Fletcher on Statutory Divestiture of Tribal Sovereignty

“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.

The abstract:

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

Posted in Author: Matthew L.M. Fletcher, Scholarship, Supreme Court, tribal courts | Tagged , , , | Leave a comment

NYTs: “Border Wall Would Cleave Tribe, and Its Connection to Ancestral Land”

Here.

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PBS: “Native Americans brace for impact as EPA undergoes changes”

Here

Posted in Author: Matthew L.M. Fletcher, Environmental | Tagged | Leave a comment

Sixth Circuit Decision on Title IV-E Maintenance Payments to Kinship Placements

Here.

Not an ICWA/Indian child case, but one that is important nonetheless given its ruling ensuring Title IV-E maintenance payments. The lack of these payments sometimes make kinship care very difficult on relative placements–Title IV-E maintenance payments cover, among other things, the child’s food, clothing, and shelter. 42 U.S.C. 675(4)(A). After determining that the aunt/foster parent established a cause of action, the court held that:

The family argues that the Cabinet approved R.O. [child’s aunt] to be a foster parent. Prior to placement, the Cabinet verified that R.O. met relevant non-safety standards by conducting a home evaluation and a background check. After determining that her home was safe, the family court moved the children from another foster provider to her care. R.O. therefore argues that the Cabinet “approved” her as a foster parent for the children.

Kentucky offers several arguments in response. Kentucky distinguishes between “foster care” and “kinship care.” According to Kentucky, “foster care” refers to licensed foster family homes. “Kinship care,” by contrast, refers to relative caregivers. Although the Cabinet must remit maintenance payments to foster parents, the Cabinet need only pay kinship care providers “[t]o the extent funds are available.” Ky. Rev. Stat. Ann. § 605.120(5) (West 2016). Due to inadequate appropriations, Kentucky ceased funding its kinship care program.

To the extent the Cabinet’s failure to make maintenance payments turns on the distinction between relative and non-relative foster care providers, it plainly violates federal law. In Miller v. Youakim, 440 U.S. 125 (1979), Illinois placed two children with their older sister, Linda Youakim, and her husband. Id. at 130. “The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes . . . .” Id. Yet, “[d]espite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim.” Id. The Court reviewed the definition of “foster family home.” Id. at 130–31. After noting that the statute “defines this phrase in sweeping language,” the Court found that “Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision.” Id. at 135.

If anyone wants the briefs on this, let me know.

Posted in Author: Kate E. Fort, Child Welfare | Tagged , , , , , , | Leave a comment

Updated ICWA Defense Project Memo

It’s been a couple of months, so here is the updated ICWA Defense Memo on the cases we are monitoring.

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

Moyers & Co.: “The Trump Administration’s Lies About Voter Fraud Will Lead to Massive Voter Suppression”

Lies have a purpose.

Here.

Posted in Author: Matthew L.M. Fletcher, News, voting rights | Tagged | Leave a comment

HUNAP: “SpearChief-Morris Becomes First Indigenous Student President of Harvard Law School’s Legal Aid Bureau”

Here.

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Friday Job Announcements

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.

Hualapai Nation

Associate Judge. NEW Closing date: 3/2/2017.

National Indian Education Association (NIEA)

Tribal Education Specialist, Washington D.C.

National Congress of American Indians (NCAI)

Staff Attorney, Washington D.C. First review 2/21/2017. Open until filled.

Posted in Author: Sarah Donnelly, jobs | Tagged , , , | Leave a comment

Ninth Circuit Briefs in Northern Arapaho Tribe v. LaCounte

Here:

BIA Opening Brief

Other briefs TK.

Lower court materials here.

Posted in Author: Matthew L.M. Fletcher, Research, trust relationship | Tagged , , , | Leave a comment

North Dakota SCT Awards Attorney Fees to Defendants in Indian Country Tort Claim Brought in State Court

Here is the opinion in Tillich v. Bruce.

An excerpt:

Don Bruce, Vinier Davis, and Linda Davis (“Defendants”) appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court’s denial of the Defendants’ request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.

Briefs:

1. Tillich v. Bruce – Appellee Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

2. Tillich v. Bruce – Appellant Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

3. Tillich v. Bruce – Reply Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.
Posted in Author: Matthew L.M. Fletcher, Research, tribal courts | Tagged , , , | 1 Comment