Here are the materials so far in United States v. $741,480.00 (D. Ariz.):
Calls of Justice for Aboriginal Women Echo Down Canada’s Highway of Tears
From the New York Times:
Dozens of Canadian women and girls, most of them indigenous, have disappeared or been murdered near Highway 16, a remote ribbon of asphalt that bisects British Columbia and snakes past thick forests, logging towns and impoverished Indian reserves on its way to the Pacific Ocean. So many women and girls have vanished or turned up dead along one stretch of the road that residents call it the Highway of Tears.
More HERE.
Determination of Application of ICWA from Oregon Court of Appeals
We are getting a lot of questions about when the standards of ICWA apply if a child or parent is enrolled after the initiation of the child welfare case. Here’s a not particularly helpful or clear decision out of the Oregon Court of Appeals:
Parents’ position depends on a selective understanding of the record before the juvenile court. Specifically, as noted, testimony at the August 22, 2014, hearing established that the “Karuk Tribe” notation for mother in DHS’s database had been entered, as a preliminary matter, in 2004, but that, in response to subsequent, contemporaneous inquiries from DHS, the tribe had explicitly denied that mother or her children met the requirements for tribal membership. See 278 Or App at 431-32. That negative response—a response within DHS’s constructive knowledge in 2011—negated the 2004 preliminary notation. Further, the record established that, while that notation automatically “popped up,” there was no evidence that it had ever been renewed or supplemented based on any subsequent information. Similarly, parents’ reliance on mother’s reference to having a tribal membership card does not engage with the complete context that, at the same time mother made that remark in February 2011, she was adamantly refusing to complete ICWA-related forms provided by DHS. Indeed, mother did not obtain a tribal membership card until May 2012—and, even then, did not so inform DHS.15 Given the totality of the circumstances, the juvenile court did not err in denying parents’ motions to dismiss. See State ex rel Juv. Dept. v. Tucker, 76 Or App 673, 677, 10 P2d 793 (1985), rev den, 300 Or 605 (1986) (affirming juvenile court’s denial of petition to “invalidate” foster care placement based on purported ICWA noncompliance; record did not establish that, as of the time the child was placed, ICWA applied, and subsequent determination that the child was an Indian child did not render ICWA retroactively applicable to prior actions of the juvenile court).
Harvard Law School Profile of Elizabeth Reese, Who Graduates Thursday!
Here is “Elizabeth Reese: The making of a modern warrior.”
Excerpts:
Reese was raised 20 miles north of Santa Fe, New Mexico, at the foot of the Sangre de Cristo Mountains, as a member of the Pueblo of Nambé tribe. The village there is small and old—it dates back to the 14th century—as is the tribe that makes the reservation home. Some 1,100 members of the 2,000-person Nambé tribe live on the 20,000-acre reservation, which is filled with cottonwoods, juniper, and scrub oak, and surrounded by sandstone and mountains and river. Such isolation has helped the community maintain its culture and traditions.
Reese was raised squarely in that community and in that culture, although she’s always felt she belonged in two very different worlds. She grew being called Elizabeth but also Yunpovi (which means Willow Flower in the Tewa language). She may have been surrounded by scrub pine, but her father read her Homer as a child, which helped her navigate traditionally elite white spaces more easily than she might have otherwise.
And:
As an undergraduate she developed a background in political theory, which led her to England and the University of Cambridge. There she earned a Master of Philosophy in political thought and intellectual history and did work on Indian political theory. She counts herself as one of the first Native Americans to attend the university and one of the first scholars there to focus on Indian ideas.
Reese’s commitment to the study—and protection—of Native concerns led her to Harvard Law School and shaped her focus during her three years. She built visibility, programming, and recruitment as a leader in the HLS Native American Law Students Association. She helped to write a District Court amicus brief intervening in a tribal water jurisdiction case through the Native Amicus Briefing Project. She also served as a congressional intern and a fellow for the Senate Judiciary Committee, and interned at the Department of Justice in the civil rights division.
