Here is “Standing Rock and the Erosion of Tribal Rights.”
Gorsuch Nomination Update
The Library of Commerce has published a bibliography of Judge Gorsuch’s writings here.
No, young Neil did not form a Fascism Forever club in school.
Tohono O’odham Court of Appeals Finds Constitutional Waiver of Immunity in Banishment Suit
Eighth Circuit Affirms Major Crimes Act Child Abuse Conviction
Here is the opinion in United States v. White Plume.
National Indian Law Library (2/1/2017)
Here:
| The National Indian Law Library added new content to the Indian Law Bulletins on 2/1/17.
U.S. Federal Courts Bulletin Tribal Courts Bulletin News Bulletin U.S. Regulatory Bulletin Law Review & Bar Journal Bulletin U.S. Legislation Bulletin |
New: ICWA Guide for Tribal Governments and Leaders
New from the Capacity Building Center for Tribes: ICWA Guide for Tribal Governments and Leaders. Available here, pdf here.
Our Children, Our Sovereignty, Our Culture, Our Choice
A word from the authors: Our tribes are threatened by the removal of our youngest and most vulnerable members, our children. As leaders we want to make informed decisions to protect the future of our tribe, our culture, our children and families. Historically, we have seen state and federal programs compromise our dignity and culture by breaking up our families and tribes. Even today we hear of unwarranted removal of our Indian children and the attempts to keep them separated from their culture and tribal identity. The Indian Child Welfare Act (ICWA), when complied with, can help prevent these unwarranted removals and ensure Indian children are kept safe while remaining with their families. The purpose of this Guide is to recommend actions that tribal leadership can take towards ensuring compliance with ICWA.
The recommendations that appear in this guide were made by Tribal Court judges, Tribal attorneys, Tribal educators who train on ICWA, Tribal legislators, a former Tribal Governor/Social Services Director, Counsel for the County (who was also a Tribal member), and Directors of Social Services for Tribal child welfare programs. It is important to note that these are recommendations, not mandates, made by individuals who work in various arenas in child welfare.
GOP changes rules to push through nominees after Dem boycott
From The Hill:
Senate Republicans pushed through a pair of President Trump’s Cabinet nominees Wednesday, upending standard committee rules to circumvent a Democratic boycott.
Here.
Guest Post — Ray Martin on the AEI Panel with Rep. Bishop and Naomi Riley
On January 30th, 2017 the American Enterprise Institute hosted a panel discussion entitled, How federal policy affects Native Americans: Naomi Schafer Riley on her book, ‘The New Trail of Tears: How Washington is Destroying American Indians.’ A video of the panel can be found here. On the panel with Naomi Schafer Riley (NSR) were Congressman Rob Bishop R-Utah, the Chairman of the House Natural Resources Committee which oversees Indian Affairs in the House of Representatives, Chris Edwards from the Cato Institute, and Keith Moore a former director of the Bureau of Indian Education.
The panel began with a talk from NSR regarding her book The New Trail of Tears (TNToT). The book has already been discussed at length here on Turtle Talk, Professor Fletcher’s commentary can be found here. The discussion at the American Enterprise Institute (AEI) was disheartening and alarming. NSR began by attacking the community at Pine Ridge for its poor retention of teachers, and went onto blast a former principal of a school for firing all of the Teach for America (TFA) teachers at that school because they “were too white.” While this may have once been true it is simply not the case anymore. What NSR fails to mention is that several of the Tribes in South Dakota have partnered with TFA to bring TFA to Indian reservations in South Dakota. For example in 2015, the Standing Rock Sioux Tribe formed a partnership with TFA to recruit tribal members to become teachers in reservation schools. In 2013, the Rosebud Sioux Tribe passed a resolution supporting TFA and its efforts on their reservation; this followed a similar resolution passed by the Ogalala Sioux Tribal Council as well, supporting TFA’s efforts on Pine Ridge. Just over a year ago, the Rapid City Journal documented the ongoing relationship between TFA on Rosebud and Standing Rock, as well as at the Red Cloud Indian School on Pine Ridge. Rather than giving her audience all of the information regarding the decisions that Tribal leaders are making to support the development of their youth, NSR retreats to portraying reservations as bleak and hopeless places where no child has a chance at receiving a decent education. Her claim that Tribes in South Dakota are unable or unwilling to partner with organizations like TFA does not stand on its merits, and is likely confined to the one incident in her talk, in which she cites an unnamed source. Continue reading
Army Corps ordered to issue final Dakota Access pipeline permit, two lawmakers say
From the Chicago Tribune:
“The acting secretary of the Army has instructed the Army Corps of Engineers to provide the final permit needed to complete the Dakota Access pipeline, according to two North Dakota GOP lawmakers who support the project.”
