New Carla Fredericks Scholarship on Tribal Energy

Matthew L.M. Fletcher

Carla Fredericks has posted “Plenary Energy,” forthcoming in the West Virginia Law Review, on SSRN.

Here is the abstract:

An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending legislation that would amend the 2005 Energy Policy Act in a manner that would allow tribes greater autonomy in developing their mineral resources without necessarily compromising the trust relationship. But, as this article suggests in using the Keystone XL Pipeline as a case study, tribes should not rely on Congress to act in the interest of tribal sovereignty unless they can attach this interest to a strong political impetus. Invoking both the United Nations Declaration on the Rights of Indigenous People and Convention No. 169 of the International Labour Organization, this article contends that attaining a understanding of American Indian rights as fundamental through an international human rights framework can help untangle the web of conflicting doctrines that very much defines American Indian law today, opening the door to a paradigm shift in the domestic relationship between tribes and the federal government that would allow tribes to attain economic self-sufficiency through their own assets.

Briefs in Oklahoma Eagle Feather Graduation Case

Matthew L.M. Fletcher1 Comment

Here are the materials in Griffith v. Caney Valley Public Schools (N.D. Okla.):

32 Motion to Dismiss

33 Opposition

34 Reply

39 Brief of the State of Oklahoma As Amicus Curiae

Update in Cherokee Nation Risperdal Suit

Matthew L.M. Fletcher

Here are the materials in Cherokee Nation v. Johnson & Johnson (E.D. Okla.):

18 Cherokee Nation Motion to Remand to State Court

19 Opposition

20 Reply

22 DCT Order Deferring Remand

Ninth Circuit Briefs and Materials in Jamul Action Committee v. Chaudhuri

Matthew L.M. Fletcher

Here are the briefs:

JAC Opening Brief

Federal Answer Brief

Tribal Answer Brief

JAC Reply

Oral argument video here.

Lower court materials here.

Yurok Tribe Accepting Applications for Executive Director

Sarah M Donnelly

Link to job posting here.

The Yurok Tribal Council will conduct its first review of applicants January 14, 2016.

Ninth Circuit Oral Argument in Tohono O’Odham Nation v. Arizona

Matthew L.M. Fletcher1 Comment

Here.

Briefs here.

Lower court materials here.

Save the Date: 4th Annual Tribal Lands Conference

Sarah M Donnelly1 Comment

Link to announcement here.

Registration open for the University of Arizona College of Law’s 2-day conference in January.

First Five Recommendations of Canada’s TRC Report Involve Child Welfare

Kate Fort

CBC story here.

Recommendations/Calls to Action here.

Child welfare
1. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by:

i. Monitoring and assessing neglect investigations.

ii. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.

iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools.

iv. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.

v. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers.

2. We call upon the federal government, in collaboration with the provinces and territories, to prepare and publish annual reports on the number of Aboriginal children (First Nations, Inuit, and Métis) who are in care, compared with non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventive and care services by child-welfare agencies, and the effectiveness of various interventions.

3. We call upon all levels of government to fully implement Jordan’s Principle.

4. We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:

i. Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.

ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making.

iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.

5. We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.

MILS Job Announcement for the U.P. Office

Sarah M Donnelly

Michigan Indian Legal Services seeks staff attorney for representing defendants from its Upper Peninsula office (to open on or about April 1st).  Link to announcement here.

Save the Date: N. Scott Momaday at U-M

Sarah M Donnelly1 Comment

The Inaugural Robert F. Berkhofer, Jr. Lecture
in Native American Studies

An Evening with N. Scott
Momaday

Friday, March 11, 2016
6:00 – 7:30 PM
Michigan League Ballroom
Reception to follow lecture

Pulitzer Prize-winning novelist, Native American scholar, and poet N. Scott Momaday has been hailed as “the dean of American Indian writers” by the New York Times.  He crafts — in language and imagery — majestic landscapes of a sacred culture.

Named a UNESCO Artist for Peace and Oklahoma’s poet laureate, he was also a recipient of the 2007 National Medal of Arts, presented by President George W. Bush.  Momaday was the first Native American to be awarded the Pulitzer Prize for his novel, House Made of Dawn, widely considered to be the start of the Native American Renaissance.  His most recent volume, Again the Far Morning: New and Selected Poems, was released in 2011.

His other awards include a Guggenheim Fellowship and the “Mondello,” Italy’s highest literary honor. His works include The Way to Rainy Mountain, The Names: A Memoir, The Ancient Child, and a new collection, Three Plays, which celebrates Kiowa history and culture.  He was featured in the Ken Burns documentary, The West, that showcased his masterful retelling of Kiowa history and mythology.

For more information, contact Scott Lyons, Director of Native
American Studies at U-M (lyonssr@umich.edu).

Robert F. Berkhofer, Jr. (1931-2012) was an historian and a leading scholar in the field of Native American studies. The author of many influential books, including The White Man’s Indian: Images of the American Indian from Columbus to the Present (1978), Berkhofer taught at Michigan from 1973-1991.  This annual lecture on Native American Studies honors his work and legacy.