Kansas Indian Law CLE January 29

Here is the announcement.

Not to be too promotional, but they got three pretty solid presenters (no manel here!) for this CLE: 

Working for Tribal Clients – Ethics
An overview of ethical responsibilities and obligations of legal practitioners who represent tribal clients, including tribal nations, tribal organizations and tribal members. (1.0 Ethics CLE)
Presented by: Vivien Olsen, Managing Attorney for the Legal Assistance to Victims program of the Kansas Coalition Against Sexual and Domestic Violence.
Indian Child Welfare Act: Litigation and Legislation
Are you familiar with ICWA (1978)? Any attorney practicing in family law or child-related cases will benefit from this session where Professor Kate Fort will review ICWA and key cases from 2019 and 2020, including recent state legislation and court rules adopted to protect ICWA. (1.0 General CLE)
Presenter: Professor Kate Fort, Michigan State University, Indian Law Clinic
The Violence Against Women Act & the Missing and Murdered Indigenous Persons Crisis
4 in 5 Indigenous women will experience violence in their lifetimes. – National Institute of Justice Report
This session will discuss the re-authorization of VAWA efforts over the past two years and will discuss the most recent efforts to pass legislation that will address the crisis of missing and murdered Indigenous Persons in the United States. (1.0 General CLE)
Presented by: Mary Kathryn Nagle, member of Cherokee Nation, partner at Pipestem Law PC

Comments Needed for Kansas ICWA Pro Hac Vice Rule Exception

The Kansas Supreme Court is seeking comments on an amendment for to the pro hac vice rule to exempt out of state ICWA attorneys from fees and associating with local counsel. Deadline for comments is March 15, 2019. Rule is here.

Kansas Supreme Court accepting public comment on Rule 116
TOPEKA—The Kansas Supreme Court is accepting public comment on amendments to Rule 116 regarding admission of out-of-state attorneys to make it easier for a tribe to exercise its rights to participate in Indian Child Welfare Act Proceedings.

The Supreme Court will accept comment until 5 p.m. Monday, March 18, 2019. Comments are to be sent to rulenotice@kscourts.org with “Rule 116” in the subject line.

Amendments to Rule 116 are requested by the Kansas Judicial Council, on the recommendation of its Tribal-State Judicial Forum.

Among the amendments requested is new language that exempts an out-of-state attorney appearing in an Indian Child Welfare Act proceeding from paying a fee and from a duty to associate with local counsel. The out-of-state attorney would still need to file a motion for admission pro hac vice, accompanied by the attorney’s verified application.

Problems with Passive Voice Part Infinity–Children Missing in KS Foster Care

Here is the original article.

Here is the response/statement from Kansas DCF:

The reality is quite different from what “outraged” legislators would have you believe. Allow me to share with you who the children are, we consider missing. In 92 percent of the cases, they are young people, ages 12 and older. They have been removed from the only home they know, placed in an unfamiliar setting, and they miss their families, their schools and their communities. And they are eager to find a way to get back to them.

Maybe I shouldn’t write this on an empty stomach, but WHO removed these children? WHO put them in an unfamiliar setting? Away from their schools and communities? WHO accepted responsibility for them? And then WHO contracted out their care and protection to private agencies?  Oh, that’s right.

You don’t get to blame the kids you lose when it’s your job to keep tabs on them.

Friday’s Comment of the Day from Kansas Rep. Ponka-We Victors

Here, from the Topeka Capital Journal, via Jamelle Bouie

The Legislature’s annual attempt to repeal a statute allowing in-state tuition for Kansas students without legal residency drew an emotional crowd to a House committee Wednesday.


But nothing drew a bigger reaction than when Rep. Ponka-We Victors, D-Wichita, wrapped up a series of questions to the bill’s chief proponent, Secretary of State Kris Kobach.

“I think it’s funny Mr. Kobach, because when you mention illegal immigrant, I think of all of you,” said Victors, the Legislature’s lone American Indian member.

The heavily pro-immigrant gallery burst into cheers and applause — a rare reaction in normally staid hearings.


Kansas v. Kempthorne & Wyandotte Nation — Revised CA10 Opinion

The Tenth Circuit granted the government’s motion for rehearing and issued a revised opinion.

CA10 Panel Decision (pre-rehearing)

Kempthorne Petition for Rehearing

State and Tribal Response to Petition

KU Tribal Law and Governance Conference Agenda

Kansas’s Tribal Law and Government Center is hosting the 2008 conference on Feb. 1, 2008. Speakers include Lance Morgan, Howard Valantra, Phil Frickey, Stacy Leeds, Angelique EagleWoman, Taylor Keen, Russ Brien, and others. Looks like a great field! H/T Legal Scholarship Blog:

The agenda is here.

Pokagon Band and Notre Dame

From the Notre Dame Observer:

Pokagon Band part of ND history, land

Relationship with Potawatomi tribe celebrated during Native American Heritage Month
By: Katie Peralta

While driving around South Bend, students might notice Potawatomi Park, Potawatomi Zoo and Pokagon Street – places all named after former residents of the area, the Potawatomi American Indian tribe and its local division, the Pokagon Band.

But not all passers-by may be aware that the land upon which Notre Dame was built once belonged to the Pokagon Band.

