North Dakota SCT Affirms State Court Jurisdiction in Contract Breach Involving Tribal Member

Here are the materials in Fredericks v. McCormick Inc.:

2020ND161 Opinion

Fredericks Opening Brief

Fredericks Reply

McCormick Brief

McCormick Reply

And here are materials in a related case, Fredericks v. Vogel Law Firm:

2020ND171 Opinion

Appellant Brief

McCormick Inc Answer Brief

Vogel Law Firm Answer Brief


North Dakota SCT Affirms State Court Jurisdiction over Reservation Housing Eviction Matter

Here is the opinion in Gustafson v. Poitra: Opinion


Linus and Raymond Poitra appeal the district court judgment of eviction. The Poitras argue the district court erred by exercising jurisdiction over this matter, and by sending a North Dakota law enforcement officer onto the reservation to evict tribal members from property within the Turtle Mountain Reservation. We affirm.


Appellant Brief

Appellee Brief

North Dakota ICWA Case on Qualified Expert Witness

Here: Interest of K.S.D. and J.S.D., 2017 ND 289

The lack of qualified expert testimony on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child leaves this record without evidence necessary for the district court to find the State established the ICWA requirement by proof beyond a reasonable doubt. 25 U.S.C. There is a line of authority that upholds termination of parental rights absent an ICWA qualified expert witness. We choose to follow the other branch of authority because the United States Code and the United States Code of Federal Regulations require—and do not merely suggest—that a qualified expert witness testify on the ICWA requirements in all ICWA terminations.


(Unrelated, one has to love a Court that only allows opinions to be downloaded as WordPerfect documents. That’s commitment.)

North Dakota SCT Declines to Terminate the Special Provision of Legal Services Order

Here is the court’s order in In the Matter of a Petition to Terminate the Special Provision of Legal Services by Qualified Attorneys From Outside North Dakota:

20160436_op_Petition to Terminate Special Provision of Legal Services

Prior post here.

Request from WPLC Regarding N.D. Petition to Rescind Special Provision

Dear Law School faculty:

I am an attorney associated with the Water Protectors Legal Collective (WPLC), the legal assistance project which has been assisting the Standing Rock Tribe and its supporters protesting the Dakota Access Pipeline in North Dakota.  I’m writing together with Elana Gold, a law graduate working with WPLC, to ask you to consider signing the statement below which will be transmitted to the North Dakota Supreme Court.

In January, the North Dakota Supreme Court granted Special Provisions allowing qualified attorneys from outside North Dakota who are not members of the North Dakota bar to provide pro hac vice legal services in North Dakota representing defendants charged as a result of protest activities connected to the Dakota Access Pipeline.  Just days ago the Presiding District Judge of the South Central Judicial District where DAPL cases are pending, Hon. Gail Hagerty, petitioned the Supreme Court of North Dakota to terminate the Special Provisions the Supreme Court ordered on January 18, 2017 allowing out of state attorneys to represent protesters supporting the Water Protectors.  The Supreme Court initially adopted the provisions to ensure the constitutional rights of these defendants because there is limited access to legal resources in North Dakota. Revoking this provision would be a blow to the rights of defendants.   (Click here to see a copy of the Petition to Terminate the Special Provision.)

The North Dakota Supreme Court is allowing comment on the proposal until Monday October 2nd at 4 p.m.  Over 175 law school faculty from around the United States signed a comment in December 2016 in support of granting the original Special Provisions.  WPLC asks you to now consider signing a comment in opposition to the Petition of Judge Hagerty and the Judges of the South Central Judicial District to terminate the Special Provision allowing out-of-state attorneys to represent protesters.  If you are willing to sign the statement below, please send your name, faculty title, and the name of your institution to Elana Gold at on or before Monday October 2nd at Noon Central Daylight time (1pm Eastern, 10am Pacific).  Please share this request with colleagues at your school.  Thank you for your support.

Terry Janis
Executive Director
Water Protector Legal Collective

To:       Hon. Justices of the Supreme Court of North Dakota
c/o Penny L. Miller, Esq., Clerk of the Supreme Court
Judicial Wing, First Fl.
600 E. Boulevard Ave.
Bismarck, ND  58505-0530

Re:       In the Matter of a Petition dated September 11, 2017
to Terminate the Court’s Special Provision Adopted
January 18, 2017 to Allow Qualified Attorneys Not Licensed in
North Dakota to Provide Legal Services to Defendants
Charged As a Result of Protest Activities connected to
The Dakota Access Pipeline

We are law school faculty from throughout the United States.  We urge the North Dakota Supreme Court to continue to allow qualified attorneys admitted in other jurisdictions to practice temporarily in North Dakota in order to protect the constitutional rights of those arrested in connection with their opposition to the Dakota Access Pipeline. To this end, we oppose the Petition to Terminate the Special Provision of Legal Services by Qualified Attorneys from Outside North Dakota.

The circumstances that created the initial need for this provision remain critical. Over 800 arrests were made during the Water Protector camps at Standing Rock. As of September 11, 2017 some 150 defendants remained unrepresented and over half of the 800 cases are still unresolved. As these cases rapidly move to trial, it is evident that the number of criminal defense attorneys licensed in North Dakota and available to represent these defendants is inadequate. It would be an affront to fundamental fairness and due process to allow some Water Protectors access to pro hac vice attorneys while denying it to the second half of defendants.

We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld. The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process, and equal protection that constitute the cornerstones of the rule of law. The Court can protect these foundational principles and preclude the time and expense of years of subsequent litigation should these defendants be denied their constitutional rights by denying this proposed Petition.

For these reasons we ask the Court to deny the Petition to Revoke dated September 11, 2017 and urge the Court to ensure that all persons arrested and charged in North Dakota have access to adequate and effective legal representation.