Eighth Circuit Decision Upholding Tribal Jurisdiction in Watso v. Piper [ICWA, PL 280]]

Decision here.

This settles a long running string of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.

ICWA holding:

Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.

PL 280 holding:

Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.

And a succinct due process holding:

Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.

Minnesota American Indian Bar Association Conference

The Minnesota American Indian Bar Association (MAIBA) welcomes you to attend the 2019 Indian Law Conference at the Mystic Lake Conference Center on Friday May 3, 2019.  MAIBA cosponsors the CLE with Minnesota CLE.

Those interested in hotel rooms may call the Mystic Lake Hotel at 800-262-7799 by April 10, 2019, to receive the special conference room rate.

Please visit the Minnesota CLE website for registration here: https://www.minncle.org/SeminarDetail.aspx?ID=1026681901.

Fond du Lac Member Appointed to State Office

Yesterday Minnesota Governor Elect, Tim Walz, appointed Dennis Olson, Jr. as the Commissioner of Minnesota Office of Higher Education. Dennis is a citizen of the Fond du Lac Band of Lake Superior Chippewa and currently serves as the Executive Director of the Minnesota Indian Affairs Council. This appointment is part of Governor Elect Walz’s effort to increase access to education for people of color and address the disparities in prison populations.

Minnesota Lt. Governor-Elect, Peggy Flanagan, is the first ever Native American woman to be elected to state wide executive office.

Both Olson and Flanagan are graduates of the University of Minnesota American Indian Studies program.

https://minnesota.cbslocal.com/2018/12/20/walz-set-to-name-3-more-cabinet-appointees/amp/

https://kstp.com/politics/governor-elect-tim-walz-announcement-new-leadership-education-corrections-departments/5185837/

Minnesota Supreme Court Rule Recognizing Tribal Court Orders

Over 15 years ago, the Minnesota Tribal Court/State Court Forum petitioned the Minnesota Supreme Court to adopt a robust rule for recognition of tribal court orders. Due in large part to public concern about the efficacy of tribal courts, the supreme court adopted a more cautious rule, one that provided limited guidance and delegated excessive discretion to district courts. The consequences were delays and inconsistencies in the recognition process.

In 2016, the Forum petitioned the supreme court to amend the rule, arguing that any concerns about today’s tribal courts are unfounded. It asked the Minnesota Supreme Court to enhance the rule and extend due deference and respect to tribal courts. The petition received overwhelming support from state court judges, local attorney associations, and the national Indian law community. In a 4-2 decision on July 2, 2018, the Minnesota Supreme Court granted the Forum’s petition with minor amendments.

Thank you to all of the state and tribal court judges of the Forum for their leadership and thanks also to Peter Rademacher (Hogen Adams PLLC) for his tireless work as scrivener of the Forum.

Administrative – Order – Other

1855 Treaty Authority Members Issued Citations

A group of individuals from Ojibwe nations in Minnesota known as the “1855 Treaty Authority” staged a wild rice harvesting gathering in Nisswa, Minnesota on Hole-in-the-day Lake on August 27, 2015. The location is outside of current reservation boundaries, but within the territory ceded by the 1855 Treaty with the Chippewa. The group is asserting that because the 1855 Treaty did not specifically remove hunting, fishing, and gathering rights on the ceded territory, those rights still exist for tribal members off-reservation.

The Minnesota DNR issued one-day permits to diffuse tensions, but several members of the Treaty Authority continued to rice and gillnet the following day, and were issued citations for gillnetting without a permit. The final decision to formally charge the members with gross misdemeanors and bring the case to court is still forthcoming from the Crow Wing county attorney.

In 1999, the Supreme Court upheld the Mille Lacs Band of Ojibwe’s 1837 Treaty right to hunt, fish, and gather on ceded lands after determining that the 1855 Treaty did not extinguish those usufructuary rights. The Mille Lacs case did not decide whether the 1855 Treaty itself preserved off-reservation hunting, fishing, and gathering rights for other tribes in Minnesota.

The 1855 Treaty Authority previously attempted to get this issue into federal court in 2010, but the DNR did not issue any citations at that point.

Press release from the 1855 Treaty Authority here.

