Turtle Talk

Christopher Rainbow (Christopher) and Jordan Rainbow (Jordan) were found guilty of assault with a dangerous weapon and assault resulting in serious bodily injury, both in violation of 18 U.S.C. §§ 2, 113, and 1153. On appeal, they argue that the district court erred in admitting into evidence certifications of Indian blood and 1 in denying their requests to instruct the jury on lesser-included offenses. Jordan also argues that the district court erred in asking certain questions of a doctor who treated the victim and that the evidence isinsufficient to support his convictions. We affirm

Check Out Stephen Pevar’s Interview with the Filmmaker of “Johnny Cash’s Bitter Tears”

February 22, 2016February 22, 2016Matthew L.M. Fletcher

Here is “‘Where Are Your Guts?’: Johnny Cash’s Little-Known Fight for Native Americans.”

Navajo Nation Prevails in Voting Rights Case against San Juan County

February 22, 2016Matthew L.M. Fletcher1 Comment

Here is the order in Navajo Nation v. San Juan County (D. Utah):

213 DCT Order

An excerpt:

The County’s redistricting decisions predominated by racial classifications violate the Equal Protection Clause because they are not narrowly tailored to serve a compelling governmental interest and cannot survive strict scrutiny. On this basis, Navajo Nation is entitled to summary judgment on its first claim for relief. San Juan County’s motion for summary judgment is denied on the merits to the extent that it addresses the Equal Protection claim asserted in the first claim for relief, and denied as moot to the extent it addresses any other theory that could support Navajo Nation’s first claim. Because San Juan County Commission District Three violates the Equal Protection Clause, the districts in the County must be redrawn.

Briefs here.

Office of General Counsel Vacancies

February 22, 2016Sarah M Donnelly

Download job summary and instructions here.

The Office of the General Counsel for the U.S. Department of Health & Human Services (OGC) is seeking applications for several general attorney positions in its San Francisco Regional Office. The San Francisco Office of OGC provides legal services to four 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.

Motions for Reconsideration in Oglala Sioux v. Van Hunnik Denied

February 22, 2016June 10, 2016Kate Fort1 Comment

After losing a partial summary judgment in March, the state defendants filed motions to reconsider. Those have now been denied. The order is here.

The DSS Defendants miss the point of the court’s findings. The issue is not what the Indian parents knew about the reasons their children were initially removed from the parents’ custody, but rather the factual basis supporting continued separation of the family. This is the information mandated for disclosure to the parents and for consideration by the state court judges in determining whether continued separation of the family is necessary under ICWA. (Docket 150 at pp. 27-28).

The court acknowledged the DSS Defendants claimed to have provided the ICWA affidavit. See id. at p. 13. What was troubling to the court and justified the findings made on the issue was that “disclosure of an ICWA affidavit and petition for temporary custody to a parent was not mentioned in 77 out of 78 cases.” Id. at pp. 13-14. Then in seven cases there were specific references in the transcripts to complaints by the parents or the Tribe’s counsel that they had not received the documents allegedly justifying continued placement with DSS. Id. at pp. 14-15.

Nebraska Supreme Court Decides Transfer to Tribal Court ICWA Decision

February 22, 2016February 20, 2016Kate Fort2 Comments

Here.

In a 4-3 decision (though all the justices unanimously would overturn the lower court denial of transfer), the Court uses the 2015 Guidelines and the Nebraska ICWA to overturn the lower court decision not to transfer based on the late stage of the proceedings, and denies the State’s attempt to use best interests in a jurisdictional determination:

In our consideration of whether good cause existed to overrule the motion to transfer, we find the amended BIA guidelines persuasive and instructive. The BIA guidelines were amended during this appeal, and we find them applicable to the case at bar. We hold that a determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. We conclude that the overruling of the motion to transfer denied Appellant a just result.

***

We decline the State’s invitation to change our holding in In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012), for several reasons. First, we note that the amended BIA guidelines expressly provide that it is inappropriate for state courts to conduct an independent analysis of the best interests of the Indian child in determining placement preferences. While this preclusion of a best interests analysis did not specifically refer to transfers of cases to tribal courts, the BIA guidelines further state that whenever a parent or tribe – seeks to transfer the case to tribal court, it is presumptively in the best interests of the Indian child to transfer the case to the jurisdiction of the Indian tribe. Second, we find that the context of the U.S. Supreme Court’s statement in Adoptive Couple v. Baby Girl, supra, did not indicate that the Court intended to impose the best interests standard on motions to transfer.

Since ICWA was passed, there have only been fourteen cases where the appellate court reverses the lower court and orders transfer (out of 133 transfer cases total). There have been 9 cases the appellate court has reversed the lower court’s denial and ordered a hearing consistent with the decision.

The State also engaged in some shenanigans regarding the timing of the procedures:

The juvenile court found that the State had met its burden of showing good cause because the proceeding was at an advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be the date of the filing of a motion to terminate parental rights. Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 2013, was the date of the State’s petition for adjudication. Using May 16, 2013, as the starting date, it concluded that the proceeding was at an advanced stage.

The juvenile court expressed concern that an Indian parent could play “an ICWA trump card at the eleventh hour” to transfer the case to tribal court. But we point out that the State’s dismissal of its motion to terminate parental rights to avoid a transfer leaves an Indian child suspended in uncertainty. If the State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State could again dismiss the termination proceeding. The juvenile court’s conclusion that the matter was in an advanced stage stemmed from the State’s voluntary dismissal of the termination proceeding.

Finally, there is an extensive partial concurrence and dissent joined by three Justices, explaining that the Court’s reliance on the 2015 Guidelines is due to their alignment with the Nebraska ICWA (most recently amended in 2015), and a lengthy discussion of how Nebraska should define “good cause” in the transfer provision. Ultimately, the dissent/concurrence stated:

In summary, I agree with the majority that the mere advanced stage of the proceeding should no longer be good cause to deny a motion to transfer to tribal court. But because we announce a significant change in the law today, I respectfully disagree with the majority’s disposition of this case, and suggest the better disposition would be to vacate, and remand for further proceedings, and in doing so, I would provide further guidance on the applicable standard of review, the appropriate quantum of proof, and the proper parameters of good cause to deny a transfer under ICWA and NICWA. For these reasons, I both concur and dissent in the opinion of the court.