Mark Your Calendars . . .

Thursday, April 14, 2016 7:00 PM - 8:00 PM at Ferber Hall Old Main, Sarah Deer will be presenting on her book "The Beginning and End of Rape: Confronting Sexual Violence in Native America".
 

Sarah Deer is a Lawyer, Law Professor at William Mitchell College, and 2014 MacArthur Fellow. In her discussion, she will go over the cultural and legal reforms of the Violence Against Women Act. She has written numerous books and articles (many of which are on display in the Law Library this month and available through HeinOnline), and has been instrumental in the Violence Against Women Act and Tribal Law and Order Act.

This event is presented by USD Native Studies, Women and Gender Studies and Criminal Justice Studies.

NALSA Symposium Tomorrow!

The 14th Biennial Indian Law Symposium will be held March 30 and 31. This year's topic is ICWA: Old and New Challenges. For this symposium, the McKusick Law Library has created a LibGuide for you that includes the schedule, some additional materials about or relating to the Indian Child Welfare Act, and materials from the Dillon Lecture and past symposiums. You can check it out here. We also have a small display featured in our Native American Collection providing easy access to materials on ICWA.

And as always, if you have any questions or would like more information, feel free to visit us up at the Circulation/Reference Desk!

Tribal Implementation of the Violence Against Women Act

On April 1, 2015 the ABA Journal posted an online article entitled Indian Tribes Are Retaking Jurisdiction Over Domestic Violence on Their Own Land.  The article details how tribes are working to implement the Violence Against Women Act Reauthorization Act of 2013.  As described on the U.S. Department of Justice website, "VAWA 2013 recognizes tribes' inherent power to exercise "special domestic violence criminal jurisdiction" (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country. This new law generally took effect on March 7, 2015, but also authorized a voluntary "Pilot Project" to allow certain tribes to begin exercising SDVCJ sooner."

On Tuesday, March 31, the University of South Dakota School of Law, Acting U.S. Attorney Chris C. Myers, District of North Dakota; and Deborah R. Gilg, U.S. Attorney, District of Nebraska; co-sponsered a conference on Tribal Implementation of the Violence Against Women Act.  A press release regarding the conference is available here.  The Press Release also provides a link to the agenda for the conference.

Law Library Director Jackson attended the conference and was able to discuss resources with representatives from some of the tribes participating in the pilot program. Associate Dean Graham participated as a panel member.

New ICWA Guidelines Published

The U.S. Department of Interior, Bureau of Indian Affairs, recently published new guidelines regarding the Indian Child Welfare Act (ICWA).  The updated guidelines, available here, are the first to be issued since 1979.

According to an in-depth news article available here on Native News Online.Net, the new guidelines:

"... clarify the procedures for determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement..."

"... provide comprehensive guidance on the application of active efforts to prevent the breakup of the Indian family..."

and "... provide clarification that ICWA’s provisions carry the presumption that ICWA’s placement preferences are in the best interests of Indian children."

The article also provides details on the history of ICWA and remarks by Assistant Secretary of the Interior Kevin K. Washburn.  The release of the guidelines was also featured in a recent post on Turtle Talk, the Indigenous Law and Policy Center Blog of the Michigan State University College of Law.

Interested in learning more about the Indian Child Welfare Act?  Consider some of the following resources available in the Law Library's collection:

Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children / Barbara Ann Atwood

Facing the Future:  The Indian Child Welfare Act at 30 / edited by Matthew L.M. Fletcher, Wenona T. Singel, and Kathryn E. Fort

A Practical Guide to the Indian Child Welfare Act / Native American Rights Fund

New Justice Department Guidance on Marijuana Sales and Use on Native American Reservations

Last week, the U.S. Department of Justice (DOJ) released an October guidance memorandum regarding enforcement of federal marijuana laws on Native American reservations.  The memorandum, available here, indicates that with regard to enforcement, "each United States Attorney should consult with the affected tribes on a government-to-government basis."

There has been fairly extensive coverage of the memorandum in the press, with a recent article appearing in the Los Angeles Times, which quotes U.S. Attorney Timothy Purdon of North Dakota, who chairs the Attorney General’s Subcommittee on Native American Issues, and U.S. Attorney John Walsh of Colorado.

According to the Los Angeles Times article, "the Justice Department will generally not attempt to enforce federal marijuana laws on federally recognized tribes that choose to allow it, as long as they meet eight federal guidelines, including that marijuana not be sold to minors and not be transported to areas that prohibit it."  Purdon is quoted for the proposition that "the federal government will continue to legally support those tribes that wish to ban marijuana, even in states that now permit its sale."  In fact, the memorandum was issued in response to tribal governments seeking clarification as to whether the DOJ would recognize tribal marijuana bans in states where recreational use has been legalized (see article from the Washington Post here).  

While the news coverage of the memorandum has varied, most coverage has framed the issue as one of tribal sovereignty.   As Purdon stated in the Los Angeles Times article, "the tribes have the sovereign right to set the code on their reservations."

Other news coverage is available here from U.S. News and World Report, here from USA Today, and here from the ABA Journal. 

Professor Pommersheim Goes Digital: New LibGuide Titled "Tribal Justice: 25 Years as a Tribal Appellate Justice"

With the assistance of the McKusick Law Library staff, USD Law Professor Frank Pommersheim has just electronically published a guide entitled Tribal Justice: 25 Years as a Tribal Appellate Justice.  The guide is published via the LibGuide System and is available directly here, as well as through the Law Library's LibGuide Directory at http://libguides.law.usd.edu. 

The LibGuide offers PDFs of 125 appellate decisions authored by Justice Pommersheim, which are indexed by subject matter and by name of the Tribal Appellate Court.  The LibGuide also features a link to Professor Pommersheim's Selected Works site (also available here), which offers access to his scholarship, selected poetry, and assorted prose.

The LibGuide further includes an embedded YouTube video featuring Professor Pommersheim entitled "Buddha Poetry Reading." 

The LibGuide is to be complemented by a book of the same title to be published in the year 2015.

The guide has already been featured here on Turtle Talk, the blog of the Indigenous Law and Policy Center of the Michigan State University College of Law. 

New Article Explores Tribal Environmental Law

Elizabeth Ann Kronk Warner, of the University of Kansas, has recently published the article Examining Tribal Environmental Law in the Columbia Journal of Environmental Law.  The article is available for download here from SSRN.  Importantly, the article "describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted."  As such, Warner's article serves as an important resource for researchers in this area.  The citation is 39 Colum. J. Envtl. L. 42 (2014).

Looking to access environmental or other laws of recognized tribes?  The Prairie Law Blog previously posted about the new Library of Congress Indigenous Law Portal, available here, which organizes materials by state and tribe.

For more information on environmental law issues affecting Native Americans and tribal nations, consider the following titles available in the McKusick Law Library:

Native American Natural Resources Law: Cases and Materials / Judith V. Royster and Michael C. Blum

Closing the Circle: Environmental Justice in Indian Country / James M. Grijalva

Model Tribal Environmental Code / Native American Rights Fund

ABA Votes to Expand Membership Eligibility to Tribal Court Practitioners

On August 11, the American Bar Association (ABA) House of Delegates unanimously voted to amend the ABA Constitution to allow tribal court practitioners to become full members of the ABA.  In the past, only persons licensed in a state, federal or territorial jurisdiction within the United States could join the ABA as a full member.  The ABA's policy did not extend to persons solely licensed through a tribal court of a federally recognized tribe.

The National Native American Bar Association (NNABA) issued a press release commending the decision of the ABA, stating that the decision will "put tribal court bar admissions on equal footing with the bars of states, territories and possessions of the United States."

Coverage is also available here from Turtle Talk, the blog of the Indigenous Law and Policy Center at Michigan State University College of Law.  Turtle Talk also provides a link to the ABA Section Report in support of the amendment, available here. 

Indigenous Law Portal from the Law Library of Congress

The Law Library of Congress has recently created a Indigenous Law web portal, which offers links to American Indian Constitutions and Legal Materials by state.  See their recent tweet about the portal here on their Twitter feed @LawLibCongress.  To directly access materials on the portal for South Dakota tribes, click here. 

For those interested in additional resources related to Federal Indian, tribal, and indigenous peoples law, the McKusick Law Library has recently published a LibGuide titled Native American Law Guide: Federal Indian, Tribal & Indigenous Peoples Law Related Resources, which provides additional information and links for researchers.

Update on Cherokee Nation v. Nash - Approaching Oral Arguments

Oral arguments have been scheduled in the case of Cherokee Nation v. Nash (D.D.C., Case No. 1:13-cv-01313) for April 28, 2014, upon motion for summary judgment.  The parties' briefs are available here, courtesy of Turtle Talk, the Indigenous Law and Policy Center Blog at Michigan State University College of Law.

UPDATE:  The oral arguments have been rescheduled to Monday, May 5, 2014.  See here.  

The case is part of a larger ongoing dispute between the Cherokee Nation of Oklahoma and the Cherokee Freedmen, regarding tribal citizenship.  The Cherokee Freedmen, who are descendants of former slaves of the Cherokee, desire to obtain citizenship in the Cherokee Nation.  At issue in the case are provisions of an 1866 Treaty between the Cherokee Nation and the United States as well as the Cherokee Nation's Constitution, and amendments thereto.  Tribal sovereignty is also central to the case in terms of the Cherokee Nation's rights to determine their own membership.

For other news on the case, see the following links to articles from News on 6 (Tulsa, OK) and the Tahlequah Daily Press (Tahlequah, OK):

Cherokee Freedmen Continue Fight for Citizenship (Dan Bewley, News on 6, March 8, 2014)

Interior Files For Motion for Summary Judgment in Freedman Case (Teddye Snell, Tahlequah Daily Press, February 1, 2014)

New Article Regarding Sentencing Disparities for Tribal Citizens in the Dakotas

B.J. Jones and Christopher Ironroad have recently published an article in the North Dakota Law Review titled "Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach."

A link to the abstract and a PDF of the article are available here, from Turtle Talk, the Indigenous Law and Policy Center Blog at Michigan State University College of Law.  The citation is 89 N.D. L. Rev. 53.

Sentencing of Native Americans through tribal courts is one of the topics being discussed at the Biennial Indian Law Symposium currently being held at the University of South Dakota School of Law.  The theme of this year's symposium is "Public Safety in Indian Country: Tribal, Federal, and State Responses."  Panel discussions focus on the Tribal Law and Order Act, the Protection of Women, and Tribal, Federal and State Relations.  The Law Library has prepared a LibGuide to accompany the symposium, which is available here. 

Tribal Sovereign Immunity Case Pending Before the Supreme Court

The Prairie Law Blog recently posted an update to the "Baby Veronica" case regarding the claims of the child's adoptive parents to collect attorneys' fees from the birth father and the Cherokee Nation, and the arguments of the Cherokee Nation that tribal sovereign immunity bars their claim for fees.  The post is available both here and here. 

Tribal sovereign immunity is also at issue in the pending U.S. Supreme Court case, Michigan v. Bay Mills Indian Community, in which oral arguments were just heard on Dec. 2.  (A transcript of the oral arguments is available here.)  The case involves a gaming facility operated by the Bay Mills Indian Community (Bay Mills) near its reservation in Northern Michigan and in close proximity to another facility operated by the Little Traverse Bay Bands of Odawa Indians (LTBBO).  The LTBBO and the State of Michigan sought to enjoin operation of the facility, as Bay Mills had not followed the formal process of first placing the off-reservation lands into trust.  While the U.S. Court of Appeals for the Sixth Circuit ruled in favor of Bay Mills and continued operation of the facility, the case was successfully brought to the U.S. Supreme Court by the State of Michigan.  Indian Country Today has published several articles regarding this case, including a two-part series by Ryan Seelau and Ian Record which contains a detailed analysis of the legal issues presented as well as four speculated possible outcomes of the case.  Those two articles are available here and here. 

According to Seelau and Record, Bay Mills' defense rests on complex issues involving jurisdiction, tribal sovereign immunity and the Indian Gaming Regulatory Act (IGRA).  When the Supreme Court issues its decision, it will have a great impact on the tribal sovereign immunity doctrine.  Due to the far-reaching implications of the case, Seelau and Record offer suggestions on how tribes can begin preparing now for possible outcomes.      

In addition to the law library's resources on tribal sovereign immunity, the law library also has several resources which focus on the Indian Gaming Regulatory Act and gaming policy:

Indian Gaming Law and Policy / By Kathryn R.L. Rand and Steven Andrew Light
 
Indian Gaming and Tribal Sovereignty: The Casino Compromise / By Steven Andrew Light and Kathryn R.L. Rand

States and the Indian Gaming Regulatory Act / By Pam Greenberg and Judy Zelio

Continuing Disputes in "Baby Veronica" Case

The Prairie Law Blog has been posting frequent updates regarding the case of "Baby Veronica", an adoption and custody case involving the Indian Child Welfare Act (ICWA).  The case ultimately resulted in the child returning to South Carolina with the adoptive parents, as opposed to remaining with the child's birth father, a resident of Oklahoma and a member of the Cherokee Nation.

