Native American Law Blog

A call for papers

The Wisconsin Journal of

Law, Gender & Society

 

Announces our 2010 Symposium:

 

Law, Gender and Citizenship:

Contemporary Issues for American Indians and American Immigrants

 

March 5, 2010

University of Wisconsin Law School

Madison, Wisconsin

 

 

  We are seeking original scholarship, from both scholars and practitioners, that addresses the intersections of law and gender in the daily lives of two populations, each of which occupies a unique space in American law: American Indians and Immigrants.  Interested parties should send an abstract to WJLGS.Symposium@gmail.comby November 15, 2009.  Those selected for the Symposium will be notified in early January 2010.  The Journal’s Symposium issue will be published in Winter 2010.

 

  Questions can be addressed to Symposium Editor Dan Lewerenz, danlewerenz@gmail.com, or Deputy Symposium Editor Kate Frigo, kate.frigo@gmail.com.

 

 

ddg

Followup - Snoqualmie banishment resolved?

Joanna Plicta Boise writes about the Snoqualmie banishment case, "On Saturday members of the Snoqualmie Indian Tribe voted to reinstate all nine tribal members banished after an election dispute. The nine fought the banishment in federal court, where a judge earlier this year partially overturned the banishment, stating the tribe had not followed due process. The membership was tasked with reconsidering the banishment Saturday."

See the full story HERE.

twp

Making the case for Indian law on the bar exam

You'll find an AP story HERE entitled "Some want Indian law on state bar exam," on the Arizona Daily Sun website....since Arizona is a state more than one-quarter of which is tribal lands, the real question is why Arizona hasn't done this a long time ago.

twp

And here's another job announcement.....

Title: Professor
Location: Montana
Company: University of Montana
Web/E-mail: umt.edu/law/faculty/Openings.htm
Click here to view PDF

University of Montana
Professor

Best place to live and teach in the U.S.: The University of Montana School of Law anticipates hiring a full-time tenure-track professor beginning in the 2010-2011 academic year. While the specific responsibilities associated with this position have not been finalized, we expect the position to include criminal clinic responsibilities as well as teaching in other areas where we may have needs, including professional responsibility, and/or family law. We are committed to integrating theory with practice and thus especially value substantial practice experience in the areas to be taught. We have a vibrant faculty, a close connection with our students, and a beautiful new building. The law school is a stone’s throw from the Clark Fork River, featured in Norman Maclean’s great Montana fishing novel “A River Runs Through It.” Missoula is also home to a wide range of writers, artists, and musicians and is a wonderful place to raise a family. We encourage applications from women, people with disabilities, veterans, and minorities.

For more information and for our application procedure, go to umt.edu/law/faculty/Openings.htm.

twp

We like to pass on information on jobs we hear about.....

....but no recommendation, suggestion or endorsement or anything else is implied.  Just passing it along....

2009.123 

Job Description 

 

Position Title  Judge of the Coeur d’Alene Tribal Court/Chief Judge 

Salary Range:  Negotiable/DOE 

 

 

Summary of Duties and Responsibilities: 

The Chief Judge is responsible for fairly and impartially hearing and deciding judicial matters 

within the jurisdiction of the Coeur d’Alene Tribal Court pursuant to the Coeur d’Alene Tribal 

Law and Order Code, ordinances, regulations and applicable Federal and local laws. All cases 

shall initially be assigned to the Chief Judge.  The Chief Judge may assign cases and other 

matters to a General Judge, Special Judge, or Judges Pro Tem depending on the circumstances.  

In addition to the responsibilities listed below, the Chief Judge is responsible for protecting and 

enhancing the Tribe’s sovereignty and must conduct himself/herself according to the highest 

ethical standards.  The Tribal Chief Judge shall be appointed at the discretion of the Tribal 

Council or its designee. Responsibilities may also include the administrative operations of the 

Tribal Court and supervision of its employees, including case management and the timeliness of 

judgments and orders.  

