Tribal Codes

Indian Law Resource Center Report on Tribal Capacity for Enhanced Sentencing

Kate Fort

Report here.

The Indian Law Resource Center recently released, Restoring Safety to Native Women and Girls and Strengthening Native Nations ─ A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction. The report examines existing literature on the readiness among Indian nations to exercise enhanced sentencing authority under TLOA and fuller criminal jurisdiction over all perpetrators of violent crimes under VAWA 2013 or other future legislation. It also identifies challenges facing Indian nations in exercising such authority and how some Indian nations are moving forward to increase their capacity to safeguard Native women in their communities. The report, available at http://indianlaw.org/content/restoring-safety-native-women-and-girls-and-strengthening-native-nations, concludes with ten recommendations aimed at ending violence against Native women and girls and strengthening the ability of Indian nations to address this crisis. We hope that the report will guide the Center, and perhaps others, in better assisting Indian and Alaska Native nations to make their communities safe places.

Nooksack COA Briefing in Roberts v. Kelly Complete

Matthew L.M. Fletcher1 Comment

Here:

Roberts v Kelly COA Opening Brief of Appellants

Roberts v Kelly COA Response Brief of Appellees

Roberts v Kelly COA Reply Brief of Appellants

Lower court materials here.

LA Times on Navajo Nation and the Coalition for Navajo Equality

Kate Fort

Here.

New Mexico has seen celebrations across the state since its highest court 10 days ago unanimously ruled it was unconstitutional to deny a marriage license to same-sex couples. Not so for the sovereign Navajo Nation, whose borders spill over into the northeast part of the state and where tribal law is clear: Such unions are banned.

Some Navajo hope to change that, buoyed by the cultural climate shift underscored when the U.S. Supreme Court in June struck down part of the federal Defense of Marriage Act. Gay marriage is permitted in the District of Columbia and 18 states, the most recent being Utah, although officials there plan to appeal a federal court decision that overturned the state’s ban on same-sex marriage.

http://www.latimes.com/nation/la-na-navajo-gay-marriage-ban-20131230,0,5735043.story#ixzz2ozClvTgO

Year-End News Coverage of Nooksack Disenrollments Controversy

Matthew L.M. Fletcher

Here.

An excerpt:

The 306 people fighting to stay on the Nooksack Indian Tribe’s membership rolls won a rare legal victory recently when Tribal Court Chief Judge Raquel Montoya-Lewis ruled that tribal leaders had violated their rights by denying them $250-per-person Christmas checks that were mailed to everyone else in the 2,000-member tribe.

But the ruling didn’t put any extra presents under anyone’s tree. While Montoya-Lewis ruled that it was illegal to deny the 306 the same treatment as other tribe members before their legal status is determined, she also decided that she had no legal authority to order Chairman Bob Kelly and his supporters on the tribal council to issue checks to anyone.

The episode was one more example of the difficulties that the 306 have faced during the past year, as they try to get courts to block the move to strip them of tribal membership under a process known as disenrollment.

Tenth Circuit Affirms Conviction of “Pharmacist” on Ponca Reservation

Matthew L.M. Fletcher

Here are the materials in United States v. Williams:

CA10 Unpublished Opinion

Williams Opening Brief

US Answer Brief

Williams Reply Brief

From the opinion:

Zachary Carl Williams appeals his conviction for conspiracy to misbrand prescription drugs in violation of 21 U.S.C. §§ 331(a), 331(k), 333(a), and 18 U.S.C. § 371. Williams raises five issues on appeal. In his first two issues he alleges the indictment was constructively amended in violation of his constitutional rights. In his third and fourth issues he alleges the jury was improperly instructed. Finally, Williams argues that he is entitled to tribal sovereign immunity because his pharmacy operation was authorized by a license issued by the Ponca Tribe, a federally recognized tribe. Finding no error, we affirm Williams’ conviction.

Important New Scholarship on Muscogee Tribal Jurisprudence

Matthew L.M. Fletcher

Sarah Deer and Cecelia Knapp have published “Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law)” in the Tulsa Law Review. The paper is also available on SSRN.

The abstract:

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. It would also have to find that a tribal government had been operating legitimately in the shadows—that the Mvskoke people had continued to operate under their constitution for most of the twentieth century despite official federal antagonism. It was definitely a long shot, but they won.

This article explores factors that have helped the Mvskoke people create, nurture, and sustain a constitutional government under hostile circumstances for centuries. We focus on the history and structure of the constitutional government of the Muscogee (Creek) Nation of Oklahoma. We consider several aspects of Creek conceptions of government structure and balance, which are also evidenced in the constitutional jurisprudence of the Muscogee (Creek) Nation Supreme Court. At first glance, the contemporary Mvskoke government today bears little resemblance to the ancient etvlwv town-based system of governance, but a more penetrating analysis reveals common threads of political theory and cosmogony, or world view, that have continued unabated.

Highly recommended!

Part 1: Update on Tribal Membership/Disenrollment Issues at Grand Ronde — Complaint Filed

Matthew L.M. Fletcher2 Comments

Here is the complaint in Williams v. Leno (Confederated Tribes of Grand Ronde Tribal Ct.):

Williams v Leno Grand Ronde Tribal Court Complaint For Sanctions And Declaratory Relief

And the accompanying press release:

Lawsuit Filed Against Officials of the Confederated Tribes of Grand Ronde Challenging Illegal Enrollment Audit and Resulting Disenrollment Proceedings
Grand Ronde, OR – An ethics lawsuit has been filed in Grand Ronde Tribal Court against top officials of the Confederated Tribes of Grand Ronde regarding the proposed disenrollment of as many as 1,000 tribal members.  The lawsuit names the Tribal Council Chairman Reyn Leno and Enrollment Department Head Penny Deloe and alleges that they breached tribal law by disclosing members’ enrollment records and personal information to a third-party consulting firm in Albuquerque, New Mexico.

