Briefs here.
Eighth Circuit Decides Stanko v. Oglala Sioux Tribe
Briefs here.
Eighth Circuit
Eighth Circuit Affirms Upward Depature in Sentence of Habitual Indian Country D.V. Offender
Here is the opinion in United States v. Eagle Pipe.
Eighth Circuit Asks Defendants for Response to En Banc Petition
Here is the order:
JUDGE ORDER:A petition for rehearing has been filed by the appellees in the above cases. The court requests a response to the petition. The response is limited to 3900 words and must contain a word count certificate. The response should be filed electronically. Response due on 11/08/2018 by Appellants Mark Vargo, Craig Pfeifle and Lisa Fleming. Hrg Feb 2018 [4720385] [17-1135, 17-1136, 17-1137] (JPP)
The petition is here.
Oglala Sioux Tribe Files En Banc Petition in South Dakota ICWA Case
Eighth Circuit Briefs in Flandreau Santee Sioux Tribe v. Gerlach
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
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