Federal Court Orders Tribal Exhaustion in Employment Discrimination Case [Chippewa Cree Tribe]

Here are the materials in Walker v. Windy Boy (D. Mont.):

1 Complaint

10 Motion to Dismiss

20 Response

25 Reply

32 DCT Order

Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child

Here.

In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

Update in Massive Suit against Plain Green, Owned by Chippewa Cree at Rocky Boy’s

Here are selected materials in Gringras v Rosette (D. Vt.):

66 Plain Green Motion to Dismiss or Compel

85 Response

92 Plain Green Reply

122 DCT Order

Final Disposition in Kenneth Blatt-St. Marks’ Whistleblower Case

Here is a Press Release and the 23-page Final Disposition in the Matter of U.S. Department of Interior, Office of Inspector General Report of Investigation U.S. Bureau of Reclamation ARRA Funds – Case No. OI-CO-13-0243-I (St. Marks).  The December 19, 2014 Determination is also included.

St Marks Final Disposition 4 24 2015

BSM Whistleblower Matter Dec. 19, 2014

And the presser:

THE CHIPPEWA CREE TRIBAL BUSINESS COMMITTEE’S CHARGES AGAINST ST. MARKS RULED A PRETEXT, AND IT IS ORDERED TO ABATE ITS REPRISALS

On April 24, 2015, the United States Department of Interior issued a 23-page Final Disposition in the Matter of U.S. Department of Interior, Office of Inspector General Report of Investigation U.S. Bureau of Reclamation ARRA Funds – Case No. OI-CO-13-0243-I (St. Marks). In that Final Disposition, the Department confirmed its December 19, 2014 initial determiation that the Chippewa Cree Tribe engaged in a prohibited reprisal against St. Marks when he was removed from the position of Chairman of the Tribe’s Business Committee in March 2013. It said “the record [wa]s replete with evidence that the Tribe was well aware of St. Marks’ communications to the IG and USBR a few short months before his removal.” It went on to state that the instant situation was rife with threats and intimidation against individuals in the tribal community, including St. Marks, by those ultimately shown to have engaged in criminal wrongdoing. “Indeed, [the Tribe’s] continued pursuit of all seven charges despite evidence either challenging or failing to support their veracity calls into question the Business Committee’s credibility and motive and renders the charges as pretext,” it said.

Regarding allegations of fraud and misuse of federal funds, the Department attached a December 4, 2014 letter from Assistant U.S. Attorney Carl Rostad advising the Tribe’s counsel that the U.S. Department of Agriculture IG had conducted an inquiry into allegations against St. Marks with respect to the Sewer Lagoon wastewater project, but that inquiry “was closed after finding no credible evidence for further investigation.” Rostad further stated that with respect to allegations of bribery that may have affected “the fresh-water pipeline project” allegations that had been the “focus of several investigations” and “a review of thousands of financial records produced no information that St. Marks transferred funds to tribal officials.” It also stated that “when the agent assigned to the whistleblower case attempted to interview tribal officials about the allegations they all refused to be interviewed.” Regarding allegations that St. Marks’ company had performed inadequate or substandard work on the Tibre Project, the Department attached documentation that there was no credible basis for those claims either. The Final Disposition also documented other instances where the Department had contacted the Tribe’s counsel for supporting information but received the run around.

The Final Determation ordered the Tribe to stop any and all reprisals against St. Marks, awarded him backpay, front pay for the remainder of his term, travel costs, and attorneys fees and costs.
Addressing the Final Determation St. Marks said:

I am happy my name is cleared but it is unfortunate it took so long. Thankfully, the tribal members and the Havre community continued to believe in me despite such an awful smear campaign. Nevertheless, there is still more that the Department needs to do. The Final Determination expressly stated it was concerned for “the welfare of the CCT government and its members” but as a trustee, it hasn’t addressed that whatsoever. We have non-elected persons purporting to act as the Tribe’s Business Committee, while the elected Business Committee members can’t get sworn in. Those non-elected members are using public funds to go after tribal members, even jailing one of our members most recently. This is way out of hand, and yet the United States has continued its government-to-government relationship with these non-elected members. That isn’t right.

A copy of the Final Determination is attached hereto.

For more information on the contents of this press release, please contact Martha L. King of Fredericks Peebles & Morgan LLP at: (303) 673-9600.

WaPo Article on Shut Down and Indian Tribes

Here.

Some tribes intend to fill the gap in federal funds themselves, risking deficits of their own to cushion communities with chronic high unemployment and poverty against the effects of the budget battle.

“Do we just throw kids onto the street, or do we help them? Most likely we’re going to help those families and do whatever we can until this is unresolved,” said Tracy “Ching” King, president of northern Montana’s Fort Belknap Reservation.

But for other tribes, basic services stand to take a direct hit. That includes programs heavily subsidized by federal agencies and others paid for with tribal money that is suddenly unavailable because it’s being held by the Department of Interior, tribal leaders said.

Ninth Circuit Vacates Condition of Indian Country Sex Offender’s Supervised Release

Here is the opinion in United States v. Wolf Child.

An excerpt:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.