Turtle Talk

At the end of the day, there was no strong consensus among the justices about how this case should turn out. This was in part because the case has many moving doctrinal parts. It could be resolved on broad sovereignty grounds, on a reconsideration of the court’s distinction between sovereign and official immunity, on the efficacy of tribal justice, on the possibility of comity or using bargaining to protect individual litigants, or a host of other possibilities. Because the case comes to the court early in the litigation and without a full complement of justices, it is an unlikely vehicle for reworking the court’s sovereign immunity jurisprudence. A soft prediction is that the court will send the case back to the Connecticut courts to reconsider issues of comity, official immunity and the implication of the off-reservation location of the accident.

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Nooksack Update: Interior Threatens Reassumption; State Court Asserts PL 280 Jurisdiction

January 10, 2017Sarah M Donnelly

Downloads(PDF):

Link: Previous posts

Bob Anderson on Alaska Native Self-Government and Right to Hunt, Fish, and Gather

January 10, 2017Matthew L.M. Fletcher

Robert Anderson has posted “Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA,” forthcoming in the Alaska Law Review, on SSRN.

The abstract:

The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.

Ninth Circuit Rules in Favor of Paskenta Band in Effort to Freeze Crosby Assets

January 10, 2017January 10, 2017Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Paskenta Band of Nomlaki Indians v. Crosby.

Briefs here.

The federal indictment of the Crosby family is here.

AG Nominee Jeff Sessions Testifies on VAWA 2015 Tribal Court Jurisdiction(Sorta)

January 10, 2017January 10, 2017Matthew L.M. Fletcher1 Comment

Here is the CSPAN transcript and video link.

Here are excerpts (taken from uncorrected closed captioning) from the testimony at 1:41:48:

SO, WHEN WE VOTED IN THE COMMITTEE, EIGHT OF THE NINE REPUBLICANS VOTED AGAINST THE BILL. ONE OF THE MORE CONCERNINGPROVISIONS WAS A PROVISION THAT GAVE TRIBAL COURTS JURISDICTION TO TRY PERSONS WHO WERE NOT TRIBAL MEMBERS. AS CONTRARY, I BELIEVE THE ONLY TIMEHAT GAVE TRIBAL COURTS JURISDICTION TO TRY PERSONS WHO WERE NOT TRIBAL MEMBERS. AS CONTRARY, I BELIEVE THE ONLY TIME THAT’S EVER HAPPENED, THAT WAS A BIG CONCERN THAT I RAISED I BELIEVE PRIMARILY. ON THE LEGISLATION, SO I VOTED WITH THE CHAIRMAN AND THE LEGISLATION HE HAD THAT I THOUGHT DID THE JOB FOR PROTECTING WOMEN, TO REAUTHORIZE THE VIOLENCE AGAINST WOMEN ACT, BUT AT THE SAME TIME, DID NOT HAVE OTHER THINGS ATTACHED TO IT THAT I THOUGHT WERE CONCERNING.

At 1:43:31:

MR. CHAIRMAN, I HAVE NO UNDERSTANDING OF THAT. BUT IN OTHER RESULT, OF IT SO FAR, I’M INTERESTED FIRST TIME I’VE HEARD IT COMING ON. LET ME SAY THIS TO YOU DIRECTLY. IN MEETING WITH SENATORS PRIOR TO THIS HEAR, I’VE HAD QUITE A NUMBER, PERHAPS MORE THAN ANY OTHER ISSUE THAT NONINDIANS THAT HAVE GONE ON TO TRIBAL LANDS THAT HAVE COMMITTED CRIMES INCLUDING RAPE HAVE NOT BEEN EFFECTIVELY PROOS CUTED. THEY HAVE BEEN PROSECUTED IN THE FEDERAL GOVERNMENT BY THE UNITED STATES ATTORNEYS AND THAT HAS NOT BEEN HAPPENING SUFFICIENTLY. I AM NOT CONVINCED, SO I DO THINK THE FBI PARTICULARLY MAYBE THE BUREAU OF THE INDIAN AFFAIRS INVESTIGATEORS SHOULD BE BEEFED UP AND THE U.S. ATTORNEYS NEED TO DO PROBABLY A BETTER JOB OF PROSINGING CASES THAT NEED TO BE PROSECUTED IN FEDERAL FORTCOURT.

And at 1:44:58:

I WOULD DEFEND THE STATUTE IF IT’S REASONABLY DEFENSIBLE. YES, IT’S PASSED BY CONGRESS. IT WOULD BE THE DUTY OF THE ATTORNEY GENERAL. WHETHER THEY VOTED FOR IT OR SUPPORTED IT, TO DEFEND IT.

Anishinabe Legal Services Seek Staff Attorney

January 10, 2017Sarah M Donnelly

FTE Staff Attorney

Anishinabe Legal Services is seeking a full-time staff attorney to provide civil legal assistance and court representation to program clients before area Tribal Courts, State Courts and Administrative Forums.

BACKGROUND: Anishinabe Legal Services (ALS) is a Legal Services Corporation (LSC) funded 501(c)(3) organization providing free legal assistance and court representation to low-income individuals living on or near the Leech Lake, White Earth and Red Lake Indian Reservations in northern Minnesota. Legal services are provided through grants and contracts with federal, state and tribal governments along with foundational support.

RESPONSIBILITIES: ALS is looking for a well-qualified and highly motivated licensed attorney to provide civil legal assistance and court representation to program clients before area Tribal Courts, State Courts and Administrative Forums. Primary duties will include representation of parents in child protection matters before area Tribal Courts, housing and family law, but job duties also include handling a wide variety of civil matters before various forums.

This attorney is expected to be licensed in the State of Minnesota by anticipated start date of position. This attorney will also be expected to be licensed or willing to immediately become licensed before the Leech Lake, White Earth and Red Lake Tribal Courts.

QUALIFICATIONS: Qualified applicants must possess strong oral and written communication skills, negotiation skills, litigation skills, have exceptional organizational skills with ability to handle a large caseload of client matters throughout a wide geographic service area. Applicants must also be able and willing to work efficiently and effectively as part of a team.

Attorneys with 3+ years of civil practice are strongly preferred, as are applicants with familiarity and experience practicing before Tribal Courts. Prior experience working within Indian Country is also strongly preferred. Native American attorneys are highly encouraged to apply.

All applicants are expected to have a valid driver’s license, insurance and automobile, as significant travel will be required as part of job duties and responsibilities.

COMPENSATION: $44,000-$50,000 D.O.E. Benefits include individual and family health and dental insurance, paid time off, and life insurance.

TO APPLY: Please send a cover letter, resume, and three (3) references to Chari LaDuke-Clark at: Anishinabe Legal Services, PO Box 157, Cass Lake, MN 56633 or email application materials to claduke-clark@alslegal.org. Applications are preferred by January 20^th but will be accepted until the position is filled.