Tribes and States Sue to Block Sale and Removal of National Archives in Seattle

Here is the complaint in State of Washington v. Vought (W.D. Wash.):

1 Complaint

15 Motion for Preliminary Injunction

30 Amended Complaint

32 Opposition

37 Proposed Findings of Fact and Conclusions of Law and Proposed Form of Injunctive Relief

40 Reply

News coverage:

Washington AG press release: https://www.atg.wa.gov/news/news-releases/ag-ferguson-announces-coalition-lawsuit-save-national-archives

Indian Country Today: https://indiancountrytoday.com/news/tribes-sue-to-stop-relocation-of-rare-documents-3wsWTPg0fka-vOAV1Uoj2g

Seattle Times: https://www.seattletimes.com/seattle-news/ag-ferguson-with-tribes-and-historic-groups-sues-feds-over-seattle-national-archives-closure/

Spokesman Review: https://www.spokesman.com/stories/2021/jan/04/ag-bob-ferguson-sues-to-stop-sale-of-seattle-natio/

Yakama Nation press release:

Press Release_YN_OMB_Seattle Archives Lawsuit (1.4.21) (002)

ICWA Regulations, Reason to Know, and the Importance of In re Z.J.G.

Now that the decision in out in In re Z.J.G., I feel like I can write about the reason this case was so important–beyond what I would consider the obvious (parent’s testimony), which I detailed in this post here.

The 2016 federal regulations for ICWA can be a double sided sword. There are portions of them that are absolutely vital and beneficial to the implementation and enforcement of ICWA. I think the most obvious one is the definition of active efforts in 25 C.F.R. 23.1, which finally gives a structure for one of the most important elements of the law. However, there are parts of the regulations that can be read in ways to counter ICWA’s protections. The reason to know section of the regulations has been one of those areas.

ICWA requires a bunch of stuff, including notice, when a court “knows or had reason to know” there is an Indian child in a child custody proceeding. 25 U.S.C. 1912(a) The regulation in contention in In re Z.J.G. was 23.107(c). That section states a court “has reason to know that a child involved in an emergency or child custody proceeding is an Indian child if:” and gives six elements. Those elements use the term “Indian child” in them–as in “any participant in the proceeding … informs the court that it has information indicating that the child is an Indian child.” 23.107(c)(2) (emphasis added). Some states, including Washington, took it upon themselves to read this regulation to mean that the child must be an “Indian child” as defined in ICWA–a member or eligible for membership and the biological child of a member–for a court to have reason to know. If this feels like circular reasoning, I’d argue that it is. Or, as Justice Montoya Lewis wrote:

However, this narrow interpretation commits the error addressed above: it assumes state agencies or participants will know and properly interpret tribal membership and eligibility rules. This interpretation diminishes the tribe’s exclusive role in determining membership and undermines the historical purpose of providing proper notification to tribes.

Decision at 30. 

And also,

While a broad interpretation serves the statute’s purposes, a narrow interpretation would undermine the protection of Indian children and tribes. The “reason to know” finding triggers the requirement of formal notification to tribes. 25 U.S.C. § 1912(a); RCW 13.38.070(1). Without formal notification, tribes are likely unaware of the child custody proceedings. Lack of notice repeats the historical harms that predicated the passage of ICWA and WICWA: Indian children are more likely to be taken and then lost in the system, often adopted when legally free, primarily to non-Native homes; tribes are denied the opportunity to make membership determinations; and tribes are unable to intervene in the case or exercise jurisdiction. 25 U.S.C. § 1911. Further, the failure to timely apply ICWA may unnecessarily deny ICWA protection to Indian children and their families, which could lead to unnecessary delays, as the court and parties may need to redo certain processes in order to comply with ICWA standards. ICWA Proceedings, 81 Fed. Reg. at 38,802; see also 25 U.S.C. § 1914 (noting that any Indian child, parent, or tribe may petition any court to invalidate a child custody action “upon a showing that such action violated any provisions of sections 1911, 1912, and 1913 of this title”). As those who practice in the area of child welfare and dependency know, if a court determines  that ICWA and WICWA should have been applied from the beginning of a case and was not, key decisions may have to be revisited because the burden of proof is higher at threshold stages of dependency cases.

