Here:
Brief in Support of First Motion (July 2014)
Statement of Undisputed Facts (First Motion)
Due Process Motion (Second PSJ)
Exhibit 1 (Hearing Transcripts) 502 pp
Exhibit 2 (Custody Orders) 113 pp.
Exhibit 7 (ICWA Affidavits) 145 pages
Exhibit 8 (Petitions for Temp Custody) 7 pages
128 Defendants Response to 1922 Motion
Here are the new materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):
128 Defendants Response to 1922 Motion
129 Defendants Response to Due Process Motion
The motions for summary judgment are here.
The evidentiary exhibits are here.
The DOJ amicus brief is here.
The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.
Here.
Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.
***
The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.
Memorandum in support of leave to file amicus here.
Motion for Leave to File here.
Update — The court granted the motion the next day:
123 DCT Order Granting US Motion
Previous coverage here.
Please see “A Unifying Theory of Tribal Civil Jurisdiction” on SSRN. Here is the abstract:
This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.
I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.
Substantive comments welcome.
Here is the complaint in Harrison v. Robinson Rancheria Band of Pomo Indians (N.D. Cal.):
An excerpt:
1. This action is brought by Alan and Christina Harrison, Robert Quitiquit, Karen Ramos, Inez Sands, and Reuben Want (“Plaintiffs”). Plaintiffs are disenrolled members of the Robinson Rancheria (“Defendant” or “Tribe”).
2. Plaintiffs seek relief for Defendant’s: 1) violation of their rights to due process, and 2) breach of contract.3. Plaintiffs are parties to a housing program designed, funded and supervised by the U.S. Department of Housing and Urban Development (“HUD”).4. Plaintiffs entered in Mutual Housing Occupancy Agreements (“MHOA”) whereby an Indian Housing Authority would administer a home lease with an option to buy. Initially, HUD contracted with the Northern Circle Indian Housing Authority (NCIHA”), a non-Robinson Rancheria entity.5. Defendant, a federally recognized Indian Tribe, assumed the rights and responsibilities of the Indian Housing Authority and the MHOAs with Plaintiffs.6. Defendant breached the MHOAs repeatedly since assuming the contractual responsibility to administer the agreements in compliance with its terms, which include applicable HUD regulations.7. Defendants then initiated a multi-year plan to unlawfully evict Plaintiffs in contravention of the MHOA terms, which employ landlord tenant law under federal, state or local law.8. Defendants denied Plaintiffs’ due process as required by the Robinson Rancheria Tribal Court and initiated a federal case asking the court to rally federal marshals to enforce the unlawful eviction issued by the corrupt tribal court. When the federal court insisted upon reviewing the MHOAs and sending the parties to mediation, the Defendant immediately withdrew their complaint.9. Plaintiffs have lost their homes, seen their possessions thrown into large garbage bins and had their pets killed and discarded.
10. Now virtually homeless and having received no assistance from HUD or the Bureau of Indian Affairs or Congress, the Plaintiffs herein file this action.
Here is the decision in Joseph Martin v. Little River Band of Ottawa Indians from the Little River Band Tribal Court (Judge Bill Brott, sitting pro tem): Martin v. LRB.
Turtle Talk 