 

Qualifications:  

• Must possess a Juris Doctorate from an accredited law school 

• Must be a member in good standing of the bar of any state 

• Is at least twenty-five (25) years of age, and has not reached the age of seventy (70) 

• Experience and/or practice in the field of Indian law and demonstrated experience with 

the concepts of federal Indian law, tribal law and principles of tribal sovereignty and 

jurisdiction is preferred 

• The ideal candidate will have experience as a tribal judge in a tribal justice system 

exercising both civil and criminal jurisdiction 

• Must not have been convicted of a felony or a crime involving dishonesty or ever been 

disbarred by any jurisdiction 

• Outstanding interpersonal skills and experience supervising other legal professionals 

required  

• Prior experience in accounting and administering budgets and working with court related 

computer programs is preferred 

• Must be able to pass a thorough background investigation,  

• Must have a valid motor vehicle driver’s license 

• Must be able to pass a pre-employment drug screening 

 

An applicant may be asked to participate in an interview to establish whether he/she meets 

minimum qualifications. Interviews do not create a right to employment and provide no promise 

or other guarantee of any employment position with the Tribe.  

 

The Coeur d’Alene Tribe reserves the right to hire according to its Indian Preference Policy. 

Applicants are subject to a pre-employment drug test and at-random testing following 

employment. 

Positions with the Coeur d’Alene Tribe are subject to a 6-month orientation period. 

 

To apply, submit and application and resume to: Human Resources Department, P.O. Box 408, 

Plummer Idaho 83851 or fax to 208/686-6216.  For more information, visit our website at 

http://www.cdatribe.com/Departments/HumanResources.aspx or call 208/686-4068 

twp

Carcieri "fix" proposed

It may facilitate Indian casino-building....but there's more to it than that.

Senator Bryon Dorgan today introduced a bill to amend the Indian Reorganization Act to make it possible for tribes which became federally recognized after the date of the Act to have the Department of the Interior put land into trust for them.

Here's the story in the Cape Cod Times. 

Will this bill make it through Congress and into law?  We'll let you know when we know.

twp

twp

Turtletalk reports - "Fake Indians Convicted in Southern Florida of selling tribal memberships"

Our colleagues over on the Turtle Talk blog have the story - pretend-to-be Indians have convicted of selling bogus tribal memberships that they held out to illegal immigrants as a way to obtain U.S. citizenship.  See the story HERE.

twp

Followup - Fake Indian Ward Churchill denied reconsideration in reinstatement case

A Denver district judge refused to order that CU reinstate Ward Churchill to his professorship, having been fired for plagiarism and research misconduct, not to mention incredibly offensive and stupid comments.  Churchill asked for reconsideration of the ruling....and the judge today turned him down.

Will he appeal?  Probably....

See the story HERE.

twp

Followup - Winslow Friday gives up on eagle feathers case

INDIANZ.COM reports that the Arapaho man who shot a bald eagle without a permit, then fought his prosecution on freedom of religion grounds is giving up the fight.  See the full story HERE.

From the story:  "The case highlighted what many say are the failures of the federal government to respect Indian religious beliefs. Tribal members can obtain eagle feathers, eagle parts and full birds from the National Eagle Repository but the process takes years."

twp

NEW lawsuit filed to block spraying "reclaimed sewage" on sacred mountains

Last time it was tried, with the attempt based on the religious rights of Native American tribes, a lawsuit to block the use of "reclaimed sewage" water to make snow on the San Francisco Peaks, just outside of Flagstaff, Arizona, was not successful. 

But the Save The Peaks Coalition is going to try again....this time with a different basis upon which to base their cause of action.  You can find their press release HERE.

The legal theory this time out - that the US Forest Service failed to take into consideration, in granting the snowmaking permits, the possibility of human ingestion of the snow being made.  As the press release avers, "According to Howard Shanker, attorney for the Save the Peaks Coalition and the other plaintiffs, “The Forest Service failed to adequately consider the impacts of potential human ingestion of snow made from reclaimed sewer water as required by applicable law. Our government should not be approving such projects without some sort of understanding of the anticipated impacts. By approving treated sewage effluent for snow making without adequate analysis, the government essentially turns the ski area into a test facility with our children as the laboratory rats. That is unconscionable.” Mr. Shanker, a former congressional candidate in Arizona Congressional District 1, represented a number of tribes and environmental organizations in prior litigation over Snowbowl’s use of treated sewage effluent."

This lawsuit will certainly be of interest to the tribes of the area, who all hold the tribes to be land of the highest sacred nature.

