Turtle Talk

Kristen Carpenter on ICWA and Indian Status

August 9, 2016Matthew L.M. Fletcher3 Comments

Kristen Carpenter has published “Indian Status Is Not Racial: Understanding ICWA as a Matter of Law and Practice” as part of the CATO Unbound series on the Indian Child Welfare Act.

An excerpt:

On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.

Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.

Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody.[1] As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.

Latest filings in Oglala Sioux v. Fleming (SD Federal ICWA Case)

August 9, 2016ilpc

262-Plaintiffs’ Brief in Support of Motion for Partial Summary Judgment

269-Defendant’s Brief in Support of Motion to Strike/Response to Partial Summary Judgment

239-Remedies Brief

257-VargoResponsetoRemedies

260-FlemingResponsetoRemediesBrief

272-Plaintffs’ Reply Brief in Support of Remedies

Previous coverage here.

Catherine O’Neill on Washington Dept. of Ecology’s Draft Water Quality Standards and the District Court’s Order Enjoining EPA to Act

August 8, 2016Ann Tweedy

Here. Professor O’Neill provides a detailed and understandable summary of the many problems with Ecology’s draft standards and also explains EPA’s role and the District Court for the Western District of Washington’s recent decision.

The District Court’s decision in Puget Soundkeeper Alliance v. EPA is here: Puget Soundkeeper v EPA Order on Summary Judgment 8-3-16.

Ninth Circuit Holds Removal of Suit to Federal Court Does Not Abrogate Tribal Immunity

August 8, 2016Matthew L.M. Fletcher

Here is the opinion in Bodi v. Shingle Springs Band of Miwok Indians.

From the court’s syllabus:

The panel reversed the district court’s denial of a motion to dismiss claims under the Family and Medical Leave Act and California law on the ground of tribal sovereign immunity.

Following the Eleventh Circuit, the panel held that a federally recognized Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. The panel concluded that the act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity.

The panel remanded the case, leaving it to the district court to address on remand any remaining immunity issues.

Briefs here.