Lezmond Mitchell v. U.S. Cert Petition

Matthew L.M. Fletcher

Here:

Mitchell Cert Petition

Questions presented:

Petitioner, a Navajo, is a federal prisoner sentenced to death under the
Federal Death Penalty Act, 18 U.S.C. §§ 3591-3599. Petitioner’s statements to the
FBI constituted the primary evidence at his capital trial. The FBI took these
statements while petitioner spent twenty-five days in tribal custody, with no right
to the assistance of counsel. In a motion to vacate his sentence under 28 U.S.C.
§ 2255, petitioner presented evidence that a working arrangement between federal
and tribal authorities resulted in his arrest on a minor tribal charge, and kept him
in prolonged custody not authorized under Navajo Nation law, to deprive him of his
federal procedural rights. Petitioner also alleged ineffective assistance at the guilt
and penalty phases of his trial, and the depositions of his three trial attorneys
revealed serious contradictions regarding the investigations undertaken and
defenses pursued.
An evidentiary hearing is required in a Section 2255 case “[u]nless the
motion and the files and records of the cases conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this case, the district court denied the
Section 2255 motion without a hearing, and a divided court of appeals affirmed.
The questions presented are:

1. Whether the court of appeals, in conflict with the Eighth and Tenth Circuits’
grants of a hearing on similar records, erroneously concluded that petitioner
could not establish, under any circumstances, that his attorneys had
performed deficiently at the penalty phase of his trial.

2. Whether the court of appeals clearly misapprehended Section 2255(b)’s
standards by viewing the facts in the light most favorable to the government,
weighing the evidence, and silently resolving factual disputes to conclude
that no evidentiary hearing was required.

3. Whether the court of appeals erroneously concluded that reasonable jurists
could not debate whether an evidentiary hearing was warranted on
petitioner’s claim of federal-tribal collusion to deprive him of his rights to
prompt presentment and assistance of counsel.

Lower court decision.

Prior posts here and here.

D.C. Circuit Oral Argument Audio in City of Duluth v. NIGC

Matthew L.M. Fletcher

Here.

Briefs here.

D.C. Circuit Oral Argument in Mackinac Tribe v. Jewell

Matthew L.M. Fletcher

Here.

Briefs here.

Wall Street Journal Publishes “Why Indian Child Welfare Act was Needed”

Matthew L.M. Fletcher3 Comments

Why Indian Child Welfare Act Was Needed – WSJ

Harvard Law Review Developments in the Law Issue on Indian Law

Matthew L.M. Fletcher

Here:

Introduction

The Double Life of International Law: Indigenous Peoples and Extractive Industries

Securing Indian Voting Rights

ICRA Reconsidered: New Interpretations of Familiar Rights

Fresh Pursuit from Indian Country: Tribal Authority to Pursue Suspects onto State Land

Tribal Executive Branches: A Path to Tribal Constitutional Reform

ThinkProgress Article on the Goldwater Institute’s ICWA Challenge

Kate Fort

Why a Conservative Legal Organization is Trying to Kill the Indian Child Welfare Act.

A long article with lots of great sources (Shannon Smith of the ICWA Law Center is quoted extensively, for example) and solid research.

Despite what the URL might indicate, the video and site do not belong to an organization with a long history of pushing to expand civil rights protections to minority groups. Rather, they are part of a campaign by the Goldwater Institute — a conservative legal organization mostly known for its anti-government and pro-property rights work — aimed at eliminating ICWA, a 1978 federal law designed to protect Native American kids from more than 100 years of government-mandated assimilation. That legislation established tougher requirements for removing Native American children from their biological families and gave federally recognized tribes control over the adoption and custody processes for their citizens’ kids.

***

Matthew L.M. Fletcher, who directs the Indigenous Law and Policy Center at the Michigan State University College of Law says the key function of ICWA is that it “gives tribes a chance to have a say in what happens to their kids.” He notes that the due process requirements it provides have been held up by child welfare advocacy groups as “the gold standard for child welfare decisions for all children.”

***

Kathryn E. Fort, who works with Fletcher at MSU’s Indigenous Law and Policy Center, agrees. “I think what ICWA has done is given a backstop, in many ways, to the worst abuses,” she said. But recent problems in South Dakota, for instance, are proof that there are “still counties where they’re just not following the law.” Last March, a federal judge found that state officials had improperly removed scores of Native American children in one county from their parents’ custody, failing to follow ICWA’s procedure.

If the Goldwater Institute’s challenge is successful, not only will the strongest tool to stop those kinds of discrimination be taken away — so might a whole host of other laws.

ACF Program Specialist in Child Welfare Job Opening

Kate Fort

Here.

As a Child and Family Program Specialist within the Children’s Bureau (CB), Administration on Children, Youth, and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS), you will assist states and tribes develop and improve child welfare systems. We provide guidance and technical assistance to the states and tribes on federal law, policy, and program regulations. Our program focuses on child safety, permanency, and well-being which are paramount in our monitoring and technical assistance efforts. Program specialists participate in planning, developing and carrying out a results-focused monitoring process to improve the effectiveness of state Child and Family Service programs.

Supplemental Notice of Proposed Rule Making on AFCARS (ICWA Data)

Kate Fort4 Comments

Due in parts to comments filed on the original proposed rule change for Automated Foster Care and Adoption Reporting System (our primary source of data regarding kids in care), the Administration for Children and Families has added collecting ICWA-related data to the proposed rule:

In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.

Here is the proposed rule page, and we strongly recommend tribes and organizations file comments on the proposed changes–which are due May 9. The comments make a difference:

ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV–E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV–E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.

However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/ AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF’s statutory and regulatory authority.