Cayuga Nation IBIA Appeal

Matthew L.M. Fletcher1 Comment

Here:

cayibia_ap1-14-17-116123107-0001

Press release:

Cayuga Nation Traditional Government Appeals BIA Decision

Agency Violates Own Rules to Interfere in Cayuga Affairs

January 16, 2017 – Seneca Falls, NY—The Cayuga Nation’s traditional government – the Council of Chiefs and Clan Mothers – on Friday appealed the December 15, 2016 Bureau of Indian Affairs (BIA) decision declaring a group organized by Clint Halftown to be the government of the Cayuga Nation. The decision by BIA Eastern Regional Director Bruce Maytubby would strip the Clan Mothers of their longstanding role in the Nation’s government, a role Clint Halftown has previously supported. It would put in place a mail-in survey process to substitute for the traditional processes by which Haudenosaunee Nations like the Cayuga Nation have always chosen their leaders.

“Far from being a neutral decision-maker, Maytubby prejudged the viability of the campaign of support process and secretly colluded with the Halftown faction while excluding Nation leaders then-recognized by the United States,” the appeal says. “Mr. Maytubby reversed existing federal policy on supporting mail-in surveys as a means of Cayuga governance without providing any evidence whatsoever – much less substantial evidence – to justify such a reversal.”

The appeal highlights secret communications and meetings between Mr. Maytubby and the Halftown group and points out Mr. Maytubby’s own admission that the mail-in survey process would violate federal law on tribal elections.

“This arbitrary and capricious decision and the backroom dealings that preceded it sets dangerous precedent for federal interference in the affairs of sovereign Indigenous Nations,” explained attorney Joseph Heath, who represents the Nation’s traditional leaders, many of whom have been recognized by the BIA and acknowledged as leaders by the Halftown group for more than a decade. “This violates not only Haudenosaunee law but also federal law protecting Indian nations’ right to self-governance, and their right to self-determination under Article 3 of the United Nations’ Declaration on the Rights of Indigenous Peoples.”

Sachem Samuel George of the Cayuga Nation noted, “Centuries of bad policies by the United States and its Bureau of Indian Affairs have resulted in the challenges our people face today. We have survived genocide, being forced from our lands, having our children taken from us. In recent decades, the United States’ policies have improved in their acknowledgement of the sovereignty of Indigenous Nations, giving us the freedom to create a better future for our people. Maytubby’s decision, on the other hand, is a return to the dark ages of Indian Affairs.”

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ACLU of Montana Legal Director Job Posting

Sarah M Donnelly

Download(PDF): ACLU-MT Legal Director job description Jan ’17

The ACLU of Montana is currently looking for a Legal Director. Attached is the job description with information on how to apply. Submit a letter of interest; resume; two relevant professional writing samples (e.g., memoranda of law or demand letters demonstrating research, writing, and legal analytical skills); salary requirements; and three professional references, identifying their relationship to you and including their email addresses and phone numbers. Email your application to Michelle Cares, Office Coordinator, at michellec@aclumontana.org or mail it to:

ACLU of Montana, Attn: Michelle Cares
P.O. Box 9138, Missoula, MT 59807

Please put “Legal Director” in the subject line of your email or on your envelope. Also, please indicate in your letter of interest where you saw this job posting (Turtle Talk). Applications will be reviewed beginning the week of February 13, 2017, and will be accepted until the position is filled.

Tohono O’odham Nation Seeks Chief Prosecutor

Matthew L.M. Fletcher

Here:

The Tohono O’odham Nation Office of Attorney General is seeking a Chief Prosecutor for the Office of the Prosecutor.  Applicants must have at least six years of relevant experience, including three years of supervisory experience, and be licensed in Arizona.  To apply, please send a cover letter, resume, and three writing samples to Laura Berglan, Acting Attorney General, via email at laura.berglan@tonation-nsn.gov.

Indian Entities Recognized and Eligible to Receive Services from United States Bureau of Indian Affairs (1/17/2017)

Matthew L.M. Fletcher

Here.

PDF.

Tulalip Tribal Court Holds State Immune to Suit in Tribal Court

Matthew L.M. Fletcher

Here is the opinion in Shopbell v. State of Washington Dept. of Fish and Wildlife:

shopbell-opinion

We posted materials on this case here.

Kevin Washburn on the Future of Federal Indian Law and Policy

Matthew L.M. Fletcher

Kevin Washburn has posted “What the Future Holds: The Changing Landscape of Federal Indian Policy,” forthcoming in the Harvard Law Review Forum.

The abstract:

Since first described by Chief Justice John Marshall, the United Stated has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations who gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Instead of federal paternalism, federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, and the trust responsibility can be described today by a new set of norms. The evolution, however, is not complete. Some of the old paternalistic features continue to animate federal Indian law and serve as obstacles to tribal self-governance. Moreover, as tribal governments exercise greater powers, they are subject to new scrutiny. Perhaps ironically, even some Native Americans have sought to reinstate federal oversight of tribal nations. The shifting norms of federal policy have produced new conflicts and will require a new reckoning about the federal role as old norms clash with new.

Summary Judgment Briefing in Bay Mills Indian Community v. Snyder

Matthew L.M. Fletcher

Here are the materials in Bay Mills Indian Community v. Snyder (W.D. Mich.):

47-saginaw-chippewa-motion-to-intervene

54-michigan-motion-for-summary-j

70 bmic opposition

71 clinton declaration

72 hughes declaration

81 snyder reply

Swinomish Partially Prevails in Dispute with BNSF

Matthew L.M. Fletcher

Here are the materials in Swinomish Indian Tribal Community v BNSF Railway Company (W.D. Wash.):

58-swinomish-motion-for-summary-j

63-bnsf-cross-motion

65-swinomish-response

68-bnsf-reply

75-dct-order

An excerpt:

For all of the foregoing reasons, the cross-motions for summary judgment (Dkt. # 58 and Dkt. # 63) are GRANTED in part and DENIED in part. The Tribe is entitled to a declaration that BNSF breached the terms of the Easement Agreement by failing to make annual disclosures regarding the cargo it was carrying across the reservation and by increasing the number of trains and cars traversing the reservation without first seeking to obtain the Tribe’s written assent. The state law claims for damages, compelled disclosures, and an adjustment in rent are not preempted by the ICCTA. To the extent the Tribe seeks an injunction limiting the type of cargo or the number of trains or cars crossing the reservation — whether under a breach of contract, trespass, or estoppel theory — those remedies are unavailable in this jurisdiction. The Tribe may seek a declaration of its contractual rights from the STB and/or it may initiate the right of way cancellation procedures provided under in the IRWA and its implementing regulations.

Oregon Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys

Kate Fort

Here is the proposed rule:

{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:

(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in a child custody proceeding as defined by 25 U.S.C. §1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq.;

(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and

(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}

The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids.