Citizen Potawatomi Nation and Muscogee (Creek) Nation Intervene in Oklahoma Gaming Compact Suit

Here are the updated materials in Cherokee Nation v. Stitt (W.D. Okla.):

21 Citizen Potawatomi Nation Motion to Intervene

21-1 Complaint in Intervention

23 Muscogee (Creek) Nation Motion to Intervene

23-1 Complaint in Intervention

28 DCT Order Granting Motions to Intervene

Prior posts here.

Oklahoma Court of Appeals on Reason to Believe ICWA Case

Here is the opinion.

This case went to trial–a unique aspect of Oklahoma child welfare law–on January 23, 24, and 25, where the Mom testified about her work in getting the children enrolled in the Choctaw Tribe. When Mom appealed the termination of parental rights based on lack of ICWA compliance, the

¶10 State filed an objection and response asserting, inter alia: “At the time of trial, the evidence and record showed the children were not members of an Indian tribe.” It claimed that “the only other way the children could be defined as Indian children implicating the application of ICWA was if the children were ‘eligible for membership [in a tribe] of which the biological parent is a member.’ See BIA Regulations §23.108(a).” State argued that, because Mother testified she is a member of the Cheyenne Arapaho Tribe and the children are not eligible to be members of that tribe, “but that she was trying to enroll the children as Choctaw (of which she could not be a full member given her membership in Cheyenne Arapaho), there was no reason to believe the children met the definition of ‘Indian Child’ at the time of trial given the evidence and testimony in the record.” It argued that the record in the case showed that the children were not tribal members at the time of trial and the record only reflected their membership after Mother filed the motion for new trial.

(emphasis added)

Therefore,

¶28 Although it is clear the trial court and State may not have been affirmatively informed of the children’s membership in the Choctaw Nation until February 3, 2017, this date is not determinative of the date ICWA became applicable. We reiterate that the trial court and State had reason to know at trial that ICWA may very well apply and this warranted further investigation. Despite the Choctaw Nation’s previous communication about the children’s membership status, Mother’s detailed testimony about establishing her own membership and the children’s membership raised red flags that further inquiry at trial was needed despite the Choctaw Nation’s earlier communication.

¶29 We recognize that that does not mean that IWCA applied to the case from the date it was filed in 2011. ICWA became applicable on the date the children became eligible for enrollment3 or the date they enrolled, which was January 20, 2017. At the latest, ICWA applied as of January 20, 2017, a date before trial started. ICWA’s provisions, including the heightened burden and expert witness requirements, were applicable at trial.

The distinction between when a court has reason to know a child might be an Indian child and then when ICWA applies (prospectively, Oklahoma has frustratingly stated in the past, In re M.H.C.2016 OK 88381 P.3d 710) is a question we get a lot.

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.

Choctaw Nation of Oklahoma

Attorney, Durant, OK. Applicants should send their resumes to: Karen Burkett, Senior Recruiter, at kburkett@choctawnation.com

Tohono O’odham Nation

Chief Prosecutor, Sells, AZ. Applicants must have at least six years of relevant experience, including three years of supervisory experience, and be licensed in Arizona.  To apply, please send a cover letter, resume, and three writing samples to Laura Berglan, Acting Attorney General, via email at laura.berglan@tonation-nsn.gov.

Bear River Band of Rohnerville

Court Clerk, Loleta, CA. Apply here.

Oglala Sioux Tribe

In-house Attorneys (2), Pine Ridge, SD. Requirements: degree from an accredited law school; admitted to practice and in good standing by a State Bar Association; hair follicle drug test; criminal background check; experience working with Tribes and knowledge of federal Indian law. Salary: depends on years of legal experience, up to $150,000 per annum. Interested candidates must submit a Letter of Intent and documents to: Lisa Cummings, Oglala Sioux Tribe, Legal Department, PO Box 2070, Pine Ridge, SD 57770 or email to LisaC@oglala.org. Telephone number: 605.867.2138.

University of Washington School of Law

Staff Attorney, Tribal Court Public Defense Clinic, Seattle, WA.

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.

Wisconsin Judicare Inc.

Staff Attorney, Wasau, WI. Wisconsin Judicare’s Indian Law Office has an opening beginning February 1st for an attorney to represent Native American individuals and groups on a variety of issues including criminal defense representation in tribal courts and Indian law litigation in tribal and state courts.

Sault Ste. Marie Tribe of Chippewa Indians

Tribal Attorney-Assistant Prosecutor. Responsible for prosecuting criminal, juvenile, landlord-tenant, and Indian child welfare cases in state court. The Tribal Attorney – Assistant Prosecutor is also responsible for assisting and providing back-up coverage for the Tribal Attorney – ACFS on Indian Child Welfare matters in the state courts.

