Native American Law Blog

Followup - Fort Sill Apache Tribe fights for New Mexico casino

From the Silver City (NM) Sun-News:  "The Fort Sill Apache Tribe of Oklahoma filed a motion in federal court Wednesday to counter a recent federal order that told the tribe to stop gaming at an Akela casino.

Also Wednesday, the tribe planned to launch a TV advertisement in the Albuquerque and Washington, D.C., markets, which asks President Barack Obama to keep the casino from being shut down.

Jeff Houser, chairman of the Fort Sill Apache Tribe, said the tribe's motion, filed in federal court in Oklahoma City, is aimed at forcing the gaming commission to recognize the terms of a 2007 legal settlement that the tribe believes gives it a legal basis for gaming.

Houser said the action is different from one take last fall that also referred to the settlement.

Philip Hogen, chairman of the National Indian Gaming Commission, issued a notice of violation to the tribe for paper bingo it has been conducting since April. But the tribe has continued its bingo operation.

Houser said in addition to the legal action filed Wednesday, the tribe plans to appeal Hogen's decision before the full three-member commission. Houser contended that because Hogen is an outgoing, Bush-appointed member, he shouldn't be making such a significant decision before the Obama appointee takes over."

See the full story HERE.

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Can you lose an individual treaty right because of a felony conviction?

The Tenth Circuit says that you can - The 1868 treaty between the Navajo Nation and the US guarantees the individual rights of tribal members to hunt.  BUT, says the Circuit Court, that runs up against the federal law that says you forfeit your right to have a firearm if you're convicted of a felony.

From the indianz.com story on the decision:  "If citizens may forfeit their most precious constitutional rights by commission of a felony, it is not surprising that members of Indian tribes may similarly forfeit important treaty rights," the 10th Circuit said.

The court acknowledged that the federal law doesn't mention tribes and that it doesn't abrogate the Navajo Nation's treaty rights. However, the court pointed to language in the treaty that said "bad men" can be punished by U.S. laws."

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Followup - US Attorney Diane Humetewa resigns before replacement

See the full story HERE in the Phoenix New Times, including the text of her resignation letter.

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Passing along some info for Native American law students......

6th Annual NNALSA Job Fair

NNALSA invites American Indian law students, recent graduated, and employers

to attend the 6th Annual Job Fair

WHEN: Friday, August 28, 2009

WHERE: One Washington Circle Hotel, Washington DC (see metro map )

All law students that are interested in submitting resumes and meeting with future employers should attend. Invited employers include: Firms, Agencies, Non-Profits, and Tribes.

To register for the Job Fair, please update your resume and make sure you are a registered member of NNALSA (July 1st started a new year). You can register on the membership page of our website.

Job Fair Student Registration Form

Employer Registration Form

For more information contact: Tracie Revis at Area3Rep@NationalNALSA.org

2010 NNALSA Moot Court Competition

The 2010 NNALSA Moot Court Competition will be hosted by the University of South Dakota (USD) NALSA Chapter in Vermillion, South Dakota

WHEN: February 19-20, 2010

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Cherokee Nation tribal court hears arguments in Freedmen citizenship case

The Cherokee Phoenix reports, "The Cherokee Nation District Court held a July 17 hearing for the case of Raymond Nash v. CN Registrar as attorneys for both parties presented arguments for their motions for summary judgment.

A summary judgment is a decision based on statements and evidence presented for the record without a trial. It is used when there is no dispute regarding facts and one party is entitled to judgment as a matter of law.

The Nash case is a class action lawsuit involving 386 Freedmen descendents claiming they were illegally removed from the CN citizenship rolls by a voter-approved constitutional amendment in March 2007. 

It’s estimated approximately 2,800 Freedmen lost citizenship after the vote. They regained citizenship via a temporary injunction ordered by a CN district judge in May 2007. "

Read the full story HERE.

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Nevada Supreme Court holds mother's custody wishes trumps Federal Law

A registered citizen of the Cherokee Nation, who did not live on the reservation, gave birth to a son. She then relinquished her parental rights to a licensed adoption and child placement agency two weeks after the birth, intending to place the child with an identified non-American Indian family. Under Federal law, a tribal court has exclusive jurisdiction over child custody matters, so it didn't take long for the Cherokee Nation to file suit asking to intervene in the case. The tribe sought to transfer the case to the tribal court and place the child with the maternal grandmother who was willing to be a foster parent. 