Decision at 33-34.

Finally, a thing I think we forget a lot when talking about the regulations–they are the federal minimum standards. 25 C.F.R. 23.106. In Washington, for example, the state law has even more qualifying language. stating that a court has a reason to know an Indian child is involved in the case when it “knows or has reason to know a child is or may be an Indian child.” RCW 13.38.070. And while it could have done so, the Washington Supreme Court did not base its unanimous decision on just WICWA, but rather on ICWA, the regulations, and independently and alternatively on WICWA. 

Anyway, yes, I did do my first oral argument in this case, thanks to a bunch of awesome lawyers, including the two women attorneys up at CCTHITA, and we worked with the Center for Indigenous Research and Justice and Hon. Whitener (ret.) to get all the briefs filed, and was lucky to work with the very excellent parent attorney, Tara Urs (co-author of my top five favorite law review articles ever).

Also, all of this is all available publicly in all the briefing here, but I wanted to break it down into a post for those who might not read ALL of that:

98003-9 – In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.
Hearing Date – 06/25/2020

Washington Supreme Court Finds Reason to Know in In re Greer/ZJG [ICWA]

The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.

The opinion is here: 

It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.

Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”

The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.

(To be clear I am Very Excited about this and it is a Big Deal.)

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

California Indian Legal Services

Staff Attorney, Escondido, C.A. Will assume a varied case load that may include: brief counsel and services to low income Indian individuals; state and federal court litigation; contract negotiation; advising tribal clients; developing and implementing constitutions, codes, and policies for tribal clients; making presentations; and ICWA related dependency cases.

Central Council Tlingit and Haida Indian Tribes of Alaska

Court Investigator/GAL (RFP), Juneau, A.K. Tlingit & Haida Tribal Court is soliciting contractual-service proposals for a Guardian Ad Litem (GAL) to represent the interests of minor children and a Court Investigator for cases involving children in the Tribal Court. The Tribal Court will contract with up to three (3) GALs and/or Court Investigator for a one (1) year contact with three (3) one year Options for a maximum of four years.

Confederated Tribes of the Umatilla Indian Reservation

Facilitator, 2018 Board of Trustees Retreat. The Executive Director is seeking cost quotes from vendors for facilitation services related to the Board of Trustees (BOT) strategic planning retreat. In November of odd years, the Board of Trustees is elected and takes office by early December for a 2-year term. The incoming BOT usually holds a 2-3 day retreat in its first few weeks in office to lay out their collective goals and
priorities for the coming two years. The 9-member board typically has had 2-4 new members with the balance being returning members from the previous term (although all nine positions are up for election). Due Friday, November 3, 2017.

Yurok Tribe

Summer 2018 Law Clerks, Klamath, C.A. The Law Clerk position is unpaid. Applicants are encouraged to seek financial support through relevant public interest programs or through other public interest scholarships. If you intend to seek school credit if selected for this position, please briefly summarize the supervisor obligations in your cover letter. To apply to the Law Clerk position, please email the application materials to Legal Secretary, Shawna Bowen, at shbowen@yuroktribe.nsn.us by Monday November 13, 2017.

Little River Band of Ottawa Indians

Staff Attorney, Manistee, M.I. Provide in-house legal services to the Tribe. The duties and obligations of the Tribal Staff Attorney are primarily governed by the Tribe’s Unified Legal Department Act of 2015.

Department of Justice

Assistant U.S. Attorney, Northern District of Oklahoma, Tulsa, O.K. Serve in the Criminal Division prosecuting a wide range of violations of federal criminal law.