Havasupai Tribe

In-house General Counsel. The Havasupai Tribe, located in the Grand Canyon region of Arizona, is seeking a full-time in-house general counsel set up a tribal office in either Phoenix or Flagstaff.  The job requires frequent trips to Supai, Arizona.  All applicants must have at least 3 years experience working for tribal governments in areas other than gaming.  Applicants should submit a letter of interest, a relevant writing sample and resume to:  office@mvicklaw.com

Choctaw Nation

Executive Director of Legal & Compliance. Will report to the Senior Executive Officer of the Legal and Compliance Division. Responsible for the management of the CNO In-House Legal Department in its entirety. This position will coordinate with the Senior Executive Officer and outside counsel on all legal matters, will manage internal case management, and the delegation of assignments to In-House Associate Counsel and personnel.

Eastern Shoshone Tribe

Attorney General. Responsible for providing legal advice and counsel to the Eastern Shoshone Tribal government, its departments and enterprises; and represents the Eastern Shoshone Tribe in all matters at issue before federal, state and tribal courts. The Attorney General serves as the Director for the Office of Attorney General.

Indian Country Statements and Some Law Regarding the California ICWA Case

NICWA’s statement.

Choctaw Nation’s statement.

NCAI’s statement.

California Children’s Law Center statement.

NAJA’s statement.

We will continue to add statements from other groups as we receive them. And, because it’s what we do, we’ve created a page with all of the publicly available primary source documents in this case. You can find that here.

The foster parents’ attorney has issued a statement claiming she will use this case to appeal ICWA up to the U.S. Supreme Court if necessary. We’ve heard this before, and there are very few legal routes left for them to do that, but we still expect they will try them all.

Meanwhile, this case is not just about Indian Country. The role of foster care in this country is clear–to provide a temporary, loving home for a child while her family receives services to so the child can go home safely. It is also provides time for the state to search for other -relative- homes for the child. This is a best practice regardless of whether the child is Native or not. It’s actually state law in California. Ann.Cal.Welf. & Inst.Code § 361.3. In fact, it’s the law in a lot of states. That’s because relative preference in placement is also required by the federal government for states to receive Title IV-E funding. 25 U.S.C. 671(a)(19). Preventing a child from living with her siblings and relatives –family she knows, and who have spent considerable time planning this transition– contrary to court order is not the role of foster parents.

Finally, the use of the media in this case to inflame opinion, spread false information about the situation, publicize a child’s name and face, and to try to dismantle ICWA itself [again] is deplorable. The type of comments that NICWA, the California Children’s Law Center, Choctaw Nation and other individuals are receiving, particularly on social media, should disturb us all. Those taking the brunt of this deserve our full support and thanks.

Additional Resources:

The Michigan Legislature

The Washington Legislature

The Nebraska Legislature

The Minnesota Legislature

The Wisconsin Legislature

The California Legislature

2013 Statement of National Council Juvenile and Family Court Judges

2013 Position Statement of Casey Family Programs

2013 Press Release of the following child welfare organizations in support of ICWA: Casey Family Programs, Children’s Defense Fund, Child Welfare League of America, Annie E. Casey Foundation, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, Black Administrators in Child Welfare, Inc., Children and Family Justice Center, Family Defense Center, First Focus Campaign for Children, Foster Care Alumni of America, FosterClub, National Alliance of Children’s Trust and Prevention Funds, National Association of Public Child Welfare Administrators, National Association of Social Workers, National Court Appointed Special Advocate Association, and National Crittenton Foundation.

 

Federal Court Holds US May Sell Unallotted Timber Resources over Opposition from Chickasaw and Choctaw Nations

Here are the materials in Chickasaw Nation v. Dept. of Interior (W.D. Okla.):

254 Tribes Motion for Summary J

260-1 US Cross-Motion

266 Tribes Reply

269 US Reply

270 DCT Order

Here is the relevant statute authorizing (or mandating) the sale of the resource, as reproduced in the court’s order. Judge for yourself:

That when allotments as provided by this and other Acts of Congress have been made to all members and freedmen of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, the residue of lands in each of said nations not reserved or otherwise disposed of shall be sold by the Secretary … under rules and regulations to be prescribed by him and the proceeds of such sales deposited in the United States Treasury to the credit of the respective tribes. . . . The Secretary … is hereby authorized to sell, whenever in his judgment it may be desirable, any of the unallotted land in the Choctaw and Chickasaw Nations, which is not principally valuable for mining, agricultural, or timber purposes, in tracts of not exceeding six hundred and forty acres to any one person, for a fair and reasonable price, not less than the present appraised value. . . . Provided further, That agricultural lands shall be sold in tracts of not exceeding one hundred and sixty acres to any one person.

Tenth Circuit Rejects Tribal Membership Claim by Alleged Choctaw Freedman Descendant

Here is the opinion in Greene v. Impson.

An excerpt:

The question in this appeal is whether officials from the Bureau of Indian Affairs (BIA) violated Charles Greene’s constitutional rights by failing to provide him an application form to allow descendants of Choctaw Indian Freedman to apply for federal recognition as an Indian.

Briefs:

Greene Appellant Brief

Federal Appellee Brief

Greene Reply Brief