Who Won Indian Law and Policy in 2014? First Round Bracket — 3 of 8

Now we move to category 2 (sounds like a hurricane) — Doctrines, Laws, and Issues (aka, grabag or miscellaneous). The first four contests there….

# 1 Indian Child Welfare Act

It’s been a big year for ICWA a year after Baby Girl (we miss you so much). The Attorney General announced the Department of Justice’s commitment to the statute, the South Dakota class action filed by the Oglala Sioux Tribe is currently pending after much drama about whether Judge Davis was refusing to disclose evidence, and DOJ intervened as an amicus in an important Alaska case (as well as the South Dakota matter). Alaska will now give full faith and credit to Alaska tribal courts on ICWA matters.

The Virginia SCT issued a split opinion on what parts of state law on best interests are trumped by ICWA here, and the Kentucky Supreme Court reaffirmed its commitment the existing Indian family exception (not good, Kentucky). Montana’s Supreme Court issued a few troubling opinions expressing an infatuation with the Adoptive Couple v. Baby Girl decision.

State courts from around the country published opinions on a wide variety of ICWA subjects: tribal court transfer (Nebraska — that was a good one), father’s rights in contested adoption (Alaska), qualified expert witnesses (Arizona, Alaska), active efforts (Nebraska, Montana), termination of parental rights (Texas), placement preferences (California, and again), truancy (Nebraska), application (Oregon, North Dakota), and notice, notice, notice (Kansas COA, California –three times here, North Carolina COA, Michigan COA, California COA again, Nebraska COA, Michigan COA again

Important-ish unpublished opinions involved ineffective assistance of counsel (Michigan), active efforts (Michigan), burden of proof (Michigan), placement preferences (California), customary adoption (California), and … you guessed it … notice (Michigan COA, California COA, another Michigan COA, and yet another)

You might see a lot of Michigan here (here’s another), and that’s thanks to MIFPA.


#16 Federal Indian law preemption

The Chehalis/Great Wolf Lodge matter from 2013 helped bring federal Indian law preemption back from the dead. The State of Washington was still feeling the consequences this year. The real impact may be in the BIA leasing regulations.

# 8 Rule 19

My favorite FRCP. Lots of Rule 19 action again this year, including a close call at the Supreme Court, which denied cert in the Buena Vista matter. Other cases involved Jamul Indian Village, payday lending cases, and Skokomish.


# 9 Indian country voting rights

Lots of pre-election voting rights activity in South Dakota, and a big win in a voting rights trial in Alaska. And another in Montana.

# 4 Indian gaming

Billions a year for tribal communities. Relentless litigation. Enough said.


# 13 Internet gaming

So far, pretty much nothing for tribal communities.

# 5 Intra-tribal disputes

This is the bad news part of the game.

Chukchansi. Timbisha-Shoshone. Caddo. Paskenta. Cayuga. Meherrin. Oglala Sioux. Pala Band. Saginaw Chippewa. Nooksack. Shingle Springs.


# 12 Human trafficking

Bakken. Circumpolar region.

Upcoming Symposium: Examining the Roots of Human Trafficking and Exploitation

January 29-30, 2015  UCLA School of Law

There will be a panel devoted specifically to Indigenous communities.

See flyer for registration details:

UCLA Symposium Flyer

Victoria Sweet on Human Security and Arctic Indigenous Women

Our own Victoria Sweet has published her paper, “Extracting More than Resources: Human Security and Arctic Indigenous Women,” in the Seattle University Law Review. It is available on SSRN.

Here is the abstract:

The circumpolar Arctic region is at the forefront of rapid change, and with change come concerns regarding potential security threats. While extractive industry development can bring economic benefits to an area, there are also human security concerns associated with these development projects. This has been acknowledged by groups that study the impact extractive industry development projects have on different geographic areas. However, most studies have looked at development projects in southern hemisphere countries or countries classified as “developing.” What has not been explored are human security concerns connected with extractive industry development projects within the “developed” countries like the United States. This Article will change that by focusing on the human security concerns connected to extractive industry development in the circumpolar region of the United States, particularly as these projects may threaten the security of indigenous women in the region.

ILPC Victoria Sweet on The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada

Our own Victoria Sweet has posted her newest paper, “Rising Waters, Rising Threats: The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada.”

Here is the abstract:

Among indigenous people around the world, human trafficking is taking a tremendous toll. While trafficking is not an exclusively indigenous issue, disproportionately large numbers of indigenous people, particularly women, are modern trafficking victims. In Canada, several groups concerned about human trafficking have conducted studies primarily focused on the sex trade because many sex workers are actually trafficking victims under both domestic and international legal standards. These studies found that First Nations women and youth represent between 70 and 90% of the visible sex trade in areas where the Aboriginal population is less than 10%. Very few comparable studies have been conducted in the United States, but studies in both Minnesota and Alaska found similar statistics among U.S. indigenous women.

With the current interest in resource extraction, and other opportunities in the warming Arctic, people from outside regions are traveling north in growing numbers. This rise in outside interactions increases the risk that the indigenous women may be trafficked. Recent crime reports from areas that have had an influx of outsiders such as Williston, North Dakota, U.S. and Fort McMurray, Alberta, Canada, both part of the new oil boom, demonstrate the potential risks that any group faces when people with no community accountability enter an area. The combination of development in rural locations, the demographic shift of outsiders moving to the north, and the lack of close monitoring in this circumpolar area is a potential recipe for disaster for indigenous women in the region. This paper suggests that in order to protect indigenous women, countries and indigenous nations must acknowledge this risk and plan for ways to mitigate risk factors.

Human Trafficking Federal Strategic Action Plan – Online Discussion Today (Jan. 29)

On January 29, 2014, at 2 p.m. (eastern time), in commemoration of National Slavery and Human Trafficking Prevention Month, the Office for Victims of Crime (OVC) will present a Web Forum discussion with Mary Atlas-Terry, Katherine Chon, and Corey Walz on the implications of the Human Trafficking Federal Strategic Action Plan.

Link here.