We'll continue to follow this story as events unfold, to the best of our ability.

twp

Terrific article by one of our colleagues on the need to teach about Indian Law

Here's a link to an article by Samantha A. Moppett of Suffolk University Law School entitled "Acknowledging America's First Sovereign:  Incorporating Tribal Justice Systems into the Legal Research and Writing Curriculum."  

From the abstract:

This article addresses the failure of law schools to introduce law students to America’s first sovereign-Indian tribes. Legal education in the United States has largely ignored America’s first sovereign, perpetuating the false perception that the United States has dual legal systems-federal and state. By failing to acknowledge this sovereign entity and their justice systems, legal educators are misinforming their students-the lawyers of tomorrow. 

Law schools need to take steps to meet their responsibility to accurately portray the United States legal system and to sensitize law students to the potential for tribal law issues. Specifically, legal writing professors should incorporate tribal justice systems and American tribal law - the law made by Indians - into the legal research and writing curriculum. Integrating tribal justice systems into the curriculum acknowledges a forgotten sovereign, enhances students learning, respects the increasingly diverse nature of the law school student body, and prepares law students for the realities of practice in today’s increasingly diverse society.

Washington Supreme Court: Tribal Police have "inherent authority" to continue fresh pursuit off reservation and detain driver

A Lummi Nation tribal police officer observed a motorist on the reservation, driving on the opposite side of the road, at night with high beams and drifting across the center divider. The officer turned his vehicle around and pursued the driver. After traveling about a quarter mile the vehicle turned into a gas station located off of the reservation. After the vehicle stopped, the officer approached the driver and the passenger, and after further investigation had reasonable suspicion to believe they were intoxicated. He determined that neither was a tribal member so he followed procedure and contacted the Whatcom Count Sheriff's Office. The trial court convicted Ericksen, the driver, of DUI. The Washington Supreme Court granted defendant's petition for discretionary review.

The issue on appeal was whether the officer had authority to stop a non-Indian driver, who pulled over after she crossed the reservation's boundaries, and then detain her until authorities with jurisdiction to arrest for DUI arrived. The Court held that" tribal officers have inherent sovereign authority and statutory authority to continue fresh pursuit of motorists who break traffic laws on the reservation and then drive off the reservation."  Their decision was based on the fact that (1) the Lummi Nation has sovereign authority and U.S. Treaty obligation to stop and detain lawbreakers on the reservation; (2)  Police have well established authority to continue fresh pursuit onto reservations and across jurisdictional boundaries; and (3) Washington Mutual Aid Peace Officers Powers Act authroizes tribal police departments to continue fresh pursuit across jurisdictional boundaries. The decision of the trial court was affirmed.

Turtle Talk as a link to the opinion. 

ddg

New Mexico Court holds no double jeopardy where sanction remedial

Defendants child was treated at the hospital for various injuries over the course of several months. The Children's Youth and Family Department (CYFD) contacted defendants and advised them that if they agreed to give guardianship over to the child's paternal grandparents, they could avoid having the child put in foster care. The parents agreed to temporary guardianship. After investigating the case, CYFD found the allegations to be unsubstantiated. However, the child's grandparents, members of the Acoma Pueblo, sought permanent guardianship in the Acoma Pueblo Court. The tribal court held a hearing, and the child was eventually returned to the parents. 

Several months later, the State charged defendants with five counts of child abuse and the defendants filed a motion to dismiss on double jeopardy grounds. The defendants argued that the State was prohibited from prosecuting them for child abuse because CYFD previously investigated the defendants for child abuse and the tribal court previously held a custody hearing on the same issues.

After careful review of the State Constitution and case law, the New Mexico Court of Appeals found the dispositive issue in this double jeopardy analysis to be whether the alleged penalty, defendants separation from the child during the CYFD and tribal court proceedings, would be deemed remedial or punitive. If merely remedial, double jeopardy would not apply, however, if the Court found it to be punitive double jeopardy would attach and the State would be prohibited from prosecution. The Court determined that the purpose of the Children's Code was remedial, not punitive, and that in this case the defendants were not punished by the occurrence of the proceedings. The Court held, therefore, that there was no double jeopardy violation and the motion to dismiss the State prosecution was denied. 

You can read the opinion HERE.

ddg

Job announcement

Passed along to us.....

