Pathways to the Legal Profession: Pre-Law Advisor Training Conference

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Learn more and register here.

About the Conference

The Pathways to the Legal Profession Conference aims to increase the number of competitive Native law school applicants nationwide. Recent scholarship by the American Bar Association and others establishes that Native Americans are disproportionately underrepresented in the legal profession. We encourage advisors, educators, and school administrators to attend this training to help identify, advise, and support the next generation of indigenous attorneys.

Advisors

Advisors with an array of titles and responsibilities are encouraged to attend.  This includes community members such as teachers and youth mentors, as well as those who specifically advise American Indian and Alaska Native students interested in applying to law school.

Travel

Lodging and travel reimbursements are available for Tribal Education Departments and Tribal Colleges and Universities.

Posted in Research | Tagged , , , , ,

Miccosukee Per Cap Taxation Cert Petitions

Here is the petition in Miccosukee Tribe of Indians of Florida v. United States:

cert-petition-1-1.pdf

Question presented:

The 2014 Tribal General Welfare Exclusion Act states that, for income tax purposes, “[g]ross income does not include the value of any Indian general welfare benefit.”

The question presented is whether contrary to that plain command, gross income includes “Indian general welfare benefits” when those benefits are derived from gaming revenue pursuant to the 1988 Indian Gaming Regulatory Act.

Here is the petition in Jim v. United States:

cert-petition-2-1.pdf

Questions presented:

Whether treaties with Indian tribes must be construed consistent with that tribe’s present-sense understanding of the treaty.

Whether the Miccosukee Tribe’s long-standing method of compensation for use of Tribal member lands and distributing revenue from land to its members can be considered a “mere formalism” to avoid inclusion and taxation as income to the members when the Tribe’s chosen method of compensation is soundly in line with federal law and policy.

Whether the Assistant Secretary of the Interior through its designated representative can interpret, waive, modify or exempt payments made to tribal members from inclusion as income.

Lower court materials here.

Posted in Author: Matthew L.M. Fletcher, IGRA, Indian gaming, Research, Supreme Court, taxation, treaty rights | Tagged , , , , , , , ,

McNeal v. Navajo Nation Cert Petition

Here:

cert-petition-2.pdf

Question presented:

Whether the Tenth Circuit panel violated the current jurisprudence of this Court and the Congressional policy underlying IGRA by precluding the Nation from exercising its sovereign authority to permit a patron’s tort claim against the Nation and its gaming facility to be brought in state court without express congressional permission.

Lower court materials here.

Posted in Author: Matthew L.M. Fletcher, IGRA, Indian gaming, Research, Supreme Court, tribal courts | Tagged , , , , , , ,

Federal Court Dismisses Contract Claim against Alaska Tribe

Here are the materials in Alaska Logistics LLC v. Newtok Village Council (D. Alaska):

1 complaint

6 answer and counterclaims

19 tribe motion to dismiss

25 answer to counterclaims and counterclaims to counterclaims

28 motion to strike

29 opposition to mtd

31 reply in support of mtd

39 dct order

Posted in Author: Matthew L.M. Fletcher, economic development, Research, sovereign immunity | Tagged , ,

Article Out of Colorado on Keeping Kids in Foster Care in the Same School

While this article doesn’t talk about Native children populations, this is an aspect of foster care I always teach, and often law students find it surprising that children are moved out of their school district (and related sports teams, academic teams, IEPs, etc. etc.) when they are removed from their home. Federal law (not ICWA) requires kiddos who go into foster care to stay in the same school system, and yet:

When children are taken from their parents and placed in foster care, or when they change foster homes, caseworkers are required to convene a “best-interest determination” to decide whether the child should switch schools or stay put. The meeting includes teachers and school staff, parents, and in some cases, the child.

According to a state data sample of children who changed schools, that meeting happened before the school switch just 11 percent of the time in Colorado last year. More often than not, the meeting happened after the student had already transferred or didn’t happen at all.

Emphasis added. And this is in a state where the legislature ALLOCATED FUNDING for this federal requirement. To bring it into the ICWA world, while required by a separate federal law, I might still consider it active efforts to keep a kiddo in the same school district. It’s also just confounding to me the number of things required by both state and federal law that just simply do not happen in these cases (just in case you wondered what has Kate Fort cranky today. Also, this report which should be a totally different post about parents and active efforts and incarceration).

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , , , ,

2018 ICWA by the Numbers

Here’s our annual contribution to the ICWA data discussion. I’m nearing to the final set of 2018 ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. I collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. I’m also still cleaning some of these numbers, so take this as it is–a quick and dirty survey of the cases.

