Indian country voting rights

Who Won American Indian Law and Policy, 2014, Second Round, Bracket 2 of 4

Matthew L.M. Fletcher

Now we move on to the Category 2 quarterfinals.

#1 Indian Child Welfare Act v. #9 Indian country voting rights

The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?

This one is an old-fashioned clash of civil rights.

#4 Indian gaming v. #5 Intra-tribal disputes

Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.

Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.

#2 Tribal sovereign immunity v. #7 American Indian education

Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.

Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.

#3 VAWA v. #6 Tribal court exhaustion

VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.

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

Matthew L.M. Fletcher1 Comment

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.

v.

#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.

v.

# 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.

v.

# 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.

v.

# 12 Human trafficking

Bakken. Circumpolar region.

DOJ Invitation to Consult on Voting Rights

Matthew L.M. Fletcher

Here:

DOJ Consultation Invitation Voting Rights

New Scholarship on How Shelby County v. Holder Affects Indian Country Voting Rights

Matthew L.M. Fletcher

Ryan D. Dreveskracht has published “Enfranchising Native Americans After Shelby County v. Holder: Congress’s Duty to Act“ in the National Lawyers Guild Review.