Here:
Author: Matthew L.M. Fletcher
SCOTUSBlog (Ronald Mann) Preview of Patchak v. Zinke
Here.
An excerpt, and a little horn tooting:
The most telling argument for the government is the recitation (in an amicus brief filed by a group of law professors) of the dozens of statutes Congress has adopted through the centuries resolving Indian land disputes and dealing high-handedly with Indian lands. It is notable that Bank Markazi emphasized Congress’ supreme authority over foreign affairs in its rejection of the Klein claim in that case. Congress’ plenary authority to regulate and protect Indian tribes leaves room for a similar resolution of this case without explicitly rejecting the Klein rule. Bank Markazi of course said nothing about Congress’s power over Indian affairs, so that result wouldn’t really follow from Bank Markazi. It would, though, afford the justices a way to decide the case narrowly, which seems to have been their goal in these cases. The key thing to watch for in the argument will be any sense that any of the members of the Bank Markazi majority show a willingness to treat this case differently than they did that one.
You can read that amicus brief here, along with the rest of the briefs
Yakama Nation Sues Klickikat County over Jurisdiction
Here is the complaint and press release in Confederated Tribes and Bands of the Yakama Nation v. Klickikat County (E.D. Wash.):
MSU/ILPC Alums Whitney Gravelle & Bryan Newland Sworn in as Bay Mills Chief Judge and Chairman
TPM: “Report: Trump Told Tribal Leaders To ‘Just Do It’ And Ignore Drilling Laws”
Here.
Cert Stage Briefs in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians
Federal Court Rejects Effort to Enforce Settlement Agreement in Tribal Court
Here are the materials in Enerplus Resources (USA) Corporation v. Wilkinson (D.N.D.):
An excerpt:
Given the forum selection clauses in the Settlement Agreement, the ORRI Assignment, and the Division Orders, the Tribal Court clearly lacks jurisdiction over the case. The record before this Court clearly establishes that every party to the dispute agreed to the forum selection clauses at issue. Thus, Enerplus is entitled to a declaratory judgment that the forum selection clauses at issue preclude the Tribal Court from exercising jurisdiction over any dispute arising from those documents, and preclude Wilkinson from asserting in Tribal Court any claims arising from, and related to those documents.
CA8 materials here.
26th Annual NNALSA Moot Court Competition
National NALSA Moot Court Competition
March 2-4, 2018
Beus Center for Law and Society
111 E. Taylor Street, Phoenix, AZ 85004
Each year, hundreds of law students from across the country take on the challenge of writing and arguing on the most compelling federal Indian law and tribal governance issues. The Native American Law Students Association (NALSA) at Arizona State University (ASU) is proud to partner with the Indian Legal Program at ASU’s Sandra Day O’Connor College of Law and the National Native American Law Student Association (NNALSA) on hosting the 2018 NNALSA Moot Court Competition.
Hosted by: ASU’s Indian Legal Program, Native American Law Students Association, and National NALSA
ASU NNALSA Moot Court website includes the problem, team registration, NNALSA Moot Court rules, agenda and more at: law.asu.edu/nnalsamootcourt
Questions? Contact Sarah Crawford at nnalsa.vicepresident@gmail.com
Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers
Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)
An excerpt:
Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased.
Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.
Differing Scholarly Opinions on the Ethics of Representing Tribes Engaged in Disenrollments
Here is George K. Komnenos, Tribal Advocates as Ministers of Justice: A Potentially Problematic Concept, 29 Geo. J. Legal Ethics 1079 (2016): GeorgeKKomnenosTribalAdvo
An excerpt:
In June 2015, the National Native American Bar Association (NNABA) adopted its first Ethics Opinion entitled Formal Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment (“Opinion”). The Opinion is not intended to prescribe an overarching code of professional conduct for tribal advocates. On the contrary, the Opinion serves as a reminder to attorneys and Indian bar associations that “lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.” The Opinion puts forward the notion that tribal advocates have a dual duty: they are bound not only to their individual clients, but to the Native American community at large. According to the Opinion, “[t]he responsibility of a tribal advocate differs from that of the usual advocate; his or her duty is to further justice in the greater Native American community, not merely to win his or her case.” Though this statement is made in the context of encouraging lawyers to be vigilant in defending their clients’ constitutional rights, it bears grave dangers.
And here is Nicole Russell, “To Further Justice in the Greater Native American Community”: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes, 30 Geo. J. Legal Ethics 911 (2017):
TO FURTHER JUSTICE IN THE GREATER NATIVE AMERICAN COMMUNITY ETHICAL RESPONSIBI
An excerpt:
This Note will explore the ethical challenges faced by attorneys when representing member clients in two contexts. Part I will examine the generally heightened ethical obligations facing attorneys in their representations of tribal clients. This section will provide an analysis of procedural and ethical requirements, detail their variances, and point to recent attempts by tribal coalitions to develop a more coordinated code to guide nonmember representation. The discussion will necessarily involve the Model Rules of Professional Conduct(Model Rules) and their state derivations because many tribes have used these codes as the foundation for their own standards. Part II will examine what has been termed the tribal “disenrollment epidemic” and interrogate the premise that tribal advocates have a duty to distance themselves from disenrollment proceedings. Ultimately, this Note posits that not only are tribal advocates held to more– and sometimes higher–ethical standards than those put forth in the Model Rules, but that they are barred from representing tribes in many of the ongoing disenrollment proceedings which take place without the trappings of due process.
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