Wyoming

State ICWA Law Updates (MN, WY)

Kate Fort

This week both Minnesota and Wyoming adopted new state ICWA laws.

After nearly a year of dedicated work by stakeholders, including tremendous tribal leadership, Minnesota updated the Minnesota Indian Family Preservation Act.

Minnesota-2023-SF667-Engrossed

In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.

Enrolled Wyoming ICWA Bill

I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies). 

But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well. 

We keep state ICWA laws here: https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/.

News on Proposed State ICWA Laws

Kate Fort

Over the past few weeks, a number of states have been considering state ICWA laws. I’m keeping the bills updated here, along with their current status when I’m notified of it. https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/

Today the AP had news coverage of the bills here

Finally, here is a link to the testimony that took place yesterday in the Minnesota Senate.

This bill is supported by the ICWA Law Center, one of the only organizations that provides direct, trial level legal services to Native families, and they do it very well. They are currently holding a fundraiser with Heart Berry:

https://www.heartberry.com/products/protect-icwa-pre-sale-hoodie

And listen, I’m not responsible if you follow that link and then get sucked into buying a whole bunch of stuff from Heart Berry because it’s basically impossible not to. I don’t make the rules.

Wyoming Federal District Court Orders Exhaustion

Matthew Campbell

The District Court of Wyoming dismissed a claim against the Eastern Shoshone Tribe and First Nation Healthcare, requiring exhaustion of tribal court remedies. Here is the Order:

clausen-v.-eastern-shoshone-tribe-first-nation-healthcareDownload

And here are the tribal briefs:

first-nation-mtdDownload
tribe-mtdDownload

Update in Northern Arapaho Suit re: Eagle Act and RFRA

Matthew L.M. Fletcher

Northern Arapaho has moved for judgment on the pleadings in its suit challenging the Fish and Wildlife Service’s administration of the Eagle Acts:

Northern Arapaho Motion for Judgment on Pleadings

Their complaint is here.

Eastern Shoshone Allowed to Participate in Northern Arapaho Eagle Permit Suit

Adrea Korthase

AP story is here.

Previous post is here.

Eastern Shoshone Moves to Enter N. Arapaho Eagle Suit against FWS as Amicus in Opposition

Matthew L.M. Fletcher1 Comment

Here:

Eastern Shoshone Motion for Amicus Status

Northern Arapaho Tribe’s Amended Complaint Regarding Eagle Permit

Adrea Korthase1 Comment

This Amended Complaint (from March 30th) is related to the previous post here. An excerpt from the complaint’s Preliminary Statement reads:

This action seeks to protect the traditional religious rights and freedoms of the Tribe and its members. Those rights include the limited taking of an eagle for traditional religious purposes of the Tribe. For two and a half years, Defendants failed or refused to issue a federal permit to allow the taking of an eagle by members of the Northern Arapaho Tribe for traditional Native American religious purposes. The denial placed members of the Tribe at risk of criminal prosecution for the taking of an eagle pursuant to their rights under the First Amendment of the United States Constitution, the Religious Freedom Restoration Act (“RFRA”), other federal laws, and the laws of the Tribe.

Northern Arapaho Code Title 13 Freedom of Religion can be found here.

As of last week, the Wyoming Game and Fish Department was reviewing whether or not the Northern Arapaho Tribe would require state permission under the permit. That article is here.

Eagle Permit Issued to Northern Arapaho Tribe Called a “Sham”

Adrea Korthase1 Comment

Previous post about the permit is here.

The Northern Arapaho Tribe filed an amended lawsuit yesterday. The AP article (via boston.com) is here.

Water Contamination and Fracking in Wyoming

Adrea Korthase

Tonight’s CBS Evening News included a story on fracking in Pavillion, Wyoming that can be found here.

The NPR story on the subject can be found here. An excerpt:

People in Pavillion, located on the Wind River Indian Reservation, contacted the EPA three years ago, complaining that their water smelled and tasted bad.

The agency started sampling drinking water wells in 2009 and found low levels of methane and other hydrocarbons in most of those wells. Although the levels did not exceed drinking water standards in most cases, the agency recommended that people get other sources of water for drinking and cooking, Encana, the company which drilled the wells, started providing water. The company says it provides drinking water to 21 households at a cost of about $1,500 per month.

The agency was concerned that higher concentrations of some of the chemicals might be lurking elsewhere in the aquifer.

So EPA researchers drilled two wells and found lots of chemicals, which could be tied to drilling. For example, they found levels of benzene, which is known to cause cancer and other health effects, far higher than safe drinking water standards. The presence of other chemicals — like synthetic glycols and alcohols — persuaded them that the contamination was likely coming from fracking.

Finally, a recent post about fracking can be found here.

Eagle Repository Case: United States v. Friday (CA10) — Update!

Matthew L.M. Fletcher1 Comment

Oral argument in this very interesting case is set for December 17, 2007 in Denver. The panel consists of Ebel, Kelly, and McConnell.

Our previous post with initial briefs and the lower court opinion is here. Friday retained counsel and that attorney was given leave by the Court to file a supplemental brief (see below the fold).

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