As a part of Native American Heritage Month, Notre Dame’s Multicultural Student Programs and Services (MSPS) will host a series of events bringing members of the Potawatomi tribe to campus to relay the history between the tribe and the University. As part of this series, MSPS will host a dinner Dec. 4 featuring members of the Potawatomi tribe to share their history.

Before Notre Dame founder Father Edward Sorin claimed this plot of land on Nov. 26, 1842, the land had been inhabited by the Pokagon Band, said Kevin Daugherty, educational resource developer for the Pokagon Band.

The Chicago Treaty of 1833, however, ordered the removal of Indians in the northern Indiana region, Daugherty said. Leopold Pokagon, a prominent Potawatomi leader and the spokesperson after whom the Pokagon Band is named, negotiated the right to stay on the land and was given a sum of money, Daugherty said. Pokagon used this money to buy land northwest of modern-day Dowagiac, Mich., where Daugherty said many members of the band still reside today.

During the 17th and 18th centuries, Potawatomi land stretched from what is now Chicago to Detroit, Daugherty said.

Many different villages populated this region and considered themselves Potawatomi, sharing a common language and culture. Such villages had alliances but operated independently on a local level.

The Pokagon Band of the Potawatomi Indians resided in the southwest Michigan and northern Indiana region, including the grounds where campus is now.

“They of course moved around a bit,” Daugherty said. “They moved along the St. Joseph River to farm, hunt and gather.”

Notre Dame anthropology professor Mark Schurr led an archaeological survey along the St. Joseph River about five years ago. The survey, a joint effort of a Notre Dame field school and the Pokagon Band, lasted about three years and revealed a few village sites along the river, Schurr said.

American settlers began moving west and consequently pushed for removal of American Indians by the U.S. government, Daugherty said.

In compliance with settlers’ demands for westward migration, the Indian Removal Act of 1830 dictated that all native peoples east of the Mississippi River move to present day states of Kansas and Oklahoma, said Ben Secunda, a Notre Dame history professor.

Just as the Cherokee’s removal was called the “Trail of Tears,” Secunda said, the Potawatomi called their removal the “Trail of Death.” The Potawatomi tribe, along with sympathetic whites such as the Catholic missionaries and traders friendly to the Indians, strongly protested it.

Secunda noted that violent roundups, led by governmental officials like Indian agent John Tipton, occurred throughout the Midwest except in the area of Michigan where Leopold Pokagon had secured land for his people. Pokagon’s land, Secunda said, became a safe haven for refugees evading the removal to Kansas. Baptist missionaries in the area supported such removals, he said.

To resist such removal, Leopold Pokagon, in 1830, trekked to Detroit to the Catholic headquarters to make an appeal, Secunda said. He asked for a Catholic priest to come back with him, one who would aid in removal resistance, convincing Father Stephen Badin and the Catholic missionaries to come down to the South Bend area, Secunda said.

Badin and the missionaries came and worked out of Pokagon’s log chapel, the famous historic landmark next to Saint Mary’s Lake, Secunda said. This became their base of operations.

Essentially, he said, out of Leopold Pokagon’s appeal came Notre Dame.

“The Pokagon band, Roman Catholic Church and Notre Dame priests supplemented each other at a key point in their history,” Schurr said. “Since then the groups have gone their separate ways. None would be as successful as they are now.”

Badin and the other Catholic missionaries successfully replaced the other pro-removal missionaries.

“The forerunners of the University did the right thing,” Secunda said. “With their help, the Potawatomi people were able to maintain a level of self-sufficiency, avoid removal, become Catholic and basically survive as a people.”

When Sorin arrived in the area in fall of 1841, “the Pokagons and the Catholics were interacting readily,” Daugherty said.

From the beginning, the Potawatomi in the area coexisted peacefully with the new settlers, Schurr said.

In fact, he said, Badin and the other priests shared many meals with the tribe members. They also lived in close proximity with the tribe.

The Pokagon Band today is scattered throughout Midwest. This dispersal is not totally unprecedented, Daugherty said.

“We have never had a land base or tribal ownership,” he said.

Though there is dispersal, the largest Pokagon population today is located in northern Indiana and southwestern Michigan.

About 3,300 members are in the Band today, and Daugherty said roughly 40 percent live within about 30 miles of Dowagiac. There is also a large concentration of people in the Kalamazoo area, with the remainder scattered across the Midwest.

Native American Heritage Month at Notre Dame includes a number of programs. In addition to the Dec. 4 dinner, the agenda includes a workshop in black ash basketry on Nov. 26. A visual display on contemporary American Indians will be displayed in the library for the remainder of the month.

Kansas v. Kempthorne Materials

Recently, the Tenth Circuit decided Kansas v. Kempthorne, perhaps the final round of the Wyandotte Nation of Oklahoma’s bid to open a casino in Kansas City. After a decade of litigation, it appears the Nation has prevailed. What was interesting about the final product was that the 10th Circuit held that the State’s arguments were barred by the Quiet Title Act — because the Secretary had taken the land into trust prior to the filing of the State’s lawsuit, the QTA barred the suit.

Here’s the opinion: CA10 Opinion

Here’s the appellant brief (Kansas and three tribes): Appellant’s Opening Brief

Here’s the federal response brief: Federal Appellee Brief

Here’s the reply brief: Appellant’s Reply Brief