Previous Friday Job Announcements10/20/17

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Fredericks Peebles & Morgan LLP

2018 Summer Law Clerks. Fredericks Peebles & Morgan LLP (“FPM”) is a nationwide firm dedicated to the practice of Federal Indian Law.  FPM represents Native American tribes and organizations in a wide spectrum of areas including business transactions, litigation, and governmental affairs. FPM is seeking applications from second year law students for 2018 Summer Law Clerks for offices in Louisville, Colorado; Omaha, Nebraska; and Sacramento, California. Applicants must be enrolled in an ABA accredited law school.  Experience or coursework in tribal and Federal Indian Law is required and/or preferred  at most FPM office locations. Applicants must also possess excellent analytical, research and communication skills, and the ability to work well independently and as a team member in a fast-paced environment.  FPM offers a competitive hourly wage for a 10 – 12-week summer position.

Applicants should e-mail a cover letter, resume, a writing sample, and law school transcripts to Ann Hacker at ahacker@ndnlaw.com no later than September 30, 2017.  The cover letter must indicate preference for each FPM office location by completing the chart below (i.e.: #1 is for the top location preference followed by 2, 3, etc. If you are not applying for consideration at a particular office location please note N/A). The cover letter should be addressed to Ann Hacker. If your preferred office location includes our Colorado office a separate cover letter needs to be addressed to the attention of Thomas W. Fredericks.

Louisville, CO
Omaha, NE
Sacramento, CA

Department of Justice

Assistant United States Attorney, District of Colorado. The U.S. Attorney’s Office is currently interviewing for an Assistant United States Attorney to serve in Durango, Colorado, as part of the Criminal Division. Closes Tuesday, September 26, 2017.

National Indian Child Welfare Association

Executive Communications Manager, Portland O.R. responsible for promoting NICWA’s public image and visibility through a variety of communications media and provides communications support to the executive director and NICWA staff. Closes Monday, October 2, 2017.

Central Council of Tlingit and Haida Tribes of Alaska

Appellate Court Administrator, Juneau, A.K. Responsible for developing and managing the Appellate Court expansion project for the Tlingit & Haida Tribal Court, which will include code drafting, hiring and administratively supervising consultants for drafting statutes, policies and procedures; working closely with the Judiciary Committee and Judges; and providing administrative support for the development of the Tlingit & Haida Trial Courts and other Southeast Alaska Tribal Courts.

National Indian Gaming Commission

FOIA Officer, Office of the General Counsel, Washington, D.C. Oversees the Commission’s Freedom of Information Act (FOIA) and Privacy Act (PA) program. Responsible for directing the work of the FOIA office staff and developing program policy. Closes Thursday, October 5, 2017.

Ain Dah Yung Center

Indian Child Welfare Compliance Monitor, St. Paul, M.N. Provides court monitoring, education and outreach, and advocacy to ensure court compliance.

Sonosky Chambers Sachse Miller & Monkman, LLP

Attorney, Anchorage, A.K. The Sonosky Chambers firm specializes in representing Native American interests in a wide range of work involving tribal sovereignty and self-governance, health care, complex litigation, appellate and Supreme Court work, legislative affairs, and a wide range of additional matters. Additional information about our firm is available at www.sonosky.com. Interested applicants should have strong credentials and a commitment to representing Native American interests. One to four years’ experience is preferred but all qualified applicants will be considered. Please send a letter of interest, resume, writing sample and transcripts to sue@sonosky.net. All applications will be kept confidential.

Blackfeet Tribe

Staff Attorney, Browning, M.T. Responsible for general litigation matters, employment relations, legislative advocacy, and assisting tribal programs. It is preferred that an applicant have at least five (5) years experience in the practice of law. The applicant must be licensed in the State of Montana and produce a Certificate of Good Standing with the Montana State Bar. The applicant should have demonstrated interest and knowledge of federal Indian Law, administrative law, and trial advocacy.  The position requires personal integrity and the ability to produce timely and accurate written work.  Full-time with salary negotiable.  Applicant must submit to a criminal background check and pass a pre-employment drug screen. Please send a resume, three (3) references and a short writing sample to Blackfeet Legal Department, P. O. Box 849, Browning MT 59417 7777 or email blackfeetlegal@gmail.com. The position will remain open until filled. If you have questions or need further information, please contact the Blackfeet Legal Department at (406) 338-7777.

