Turtle Talk

White Plume Family Prevails in Industrial Hemp Claim

March 30, 2016Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. White Plume (D.S.D.):

125 Motion to Vacate

136 US Opposition

137 Reply

140 Oglala Sioux Tribe Amicus Brief

143 DCT Order Granting Motion

An excerpt:

What is material to the court’s analysis is the shifting national focus on industrial hemp as a viable agricultural crop and the decision of the Attorney General of the United States to engage in a dialogue with the various tribes on the relationship between the CSA and the Agricultural Act of 2014. The government did not challenge Mr. White Plume’s assertion that “[w]ith the Agricultural Act of 2014, the Federal government joined the twenty-two states that have enacted legislation on industrial hemp.” (Docket 125 at p. 7) (reference omitted). Nor did the government challenge the representation that seven states have ventured into the area of agricultural or academic research of industrial hemp.

Federal Court Rejects Nonmember Challenge to Tribal Member Probated Estate

March 30, 2016March 30, 2016Matthew L.M. Fletcher

Here are the materials in Estate of Raymond P. Sauser v. United States (D. S.D.):

18 Motion for Judgment on the Pleadings

19 US Response

20 Reply

22 DCT Order

An excerpt:

Because James Raymond Sauser’s Renunciation of interest in the Trust Land was untimely filed, the IBIA was correct to not consider it when rendering its decision. In order to be valid, the Renunciation needed to be filed with the ALJ prior to the issuance of his final order. In addition, the ALJ and IBIA reasonably interpreted the Decedent’s will and gave effect to its provisions. This Court finds that neither the ALJ nor the IBIA acted arbitrarily and capriciously as defined in the Administrative Procedure Act.

Federal Court Orders Tribal Exhaustion in Challenge to Lummi Seizure

March 30, 2016March 30, 2016Matthew L.M. Fletcher

Here are the materials in Wilson v. Doe (W.D. Wash.):

57 Horton’s Towing Motion for Summary J

61 Wilson Opposition to 57

62 Horton’s Towing Reply

64 Horton’s Towing Response to 60 & 61

65 US Brief

66 Wilson Reply

67 DCT Order

An excerpt:

On October 22, 2014, Plaintiff Curtiss Wilson was stopped by a Lummi Tribe police officer while driving on the Lummi Reservation after drinking at the Lummi Casino. (Dkt. No. 4-1 at 2.) Lummi Tribal Police Officer Grant Austick stopped Plaintiff, searched his 1999 Dodge Ram Pickup, and developed probable cause that Plaintiff was committing a DUI. (Dkt. No. 4-1 at 2.) Officer Austick then called the Washington State Patrol and Plaintiff was arrested. (Id. at 3.) Plaintiff’s truck was towed by Defendant Horton’s Towing and impounded at the direction of the Washington State Trooper. (Id.)

The following day, Lummi Tribal Police Officer Brandon Gates presented a “Notice of Seizure and Intent to Institute Forfeiture” (“Notice of Seizure”) from the Lummi Tribal Court of the Lummi Tribe to Horton’s Towing. (Dkt. No. 4-1 at 3-4, 9.) The seizure and intent to institute forfeiture of Plaintiff’s vehicle was based on violations of the Lummi Nation Code [3] of Laws (“LNCL”) 5.09A.110(d)(2) (National Indian Law Library 2016) (Possession of Marijuana over 1 ounce), and authorized by LNCL 5.09B.040(5)(A) (National Indian Law Library 2016) (Civil forfeiture section addressing Property Subject to Forfeiture, specifically motor vehicles used, or intended for use, to facilitate the possession of illegal substances.) (Dkt. No. 4-1 at 9.) Horton’s Towing released the truck to the Lummi Tribe. (Id. at 3-4).

Plaintiff brought suit in Whatcom County Superior Court and the case was removed. (Dkt. No. 1.) Plaintiff originally brought claims for outrage, conversion, and relief under 42 U.S.C. §§ 1983 and 1988. (Dkt. No. 4-1 at 7-8.) All of Plaintiff’s claims, save conversion, have been previously dismissed either voluntarily or by Court order. (See Dkt. Nos. 25, 35, and 53.) Plaintiff’s conversion claim against both Horton’s and the United States is based on Horton’s release of the vehicle to the Lummi Tribe pursuant to the order served by Gates. (Dkt. No. 4-1 at 6.)

Defendant Horton’s moves for summary judgment, claiming the release of the vehicle was pursuant to the Notice of Seizure, and [4] therefore with lawful justification. (Dkt. No. 57.) Plaintiff argues in response that the Notice of Seizure is invalid or not enforceable off the reservation. (Dkt. No. 61.) The United States moves for summary judgment based on, inter alia, Plaintiff’s failure to exhaust his administrative remedies. (Dkt. No. 65.) In response, Plaintiff regurgitates failed arguments from previous briefing, relying on an overturned, out-of-Circuit case and “maintaining” a line of reasoning with respect to Brandon Gates and the scope of employment that this Court has already ruled against. (Dkt. No. 66.)

