Ute Mountain Ute Tribe

Tribal Nations Granted Intervention in Bears Ears Litigation

Matthew Campbell

On November 18, 2022, the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, and the Pueblo of Zuni moved to intervene in two lawsuits in the U.S. District Court for the District of Utah regarding the Bears Ears National Monument. The Court granted the motions to intervene.

Order granting intervention here:

doc-52-2022-12-8-consolidated-order-granting-hopi-navajo-pueblo-of-zuni-ute-mtn-ute-am-mot-to-intervene-00241133x105fe6Download

Motions can be seen here and here.

Bears Ears at Sunset. Photo credit: Tim Peterson.

Denezpi v. United States — Cert Petition re: CFR Courts as Federal Courts

Matthew L.M. Fletcher

Here is the petition and appendix:

Cert Petition

Appendix

Lower court materials here.

Question presented:

Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?

Update:

Federal Opposition Brief

Tenth Circuit Confirms Criminal Convictions in Courts of Indian Offenses are Not Federal Convictions for Double Jeopardy Purposes

Matthew L.M. Fletcher

Here are the materials in United States v. Denezpi:

CA10 Opinion

Denezpi Opening Brief

US Answer Brief

Reply Brief

DCT Order Denying Motion to Dismiss

Qualified Expert Witness Case out of Utah Court of Appeals [ICWA]

Kate Fort

Here.

In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:

The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .

The Court of Appeals instead agreed with mother and Tribe, stating:

Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.

***
Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.

Unfortunately, the appellate court ultimately held that:

Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.

Briefs on Federal Motion to Dismiss in Bears Ears Litigation

Matthew L.M. Fletcher

Here are the materials in Hopi Tribe v. Trump (D. D.C.):

48 DCT Order Denying Transfer Motion

49-1 Federal Motion to Dismiss

50 Intervenors Motion to Dismiss

61 TWS Brief

63 GSCE Brief

71 UDB Brief

72 NRDC Brief

74 Tribal Response

74-1 Exhibits

75-1 Law Profs Brief

82-1 Members of Congress Amicus Brief

87-1 Local Elected Officials Amicus Brief

89 States Amicus Brief in Opposition to MTD

91-1 Archeological Orgs Amicus Brief

93 NCAI AAIA Bears Ears Amicus Brief

94-2 Outdoor Alliance Brief

Prior posts here.

Tribal Opposition to Trump Administration’s Motion to Change Venue in Bears Ears Matter to Utah

Matthew L.M. Fletcher

Here is the pleading in Hopi Tribe v. Trump (D.D.C.):

Doc. 26 Plaintiffs’ Opposition to Federal Defendants’ Motion to Transfer 2018-02-01

The motion is here.

Administration Moves for Transfer to Utah in Bears Ears

Sarah M Donnelly1 Comment

Here is the motion in Hopi Tribe et al v. Donald J. Trump et al, 17-cv-02590 (D.D.C.):

21 – Federal Defendants’ Motion to Transfer Case to the District of Utah

Link: Case Archive

Five Tribes Complaint against Trump over Bears Ears

Matthew L.M. Fletcher

Here is the complaint in Hopi Tribe et al. v. Trump (D.D.C.):

Doc. 1 Complaint

Update on the parallel suit involving Grand Staircase-Escalante National Monument: Wilderness Society v. Trump is here

Friday Job Announcements

Sarah M Donnelly

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Navajo Nation

Public Defender, Window Rock, AZ. Open until filled.

Ute Mountain Ute Tribe

Associate General Counsel, Justice Department. Applications are due by March 3 and consist of a cover letter, resume and references. The cover letter may be an email. All interested attorneys are encouraged to apply. Applications should be submitted to Peter Ortego, General Counsel at portego@utemountain.org , or call (970) 749 9816 with any questions.

Sitka Tribe of Alaska

Tribal Realty Officer/Tribal Court Specialist. Responsible for providing direct services to restricted property land owners and native allotment applicants within the Sheet’ka Kwaan under supervision of the Tribal Attorney. The Tribal Court Specialist responsibilities of this position requires providing support to the Tribal Court, working closely with the Tribal Court Judges, Tribal Attorney and Social Services department.

Confederated Tribes of Chehalis Reservation

ICWA Attorney for contract, Oakville, Wa. Contractor will advise and represent CTSS in Chehalis Tribal Court as well as other Tribal and State courts in all ICWA, dependency and vulnerable adult cases. Must have Juris Doctorate and five years directly related experience with a preference to American Indian/ Alaska Native communities. Must be an active member of the Washington State Bar Association and eligible for immediate admission to Tribal Court. Valid WA State license and insurability through our insurances, pass background check and pass pre-employment drug testing. Submit letter of interest and resume to: gfrancis@chehalistribe.org.

MHA Nation

Assistant Tribal Prosecutor/Special Assistant US Attorney, New Town, ND. Closing date 3/27/2017. Applications shall be in writing; to include a professional Resume, legal qualifications and any other submissions at the option of the applicant.

ACLU of Montana

Communications Strategist. Applications will be reviewed beginning the week of March 6, 2017 and will be accepted until the position is filled.

Yurok Tribe

Deputy General Counsel, Office of the Tribal Attorney. Open until filled.