Standing Rock Sioux Tribe

Eighth Circuit Shows Against Why FTCA’s Discretionary Function Exception Should Be Canned

June 12, 2023Matthew L.M. Fletcher

Here is the cursory, bloodless opinion in Mound v. United States.

Briefs here. Lower court materials here.

An excerpt:

In 2014, the Tribe identified a culvert—a structure that channels water under a road—as a potential maintenance project. In 2018, based on an engineering assessment, the Tribe decided to replace the culvert. Because its existing contract did not authorize funding for the project, the Tribe sought a new contract with the BIA. Before the new contract was finalized, heavy rains collapsed the culvert, leaving a large gap in the road. Four cars drove into the gap and plunged into the water. Trudy Peterson and James Vander Wal were swept downstream and died. Evan Thompson and Steven Willard suffered serious injuries.

Eighth Circuit Briefs in Mound v. United States

August 31, 2022August 31, 2022Matthew L.M. Fletcher

Here:

Opening Brief.pdf Download

Federal Answer Brief.pdf Download

Lower court materials here.

Iowa Supreme Court Decision on Notice and Indian Child [ICWA]

May 17, 2022Kate Fort

Opinion here:

210324_D8AD4E4B97EB1

Court page with oral arguments here.

I have delayed in posting this one mostly because I found this one particularly difficult, but I’ve referenced it in multiple presentations, so here it is. In essence, the child is a Lakota child, but due to COVID and tribal citizenship requirements and enrollment delays, ICWA did not apply to their case.

Red Cloud [Oglala Sioux ICWA Director] testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.
Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When asked, however, whether Z.K. was “eligible for enrollment” in the Oglala Sioux Tribe, Red Cloud responded “Yes.”
On cross-examination, Red Cloud stated that it was hard to get enrollment certified because of the health issues of a BIA employee responsible for certification. Yet, Red Cloud testified that the tribe could determine whether somebody is a member or eligible for membership without certification by the BIA.
***
Red Cloud further stated that the Mother is at least half Native American regardless of whether she is a member of the Standing Rock Sioux or Oglala Sioux Tribe, and as a result, “there was no way that [the Court] can determine that [Z.K.] is not an Indian.” Red Cloud added, “[W]e need the time to figure this out.”

Obviously, that time didn’t happen and the Court found ICWA did not apply because the mother was not a citizen of Oglala. This is especially frustrating coming out of Iowa, which has an ICWA statute that attempted to define an “Indian child” as one that was recognized as such by her community. However, in 2007, the Iowa Supreme Court found that portion of the statute unconstitutional.

North Dakota Federal Court Dismisses FTCA Claim arising from BIA Road Maintenance Negligence under “Discretionary Function Exception”

March 16, 2022Matthew L.M. Fletcher

*Federal (and tribal) discretion at work.*

Here are the materials in Mound v. United States (D.N.D.):

1 Complaint

9 Federal Motion to Dismiss

19 Response

23 Reply

32 US Post Hearing Brief

33 Mound Post Hearing Brief

32-dct-order-motion-to-dismiss-1 Download

NCAI Amicus Brief Supporting Standing Rock Protester Shot in Face by Police with Lead Bean Bag

June 8, 2021Matthew L.M. Fletcher

Here is the brief in Mitchell v. Kirchmeier (8th Cir.):

NCAI Amicus Brief

News Profile of Private Contractor’s Actions in Infiltrating Standing Rock/NoDAPL Protests

November 15, 2020Matthew L.M. Fletcher

From the Intercept, here.

Anpetu Wi — Standing Rock Wind Energy Project

August 28, 2020Matthew L.M. Fletcher

Here.

Secretary of State Agrees to Settle Voter ID Lawsuits by Entering Into Consent Decree with North Dakota Tribes

February 13, 2020February 13, 2020Matthew Campbell

In the wake of the district court’s denial of the State’s motion to dismiss, the Secretary of State has agreed to settle two federal voting rights lawsuits brought by two Native American Tribes and several individual voters over North Dakota’s voter ID law.

The law requires voters to present identification listing their residential street address – a substantial hurdle for many Native Americans living on reservations, because the state has failed to assign residential street addresses to homes on tribal reservations.

In January 2016, eight Native Americans, represented by the Native American Rights Fund (NARF), Tom Dickson and Rich de Bodo filed suit to block the North Dakota voter ID law, which disenfranchised Native American voters and violated both state and federal constitutions as well as the Voting Rights Act.

On October 30, 2018, NARF, Campaign Legal Center (CLC), Robins Kaplan LLP, and Cohen Milstein Sellers and Toll PLLC filed a separate lawsuit on behalf of the Spirit Lake Tribe and six individual plaintiffs to ensure that eligible Native American voters residing on reservations in North Dakota would be able to cast a ballot in the 2018 midterm elections and in all future elections. The Standing Rock Sioux Tribe, with approximately 5,868 residents of voting-age that could be affected by the law, joined the Spirit Lake case in early 2019.

“This fight has been ongoing for over four years, and we are delighted to come to an agreement that protects native voters,” said Matthew Campbell, attorney for the Native American Rights Fund. “It has always been our goal to ensure that every native person in North Dakota has an equal opportunity to vote, and we have achieved that today. We thank the Spirit Lake Nation, Standing Rock Sioux Tribe, and the individual native voters that stood up for the right to vote.”

“We are pleased with the result of the settlement. It was a breakthrough for the state to recognize its responsibility to ensure that Native Americans have access to the identification needed to exercise their voting rights,” said Paul Smith, vice president at CLC. “In order to have a successful 2020 election, the state must follow through with a robust voter and poll worker education campaign to ensure that proper protocols are followed so people aren’t rejected because of the state’s failed addressing system.”

Backstory

Facing a trial date in the Spirit Lake case in May of this year, the Secretary of State announced an emergency rulemaking last week in an attempt to address some of the issues raised by the lawsuit. At an in-person mediation at the North Dakota capitol on February 6, 2020 with representatives from the Spirit Lake Nation and attorneys from CLC and NARF, the Secretary agreed to take additional steps to ensure that eligible Native American voters are not disenfranchised due to the restrictive voter ID law.

Because of the state’s broken addressing system, many Native Americans living on reservations do not have or do not know their residential addresses, and are therefore unable to comply with the North Dakota voter ID law. During the 2018 election, the Spirit Lake Nation and the Standing Rock Sioux tribe expended substantial resources to ensure that their tribal members would have the identification necessary to vote, including by shouldering the burden of identifying and providing residential street addresses for their members.

The unique burdens faced by Native Americans in North Dakota – including a severe housing shortage – mean that tribal members are much more likely to have moved in the intervening time, or to be homeless or precariously housed. As a result, determining members’ residential addresses – and providing them with the documentation necessary to vote – is an ongoing effort that requires substantial resources.

Details of the agreement

In addition to the previously announced rulemaking, which requires the state to recognize tribal IDs and supplemental documentation issued to tribal members, the Secretary has agreed to enter into a binding consent decree, enforced by a federal court order, which will ensure that Native American voters who do not have or do not know their residential street address are able to vote.

The Secretary of State also agreed to work with the Department of Transportation to develop and implement a program with tribal governments to distribute free non-driver photo IDs on every reservation statewide within 30 days of future statewide elections.

In the 2020 election, Native American voters will have the opportunity to mark their residence on a map, a process that is commonly used by voters in other states. The burden will then shift to the state to verify the residential street addresses for these voters, to provide that information to the voter and the tribe, and to ensure those voters’ ballots are counted.

The court-ordered consent decree will include details about what the state must do to educate the public and train poll workers on the new procedures, as well as measures designed to enable the Tribes to ensure the state is complying with its obligations under the agreement.

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[Click here to read a joint statement on the settlement by North Dakota Secretary of State Al Jaeger, Spirit Lake Nation, and Standing Rock Sioux Tribe]