Student Note on U.S. v. Bryant

March 30, 2016Matthew L.M. Fletcher

University of Nebraska law student Sara Rips has posted “Mind the Gap: The Unique Disadvantage Faced by Indigent Indians” on SSRN.

Here is the abstract:

In 2014, the Ninth Circuit created a federal circuit split over the use of tribal court convictions in federal prosecutions that the Supreme Court will soon resolve. In United States v. Bryant, the Ninth Circuit held that tribal court convictions cannot be used as predicate offenses in subsequent federal prosecutions unless the tribal court guarantees a right to counsel commensurate with the Sixth Amendment right. The Court accordingly dismissed a federal domestic assault charge under 18 U.S.C. § 117(a) because the predicate offense upon which the prosecution relied would have violated the Sixth Amendment right to counsel had the case arisen in federal or state court. The Court rooted its decision in the principle commonly espoused in criminal procedure jurisprudence that uncounseled convictions are unreliable. Extending this reliability principle to tribal proceedings is, perhaps predictably, problematic since indigent defendants are rarely guaranteed the right to appointed counsel, and the Constitution itself is without force in tribal courts. The Eighth and Tenth Circuits have thus upheld the use of uncounseled tribal court convictions on comity grounds. This Note analyzes the Eighth, Ninth, and Tenth Circuit cases to highlight the unique disadvantage indigent Indian defendants with prior uncounseled tribal court convictions confront when prosecuted under § 117(a). With an eye toward the Supreme Court, this Note proposes an alternative interpretation of the statute that avoids the constitutional quandary created by the Eighth and Tenth Circuits’ holdings. This Note concludes by urging the Court seize the opportunity United States v. Bryant presents to reassess Congress’ immense plenary power under the Indian Commerce Clause.

Nooksack ICW Presenting Officer/Prosecutor Posting

March 30, 2016Matthew L.M. Fletcher

RFP – Request for Proposals for Prosecution and ICWA Case Services

The Nooksack Indian Tribe is soliciting proposals from individuals and/or firms interested in serving as Prosecutor for the Nooksack Indian Tribe. The Prosecutor is responsible for all prosecutor duties related to adult criminal and juvenile delinquency matters, also for ICWA hearings in state court and child dependency matters in Tribal Court. Criminal dockets at Tribal Court are held the 1^st and 3^rd Wednesday of each month. For the complete updated RFP including caseload statistics and further details, please visit our website at NooksackTribe.org, click on the Careers tab. Proposals (4 hard copies) may be hand delivered to the Nooksack Tribe at: Attn Office of Tribal Attorney, 5016 Deming Rd, Deming, WA 98244, or mailed to: Office of Tribal Attorney, PO Box 63, Deming, WA 98244. Questions may be directed to Sue Gearhart at sgearhart@nooksack-nsn.gov

Yakama Nation Prosecutor Posting

March 30, 2016Matthew L.M. Fletcher

The Yakama Nation has an opening in the Yakama Nation Prosecutor’s Office, the position closes on April 8, 2016 and the announcement is available at:

http://www.yakamanation-nsn.gov/showlistings.php

Tohono O’Odham Prevails in Gaming Compact Dispute before Ninth Circuit

March 29, 2016Matthew L.M. Fletcher

Here is the opinion in State of Arizona v. Tohono O’Odham Nation.

Briefs and other materials here.

ICWA Case Updates and Legal Clarifications

March 29, 2016March 29, 2016Kate Fort

Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:

ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.

In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now. State courts are using them in their decisions. The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss. However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.

Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.

Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.

(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).

Gila River Indian Community Sues the VA over Health Care Costs Reimbursements

March 29, 2016March 29, 2016Matthew L.M. Fletcher

Here is the complaint in Gila River Indian Community v. Dept. of Veterans Affairs (D. Ariz.):

Complaint

An excerpt:

In 2010, the Patient Protection and Affordable Care Act (“ACA”) was enacted. One goal of the ACA was to improve health care access and delivery for Native Americans. A provision in the ACA allows Indian tribes to be reimbursed for health care provided to veterans and states:

The Service, Indian tribe, or tribal organization shall be reimbursed by the Department of Veterans Affairs or the Department of Defense (as the case may be) where services are provided through the Service, an Indian tribe, or a tribal organization to beneficiaries eligible for services from either such Department, notwithstanding any other provision of law.

25 U.S.C. § 1645(c). This law provides that, if an Indian tribe or tribal organization provides health care services to an individual who is otherwise eligible for care from the VA, the VA must reimburse the Indian tribe or tribal organization for the services provided. Despite this plain and mandatory language directing the Department of Veterans Affairs (“VA”) to reimburse Indian tribes and tribal organizations for health care services provided to veterans, the VA refuses to do so unless Indian tribes and tribal organizations agree to conditions well beyond the plain language of the law and which reduce the reimbursements that Indian tribes are entitled to under the law.