Author: Kate Fort

NIGC NOT Making Lists, Checking Twice

Kate Fort

Maybe Chairman Hogan read Matthew’s post yesterday . . .

From Indianz.com:

NIGC’s Hogen not drawing up post-1934 tribes list

The National Indian Gaming Commission is not compiling a list of tribes that were recognized after 1934, Chairman Phil Hogen said on Tuesday. Hogen, a member of the Oglala Sioux Tribe, of South Dakota, spoke of the need for such a list in an Indian Country Today story that was published online on Monday. But in a follow-up to Indianz.Com, he said the NIGC isn’t leading the effort.”While I and the NIGC are concerned about the potential fallout of the Carcieri decision, we are not assuming the primary responsibility for determining which tribes may or may not be affected by the decision,” Hogen said. “We are certainly not drawing up any lists to that effect.”

The U.S. Supreme Court decision in Carcieri v. Salazar limits the land-into-trust process to tribes that were “under federal jurisdiction” in 1934. Coming up with a list of affected tribes “might be helpful,” Hogen acknowledged. Citing his response to the decision and his stance on other issues, the National Indian Gaming Association is calling for Hogen, a Bush nominee, to resign.

State Bar Exam Indian Law Materials

Kate Fort

We’ve added new materials under the Resources tab regarding Indian law on state bar exams.

Tribal Court Order Regarding Attorney’s Fees Unenforceable

Kate Fort1 Comment

The Northern District of Oklahoma found that the Muscogee Tribal court did not have jurisdiction over the firm Crowe & Dunlevy who represented Thlopthlocco Tribal Town in an intratribal dispute.  The case began in Muscogee Nation tribal court, but the firm eventually filed suit in federal district court to prevent enforcement of a tribal court order.  Tribal sovereign immunity, Ex parte Young, judicial immunity, Rule 19 and Montana exceptions are all discussed in the decision.

Crowe & Dunlevy, P.C. v. Stidham, — F.Supp.2d —-, (N.D.Okla. Apr 24, 2009) (NO. 09-CV-095-TCK-PJC)

Some Organizational Changes

Kate Fort

We’ve made some minor organizational changes on the blog.   If you are looking for our Supreme Court information or Michigan Odawa History Project, those are now housed under the “Resources” tab at the top of the page.  We’ve also added a section on State Bar Exams and Indian Law Materials there.  If you are looking for events here at the MSU College of Law Indigenous Law and Policy Center, that is now housed under the “Indigenous Law Program,” along with information about the program, the law school, and our work here.

Let us know if you have any questions or can’t find something.

Pokagon Band Breaks Ground on Government Buildings

Kate Fort

From WNDU.com:

Tribe breaks ground on headquarters, mum on satellite casinos
$5 million project underway near Dowagiac
Posted: 6:10 PM Apr 13, 2009
Last Updated: 7:44 PM Apr 13, 2009
Reporter: Mark Peterson

In the past the Pokagon Band of Potawatomi Indians built a casino near New Buffalo.

In the future, the band may build two more casinos in Southwest Michigan, but in the present, work started today on the tribe’s five million dollar administrative headquarters near Dowagiac.
The tribal government headquarters is being funded largely by loans and grants from the U.S. government.

Funds for the administration building were provided by a United States Development Authority (USDA) Rural Development loan. Improvements to the roads and parking lot were funded through the U.S. Bureau of Indian Affairs. The infrastructure work was funded through an Indian Community Development Block Grant from the U.S. Department of Housing and Urban Development.

Groundbreaking ceremonies were held today on the tribe’s sprawling rural campus near Rogers Lake in Cass County.

Continue reading →

University of Montana School of Law Dean Search

Kate Fort

One of the five finalists for the Montana Law School dean position practices Indian law. Greg Murphy is admitted to three tribal bars in Montana. He lists Indian law as one of his main practice areas.

h/t The Faculty Lounge

“Unusual Fishing Activities”

Kate Fort

By Christina Rohn News-Review Staff Writer

Thursday, April 2, 2009 8:38 AM EDT

The Department of Natural Resources wants to remind Michigan residents that this spring, they may observe unusual fishing activities by tribal members. As part of the 1836 Treaty of Washington — established by the federal government, the state of Michigan and five Michigan tribes — fishing opportunities, as well as hunting and gathering activities, for tribal members are different than those allowed for state-licensed recreational anglers under Michigan law. As established by the 2007 Inland Consent Decree, tribal members from the Sault Ste. Marie Tribe of Chippewa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians and Little Traverse Bay Bands of Odawa Indians, are allowed to use spears or conventional tackle to take walleye and steelhead in state waters covered by the 1836 Treaty of Washington which are, at the time, closed to state-licensed anglers. “We haven’t been receiving any complaints, we’re just trying to be proactive to let anglers know … they might see it happening,” said Mary Dettloff, press spokesperson for the Michigan Department of Natural Resources. “If you see spearing of walleye and steelhead, do not be alarmed and think it’s illegal … it’s a fairly new thing.” The area tribal members can use under the 1836 Treaty of Washington includes the eastern half of the Upper Peninsula and a majority of northern lower Michigan, which accounts for 13,837,207 acres of land and inland waters.

Under the 2007 Inland Consent Decree, tribal members will have seasons, as well as bag limits that differ slightly from state regulations.

Tribal fishing and hunting will be for personal subsistence use only, so according to the federal and state government, it should have limited effect on the state’s natural resources.

For more information about the 1836 Treaty of Washington, or the 2007 Inland Consent Decree, visit www.michigan.gov/dnr.

To report a suspected violation of state law, call the Department of Natural Resources’ Report All Poaching line (800) 292-7800.

In re Lee Oral Argument

Kate Fort3 Comments

The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent.  Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.

Continue reading →

TOMORROW: ILPC February Spring Speakers Event

Kate Fort

Justin Richland will be talking about his book, “Arguing with Tradition: The Language of Law in Hopi Tribal Court” with Hon. JoAnne Gasco responding and commenting. The event is tomorrow, February 17th, in the Castle Board Room (third floor of the Law College Building) starting at 11am. Lunch will be served.

Stubbs & Tolmie, “Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women

Kate Fort

Published in Australian & New Zealand Journal of Criminology, Vol. 41, No. 1, pp. 138-161, 2008

h/t Feminist Law Blog

Abstract:
This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991-2007. We focus on cases involving Indigenous women due to their very substantial over-representation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women’s interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women’s litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond Battered Women Syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

Download at SSRN