And:
After graduation Reese will clerk for Judge Amul R. Thapar at the U.S. District Court for the Eastern District of Kentucky. Late in the year she’ll head to Washington, D.C., as a Public Service Venture Fund Redstone Fellow at the NAACP Legal Defense and Educational Fund. The breadth of cases she’ll be part of—from litigating voting rights on one side of the country to school desegregation on the other side—excites her.
While Reese hopes to spend the early part of her career working on civil rights cases that affect the lives of people of color in the U.S—including her family members—she also hopes to someday practice Indian law. After all it’s the law, she says, that determines whether or not Indian tribes survive.
“It can’t be understated how fragile our future is—how our survival is still something we have to fight for,” says Reese. “Unlike a lot of other groups or identities, this is our only homeland. Our culture exists nowhere else in the world if we fail to ensure its survival here. I take that challenge very seriously and hope I can do all I can to protect my tribe and my people and our sovereignty.”
Remaining CERCLA Claims against Laguna Dismissed
Here are the materials in Atlantic Richfield Co. v. United States (D. N.M.):
Menominee Tribe Loses Hemp Suit
Here is the decision in Menominee Indian Tribe of Wisconsin v Drug Enforcement Administration (E.D. Wis.):
Briefs here.
Jessica Shoemaker on American Indian Property, Sovereignty, and the Future
Jessica Shoemaker has posted “Complexity’s Shadow: American Indian Property, Sovereignty, and the Future,” forthcoming in the Michigan Law Review.
Here is the abstract:
This article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this article argues that the complexity of today’s federally imposed reservation property system does much the same colonizing work that historic Indian land policies — from allotment to removal to termination — did overtly. But now these inequities are largely shadowed by the daunting complexity of the whole over-arching structure.
This article introduces a new taxonomy of complexity in American Indian land tenure and explores particularly how the recent trend of hyper-categorizing property and sovereignty interests into ever-more granular and interacting jurisdictional variables has exacerbated development and self-governance challenges in Indian Country. The entirety of this structural complexity serves no adequate purpose for Indian landowners or Indian nations and instead creates perverse incentives to grow the federal oversight role. Complexity begets more complexity, and this has created a self-perpetuating and inefficient cycle of federal control. However, stepping back and reviewing Indian land tenure as a system — a whole complex, dynamic, and ultimately adaptable system — actually introduces new and potentially fruitful management techniques borrowed from social and ecological sciences. Top-down Indian land reforms have consistently intensified complexity’s costs. This article explores how emphasizing grassroots experimentation and local flexibility instead can create critical space for reservation-by-reservation property system transformations into the future.
Paralegal Position at NARF, Boulder Office
The Native American Rights Fund has an opening for a Paralegal in its Boulder, Colorado office.
See the announcement and full job description at http://www.narf.org/contact-us/join-team/
SSA Decides on Appeal Tribal General Welfare Exclusion Act Retroactive Up to 3 Years
Download decision from the Office of Disability Adjudication and Review here.
The Social Security Administration argued a Pueblo Pojoaque member was overpaid social security income benefits because she did not claim an elder stipend for years 2012 and 2013. The ALJ held the Tribal General Welfare Exclusion Act of 2014, which excludes a tribal member’s benefits from tribal welfare programs, was retroactive to its signing by three years.
Burden of Proof ICWA Case out of South Dakota
Here.
In this case, Mother challenged the QEW and the burden of proof requirement for termination of parental rights. The concurrence is particularly useful:
The circuit court in this case found many of the facts beyond a reasonable doubt where that was not the correct standard of proof and failed to find certain facts beyond a reasonable doubt where applying that high standard is required. This may indicate that confusion exists on the applicable standards of proof in abuse or neglect proceedings, including those where ICWA applies. I write specially to clarify the standards of proof by which the court must issue certain findings.
The concurrence also explains that South Dakota is a state that requires active efforts to be proven beyond a reasonable doubt in a termination of parental rights. Contra State of New Mexico v. Yodell. B. (N.M. Ct App. 2015)
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