VACANCY ANNOUNCEMENT

The Sac and Fox Nation is now accepting applications/resumes for the positions of Attorney General and Trial Attorney.  The Attorney General is responsible for the prosecution of criminal and juvenile matters for the Sac and Fox Nation.  The Tribal Attorney shall represent the Nation on all legal matters excluding  the prosecution of criminal and juvenile matters.  Applications with resumes must be mailed to the Tribal Secretary, 920883 South Hwy 99, Building A, Stroud, OKlahoma 74079.  Deadline for receiving applications is October 30, 2009.

twp

Supreme Court asked to consider case to cancel Washington "Redskins" trademark

"The long-running dispute over the appropriateness of the "Redskins" name for the Washington D.C. NFL football franchise reached the Supreme Court today. Philip Mause, partner at Drinker Biddle & Reath in D.C., representing a group of Native Americans offended by the name, filed a petition for certiorari in the case titled Susan Harjo v. Pro-Football, Inc.

"This is a derogatory term for Indians that sticks out like an anomaly," said Mause today. "No other group still has to deal with this kind of a term being used" in such a public and widespread way."

See the full story HERE.

twp

AALS Call for papers....upcoming Symposium

CALL FOR PAPERS

 

TRIBAL NATION ECONOMICS AND LEGAL INFRASTRUCTURE

 

            This call for papers seeks submissions for the AALS Indian Nations and Indigenous Peoples Section’s 2010 publication of selected papers.  The Section will meet during the American Association of Law School’s Annual Conference on January 8^th, 2010.  The Indian Nations and Indigenous Peoples Section Meeting will focus on “Tribal Nation Economics and Legal Infrastructure.”  The Washburn Law Journal will be publishing the papers on this topic accepted for publication.  The Symposium brings together law professors for discussion of contemporary topics.  The publication of papers is a post-Symposium event that adds depth to the Symposium discussion.  This year’s Symposium will feature commentary from Professors Robert Miller (Lewis and Clark) and Judith Royster (University of Tulsa) along with Coeur d’Alene Legislative Director/Legal Counsel Helaman S. Hancock. 

For more information on attending the Symposium, registration and related fees please see: https://memberaccess.aals.org/eWeb/DynamicPage.aspx?webcode=EventInfo&Reg_evt_key=e95fe6b3-00bd-4570-950c-d1bfa09e510c&RegPath=EventRegFees

or:

 https://memberaccess.aals.org/eWeb/Dynamicpage.aspx?Site=AALS&WebKey=9efff27b-7614-458f-9afd-759dd0133f00&RegPath=EventRegFees&REg_evt_key=e95fe6b3-00bd-4570-950c-d1bfa09e510c#reg2

 

            The papers should address the themes of Tribal Nation economics and law.  Law and economics are intertwined fields.  As Tribal Nations rebuild economies in the wake of failed federal policies, legal infrastructure promoting a climate of healthy economics has become vitally important.  Subject areas for papers include topics on contemporary reservation economies, successful practices in tribal commercial law, assessing federal economic incentives for Tribes, legal code development to facilitate economic opportunities, evaluation of the tribal corporate model, creative thinking regarding tribal economic development in the era of federal Indian self-determination, review of sustainable tribal economic strategies, and related topics along these lines.  Article lengths may range from 25 – 45 pages.

            Abstracts for the papers should be sent by Friday, October 2^nd, 2009 to Angelique EagleWoman at (eaglewoman@uidaho.edu).  Abstracts should be no longer than two pages.  Abstracts will be reviewed when received by the deadline and chosen authors notified in a timely manner.  Completed papers will be due by Monday, March 1^st, 2010.

 

 

Angelique EagleWoman

(Wambdi A. WasteWin)

James E. Rogers Fellow in American Indian Law

Associate Professor of Law

University of Idaho College of Law

P.O. Box 442321

Moscow, Idaho 83844-2321

After the criminal cases end, who gets the ancient Indian evidence?

It's the biggest artifact-looting case ever.  "So far, 26 people from Utah, Colorado and New Mexico have been indicted for illegally taking or trafficking in artifacts from public or tribal lands. Two have committed suicide, two pleaded guilty this summer and the rest have pleaded not guilty"

And when the cases are over, there are literally truckloads of artifacts that must go somewhere.  Who has a claim?  Are any tribes entitled to them under NAGPRA provisions?  Looks like most of the thousands of artifacts will end up n museums.  