Alaska Native Tribal Health Consortium

Tribal Health Attorney, Anchorage, A.K. The Alaska Native Tribal Health Consortium anticipates expanding it legal team to support new and exciting initiatives to improve health care quality and access for Alaska Native patients and communities. We are seeking additional legal expertise to assist with new and developing partnerships and transactions, health care and medical staff issues, personnel matters, information technology and security issues, and regulatory compliance.

Ideal candidates will have at least seven years of experience in health law or another relevant field; an understanding of “Indian law,” the intersection between medical staff and employment issues, and government contracting; demonstrated experience working for complex clients in a team-oriented environment; exquisitely good judgment; and the ability to reconcile competing legal principles to assist ANTHC in finding innovative ways to achieve its vision that “Alaska Natives are the healthiest people in the world.”

The Consortium works with Alaska’s Tribal health organizations and over 229 federally recognized Tribes to administer the Alaska Tribal Health System. The Consortium partners with Southcentral Foundation to co-manage the 150+ bed Alaska Native Medical Center, which is a Level II Trauma Center and has achieved Magnet status in recognition of nursing excellence. ANTHC also provides community and environmental health services; constructs health clinics and water and sanitation systems in rural Alaska; develops and deploys telehealth technology; administers an epidemiology center; develops training for allied health providers; and provides technical assistance and support to other members of the Alaska Tribal Health System.

The Consortium’s main office is located in Anchorage, Alaska. In accordance with federal law, ANTHC applies Native Preference in hiring and contracting. Learn more about ANTHC at http://www.anthctoday.org/ and ANMC at http://www.anmc.org/. For more information, please direct inquiries and resumes to Nacole Heslep, General Counsel at ndheslep@anthc.org with “Tribal Attorney B” in the subject line.

Previous Friday Job Announcements: 9/8/17

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Central Council of the Tlingit and Haida Indian Tribes of Alaska

ICWA Attorney, Juneau, AK. The attorney will provide civil legal representation to CCTHITA on child welfare cases and issues. The incumbent’s primary responsibility is to advise the Tribal Family & Youth Services (TFYS) department staff regarding the application of the Indian Child Welfare Act (ICWA) and other State and Federal legislation that impact Tribal families.

Cheyenne River Sioux Tribe

Executive Director, Economic Development Corporation. Responsible for carrying out the day-to-day directives of CREDCO, the Board of Directors, and the Cheyenne River Sioux Tribe. Closes Monday, June 12, 2017.

Great Lakes Inter-Tribal Council

Chief Executive Officer/Executive Director, Lac du Flambeau, WI. As principal executive officer of the Great Lakes Inter-Tribal Council (GLITC) organization, this position directs and coordinates the operations of GLITC to ensure established goals and objectives are met, regulatory requirements are complied with, resources are utilized efficiently and effectively, and the needs of the tribal communities are being met. Closes Monday, June 19, 2017.

AmeriCorps

Medical-Legal Partnership Attorney Member, Monument Valley, UT. The AmeriCorps Member will provide direct legal assistance to low-income patients at Utah Navajo Health Systems.

Medical-Legal Partnership Attorney Member, Albuquerque, N.M. The AmeriCorps Member will provide direct legal assistance to low-income patients at First Nations Community HealthSource.

From last week:

(2) Limited Term Faculty, Bora Laskin Faculty of Law at Lakehead University, Ontario, CA.

Associate Attorney, Frye Law Firm, Albuquerque, N.M.

Job Announcement: Juvenile Justice Program Coordinator – Juneau

Juvenile Justice Program Coordinator  – Juneau; $25.99 – 32.18

 A complete application packet must include: Cover Letter, Employment Application and Resume.

Submit to CCTHITA – HR Department

Mail: 320 W. Willoughby Ave. Juneau, AK 99801 | Fax: 888.510.3816 | E-mail: humanresources@ccthita.org | Please visit www.ccthita.org for more information.

Submit by  CLOSE OF BUSINESS, 4:00P JULY 1, 2016