Continue reading →

Part 2: Update on Tribal Membership/Disenrollment Issues at Grand Ronde — Tribe Statement

Matthew L.M. Fletcher1 Comment

Here is a statement from the tribe:

The Confederated Tribes of Grand Ronde is conducting an enrollment audit.  The audit fulfills one of the tasks assigned in the Tribal Strategic Plan for 2010, which was adopted in August of 2009.   That plan was formulated after nearly two years of development that began with a Strategic Futures conference in 2007 involving Tribal leaders and members. The plan directed Enrollment to audit all enrollment files and applications, track reasons for denials, and audit blood quantum records with the goal of strengthening the Grand Ronde Family Tree.

Recently some statements have cropped up on social media sites regarding the Tribe’s Enrollment audit.  One of them even featured the Tribe’s emblem and could have led people to believe it was an official statement from the Tribe.  It was not.  In addition, the statements contain extremely misleading and false information.  For example, the statement that up to 20% of the Tribe is being disenrolled is simply not true.  Audit proceedings are ongoing and in fact, over the last several months a number Tribal members and their families. have provided the necessary information to clear up inconsistencies in their files and resolve issues related to their enrollment.

Tribal Council cannot make any specific comments on the Enrollment Audit until audit proceedings have been completed.    The Tribal Council does not see enrollment files until an Enrollment Committee recommendation is presented.
There is an established process under the Enrollment Ordinance for addressing loss of membership that includes working with Enrollment Staff, then hearings before the Enrollment Committee, a hearing before Tribal Council., and ultimately an appeal to Tribal Court and the Tribal Court of Appeals.

Over the years our Tribal membership, through Constitutional amendments, has consistently pushed for tightening our membership requirements.   As elected officials the Tribal Council took an oath of office to uphold the Tribal Constitution and the laws of the Confederated Tribes of Grand Ronde.  In that same pledge, the Council swore that they would perform all duties required of them by the Constitution and the laws of the Tribe.  The Council knows this process is not any easy one for the Tribal community   But the Council is committed to getting through it with diligence and compassion.

We also attach an email we received from the tribe regarding our previous post, the contents of which we received from a reliable source, but apparently there was a misunderstanding on our part:

Dear Mr. Fletcher:

On Nov. 19 you posted an article regarding the Grand Ronde Tribe and some disenrollment actions.  The article is one that has been posted by an individual on several social media sites.  It is false and misleading.  I am troubled to see it on Turtle Talk, a site that represents Michigan State University’s Indigenous Law Center and one that holds credibility in the eyes of many readers, both Native and non-Native.  Here is the actual statement from the Grand Ronde Tribe on the current issue.  I hope you will see fit to correct the misrepresentation on Turtle Talk.

Sincerely,

Siobhan Taylor
Public Affairs Director
Confederated Tribes of Grand Ronde

We always strive to give equal time to parties in dispute, and generally do not take sides. We let the material speak for itself.

Opening Nooksack COA Brief in Roberts v. Kelly

Matthew L.M. Fletcher

Here:

Roberts v Kelly COA Opening Brief of Appellants

Lower court materials here.

Press Release: Mass Disenrollment at Grand Ronde

Matthew L.M. Fletcher3 Comments

Mass Disenrollment Hits the Confederated Tribes of the Grand Ronde

Grand Ronde, OR – Up to  1,000 members (nearly 20% of the membership) of the Confederated Tribes of Grand Ronde Community of Oregon will be receiving letters of potential disenrollment, resulting in what could be the largest termination of American Indian citizenship in United States history.

15 members of the Confederated Tribes of the Grand Ronde have already been disenrolled, and 79 cases are pending the outcome of hearings scheduled for December. These are the result of the second wave of disenrollment letters that were sent out in September. Tribal Council refuses to discuss the matter, with Tribal Councilman Toby McClary publicly stating that he did not want to disclose the details and incite panic within the membership.

The Grand Ronde Tribal Council’s mass disenrollment efforts contribute to a national Indian disenrollment epidemic, with disenrollment “expanding throughout Native America, with Native nations in at least seventeen states engaging in this practice,” according to leading tribal political scientist, David Wilkins (Indian Country Today).

Mass tribal disenrollments have broken out in Washington State and California and now Oregon (Seattle Times; New York Times).

The disenrollment proceedings stemmed from an illegal audit of the Tribe’s membership rolls by an outside auditing firm based in New Mexico and include nine sets of parameters, including dual enrollment, lineal descent, blood quantum, adoption and paternity.

One of the families facing disenrollment are the descendants of Chief Tumulth, who was a signatory of the seminal 1855 Kalapuya Treaty (also known as the Treaty of the Willamette Valley and the Dayton Treaty). Tumulth was the first chief of the Watlala Band of Chinook Indians, or “Cascade Indians,” whose ceded lands extended from Cascade Locks west to Ft. Vancouver on both sides of the Columbia River, following the Sandy River into Portland including Franz Lake National Wildlife Refuge in the Columbia Gorge.

“We are appalled that our own tribe, our own relatives, are claiming that we are some how no longer Grand Ronde. We descend directly from a tribal Chief, a man who signed the Treaty that would later establish the Grand Ronde Reservation,” stated family spokesperson, Mia Prickett. Continue reading →