Shortly after the resolution of the custody matter in September, the adoptive parents filed proceedings to recoup their attorney fees, both in South Carolina and Oklahoma.  In Oklahoma, the couple is seeking over $1 million in fees from both the birth father and the Cherokee Nation.  See an article here from the Tulsa World regarding the proceedings.

Yesterday, it was reported that the Cherokee Nation has filed court papers arguing that sovereign immunity protects it from the efforts of the adoptive parents to collect the fees.  For more information, see this article from the ABA Journal.

For more information on tribal sovereign immunity, consider Cohen's Handbook of Federal Indian Law or the American Indian Law Deskbook, which both offer sections on the topic and provide a general overview.  Both of these titles are available in the Library's Reserve Room.

For more information on attorneys' fees and attorney fee disputes, consider Attorneys' Fees by Robert L. Rossi, available in the classified collection on the lower level of the library.

Native Americans' Day - October 14, 2013

In 1990, the South Dakota Legislature voted to observe the second Monday in every October as Native Americans' Day. This legal holiday is dedicated to the remembrance of the great Native American leaders who contributed so much to the history of South Dakota.  S.D. Codified Laws §1-5-1.2.

To coincide with this legal holiday, the McKusick Law Library has displayed some essential tribal law and federal Indian Law resources from its collection.  Included in the display are The Encyclopedia of Native American Tradition edited by Bruce Elliott Johansen and American Indian Tribal Governments by Sharon O'Brien, both recommended by David Selden of the National Indian Law Library at the Native American Rights Fund (NARF) as good secondary sources on tribal legal systems . In addition, this display includes resources for background on federal Indian Law, such as Cohen's Handbook of Federal Indian Law, Stephen Pevar's The Rights of Indians and Tribes and American Indian Law in a Nutshell, also recommended by David Selden and Monica Martens of NARF. Print copies of Selden's "Basic Indian Law Research Tips - Tribal Law" and Selden and Marten's "Basic Indian Law Research Tips - Part I: Federal Indian Law" also have been placed in the display.

The Law Library also has compiled a list of selected online Native American law resources.  These resources include the National Indian Law Library, the Tribal Court Clearinghouse, Versus Law, Tribal Law Journal, and the American Indian Law Review (available to USD Law students and faculty from Hein Online).

(This entry was originally written and posted by Marsha Stacey)

Update on "Baby Veronica" ICWA Adoption Case

The Prairie Law Blog has been reporting on the high-profile ICWA case of Adoptive Couple v. Baby Girl, which has become known in U.S. media outlets as the "Baby Veronica" case.  (See our previous posts of June 28, 2013 and September 5, 2013 for more information on the background of the case.)  In an emotional turn of events, Baby Veronica was handed over to her adoptive parents on Monday after the Oklahoma Supreme Court lifted an emergency stay which had allowed Veronica to stay in the custody of her biological father in Oklahoma.  As reported by CBS News, the Oklahoma Supreme Court's decision to lift the stay was not unanimous.  For a local perspective on this issue, the South Dakota Public Broadcasting website has made available an interview with Saunie Wilson, a former juvenile court judge on the Pine Ridge Reservation, and Raymond Cournoyer, ICWA Director of the Yankton Sioux Tribe.  Click here to listen to the interview. 

(This entry was originally written and posted by Sarah Kammer)

Continuing Controversy in High Profile Indian Child Welfare Act Case

In June, the Prairie Law Blog reported on the U.S. Supreme Court opinion in Adoptive Couple v. Baby Girl.  Yet, experts opined that the Supreme Court ruling would likely not serve to end the controversy surrounding the custody of the child.

Despite other court orders requiring Brown to give the child to the South Carolina couple, the case is now before the Oklahoma Supreme Court, which issued the emergency stay, allowing Veronica’s father to keep her while arguments were heard in the case.   A court referee is expected to recommend whether the full Oklahoma Supreme Court should rule on which entity has jurisdiction in the case—South Carolina, Oklahoma or the Cherokee Nation.

 According to ABC News, although the Oklahoma Supreme Court has issued the emergency stay, Oklahoma Governor Mary Fallin has ordered Baby Veronica's biological father extradited to South Carolina to face felony charges for interfering with the custody of her adoptive parents. The Cherokee Nation Secretary of State Chuck Hoskin Jr. issued a statement criticizing Fallin's action as "an unnecessary overreach in authority," which violates Brown's right to due process as well as tribal authority.

For additional information on ICWA and tribal sovereignty issues, use the Law Library catalog to locate resources.

