BIA Will Not Recognize Actions of Holdover Nooksack Tribal Council

Matthew L.M. Fletcher2 Comments

Here is the letter from ASIA Larry Roberts to Robert Kelly:

Letter

An excerpt:

We will not recognize any actions until duly elected officials are seated in accordance with the Tribe’s Constitution and Bylaws.  This includes recent actions by you and two Council members to enjoin the authority of the Northwest Intertribal Court System (NICS).  Since the NICS was authorized by a quorum of the Council to adjudicate matters prior to March 24, 2016, we will continue to recognize judicial decisions issued by the NICS.

NIGC Summer Intern Opportunity

Sarah M Donnelly

Download(PDF): Summer Intern Position with NIGC 2017

The National Indian Gaming Commission’s Office of General Counsel is seeking applicants for a paid intern position for the summer of 2017 in Washington, DC. The Office of General Counsel’s summer internship program is for students who have completed at least their first year of law school. The intern is expected to work at least 40 hours per week.

Deadline: Thursday, December 1, 2016

BIA Enjoined from Entering into Separate 638 Contracts with Northern Arapaho and Eastern Shoshone

Matthew L.M. Fletcher1 Comment

Here are the new materials in Northern Arapaho Tribe v. Lacounte (D. Mont.):

58-reply-in-support-of-26

66-us-motion-to-dismiss

68-us-response-to-17

78-reply-in-support-of-17

82-response-to-66

88-reply-in-support-of-66

113-dct-order

An excerpt:

Plaintiff’s Motion for Preliminary Injunction is GRANTED on the following terms: in accordance with the Gourneau Letter (Doc. 97-1), Defendants shall refrain from approving 638 contracts for multi-tribal, shared services without the approval, via tribal government resolution, of both the Northern Arapaho Tribe and the Eastern Shoshone Tribe.

Prior pleadings here.

Navajo Voting Rights Case Fails in Utah

Matthew L.M. Fletcher

Here are the materials in Navajo Nation Human Rights Commission v. San Juan County (D. Utah):

94-motion-for-pi

108-opposition

112-reply

129-dct-order

National Indian Law Library Bulletin (10/17/2016)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 10/17/16.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2016-2017update.html
Petition for Certiorari was filed in Wolfchild v. Redwood County (Common law claims of trespass and ejectment)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Sacred Places section, we feature a couple of articles on the possible Bears Ears National Monument.

State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2016state.html
United Auburn Indian Community of the Auburn Rancheria v. Edmund G. Brown, Jr. (Indian Child Welfare Act – Transfer to Tribal Court)

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
Sanchez v. Cegavske (Voting Rights)
In re: Greektown Holdings, LLC v. Papas (Bankruptcy; Tribal Sovereign Immunity)

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
We feature the Department of Interior’s final rule on procedures for reestablishing a formal government-to-government relationship with the Native Hawaiian community.

Executive Director Vacancy with Anishinaabe Legal Services on Leech Lake Reservation

Sarah M Donnelly1 Comment

Download (PDF): Job Announcement

Latest NCJFCJ Disproportionality Report on Rates for Children of Color in Foster Care

Kate Fort

Here.

A reminder this is lagging data, so this report covers numbers from 2014, and to read all of the disclaimers in the report regarding how the data is collected and analyzed.

Update in Galanda v. Nooksack Tribal Court and Related Cases

Matthew L.M. Fletcher1 Comment

Here:

galanda-broadman-response-re-nooksack-supreme-court

in-re-gabriel-galanda-v-nooksack-tribal-court-tribal-court-of-appeals-motion-for-show-cause-order-re-contempt

in-re-gabriel-galanda-v-nooksack-tribal-court-whatcom-county-superior-court-petition-for-entry-of-foreign-judgment

rabang-v-romero-tribal-court-complaint

Fletcher on Current Tribal Immunity Issues (Law360.com)

Matthew L.M. Fletcher1 Comment

Here:

Law360, New York (October 14, 2016, 1:32 PM EDT) — Two years ago, in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court roundly affirmed the doctrine of tribal sovereign immunity, but did so grudgingly. The court warned against tribes abusing their sovereign status, especially in commercial ventures. The lower courts now are addressing tribal immunity in contexts as diverse as tribal sovereign lending and eminent domain exercised by utility companies. Pending before the Tenth Circuit is Public Service Company of New Mexico v. Barboan, where a utility is attempting to exercise the power of eminent domain over lands owned by an Indian tribe. And, this Term, the Supreme Court in Lewis v. Clarke will determine the scope of immunity for tribal employees. The outcomes in these cases, potentially circumventing tribal immunity, may expose tribal governments to extensive liability, reduced commercial opportunities, and worsened environments.

