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Please join us!
Chris Coppin, Tom Gede, Sam Deloria, and Dean Nell Newton
Deskbook of American Indian Law
Cohen Handbook of Federal Indian Law
Dean Joan Howarth
MSU NALSA early birds
Brian Upton, an MSU alum, has published “Returning to a Tribal Self-Governance Partnership at the National Bison Range Complex: Historical, Legal, and Global Perspectives” (PDF) in the Public Land & Resources Law Review.
The National Bison Range (Range) is an unforgettable place for many reasons. Home to its namesake bison as well as to a variety of other wildlife, it is one of the nation’s premier wildlife refuges. Established over one hundred years ago in western Montana, it was among the first such refuges in the country—predating the present-day National Wildlife Refuge System (Refuge System) of which it is now a part. The Range is further distinguished by its location in the center of the Flathead Indian Reservation (Flathead Reservation), where the spectacular scenery includes mountain ranges in every direction. The Range bison descend largely from wild bison that had been saved by members of the Confederated Salish and Kootenai Tribes (CSKT) at a time when the animals were on the verge of extinction.
The annual Indian Law issue of the Federal Lawyer — which includes an article on Native veterans-active duty servicemembers by Kate Fort and Peter Vicaire — is here:
More details about the burnout here.
A second appeal involving the Hopi Tribe’s challenge has been severed from this consolidated appeal:
Here are the materials in Kemph v. Reddam (N.D. Ill.):
Plaintiffs’ argument that the loan agreements are unconscionable because JAMS and AAA would never agree to preside over the arbitration is speculative and unconvincing. (See Resp. at 2—3, 13—14; Sur-Reply at 1—3.) Although the arbitration agreements provide that “the arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation,” (Agreement at 5), the arbitrator, once chosen, would have the authority to determine whether that choice-of-law provision is valid. See Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500, 503 (2012) (holding that once the court determines the validity of the arbitration provision, the remainder of the contract is left for the arbitrator to decide); Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541, 115 S. Ct. 2322, 2330 (1995)(ruling that the arbitrator should decide choice-of-law in the first instance); CNA Reinsurance Co. v. Trustmark Ins. Co., No. 01 C 1652, 2001 WL 648948, at *6 (N.D. Ill. June 5, 2001); see also Prostyakov v. Masco Corp., 513 F.3d 716, 725 (7th Cir. 2008)(upholding the arbitrator’s interpretation of the choice-of-law clause because it was not the court’s “place to determine whether [the arbitrator’s] interpretation was correct as a matter of law”). This is particularly true because, as discussed, the loan agreements explicitly provide that the arbitrator can decide “any issue concerning the validity, enforceability, or scope of . . . the Arbitration agreement,” which includes  the enforceability of the choice-of-law clause. (Agreement at 4.) Therefore, potential arbitrators need not refuse the dispute in order to comply with internal due process standards. Nor would they be required to violate Illinois public policy by applying tribal law if they chose to accept it. They could instead accept the dispute, find the choice-of-law provision is unenforceable, and determine what default law should apply.
Here is the flyer:
Here are the materials in Four Directions v. Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (N.D. Cal.):
Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO’s interviews with tribal and Department of Health and Human Services (HHS) officials, the resource constraints faced by tribes include limited numbers of staff and staff turnover. While the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) allows tribes to administer a title IV-E foster care program, it generally did not modify title IV-E’s requirements for tribes. By contrast, some other programs administered by HHS offer tribes additional flexibilities, provided they are consistent with the objectives of the program. Given tribes’ resource constraints and cultural values, adopting some title IV-E requirements has been difficult. For example, officials from 6 of 11 tribes developing title IV-E programs that GAO interviewed said that the requirement to electronically submit case-level data on all children in foster care was challenging. In addition, 7 of these 11 tribal officials reported that incorporating termination of parental rights—which severs the legal parent-child relationship in certain circumstances—into their tribal codes was challenging because it conflicts with their cultural values. HHS recognizes that termination of parental rights may not be part of an Indian tribe’s traditional beliefs; however according to the agency it lacks the statutory authority to provide a general exemption for tribal children from the requirement.
Report here (pdf, 47 pages)