These are standard state court ICWA cases, and  do not include any of the ongoing federal litigation. This is our fourth year writing this post (2015 and 2016 and 2017). Last year Addie Smith and I managed to get a survey completed and published for 2017. This year, we are dreadfully behind, but are still planning to have this into the American Indian Law Journal later this month. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases).  Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.

In California, the cases further breakdown as follows. The Second District and Third District both reported 2 cases, and the Fourth District reported 5 for a total of nine. The remaining 116 cases are spread through out the state, thought the Fourth, Second, and First have the highest number of appealed cases, followed by the Third, Fifth, and Sixth with the fewest. California is the only state where we track by appellate districts at this time.

Supreme Courts reported ICWA decisions in 17 cases this year, including in Alaska (3), Montana (7), Michigan (1), Nebraska (1), Nevada (1), North Dakota (1), South Dakota (2),  (of course some of these states don’t have an intermediate court of appeals–the remaining 11 unreported Supreme Court cases all come out of Alaska and Montana, for example).

125 of the cases affirmed the lower court, while 79 were remanded or reversed.

Top litigated issues across both reported and unreported cases were as follows: Notice (86), Inquiry (43), Placement Preferences (9), Active Efforts (13), Termination of Parental Rights (18), Foster Care Proceeding (4), Transfer to Tribal Court (1), and QEW (1). Also the cases determining if there is an Indian child are up (7), and cases involving California’s Tribal Customary Adoption popped up (4). Only 2 cases involved placement preferences this year. This year 44 of the Notice cases and 23 of the Inquiry cases were remanded for proper notice. The Notice cases are down from last year, and the other issues are up.

59 different tribes were named as the first named tribe in a case. In 27 cases the tribe was unknown (parent did not know name of tribe). In 24, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, not a single one was appealed by a tribe (that I can find). Cases  were appealed by mom, dad, mom AND dad, the guardian ad litem, aunt, prospective adoptive couple, and the state.

Cases I have been specifically highlighting in my presentations this year are as follows:

Colorado (Notice and Appellate Instruction)

Colorado (Foster Care Proceeding)

Minnesota (QEW)

Oklahoma (reason to know)

Ohio (transfer to tribal court)

South Dakota (application of Texas v. Zinke/Brackeen v. Zinke)

Other major ICWA stories this year that are not reflected in this post include, obviously, Texas v. Zinke, the dismissal of the Oglala Sioux class action case by the Eighth Circuit, and the spread of ICWA pro hac vice rules.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , ,

Climate Justice Webinar: Municipal, Tribal, and Legal Action

ABA’s Native American Resources Committee is sponsoring a webinar on climate justice, from the perspective of local actors driving change. More information is available here.  Wednesday, January 23, 2019, 12:00 PM – 1:30 PM ET.

Posted in Research, webinar | Tagged ,

St. Regis Mohawk v. Mylan Pharma Cert Petition

Here:

cert-petition-1.pdf

Question presented:

Whether inter partes review before the Patent Trial and Appeal Board is the type of proceeding in which tribal sovereign immunity may be asserted.

Lower court materials here

Posted in Author: Matthew L.M. Fletcher, economic development, Research, sovereign immunity, Supreme Court | Tagged , , , , ,

VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case

From NARF:

Dear tribal leaders and tribal counsel,

Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days.  This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.

As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional.  The case is currently on appeal to the Fifth Circuit Court of Appeals.

The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states.  All federally recognized Tribes are invited to sign on to the brief in a show of unity.  Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.

If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT).  Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.

If your Tribe would like to sign on, we will need an email that provides the following:

  1. A statement from an individual (chairperson, executive director, general counsel, etc.) or body (tribal council, etc.) authorized to do so, asking to be added as a signatory on the brief.  A statement via email is fine; and
  2. The full name and correct spelling of the Tribe as it should appear on the brief.

The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.

Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.

Thank you again for your commitment to defending ICWA.

Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund

Posted in ICWA, Research | Tagged , , , ,

Pre-Law Advisor Training Conference – Registration Deadline Extended

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The registration deadline has been extended to January 25, 2019 for the Pre-Law Advisor Training Conference. Advisors with an array of titles and responsibilities are encouraged to join us February 5-6, 2019.

Lodging and travel reimbursements are available for Tribal Education Departments and Tribal Colleges and Universities.

Please visit the event page or call (505) 277-5462 for more information about registration, travel reimbursements and the agenda.

 

 

Posted in Research | Tagged , , ,

Atlantic Profile of the Herrera v. Wyoming Case

“Can Congress Void a Tribal Treaty Without Telling Anyone?” here.

Posted in Author: Matthew L.M. Fletcher, News, Supreme Court, treaty rights | Tagged , , ,