The Nevada Supreme Court, in a unanimous decision, ruled that the wishes of the mother should be considered over a federal law that favors keeping Indian families together. In so doing, the Court recognized that the law was put in place to protect American Indian children, families and tribes “from unnecessary and unwarranted separation" but went on to find that Congress also intended to honor the desire of the parents of the child in adoption decisions. The Supreme Court said there was good cause for the district court to deviate from the adoption framework in the federal law.

You can read the article on lasvegassun.com

ddg

Thousands of Navajos sue BIA in class action over claims of racial discrimination

Did the BIA, perhaps thousands of times, target Navajo employees for removal from positions with the agency in order to make room for non-Navajo employees?  That's the claim being brought in a class action suit just filed in the US District Court in Albuquerque.

"

Albuquerque-based attorney Jeff Dahl filed the lawsuit in the United States District Court in New Mexico's largest city because of its proximity to the Navajo Nation, where the majority of the plaintiffs live.

"A class action of this nature, I'm not aware of one going to federal court before," said Dahl, who is serving as lead counsel in the case. "In terms of a class action filed by members of the Navajo Nation against the BIA, this is the first that I know of."

The complaint, led by two former employees, seeks relief from racial discrimination, a charge based on numerous accounts of Navajo employees targeted for removal to make room for non-Navajo employees.

The complaint also includes allegations that BIE management preselected people for positions and even wrote job descriptions for non-Navajo employees, excluding qualified Navajo applicants from consideration."

Read the full story HERE in the Farmington (NM) Daily Times.

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Followup - Measure to repeal Dine (Navajo) Fundamental Law tabled

After some discussion of the matter, the Navajo Tribal Council has tabled, at least for the time being, the proposal to repeal the Dine Fundamental Law. 

See the full story HERE in the Arizona Daily Sun.

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Appeals court - Department of Interior MUST account for Indian trusts in Cobell case

From the AP report in the Santa Fe New Mexican: 

" A federal appeals court ruled Friday that the Interior Department must account for century-old land royalties owed to American Indians, reversing a lower court's ruling that the task is impossible.
A 2008 decision by U.S. District Judge James Robertson said Interior had unreasonably delayed an accounting but added that the complicated task was ultimately impossible. He later ruled the Indian plaintiffs are entitled to $455 million, a fraction of the $47 billion or more they have said they are owed.
The appeals court said Friday that that court erred in freeing the government from the accounting burden. Chief Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit said the decision essentially allowed the Interior Department "to throw up its hands and stop the accounting."

This ruling should make things very interesting.....and very difficult for the Department of the Interior, too.....when it comes to accounting for Indian trusts.

Find the full story HERE.

twp

Passing along some dates.....

The Criminal Justice Center for Innovation at Fox Valley Technical College invites you to register for the training opportunities below – view our full training calendar online atwww.fvtc.edu/cjci/calendar or contact us at 888-370-1752 with any questions. Thank you!

 

1^st Annual Tribal Courts Conference • August 6-7, 2009 | Minneapolis, MN • www.law.und.edu/tji/events.php

This conference will focus on strengthening tribal courts and include sessions on court planning, court administration as well as panel discussions on a variety of topics relevant to the tribal judiciary including case law updates.

 

Selling & Sustaining Your Program:  Successful Grant Writing • September 10, 2009 | Appleton, WI • www.fvtc.edu/grantwriting

As available funding for programs diminishes, the competition for those funds gets tighter. This program is designed to help you to learn how to make the most of your grant writing.

 

Native American Law Enforcement Summit • September 22-24, 2009 | Carlton, MN • www.fvtc.edu/nales

This training conference offers practical methods of preventing crime and promoting community safety through information sharing, data exchange, and collaborative partnerships.

Multi-Jurisdictional Law Enforcement Conference • November 4-6, 2009 | Green Bay, WI • www.fvtc.edu/mj

This annual conference focuses on developing stronger relationships between tribal and non-tribal law enforcement agencies.

