Transfer to Tribal Court Case out of the Arizona Court of Appeals

Kate Fort3 Comments

Here.

This decision from last Thursday highlights the 1911(b) explicit transfer provision, which allows for foster care and termination proceedings to be transferred, but is silent on pre-adoptive or adoptive proceedings. The final footnote may provide some guidance in the future:

18  Because the Community sought transfer of jurisdiction only under the authority of 25 U.S.C. § 1911(b), we do not analyze or address the propriety of such a motion under any other authority. See In re Welfare of the Child of R.S. & L.S., 805 N.W.2d at 57 (Dietzen, J., concurring) (“The court’s consideration of those issues is dictum and not binding on the
court.”). See also 2016 BIA Final Rule, 81 Fed. Reg. 38822, J(1), Response to Comment (“Parties may request transfer of preadoptive and adoptive placement proceedings, but the standards for addressing such motions are not dictated by ICWA or these regulations. Tribes possess inherent jurisdiction over domestic relations, including the welfare of child citizens of the Tribe, even beyond that authority confirmed in ICWA. . . . Thus, it may be appropriate to transfer preadoptive and adoptive proceedings involving children residing outside of a reservation to Tribal jurisdiction in particular circumstances.” (citations omitted)); 25 U.S.C. § 1902 (providing a Congressional declaration of policy stating that ICWA establishes “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture”).

Patrick O’Donnell’s Bibliography of American Indian Law (3d ed.)

Matthew L.M. Fletcher

Here:

American Indian Law Bibliography 3

National Indian Law Library Bulletin (8/11/2016)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 8/11/16.

U.S. Courts of Appeals Bulletin
http://www.narf.org/nill/bulletins/cta/2016cta.html
Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton (Reservation Boundaries)
Bodi v. Shingle Springs Band of Miwok Indians (Tribal Sovereign Immunity – Waiver)

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
North Fork Rancheria of Mono Indians of California v. State of California (Gaming Compacts – Good Faith Negotiations)
James Raymond Acres v. Blue Lake Rancheria Tribal Court (Jurisdiction – Exhaustion of Tribal Court Remedies)
Jamul Action Committee v Jonodev Chaudhuri (Indian Lands Eligible for Gaming)
Tanner-Brown v. Jewell (Class Actions; Fiduciary Duties; Standing)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Environment & Energy section, we feature some articles on tribes impacting the fossil fuel industry and policy on climate change.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
These articles were added:
Protecting tribal skies: why Indian tribes possess the sovereign authority to regulate tribal airspace.
A starving culture: Alaskan Native Villages fight to use traditional hunting and fishing grounds.
Federal statutory responsibility and the mental health crisis among American Indians.
Lessons learned: avoiding the hardships of tribal mineral leasing in the development of Oklahoma tribal wind energy.
Nothing personal (or subject matter) about it: jurisdictional risk as an impetus for non-tribal opt-outs from tribal economies, and the need for administrative response.
The Great Sioux Nation v. the “Black Snake”: Native American rights and the Keystone XL pipeline.
Indigenous issues under the European Convention of Human Rights, reflected in an inter-American mirror.
Mexican energy reform, climate change, and energy justice in Indigenous communities.
Sovereignty and Indigenous Peoples in North America.
California’s REDD rubberstamp: avoiding constitutional concerns, but at what cost?

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
The Bureau of Indian affairs, Bureau of Indian Education, announces a scheduled meeting of the Advisory Board for Exceptional Children to meet the mandates of the Individuals with Disabilities Education Act of 2004 for Indian children with disabilities.

Chickasaw and Choctaw Reach Water Settlement with Oklahoma

Ann Tweedy2 Comments

Here.

Brooke Pinkham Joins Seattle U. Law School

Matthew L.M. Fletcher

Here is “Center for Indian Law and Policy welcomes new staff director.”

Contract Action against Blue Lake Rancheria Dismissed for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher1 Comment

Here are the materials in Acres v. Blue Lake Rancheria Tribal Court (N.D. Cal.):

32 Motion to Dismiss

40 Response

41 Reply

48 DCT Order

Office of the General Counsel for the U.S. Department of Health & Human Services — Attorney Vacancy

Matthew L.M. Fletcher

Here (IHS Attorney Vacancy Annoucement — August 2016):

The Office of the General Counsel for the U.S. Department of Health & Human Services (OGC) is seeking applications for a general attorney positions in its San Francisco Regional Office.  The San Francisco Office of OGC provides legal services to 4 administrative areas of the Indian Health Service (IHS), which delivers health care to American Indians/Alaska Natives. Persons selected for some or all of these positions will  have responsibility for providing legal advice and support to the IHS.  More information about the positions and the nature of our work is in the attached vacancy announcement.

 

Dept. of the Interior Issues Secretarial Procedures for North Fork Rancheria

bryannewland

On July 29th, the Assistant Secretary – Indian Affairs issued “secretarial procedures” for the North Fork Rancheria.  A copy of those procedures can be found here.

“Secretarial procedures” are, in essence, a class III gaming compact imposed by the Secretary of the Interior for a tribe and a state where the state has refused to negotiate in good faith (as required by IGRA).

Under IGRA, tribes cannot engage in class III gaming without a tribal-state compact. Congress provided for secretarial procedures as a safeguard against states that refuse to negotiate gaming compacts with tribes, as required by IGRA.

The Assistant Secretary issued a cover letter as part of his determination, which stated:

The Secretary’s duty to issue procedures is one of IGRA’s fundamental safeguards of tribal sovereignty.  In IGRA, Congress expressly reaffirmed that tribes maintain their pre-existing sovereign reserved right to conduct gaming.  This reserved tribal right, confirmed by the Supreme Court in Cabazon, endures throughout IGRA’s framework.  While Congress provided states a limited role to negotiate a tribal-state compact governing Class III gaming activities, Congress did not eviscerate tribal sovereignty.  Recognizing that underlying reserved tribal right, Congress expressly provided that, when a state does not negotiate a tribal-state compact in good faith and does not agree with a Federal court-appointed mediator’s compact, tribes retain the sovereign right to conduct Class III gaming pursuant to Federal procedures issued by the Secretary. The Department’s actions here upholds that tribal sovereign right.

The Department of the Interior’s authority to use this option was severely limited by the Supreme Court’s decision in the Seminole case – Secretarial procedures require that the Tribe first file a lawsuit against the State; but, Seminole preserves state sovereign immunity against such lawsuits.

The Department issued regulations to implement IGRA’s secretarial procedures option in light of the Seminole case.  Those regulations are being tested in a lawsuit between the Pueblo of Pojoaque and the State of New Mexico.

As of today, IGRA’s secretarial procedures option is permitted in California (because the State has waived its sovereign immunity for gaming compacts).  That option is threatened by legislation pending before Congress.  I recently wrote about the impact of that legislation on this blog.  You can read that post here.

 

 

US Moves to Recuse Federal Judge from Indian Water Rights-Related Matter Due to Bias against Federal Government

Matthew L.M. Fletcher1 Comment

Here is the motion in United States v. Walker River Irrigation District (D. Nev.):

1414 US Motion to Recuse