Minnesota COA Reverses Lower Court on Tribal Jurisdiction Issue

Baffles me why this is unpublished….

Here is the opinion in Nason v. 1991 Buick.

The tribal interest in self-governance rests with the Mille Lacs Band of Ojibwe Indians-both the incident leading to the forfeiture proceeding and the seizure of respondent’s vehicle took place on the Mille Lacs Reservation. Because respondent is enrolled in the Fond du Lac Band, the Mille Lacs Band’s interest in self-governance is not as strong over respondent. We reject respondent’s argument that we should consider the Minnesota Chippewa Tribe as a whole when assessing the strength of the interest in self-governance; that argument was considered and rejected by the supreme court in Davis, and we find nothing to distinguish respondent’s case from Davis.

Based on the state’s strong interest of promoting safety on state roads and the weaker tribal interest in self-governance present in this case, we conclude that a forfeiture proceeding against respondent in state court is not preempted by federal or tribal interests. We therefore conclude that the state has subject-matter jurisdiction to hear the forfeiture action involving respondent’s vehicle.

Morrison v. Spang — Tribal Court Exhaustion in ICRA Habeas Proceeding

Here are the materials from the District court in Montana:

Morrison Magistrate Report

Morrison DCT Order

Northwest Indian Bar Association Winter 2009-2010 Newsletter

Here.

Articles on the recovery act, Carcieri v. Salazar, and Allen Sanders.

Bustamante v. Valenzuela Magistrate Report Rejects Consecutive Tribal Court Sentences

Here is the magistrate R&R in this matter, a companion case to Miranda v. Nielson (D. Ariz.), though a different federal judge will review this report, so we’ll see.

Bustamante Report and Recommendation

Briefs are here.

Michigan Bar Journal Special Indian Law Issue

Here:

State Court Administrative Office – Court Improvement Program: Indian Child Welfare Act Forum Remarks, October 6, 2008
by Justice Michael F. Cavanagh

Indian Children and Termination of Parental Rights: Michigan Supreme Court Takes a Step in the Right Direction in In Re Lee
by Angel Sorrells, Cami Fraser, Thomas Myers, and Aaron Allen

Proceed with Prudence: Advising Clients Doing Business in Indian Country
by R. Lance Boldrey and Jason Hanselman

Indian Gaming and Tribal Self-Determination: Reconsidering the 1993 Tribal-State Gaming Compacts
by Zeke Fletcher

Indian Country Law Enforcement and Cooperative Public Safety Agreements
by Matthew L. M. Fletcher, Kathryn E. Fort, and Wenona T. Singel

Fletcher Talk before UCLA Critical Race Studies Program Today

I’ll be speaking at UCLA today about my book project tentatively titled, “Consent and Resistance: American Indians and Consent Theory.”

Here’s the flyer for the entire speaker series:

CRS Native Speaker Series flyer

ABA: Race & Gender Make Large Differences in Judicial Decision-Making

Why Indian Country must continue to press President Obama on federal judicial nominees….

From the ABA via How Appealing:

A judge’s race or gender makes for a dramatic difference in the outcome of cases they hear – at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

The results were the focus of a program about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?,” sponsored by the ABA Judicial Division at the ABA Midyear Meeting in Orlando on Saturday afternoon.

In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.

Jicarilla Apache Tribe v. U.S. — Attorney-Client Privilege Dispute Headed for Supreme Court?

Jicarilla Apache Tribe sued the U.S. in 2002 in the Court of Federal Claims and later asked for inter-agency federal documents where the government claimed an attorney-client privilege. The court disagreed and ordered the production of certain documents. This order here denies the government’s motion for a stay while it petitions to the Federal Circuit for a mandamus order. Now apparently it wants more time to file a cert petition in the Supreme Court.

Order on Motion to Stay

And here is the Federal Circuit’s order.

Aviva Orenstein on How Evidence Rules Disproportionately Affect Indian Sexual Assault Defendants

Aviva Orenstein has published “Propensity or Stereotype? A Misguided Evidence Experiment in Indian Country,” in the Cornell Journal of Law and Public Policy.

Here is the abstract:

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.

Kansas Supreme Court Decides ICWA Expert Witness Case

Here is the opinion in In re M.F. This court is continuing its good work in requiring trial court compliance with ICWA.

An excerpt:

[W]e affirm the Court of Appeals, concluding that the ICWA heightens the requirements for an expert’s qualifications beyond those normally required in a proceeding governed solely by state statutes. We further hold that Kansas district courts should consider the legislative history of the ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979), in determining if a witness meets the heightened standard. In this case, there was no evidence that the two social workers who testified were members of the child’s tribe, had substantial experience in the delivery of child and family services to Indians, had extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe, or had substantial education and experience in the area of social work. Thus, the witnesses were not qualified expert witnesses under the ICWA, and there was no expert testimony to support the district court’s decision as required by the ICWA. Because this error is not harmless, we reverse and remand for new proceedings.

FACTUAL

we affirm the Court of Appeals, concluding that the ICWA heightens the requirements for an expert’s qualifications beyond those normally required in a proceeding governed solely by state statutes. We further hold that Kansas district courts should consider the legislative history of the ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979), in determining if a witness meets the heightened standard. In this case, there was no evidence that the two social workers who testified were members of the child’s tribe, had substantial experience in the delivery of child and family services to Indians, had extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe, or had substantial education and experience in the area of social work. Thus, the witnesses were not qualified expert witnesses under the ICWA, and there was no expert testimony to support the district court’s decision as required by the ICWA. Because this error is not harmless, we reverse and remand for new proceedings.FACTUAL