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Navajo Nation Code Annotated now on Westlaw

As reported in Indian Country Today, the laws of the Navajo Nation are now accessible worldwide through the Internet on Westlaw, one of the primary online legal resources. This accessibility was made possible through the coordinated efforts of the Navajo Nation’s Office of Legislative Counsel and West Publishing, which publishes all 26 titles of the Navajo Nation Code Annotated in a four volume book format, a CD ROM, and through online subscription to www.westlaw.com. The Navajo Nation Code Annotated incorporates all enacted legislation as well as excerpts of all Navajo Nation Supreme Court opinions which may have an impact on the interpretation of provisions of the codes.

For more information, contact the Office of Legislative Counsel at (928) 871-7166. For information on Westlaw, access their website at www.westlaw.com.

ddg

Professor Angelique EagleWoman: Building Native American Law program at University of Idaho College of Law

EagleWoman, from the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation in South Dakota,  was hired last year at the University of Idaho College of Law and has built a program focusing on Native American law. According to Reznetnews.com, "EagleWoman studied political science at Stanford University, earned a law degree at the University of North Dakota and a masters in law at the University of Tulsa in Oklahoma. She has cross-listed her courses at the University of Idaho so students outside the law school can enroll. . . . Last year, she taught 17 law students and two others studying American Indian studies. This fall, she'll have 32 law students and eight others." 

Heather Dawn Thompson, president of the National Native American Bar Association, explained why such a program is important. "There are over 35 states that have sovereign, independent tribal nations within their boundaries, if you're practicing in any one of those states you have to understand the basics of Indian law." Thompson said "attorneys — particularly those in states with tribes — must understand there are three systems of practice: state, federal and tribal law. Each has three distinct set of rules, each has three distinct court systems."

EagleWoman hopes one day to have her program grow into a full-fledged degree.

ddg

Thomson/West issues new edition of Canby's American Indian Law in a Nutshell

Law students take note:

New Edition - American Indian Law In a Nutshell

The 2009 edition of American Indian Law in a Nutshell contains no drastic changes in terms of its organization (chapter titles, subsections, preface, or index). It still focuses on cases involving American Indians and Alaska Natives, generally leaving cases related to Native Hawai’ians out. The major update is Canby’s addition of a number of new law cases, which brings the book’s length to 548 pages (496 in the fourth edition). Canby accounts for the expansion of Indian case law by mentioning the “greatly increased economic activity of many tribes, particularly those engaged in gaming.” Most of the new cases are from recent years (since the publication of the previous edition in 2004), but some older cases are included as well. 

Canby, William C. American Indian Law in a Nutshell. Fifth edition. St. Paul, MN: 
Thomson/West, 2009.

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Followup - Fort Sill Apaches run bingo, but National Indian Gaming Commission says they can't

We've talked about this one before - the Fort Sill Apache tribe (in Oklahoma) wants to run gaming, including paper bingo, at their Akela casino (in New Mexico).  The State of New Mexico has opposed it, even to the point of blocking the entrance to casino property using state police.

Now the National Indian Gaming commission has weighed in heavily, issuing a notice of violation to the Fort Sill Apache Tribe, declaring that it was illegal to run a bingo operation on the grounds.  The tribe claims it meets an exemption in the Indian Gaming Regulatory Act that should allow it.

See the full story HERE in the Las Cruces (NM) Sun-News.

Followup - Lawsuit to be filed against Navajo Nation based on Dine Fundamental Law - while Tribal Council considers repeal

The Farmington (NM) Daily Times reports that a "Navajo grassroots organization" has sent a notice of intent to sue the Navajo Nation over alleged excessive spending, based on the Dine (Navajo) Fundamental Law - at the same time that the Tribal Council may be considering eliminating that body of law.

See the full story HERE.

twp

Call for Papers - Indigenous Law Journal of University of Toronto

The Indigenous Law Journal at the University of Toronto is now accepting submissions from Students and Professionals for Volume IX (Fall 2010).

The submission deadline is:  September 30, 2009.

For full details on the submission process and on our student awards, please see:http://www.indigenouslawjournal.org/

Our Call for Submissions can be downloaded from our website athttp://www.indigenouslawjournal.org/files/ILJ Poster – Fall 2009.pdf. If possible, please post the Call in your department, office or other facility.  We encourage you to forward the Call widely.

