QEW Case out of the Colorado Court of Appeals [ICWA]


The question is whether the parent should have had attorney representation during the interview with the qualified expert witness. This is a really interesting question, especially given that in this case the mother was assigned her own Guardian ad Litem. The Court ultimately held that she did not have the right to representation during the interview and upheld the termination of parental rights.

Friday Job Announcements

Job vacancies are posted on Fridays. This week, any posts received prior to 12pm EST on Thursday will appear in this Friday’s announcements. If you would like to submit a post for an open Indian law or leadership job, please send a brief description of the position (which includes position title and location) as well as a PDF job announcement to indigenous@law.msu.edu.

Hopland Band of Pomo Indians

Pro Tempore Judge, Hopland, CA. Responsible for all judicial work and presides over three active Tribal Courts for the Northern California Intertribal Court System solely on a part-time, as-needed basis.  Scope of work includes conducting hearings, formulating conclusions of law, adjudicating cases and issuing protective orders on all cases before the Intertribal Court by applying applicable tribal law, custom and tradition.  For more information please see the job description.

The Hopi Tribe

Chief Prosecutor, Office of Tribal Prosecutor, Keams Canyon, AZ. This position is responsible for executive and administrative control of the Hopi Office of the Prosecutor, as well as the investigation and prosecution of crimes committed by adult and juvenile offenders within the exterior boundaries of the Hopi Reservation, and presentation of minor in need of care matters in the Hopi Children’s Court. For more information please see the job description.

General Counsel, Office of General Counsel, Kykotsmovi, AZ. The Deputy General Counsel provides professional legal counsel and representation to the Hopi Tribal government – including the legislative and executive branches of the Hopi Tribe, the administrative departments, offices and programs. For more information please see the job description.

Deputy General Counsel, Office of General Counsel, Kykotsmovi, AZ. The General Counsel is the principal legal counsel of the Hopi Tribe and reports directly to the Hopi Tribal Council, providing professional legal counsel and representation to the Hopi Tribal government as specified by the Tribal Council. For more information please see the job description.

Sitka Tribe of Alaska

Tribal Family Caseworker, Sitka, AL. This position is an integral part of the Social Services Department team, working closely with the Indian Child Welfare Act (ICWA) team, community partner agencies, and the STA Tribal court staff to provide case management support to families going through the Tribal court guardianship or adoption process.  For more information please see the job description.

Westside Collaborative – Native American Communities Workgroup

Project Director, Grand Rapids, MI. This position involves managing a full workgroup, overseeing subcommittees within this workgroup, communicating with Native community and their connected networks, leading systems mapping, collecting data, assisting team members identify priorities, ensuring team efforts are rooted in empathy, focused on action, and seeking sustainable solutions. For more information please see the job description.

Picayune Rancheria of the Chukchansi Indians

RFP, Oakhurst, CA. For consulting services in economic development, this RFP is intended to help identify, plan and prioritize the needs of PRCI’s business entity, Chukchansi Sovereign Enterprises (CSE). The Consulting Firm will work with the Tribal Council to identify new potential business ventures to further the Tribe’s economic diversity, generate additional revenue for the Tribe, and create employment opportunities for tribal members. For more information please see the description.

The Snoqualmie Indian Tribe

Staff Attorney, Snoqualmie, WA.  Located in a beautiful area just 30 minutes from Seattle and seeking to add a fourth attorney position to its in-house Legal Department.  The ideal candidate for this position is an attorney experienced in representing tribes in the areas of real estate law, environmental law, and/or health law, although other areas of expertise may be considered as well. Please visit the link for more information.

See posts from March 1, 2019.

Eighth Circuit Affirms Major Crimes Act Conviction over Dissent on Right to Counsel in Tribal Court (Rosebud Sioux)

Here are the materials in United States v. Long:


Long Brief

US Brief


An excerpt from the dissent:

A misdemeanant like Michael Long is forbidden to possess a firearm only if he was “represented by counsel in the case” in which he sustained the misdemeanor conviction, or if he “waived the right to counsel in the case.” 18 U.S.C. § 921(a)(33)(B)(i)(I). It is undisputed that Long did not waive the right to counsel and that he was not represented by a lawyer in the case. The court concludes, however, that because Long was represented in the case by a nonlawyer, dubbed a “lay counsel” by the Rosebud Sioux Tribe, he was “represented by counsel in the case.” I believe that this conclusion is inconsistent with the meaning of the word “counsel” in the statute, so I would reverse Long’s conviction for possession of a firearm as a prohibited person.

Takeaways from the Bryant Decision

As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.

A few takeaways:

1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:

Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]

2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:

In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]

3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]


That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]


[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]

The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.

3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:

Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]

Let’s hope that statement applies to non-Indians, too.

4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:

Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.

Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.



Sixth Circuit Affirms Conviction of Second Saginaw Chippewa Member for DV

Here is the unpublished opinion in United States v. Pego.This one is Samuel John Pego. We posted on the earlier appeal by Waylon Pego here.

Sixth Circuit Affirms D.V. Convictions of Saginaw Chippewa Member

Here is the unpublished opinion in United States v. Pego.

We posted the indictment and a procedural matter on the blog.

Tracing the Right to Counsel in the VAWA Reauthorization Act

Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).

Here is the new statute, of which section 904(d) reads:

In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);

The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
(3) require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

Federal Court Denies Motion to Remand Serial DV Case to Tribal Court

Here are the materials in United States v. Pego (E.D. Mich.):

DCT Order Denying Motion

Pego Indictment

Pego Superceding Indictment

US Opposition to Pego Motion