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.

Organizations and Law Professors Comment on Proposed ICWA Regulations

Here is a selection of a few of the major groups in support of the proposed ICWA regulations (as available from or sent directly to us at fort [at] law [dot] msu [dot] edu):

American Bar Association
Association on American Indian Affairs
California Indian Legal Services
Casey Family Programs, with additional signatories including NNABA and TLPI
Children’s Defense Fund
The Donaldson Adoption Institute
ICWA Law Center
Michigan Tribal-State Judicial Forum
Michigan Indian Legal Services
National Indian Child Welfare Association
National American Indian Court Judges Association
National Council of Juvenile and Family Court Judges
Letter from:
Advocates for Children and Youth
Children’s Defense Fund
Children and Family Futures
Child Welfare League of America
Foster Family-Based Treatment Association
Generations United
National Children’s Alliance
National Crittenton Foundation
National Foster Parent Association
Nebraska Appleseed
Nebraska Families Collaborative
New Mexico Child Advocacy Networks
North American Council on Adoptable Children

Law Professors Comment. Signed by 21 clinicians, professors, and deans representing more than 15 law schools.

Times have certainly changed since the original Guidelines were issued. Administrative law and the power of the federal government have shifted considerably in the past forty years. In addition, there was no way the federal government could foresee the dramatically different applications of ICWA across the fifty states. These new regulations are necessary because without them the application of the law is arbitrary, with Indian children treated differently depending on which state’s courtroom they are in. Having disparate interpretations of ICWA was certainly not the intent of Congress in passing a federal law, and conflicts with the rationale of the Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45-46 (1989) (describing the need for uniformity in defining ‘‘domicile’’ under ICWA). These regulations will provide a stronger measure of consistency in the implementation of ICWA and prevent the application of different minimum standards across the United States, contrary to Congress’ intent.

One of our second year law students at MSU Law, Whitney Gravelle, was a huge help in researching issues related to administrative authority and getting a first draft going.


A Historic Assertion of Water Rights by the Klamath Tribes

An excerpt from the Oregonian

In March, after 38 years of work, the state found that the tribes’ water rights dated to “time immemorial,” making them by far the most senior. That means the tribes will get water to protect fish in traditional fishing grounds, including two species of suckers on the endangered species list.

Farmers irrigating through the federal government’s 1905 Klamath Reclamation Project, covering roughly 200,000 acres that draw from the lake, will also get water, though they’ll face restrictions, too.

But “off-project” irrigators on about 150,000 acres above the lake generally have junior water rights to reclamation-project irrigators. They’ll have to tap wells if they can or see their water supplies reduced or shut off.

The AP story is here.

The administrative law decision and other materials can be found here.

Is Prudential Standing Jurisdictional?

The D. C. Circuit says yes. Last week’s article (on the blog Circuit Splits) is here. The article analyzes how the  D.C. Circuit decision Grocery Manufacturers Association v. E.P.A. creates a circuit split as to whether prudential standing is jurisdictional. The dissent in the case relies significantly on Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.


Native American Mascots Banned in Oregon Public Schools

First part of the article from the Oregonian:

The Oregon Board of Education voted Thursday afternoon to ban Native American mascots in schools across the state. The policy, which represents one of the toughest stances on the issue nationwide, was passed on a vote of 5-1.

“There’s a collective right that exists here,” said board member Artemio Paz. These sorts of mascots produce “racism and unnecessary bullying. We do not allow that to exist for any of our populations.”

All told it will affect at least 15 Oregon schools. Some schools will have to change both their mascots and their nicknames. Others, who call themselves “warriors,” will be allowed to keep their names but must change their mascots. The schools will have to make the changes by July 2017 or risk losing state funding.

Previous post is here.

Proposed Oregon Administrative Rule on Native American Mascots

A couple of weeks ago, the Oregon Department of Education heard testimony on Native American Mascots in Public Schools. The post with article links is here.

Last week, the Board released a resolution and proposed rule. Other information found here includes:  Notice of Proposed Rulemaking – Hrg. April 27, 2012 9:00AM HRC State Capitol, 900 Court St. NE, Salem. Public comment accepted until May 17, 2012, 12:00pm email

Oregon Department of Education Considers Mascot Issue

The Oregon Department of Education is taking public testimony on the issue of American Indian mascots in public schools on March 8th and 9th. There are several newspaper articles on the topic including ones here, here, here, and here.

The Topic Summary for tomorrow’s discussion is here.

Border Fence Construction Cert Petition — Defenders of Wildlife v. Chertoff

The Tohono O’odham Nation joined an amicus brief supporting the cert petition in Defenders of Wildlife v. Chertoff (No. 07-1180) (amici-supporting-cert-petn-national-advocacy-center-et-al). The government has until May 18 to file a response. This is a potentially ground breaking case, given that the Department of Homeland Security has invoked a statute that allows the Department to ignore any law (especially environmental protection laws) that would delay the construction of the border fence (for analysis, see SCOTUSblog).

We’ve written about some aspects of this controversy earlier (here).

Arizona Bald Eagle Delisting – Center for Biological Diversity v. Kempthorne

The DCT for the District of the Arizona granted summary judgment to the plaintiffs challenging the Department of Interior’s delisting of the bald eagle in Arizona. Here is the Center for Biological Diversity’s press release. Several tribes participated as amici.

Here are the legal materials:

DCT Order

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The Issues in Carcieri v. Kempthorne

The two questions presented in Carcieri v. Kempthorne have significant import for much of Indian Country. But it might be a mistake to conclude the first question (whether the Secretary can take land into trust for tribes that were not federally recognized in 1934, when the Indian Reorganization Act was passed) is an Indian law question. The outcome of that question may turn on the Supreme Court’s decision in National Cable & Communications Assn v. Brand X Internet Services, 545 U.S. 967 (2005). Huh?!?!?

Consider the United States’ brief in opposition to the petition for cert:

    As this Court held in [Brand X], a “judicial precedent” does not “foreclose an agency from interpreting an ambiguous statute” in a reasonable way that differs from the “court’s opinion as to the best reading” of the statute, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” [Brand X, at 982-83.]

Cert Opp at 9.

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