Here:
Lower court materials here.
Eighth Circuit
Split Eighth Circuit Stays Lower Court Order Favoring Indian Voting Rights
Eighth Circuit Dismisses Oglala Sioux v. Fleming Under Abstention Doctrine
Here.
This is the long running (initiated before Adoptive Couple v. Baby Girl) case that is attempting to address the due process and ICWA violations against Native families in Pennington Co., South Dakota. Brought by Oglala Sioux, Rosebud Sioux and two individual tribal citizen mothers on behalf of a class of similarly situated parents, this case has highlighted the disturbing practices of the county (which, even more disturbingly, are not that surprising to trial level practitioners in our child welfare system). The District Court had found for the plaintiffs at each stage, and found specifically that abstention/Younger doctrine did not a apply to this case. The Eighth Circuit found differently.
Setting aside the due process claims for the sake of this point, ICWA itself creates a right of action under 25 USC 1914 (a parent, custodian, or tribe may petition a court of competent jurisdiction to invalidate any cases in violation of 1911 [jurisdiction], 1912 [notice/active efforts/burden of proof], or 1913 [voluntary proceedings]). This right, however, has often been limited by federal courts under abstention doctrines, which means the state courts that are causing the abuses of the law are the only places to address the abuses of the law. As the Court states, “Although the plaintiffs complain that state court proceedings do not afford parents an adequate opportunity to raise broad constitutional challenges under the Due Process Clause, they have not established that South Dakota courts are unwilling or unable to adjudicate their federal claims.” There are a number of federal cases on ICWA–that is, ones that are attempting to demonstrate a violation of the law–that end up with a hollow 1914. See Yancey v. Bonner, 2008 WL 4279760 (W.D. Okla. 2008), Navajo Nation v. LDS Family Services, 2006 WL 3692662 (D. Utah 2006), Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987)
I’d also note while the Court said “[t]he relief requested would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings,” those procedural requirements are ones required by both the Constitution and the Indian Child Welfare Act.
The ICWA Appellate Project filed an amicus brief on behalf of the Navajo Nation, Cherokee Nation, the ICWA Law Center, NICWA and NCAI in this case.
Eighth Circuit Briefs in Kodiak Oil & Gas (USA) Inc. v. Seaworth [formerly Burr]
Eighth Circuit Briefs in Brakebill v. Jaeger
Guest Post: Kirsten Matoy Carlson on Eighth Circuit Judge Diana Murphy
In Remembrance: Judge Diana Murphy
Last month, Indian country lost a powerful advocate and friend, the Honorable Diana E. Murphy of the U.S. Court of Appeals for the Eighth Circuit. Judge Murphy was the first woman appointed to the Court of Appeals for the Eighth Circuit, and she remained the only women on the court for decades. Unlike many federal appellate judges, she served as a district court judge for over a decade before joining the Court of Appeals.
During her thirty-plus years on the federal bench, Judge Murphy heard almost 50 cases and wrote close to two dozen opinions related to federal Indian law. Her majority, concurring, and dissenting opinions covered a wide range of topics, including, inter alia, land-into-trust, taxation, gaming, tribal civil adjudicatory jurisdiction, tribal sovereign immunity, treaty rights, reservation boundaries, and criminal jurisdiction. Her Indian law jurisprudence reflected her remarkable ability to tackle complicated factual and historical patterns, to read closely and identify the relevant facts in their historical context, to apply the law precisely to those facts, and to value and give voice to cultures and ways of life distinct from her own. She was one of those rare federal judges who recognized Indian nations and their people for what they are: sovereign governments with distinctive cultures and ways of life.
Among Judge Murphy’s well known majority opinions are:
Mille Lacs Band of Chippewa Indians v. Minnesota Dep’t of Natural Resources, 861 F. Supp. 784 (Dist. Minn. 1994) — 861_f.supp._784
Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996) — 88_f.3d_536
United States v. Brown, 777 F.3d 1025 (8th Cir. 2015) — 777_f.3d_1025
County of Charles Mix v. United States DOI, 674 F.3d 898 (8th Cir. 2015) — 674_f.3d_898
Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998) — 133_f.3d_1087
Leech Lake Band of Chippewa Indians v. Cass County, 108 F.3d 820 (8th Cir. 1997) — 108_f.3d_820
Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951 (8th Cir. 2009) — 577_f.3d_951
Gaming World Int’l v. White Earth Band of Chippewa Indians, 317 F.3d 840 (8th Cir. 2003) — 317_f.3d_840
United States v. Santee Sioux Tribe, 254 F.3d 728 (8th Cir. 2001) — 254_f.3d_728
United States v. Santee Sioux Tribe of Neb., 324 F.3d 607 (8th Cir. 2003) — 324_f.3d_607
Bettor Racing, Inc. v. Nat’l Indian Gaming Comm’n, 812 F.3d 648 (8th Cir. 2016) — 812_f.3d_648
City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa, 785 F.3d 1207 (8th Cir. 2015) — 785_f.3d_1207
United States ex rel. Bernard v. Casino Magic Corp., 384 F.3d 510 (8th Cir. 2004) — 384_f.3d_510
Plains Commerce Bank v. Long Family Land & Cattle Co., 491 F.3d 878 (8th Cir. 2007) — 491_f.3d_878
Attorney’s Process & Investigation Servs. v. Sac & Fox Tribe, 609 F.3d 927 (8th Cir. 2010) — 609_f.3d_927
DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877 (8th Cir. 2013) — 725_f.3d_877
Judge Murphy also wrote several powerful concurrences and dissents, including:
Nord v. Kelly, 520 F.3d 848 (8th Cir. 2008) (concurrence) — 520_f.3d_848
Fond Du Lac Band of Lake Superior Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011) (dissent) — 649_f.3d_849
South Dakota v. United States DOI, 69 F.3d 878 (8th Cir. 1995) (dissent) — 69_f.3d_878
Eighth Circuit Denies North Dakota’s Motion for Stay in Brakebill v. Jaeger
Eighth Circuit Decides Sisseton-Wahpeton Oyate v. U.S. Corps of Engineers
Here is the opinion. The court’s syllabus:
Action challenging the issuance of Clean Water Act permits allowing a farm owner to dredge and fill portions of Enemy Swim Lake in furtherance of the owner’s activities in building a road over an inlet of the lake; a 2010 letter from the Corps was not a final agency action for purposes of the permit and exemptions determinations as the letter did not affect the legal rights of the farm owner, the Tribe or the Corps; Tribe’s recapture claim under 33 U.S.C. Sec. 1344(f)(2) was a nonjusticiable enforcement action; Tribe’s claims arising from the Corps’s permit and exemption determinations made from 1998 to 2003 were barred by the statute of limitations and the Tribe was not eligible for equitable tolling because it had not diligently pursued its rights; dismissal of the Tribe’s arbitrary-and-capricious challenge to the Corps’s 2009 permit decision rejected as the Corps did not violate its own regulations in issuing the 2009 nationwide-permit determination; the district court did not make a final decision with respect to the lawfulness of the Corps’s regulations enacted pursuant to the National Historic Preservation Act, and the court lacked jurisdiction to review the lawfulness of the regulations.
Turtle Talk 
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