*  *  *

The Indigenous Law Journal is dedicated to developing dialogue and scholarship in the field of Indigenous legal issues in Canada & internationally. We encourage submissions from all perspectives. Our central concerns are Indigenous legal systems and legal systems as they affect Indigenous peoples.

For there to be an effective dialogue in the field of Indigenous legal issues, it is our view that Indigenous legal systems must have a strong voice and presence in legal scholarship. Therefore, we strongly encourage contributors to submit works focusing on Indigenous legal orders. Submissions on legal systems as they affect Indigenous peoples will continue to be accepted.

*  *  *

Please address questions to Ajay Winterburn and Mark Gustafson, Co-Editors-in-Chief, at:

submissions.ilj@utoronto.ca.

twp

Dine (Navajo) to repeal Dine Fundamental Law?

It's very speculative...but things behind the scenes seem to be bubbling hot in the Navajo Nation Tribal Council as they meet for their summer session.  Here's the big rumor, as seen in the Arizona Daily Sun:

"The Navajo Nation Council is set to gather Monday for its annual summer session, with little controversy up for discussion. But behind the scenes, council members are working to come up with a way to stop an election that would cut the number of lawmakers by more than half and give the tribal president more authority.

The major part of that push is delegate Raymond Joe's move to repeal a law that the Tribal Council passed seven years ago in an attempt to preserve the traditional ways of life among Navajos. Legislation to repeal what's known as "Dine Fundamental Law" -- based on centuries of customary, traditional, natural and common law -- isn't on the council's agenda. But because it's designated an emergency, lawmakers could easily add it."

Will the Navajo Nation formally abandon traditional tribal law?  We'll follow with any information we get.

Meanwhile, see the full story HERE.

twp

Colleague and Native American law program featured in AP story

Our colleague Angelique Eaglewoman and her Native American law program at University of Idaho have been featured in an AP story.  You can find it HERE on seattlepi.com. 

A piece of the story.....

"EagleWoman has built a program focusing on Native American law, an area of the legal profession that experts say is often misunderstood and sometimes ignored.

"There are over 35 states that have sovereign, independent tribal nations within their boundaries, if you're practicing in any one of those states you have to understand the basics of Indian law," said Heather Dawn Thompson, president of the National Native American Bar Association.

"It's a little bit crazy," Thompson said. "Alaska has over 200 tribes and it's not on their bar exam."

It's also not on the exam in California, where there are more than 100 tribes, and also not on the one in Oklahoma, where there are more than 40, said Thompson, a member of the Cheyenne River Sioux.

Since the 1970s, only a handful of lawyers who specialize in Native American law have been available to help tribal members navigate through legal matters.

"You had all sorts of attorneys that had no idea what they were talking about," she said."

twp

Cayuga Nation back to selling cigarettes after court ruling; but counties to appeal

The Cayuga Nation of New York operate two smoke shops on its ancestral reservation. Last year, those smoke shops were raided by authorities from Cayuga and Seneca counties, seizing 17,600 cartons of cigarettes and other tribal property.  The Cayugas estimated the cigarettes were worth more than $500,000. They had not paid state excise taxes on the cigarettes, and the counties claimed that because the Cayugas did not have an official reservation they were violating state tax law.

Last week, the appellate division ruled that although the shops are not on trust land, "the properties have been designated as a "qualified reservation" under state law and are therefore immune from state taxation."

Since the ruling, the Cayuga's offered to settle the case with the counties, for $180,000, "to cover legal bills tied to the case and said they wouldn't sue the counties for millions of dollars in damages for lost revenue, legal costs and the value of cigarettes seized from their stores" in exchange for an agreement that the counties not challenge the tribe's win. However, both counties have rejected the settelement offer and will be taking the case to the state's highest court.

Yesterday, the tribe went back to court and asked for the return of the cigarettes and other property seized in the raid. 

ddg

Followup - Blackfeet tribe and Glacier County, Montana try to deal with jurisdictional issues

The Great Falls (Montana) Tribune continues to follow the jurisdictional issues between the Blackfeet and the State of Montana.  THIS story talk about a cooperative law enforcement for cross-deputization that they hope will address some of the jurisdictional problems in the area previously described.

twp