Friday, March 25, 2011

New Supreme Court Update Available

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website.

At present, two important Indian trust cases are pending on the merits before the Court. First, the Tribal Supreme Court Project is finalizing the preparation of amicus briefs in support of the Tribe in United States v. Jicarilla Apache Nation which will be argued before the Court on April 20, 2011. In this case, the United States is challenging the Federal Circuit’s ruling that the federal government “cannot deny an Indian tribe’s request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern the management of an Indian trust.” Second, the Project continues to wait for the Court to issue its decision in United States v. Tohono O’odham Nation which was argued on November 1, 2010. The delay in issuing an opinion may indicate a lack of consensus on the Court regarding the broad rule requested by the United States which would preclude any Indian tribe from bringing money damages claims in the Court of Federal Claims if they have filed a “related” tribal trust mismanagement case in another court even though it seeks different (e.g. equitable and injunctive) relief.

As reported last month, the Court has called for the views of the Solicitor General in three other Indian law cases: Osage Nation v. Irby (reservation disestablishment); Brown (formerly Schwarzenegger) v. Rincon Band (IGRA “revenue” sharing); and Miccosukee Tribe v. Kraus-Anderson (enforcement of tribal court judgments). More than likely, the Solicitor General will not file his briefs until after the Court’s April 2011 oral argument session, but the petitions will likely be considered in conference before the Court adjourns for its summer recess at the end of June 2011.

You can find copies of briefs and opinions on the major cases we track on the Project’s website.

Monday, March 7, 2011

State high court empowers tribes' child custody decisions

Tanana v. State, No. 3AN-04-12194 CI, No. 6542

Contact: Heather Kendall Miller, Senior Staff Attorney and Counsel for Tanana.

Last Friday the Alaska Supreme Court issued a broad affirmation of inherent tribal authority. In State of Alaska v. Tanana the Court ruled that tribal courts have authority to initiate and adjudicate children’s cases without going through state courts.

The case was brought in 2004 on behalf of the Villages of Tanana, Nulato, Akiak, Kalskag, Lower Kalskag and Kenaitze along with Theresa and Dan Schwietert. The case was brought after Governor Murkowsi’s administration, on the advice of former Attorney General Greg Renkes, abruptly stopped recognizing tribal court decrees in cases that did not originate in state court. Renkes argued that only state courts could initiate children’s cases and if they chose, transfer those cases to tribal courts. He also instructed state employees to stop recognizing or enforcing tribal court decrees. The case was brought to overturn Renkes’ opinion and to force the State, its agencies and officials to formally recognize valid tribal court decrees without regard to any state court involvement.

State services frequently do not reach village Alaska. Tribal courts must therefore handle most cases involving the welfare of village children. State recognition of those tribal court proceedings is therefore critical to assure that proceedings which occur in tribal court are then respected by other state agencies. Otherwise, adoptive parents may not be able to participate in state funded assistance programs, secure substitute birth certificates necessary to travel out of state, to enroll children in school, or to secure medical care.

The Schwieterts faced just such a dilemma. After adopting a special needs child in Tanana tribal court, they had difficulty accessing health care. They were also frustrated in their plans to travel out of state when they were told that they could not acquire a substitute birth certificate for their adoptive child since the child had been adopted in a tribal rather than state court proceeding.

NARF attorney Heather Kendall Miller called on Governor Parnell and Attorney General Burns to rescind the Renkes Opinion and instead take this opportunity to work with tribes and tribal courts to ensure the protection of all children, no matter which court their case is in. She sounded on a positive note: “now that the Court has reaffirmed tribal authority in this area I look forward to working with Attorney General Burns to better coordinate tribal and state services in village Alaska.”

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