Here.
Neil Gorsuch Indian Law Record as Tenth Circuit Judge
Here are Judge Gorsuch’s Indian law decisions (to be updated as we add details — most recently updated 12:03 12:17 PM eastern):
United Planners Financial Services v. Sac and Fox Nation, 654 Fed.Appx. 376 (10th Cir. 2016) (favoring tribal interests in tribal exhaustion matter)
Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016)(favoring tribal interests in state-tribal criminal jurisdictional disputes)
Ute Indian Tribe v. State of Utah, 790 F.3d 1000 (10th Cir. 2015) (favoring tribal interests in state-tribal criminal jurisdictional disputes: “In our layered system of trial and appellate courts everyone’s assured at least two chances to air a grievance. Add to this the possibility that a lawsuit might bounce back to the trial court on remand or even rebound its way to appeal yet again — or the possibility that an issue might win interlocutory review — and the opportunities to press a complaint grow abundantly. No doubt our complex and consuming litigation wringer has assumed the shape it has so courts might squeeze as much truth as possible out of the parties’ competing narratives. But sooner or later every case must come to an end. After all, that’s why people bring their disputes to court in the first place: because the legal system promises to resolve their differences without resort to violence and supply “peace and repose” at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For a legal system to meet this promise, of course, both sides must accept — or, if need be, they must be made to respect — the judgments it generates. Most people know and readily assent to all this. So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.”).
United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) (en banc) (affirming Indian country criminal conviction)
Nowlin v. United States, 581 Fed.Appx. 722 (10th Cir. 2015) (rejecting pro se claim by Indian convict)
Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) (favoring Indian prisoner in religious freedom matter)
Fletcher v. United States, 730 F.3d 1206 (10th Cir. 2013) (favoring individual Indians in trust dispute with federal government)
Gardner v. Arrowichis, 543 Fed.Appx. 891 (10th Cir. 2013) (rejecting pro se ICRA habeas claim)
Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2013) (ruling in favor of tribal interests on procedural grounds but holding tribal corporation not immune from suit) (Gorsuch filed concurring opinion explaining in more detail why tribal corporation not immune; “Of course, Indian tribes are entitled to sovereign immunity absent congressional abrogation. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). And, of course, this immunity is not limited by the type of activity involved or where it takes place. Id. at 758, 118 S.Ct. 1700. But no matter how broadly conceived, sovereign immunity has never extended to a for-profit business owned by one sovereign but formed under the laws of a second sovereign when the laws of the incorporating second sovereign expressly allow the business to be sued. And it doesn’t matter whether the sovereign owning the business is the federal government, a foreign sovereign, state—or tribe.“).
Hydro Resources, Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010) (en banc) (ruling against tribal interests and EPA in “Indian country” jurisdiction dispute)
Yellowbear v. Attorney General, 380 Fed.Appx. 740 (10th Cir. 2010) (rejecting habeas claim of Indian prisoner on jurisdictional grounds)
Swimmer v. Sebelius, 364 Fed.Appx. 441 (10th Cir. 2010) (dismissing IHS employee’s Title VII complaint for procedural reasons)
Four Corners Nephrology Associates PC v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009) (favoring medical center servicing Indian country clients in antitrust claim)
United States v. Dolan, 571 F.3d 1022 (10th Cir. 2009) (affirming sentence of Indian convicted of assault)
United States v. Taylor, 514 F.3d 1092 (10th Cir. 2008) (affirming conviction of Indian for assault even where prosecutor had made inappropriate statements: “During opening statements at Johnson Kenneth Taylor’s trial arising out of a fight that he initiated on the Southern Ute Indian Reservation, the prosecutor urged the jury to convict Mr. Taylor in order to “end the cycle of violence” on the reservation. . . . There is no question that the prosecutor’s remark was inappropriate. The jury’s role in a criminal trial is to find facts related to the defendant’s innocence or guilt, a function in which prosecutorial appeals to the resolution of social ills play no useful role. Nevertheless, because Mr. Taylor expressed no dissatisfaction with the ameliorative course adopted by the district court, we are able to review the district court’s failure to issue either a mistrial or further corrective instruction sua sponte only for the presence of plain error. Discerning none, we affirm.“).
United States v. Poole, 545 F.3d 916 (10th Cir. 2008) (affirming Indian country criminal conviction)
United States v. Tucson, 248 Fed.Appx. 959 (10th Cir. 2007) (ruling against Indian country illegal drugs defendant)
Pino v. United States, 507 F.3d 1233 (10th Cir. 2007) (certifying state law question in wrongful death action against IHS)
Here are decisions in which Judge Gorsuch participated but did not write opinion:
Turtle Talk 
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