Letter to Minnesota’s governor here.

Response from Minnesota DNR here.

Previous coverage here.

Information on Proposed Changes to the Minnesota ICWA Law

From the Center for Advanced Studies in Child Welfare:

It is apparent that the BIA guidelines on Indian child welfare proceedings overlap with current legislation in Minnesota, showing that efforts by the BIA and other advocates have likely been considered. The modifications to MIFPA and changes to out-of-home placement provisions are sensitive to tribal involvement, and the importance of heritage and culture in the lives of Indian children and families is clearly defined in the proposed purpose of MIFPA and other aspects of the new legislation. The bills fill gaps previously left unclear or undefined.

While the bills show much progress for Indian child welfare in Minnesota, there is one thing to consider. In terms of court placement of an Indian child outside of the placement preferences, both bills allow social services agencies to provide testimony that they have performed diligent efforts to follow the ICWA placement preferences. What is unclear is how the courts plan to measure the level of diligence and whether or not DHS would provide guidance over this.

Manidoowaadiziwag Ikwewag – Women Are Sacred, Video Raising Awareness of Domestic Violence and Practices for Dealing with DV in Native Communities and Victims with Disabilities

October is Domestic Violence Awareness month.

This documentary film was developed to be an educational and training tool based on the work produced by the Minnesota Accessing Paths to Safety Project.

The film chronicles the the first-hand stories of American Indian woman survivors of sexual violence and domestic abuse with disabilities from the White Earth Nation. Learn about their history and tradition, the impact of historical trauma and intergenerational grief, and the resources available for survivors on and around the reservation.

Link to the video here.

Minnesota Adopts an ICWA Best Practice in its Comments to Court Rules

Here.

2014 Advisory Committee Comment
With respect to [Rule 34.03] subdivision 1(j) and (l), in cases where the application of the Indian Child Welfare Act (ICWA) is unclear, such as when it is not yet known whether the child is or is not an Indian child, it is advisable to proceed pursuant to the requirements of the ICWA unless or until a determination is otherwise made in order to fulfill the Congressional purposes of the ICWA, to ensure that the child’s Indian tribe is involved, and to avoid invalidation of the action pursuant to 25 U.S.C. § 1914 and Rule 46.03.”

A court can’t go back and apply heightened standards after the fact. Makes more sense to do so from the beginning. No child is hurt by applying higher standards to their case, even if it ends up ICWA ultimately does not apply.

Thanks to AS.

White Earth Nation Taking over Human Services Cases from Surrounding Counties

In 2011, the Minnesota legislature authorized White Earth to take over all human services programs for tribal members and families in surrounding counties.

Bill text here.

With more tribes looking at options to provide more services for tribal members residing off reservations, it will be interesting to see how this implementation process will work for White Earth.

News coverage on the transfer here.

Before the transfer began, White Earth was offering some human services programs, including tribal child care assistance, child welfare programs, disability waivered services and food distribution programs.

However, people also qualified for several other programs that only the counties offered.

That meant a lot of back and forth and confusion for recipients who were juggling programs from different agencies.

The complete transfer – the first of its kind in Minnesota – will mean people will have their cases streamlined into one place where they can receive all benefits together.

Document with the transfer proposal for Mahnomen county cases here.

H/T to Adrea Korthase!

News Coverage of Honor the Earth Arguing For a Voice in Pipeline Route in Front of Minnesota ALJ

Here.

Attorneys for the company contend that the commission has no business deciding the meaning of federal treaties. Even so, much of the two-hour discussion before Judge Eric Lipman focused on 10 treaties signed between 1825 and 1864 by Minnesota Indian tribes.

“It would represent a dramatic departure from the commission’s precedent and would significantly impact not just pipeline projects but all large energy projects sited in northern Minnesota,” said Christine Brusven, an attorney for the Calgary-based pipeline company that’s proposing to build the 610-mile pipeline to carry North Dakota oil.

Headed for the courts?

Lipman, who is overseeing the regulatory review of the pipeline, is expected to rule on the treaty rights question, but the final decision rests with the Public Utilities Commission. The issue ultimately could land in federal court.

H/T Jean O’Brien