InvestigateWest, here is “NATIVE AMERICAN JUDGE SHOWS PEACEMAKING COURTS OFFER A MODEL FOR REFORM.”