The federal government has authority to abrogate tribal immunity but the judiciary imposes a clear statement rule on statutes purported to waive immunity. As the Supreme Court stated in Bay Mills, Congressional intent to abrogate tribal immunity must be unequivocal. In Barboan, the utility is relying on 25 U.S.C. § 357 for statutory authority to condemn Indian lands. The statute does authorize the condemnation of Indian lands, with compensation to “allottee[s].” The Tenth Circuit may decide whether that statute is a clear statement of intent to authorize the condemnation of lands owned by allottees that are Indian tribes otherwise cloaked with immunity. If the court holds § 357 abrogates tribal immunity, then tribal efforts to stop or slow pipeline projects like the Dakota Access Pipeline could be compromised. Lower courts likely will conceive of this case as within the call of the question in Bay Mills and uphold the tribal defense here. But as always, the Supreme Court looms.

That the Supreme Court is very interested in the contours of tribal immunity is confirmed by the consistency with which the court has granted certiorari in those cases. Coming a mere two years after Bay Mills, the Court will hear another immunity matter arising from tribal commercial activities. In Lewis, the Court will decide whether tort and contract claimants can access tribal assets under a theory that tribal employees could be liable in tort if sued in their individual capacities, placing tribes in an unenviable position requiring them to indemnify money damage claims against employees.

Because Indian tribes usually have no tax base, the federal government long has encouraged tribes to utilize their sovereign status in commercial ventures to generate government revenue. In line with federal Indian policy, tribes have established gaming operations, asserted control over reservation natural resources, and established online commercial enterprises. Meanwhile, tribes established justice systems to address tort and contract claims arising from tribal enterprise. Tribal statutes established limited waivers of tribal immunity tailored to tribal courts analogous to the Federal Tort Claims Act and the federal Contract Disputes Act. Tribes have settled or litigated untold thousands of claims under these tribal laws since the 1990s.

Still, tribes find themselves hailed into state and federal courts to defend tort and contract claims for money damages. Nearly all of these claims are dismissed for lack of jurisdiction, either because of state or federal court subject matter jurisdiction or sovereign immunity. The tougher cases are those that arise off-reservation. The Supreme Court has held more than once that tribes retain immunity in federal and state courts even when engaged in off-reservation commercial ventures. Tort victims complain that tribal limitations periods are too short, that tribal damages caps are too low, and that tribal courts are unfamiliar and perhaps even biased forums. Worse, some consumers of tribal sovereign lending products allege that tribal dispute resolution forums are wholly inadequate or even shams.

In recent years, tort victims cleverly have sued tribal employees in their individual capacities in state or federal courts, seeking to avoid tribal immunity. Some courts rejected this theory, but others held that tribal emergency medical technicians and casino managers may be sued for money damages in their individual capacities. Perhaps it is only a matter of time before tribal sovereign lending employees are sued in their individual capacities. Individuals are not sovereigns, and are not immune from suit. However, sovereigns cannot act without individuals. Normally, when a government employee is on the clock, they are government officials cloaked with immunity from money damages, not individuals. Everyone knows that a pragmatic tribal government will be forced to indemnify their employees, opening up the tribal fisc to potentially expansive liability.

Decisions against tribal immunity in the context of Indian lands and in the context of tribal employees could expose Indian tribes to land dispossession and monetary liability far beyond what tribes have come to expect in recent decades. With an eight-judge Court, getting to five votes is tricky. However, it is very possible that progressive judges skeptical of governmental immunity might vote against tribal interests alongside conservative justices skeptical of tribal sovereignty. Tribal interests could very well face a perfect storm aligned against them.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Friday Job Announcements

Sarah M Donnelly

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

Alaska Legal Services Corporation

Shelter-Based Staff Attorney, Juneau, AK

Alaska Legal Services Corporation is hiring a full-time attorney in Juneau, funded by a three-year grant from the U.S. Department of Justice. The grant’s purpose is to enhance options available to victims of domestic violence to resolve family disputes quickly and peacefully, and to provide representation in a variety of civil matters.  The project will prioritize services to two traditionally underserved and vulnerable groups of domestic violence victims: Alaska Native/American Indian victims and victims experiencing disabilities.