(This entry was originally written and posted by Darla Jackson) 

International Day of the World’s Indigenous Peoples 2013

Today is International Day of the World’s Indigenous Peoples 2013.  The theme of this year's observance is "Indigenous peoples building alliances: Honouring treaties, agreements and other constructive arrangements."  

By United Nations General Assembly Resolution 49/214 of 23 December 1994, the UN selected to observe the International Day of the World's Indigenous People on 9 August each year.  August 9, it is commonly thought, was selected as an alternative date to the second Monday in October, the date on which Indigenous Peoples Day and Columbus Day are both observed in the United States.  South Dakota Codified Laws 1-5-1.2 provides that the State of South Dakota will observe Native American Day as a state holiday on the Second Day of October. Native American Day is "dedicated to the rememberance of the great Native American leaders who contributed so much to the history" of South Dakota.

The theme for International Day of the World's Indigenous Peoples 2013  is intended “to highlight the importance of honouring treaties, agreements and other constructive arrangements, between States, its citizens and indigenous peoples. Both indigenous and non-indigenous peoples have a pivotal role in making treaties ‘living documents’ in their own communities, by establishing new ways to live together, respecting one another and cooperating in the pursuit of common goals.”

In observance of this International Day of the World's Indigenous Peoples there is a display of some of the resources on Indigenous Peoples and Native American Law available via McKusick Law Library. The display includes the a volume of the Statutes at Large containing treaties with Native American Tribes.

(This entry was originally written and posted by Darla Jackson)

Adoptive Couple v. Baby Girl - US Supreme Court Focuses on Indian Child Welfare Act

Adoptive Couple v. Baby Girl is a case that has caught the attention of the American public.  The case arose when a woman from Oklahoma agreed to allow a South Carolina couple to attempt to adopt her newborn daughter.  The remaining facts surrounding the case have continued to be an area of contention.  One characterization of the facts is as follows:

"... the baby's biological father disclaimed any interest in raising the child.  The biological father was estranged from the biological mother and provided no support during the mother's pregnancy, so the couple would normally not have needed his consent to adopt the child.  However, when he learned of the planned adoption, he objected.  And because he is a registered member of an Indian tribe, the lower courts ruled that a federal law, the Indian Child Welfare Act (ICWA), barred the adoption." 

However, the Native American community provides a very different characterization of the facts, highlighting the fact that the biological father is a member of the Cherokee Nation and an Iraq war veteran who was deployed during much of the period of the dispute.  Further, the Native American community focuses on the conduct of the attorneys of the adoptive parents. While the attorneys did provide notice of the adoption to the tribe, there were admittedly errors in the notice.  It is contended that had there not been errors in the notice, the adoptive parents would never have received permission to remove the child from Oklahoma to South Carolina. 

The differing characterizations of the facts are certainly evident in the filings in the case, whcih are linked from the SCOTUS Blog post here. 

One commentator summarized the case, "The Court had before it two competing interpretations of the ICWA:  the more expansive version, advocated by the biological father, argued essentially tht ICWA applies whenever a court is considering whether to terminate parental rights of an Indian parent; the competing interpretation, advanced by the adoptive parents, argues that ICWA's coverage is limited to the kinds of cases that Congress most likely had in mind when it passed ICWA - namely, those in which social workers and other government officials are seeking to remove Indian children from an existing Indian family.  In deciding the case the majority, in this 5-4 decision, accepted the latter interpretation.

Notwithstanding the decision, there remains some uncertainty regarding what will now happen in regards to custody over the child.

For additional information on ICWA, use the Law Library catalog to locate resources.

(This entry was originally written and posted by Darla Jackson)

Native American Indian and Alaska Native Heritage Month

In recognition of National American Indian and Alaska Native Heritage Month, the McKusick Law Library's latest display features items from its Native American Law collection. The display includes general Native reference resources, such as William N. Thompson's Native American Issues, and Jerry D. Stubben's Native Americans and Political Participation. Also included are books focused on more specific geographical and societal themes, such as Donald Craig Mitchell's Sold American: The Story of Alaska Natives and Their Land, R. David Edmund's Enduring Nation: Native Americans in the Midwest (the Native experience in the Great Lakes region), and Christopher Vecsey's Handbook of American Indian Religious Freedom. In addition, the display contains one of the Library's copies of the South Dakota Humanities Council's 2012 One Book South Dakota title, Dammed Indians Revisited, authored by Michael Lawson. These books are only a few of the books concerning Native history and heritage that are available to be checked out from the Law Library.

(This entry was originally written and posted by Marsha Stacey)