See the full AP story HERE.

twp

Are non-Indians entitled to eagle feathers, too? Federal court has to decide...

As it stands right now, Native Americans, per the Bald and Golden Eagle Protection Act, can obtain eagle feathers and parts for religious purposes if they are enrolled members of federally recognized tribes.

But what if you're a non-Indian, who claims to follow the teachings of the Native American Church?  And you have eagle feathers, and are charged with illegally possessing them?

That case is in the federal courts right now - a Utah District Court judge has ruled that, per the Religious Freedom Restoration Act, the government isn't living up to the constitutional requirement that the eagle feather program be the least restrictive method for controlling the possession of eagle feathers.  

The 10th Circuit Court of Appeals will take the case on appeal, at the request of the Justice Department.

See the full story HERE in Indian Country Today.

twp

California Indian Law Association Conference Coming Up SOON

We're reminded by Joanne Willis Newton, president of the CILA:

Dear CILA members and friends,

 

If you have not already done so, please remember to register for California Indian Law Association's annual Indian Law Conference, set for October 9, 2009, in Sacramento.

 

 Here's the agenda:

Friday, October 9, 2009, 8:30 am – 5:00 pm 

Marriot Residence Inn Sacramento Downtown at Capital Park 

(a joint venture of the San Manuel Band of Mission Indians, the 

Viejas Band of Kumeyaay Indians, and the Oneida Tribe of Wisconsin) 

 

8:30 - 9:00 am Registration, Continental Breakfast 

  

9:00 am Opening Prayer 

  

9:00 - 10:25 am California Indian Trust Acquisitions After Carcieri v. Salazar 

 Moderator:  

Panelists:   

Dan Rey-Bear, Nordhaus Law Firm, LLP 

Brenda Tomaras, Partner, Tomaras & Ogas, LLP 

Daniel G. Shillito, Regional Solicitor, U.S. Dept. of Interior 

V. Heather Sibbison, Partner, Patton Boggs, LLP 

   

10:25 -10:35 am Break 

  

10:35 am - noon Substance Abuse in Indian Country 

 Moderator:  

Panelists: 

Michele Fahley, Deputy General Counsel, Pechanga Band of Luiseño Indians 

Richard Blake, Judge, Hoopa Valley Tribal Court 

Aaron Conroy, Clinical Director, Friendship House 

Olin Jones, Native American Affairs Office Chief, California OAG 

   

noon - 1:00 pm Lunch (provided) 

  

1:00 - 1:30 pm Keynote Address: Allison Binney, General Counsel, U.S. Senate Indian Affairs Committee 

  

1:30 - 2:00 pm CILA Organizational Matters: Board Elections and Other Business 

  

2:00 - 3:25 pm Elimination of Bias Regarding Indians and Indian Tribes 

 Moderator:  

Panelists: 

Christine Williams, Attorney at Law 

Lawrence Baca, President, Federal Bar Association 

Suzanne Townsend, Chief Judge, Klamath Tribal Court  

Sunshine Sykes, Riverside County Counsel 

   

3:25 - 3:35 pm Break 

  

3:35 - 5:00 pm Update on California Indian Law Litigation and Legislation 

 Moderator:  

Panelists: 

Angela Medrano, Staff Attorney, California Indian Legal Services 

Carole Goldberg, Professor, UCLA School of Law 

Michelle LaPena, Principal, LaPena Law Corporation, APC 

Joanne Willis Newton, Law Offices of Joanne Willis Newton, APC 

See their website at www. calindianlaw.org...

twp

The Federal Bar Association's Annual Meeting and Convention will be held in Oklahoma City, Oklahoma, on September 10th through the 12th at The Skirvin Hilton.

Some Indian Law topics to be discussed include criminal jurisdiction in Indian Country; The Cherokee Freedmen; two sessions addressing issues and ethics for lawyers working with corporate and tribal general counsel; a session devoted to the delivery of veteran services in Indian Country; and a session titled "The Robert's Court on Indian Law." 

Also included is a session titled "The Oklahoma City Bombing Through the Eyes of Those Who Were Here" which will be held at the Museum Institute for the Prevention of Terrorism., which will be followed by tours of the Memorial and Memorial Museum.   

For more information, contact the FBA at (571) 481-9100. To see the brochure look HERE.  

ddg