The attorney will appear in state and tribal court civil proceedings involving family law, housing, consumer protection, public benefits, and health care.  The attorney will also partner with AWARE (Aiding Women in Abuse & Rape Emergencies) on a project to develop and provide safe, out-of-court alternative dispute resolution services for domestic violence victims in family law cases, when appropriate. The attorney will be based at AWARE, and will work closely with ALSC’s supervising attorney and staff attorney, an AWARE legal advocate, and a part-time family counselor.

Ability to work with individuals from different cultural backgrounds is essential, as is working with individuals experiencing trauma, and physical and mental disabilities. Candidates should possess knowledge, appreciation, experience, and commitment to working with and for Alaska Native peoples and statewide Native organizations.  ALSC is proud to be an equal opportunity employer. We are committed to building a culturally diverse workplace and strongly encourage women, persons of color, LGBTQ individuals, veterans, persons with disabilities, and persons from other underrepresented groups to apply.

Computer proficiency required. Bilingual applicants encouraged. Admission to Alaska Bar or Alaska Bar Rule 43 waiver required.  Information on Bar Rule 43 can be found at http://www.alaskabar.org/ (Alaska Bar Association website).

Salary: $44,856 to $63,456 per year DOE.  Generous personal leave and benefits package provided, including partial reimbursement of relocation expenses.

Position will be open until filled.  To apply, submit cover letter, resume, brief writing sample, and list of three professional references to:

Holly Handler, Juneau Supervising Attorney
hhandler@alsc-law.org

Native American Program, Legal Aid of Nebraska

AmeriCorps Member: Medical-Legal Partnership Attorney, Omaha, NE

The AmeriCorps Member will provide direct legal assistance to low-income patients at the Fred LeRoy Health and Wellness Center in Omaha, NE, the Nebraska Urban Indian Health Coalition in Omaha and Lincoln, Nebraska, the Ponca Hills Health and Wellness Center in Norfolk, NE, and other locations in and near Northeast and Eastern Nebraska. Areas of legal advocacy include public benefits, housing, special education, domestic violence, elder law, family law, and consumer law. The AmeriCorps Member will be an attorney authorized to practice in state and/or tribal court, and before administrative agencies. The AmeriCorps Member will be responsible for providing periodic trainings and presentations to providers at medical facilities, as well as for regularly consulting with medical providers.

Native American Program, Legal Aid Services of Oregon

Staff Attorney, Portland, OR

Legal Aid Services of Oregon (LASO) seeks a Staff Attorney for its Native American Program (NAPOLS), which is located in Portland.

Background: LASO is a non-profit organization that represents low-income clients in civil cases. LASO’s eight regional offices serve the general low-income population throughout the state and two specialized statewide programs provide services to farmworkers and representation on Native American issues. LASO is an effective, high-quality legal services program committed to advocacy strategies that will have a demonstrable effect on community problems.

NAPOLS assists income-eligible Indian tribes, Native organizations, and individual tribal members, including with cases related to tribal sovereignty and self-governance, estate planning and trust resources, access to benefits, expungement of criminal records, and tribal court cases. NAPOLS also offers community education on a wide range of legal issues.

Responsibilities: The staff attorney will be responsible for maintaining a varied caseload providing legal services to Indian tribes, Native organizations, and individual tribal members.

Qualifications: Position requires current Oregon State Bar membership, proven interest in and commitment to working in Indian Country, and knowledge of federal, tribal, and state laws impacting tribes and tribal members. Regular travel throughout Oregon, including some overnight travel, is required.

Salary/Benefits: Salary is based on experience, within a statewide salary scale. Full Benefits including health and dental insurance and retirement plan.

Closing Date: October 28, 2016

Applications: Send resume, letter of interest, brief writing sample (5 pages or less), and list of 3 professional references to:

Jennifer Amiott, Director
Native American Program, Legal Aid Services of Oregon
4531 SE Belmont St., Suite 201, Portland, OR 97215
Email: napolsjobs@lasoregon.org / Fax: (503) 206-7073
Please, no phone calls.

Legal Aid Service of Oregon is an Equal Opportunity Employer. Tribal members and minority applicants encouraged to apply.

The Yurok Tribe

Associate General Counsel

Full Time, Regular $60,904-$94,898. Closes 10/26/16. Apply here.

Paralegal

Full Time, Regular $24.12/$26.56/$29.19. Closes 10/26/16. Apply here.

Department of the Interior

Administrative Judge, Interior Board of Indian Appeals, Arlington, VA. Closes 11/14/2016.