Here are the materials in Dallas v. Hill (E.D. Wis.):
Tribal Codes
Mitchell v. Tulalip Tribes Cert Petition
Here:
UPDATE:
Question presented:
Does sovereign immunity bar the federal courts’ consideration of a declaratory judgment action to determine whether Respondent Tribes can exercise regulatory/taxing authority over real property owned in fee by Petitioners non-Indians, pursuant to allotments that were authorized by the Tribes’ treaty with the United States?
Lower court materials here.
Fourth Circuit Briefs in Williams v. Big Picture Loans
Ninth Circuit Briefs in FMC Corp. v. Shoshone-Bannock Tribes
GTB Press Release: “Grand Traverse Band of Ottawa and Chippewa Indians Implements Authority to Prosecute All Persons, Including Non-Indians, for Domestic Violence”
Here:
Peshawbestown, MI – During a legislative session today, the Tribal Council of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) enacted amendments to the Domestic Violence Ordinance authorizing tribal police and justice officials to investigate and prosecute domestic violence crimes committed by non-Indians on tribal lands. Non-Indians who live or work on the reservation or have a marriage or dating relationship with a Native person now may be prosecuted by GTB for domestic and dating violence crimes, and for criminal violations of certain protection orders. Individuals who commit these crimes in Indian country can be arrested by tribal police, prosecuted in the Tribal Court, and sentenced to incarceration. Crimes committed outside of Indian country, between two strangers, between two non-Indians, or by a person without sufficient ties to GTB are not covered by the law.
The law guarantees substantive and procedural protections to the accused, including the rights to a jury trial, to an attorney, and to stay proceedings in the Tribal Court to petition for a writ of habeas corpus in a court of the United States.
“The epidemic of violence against Native women has worsened as a result of tribal governments’ forced reliance on distant federal officials for justice. Domestic violence demands a local solution. At long last, we have one,” said Council Chair Sam McClellan. “Tribal law enforcement officers are no longer required to obtain federal permission to arrest a non-Indian who perpetrates domestic violence against an Indian. Bad actors who assault our women are on notice: They will be prosecuted and put in jail.”
For the first time since 1978, when the U.S. Supreme Court stripped tribal governments of their criminal authority over non-Indians in Oliphant v. Suquamish Indian Tribe, the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) has authorized Indian tribes to reassert a portion of their inherent governmental authority to investigate, prosecute, convict, and sentence non-Indians who commit crimes in Indian country. The legislation begins the process of eliminating a jurisdictional gap on tribal lands that has for far too long endangered Native men, women, and children by tying the hands of tribal law enforcement.
Approximately twenty tribes around the United States have implemented the jurisdiction. By adding GTB to that list, the Grand Traverse Band Tribal Council demonstrates its commitment to confronting domestic violence, and to reversing the lasting damage it inflicts on Native families.
Ninth Circuit Affirms Mitchell v. Tulalip
Here is the unpublished opinion in Mitchell v. Tulalip Tribes:
Briefs here.
New Scholarship on IP and Traditional Knowledge in Tribal Codes
Dalindyebo Bafana Shabalala has posted “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes” on SSRN.
Here is the abstract:
Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.
New Scholarship on the Tohono O’odham Legal Systems
Kyle Fields has posted “Tohono O’odham Legal Systems” on SSRN.
Here is the abstract:
This short essay surveys the Tohono O’odham’s legal system through three periods. First, it discusses the traditional O’odham legal system, which relied on himdag (culture or way of life). Second, it reviews how the Spanish, using an inquisitorial system based on Christian religious law, altered the O’odham’s legal system. Third, it analyzes how the secular American adversarial system changed the O’odham’s legal system.
Julia Stinson on Disenrollment as Cruel and Unusual Punishment
Julia M. Stinson has posted “When Tribal Disenrollment Becomes Cruel and Unusual” on SSRN. The article is forthcoming in the Nebraska Law Review. Here is the abstract:
In the past two decades, Native American tribes have disenrolled—permanently removed from tribal citizenship—thousands of tribal members, mainly because of lineage concerns or for political reasons. In these instances, scholars generally decry disenrollment. But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper. This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.
The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment. Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act. And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed. Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship—hence, tribes cannot disenroll members for criminal behavior. Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem. To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power—and greater sentences—or voluntarily renounce their tribal citizenship.
Grant Christensen on ICRA and Banishment
Grant Christensen has posted “Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity,” forthcoming in the William & Mary Bill of Rights Journal.
The syllabus:
Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.
This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.
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