A Toolkit for tribes to assist them in revising their laws to be more inclusive of, and provide more recognition of, the rights of LGBT persons has been created and is available. More information is here.
Tribal Codes
Navajo Nation CLE at Arizona State
Navajo Nation Law CLE Conference
Friday, November 30, 2012 / 8:30 a.m. – 5:15 p.m.
Sandra Day O’Connor College of Law at Arizona State University / Armstrong Hall / Great Hall/ Tempe campus
Indian Legal Program at the Sandra Day O’Connor College of Law at ASU and the National American Bar Association of Arizona are hosting a conference that will offer a survey of ethical, social, cultural, employment, economic development, political and legal issues affecting the Navajo Nation. It is ideal training for tribal court advocates, tribal court practitioners, tribal court prosecutors, tribal court defenders, tribal council members, Indian law attorneys and attorneys practicing on and near the Navajo Nation Reservation, tribal liaisons, government legislators, Navajo Nation Bar members, law students, as well as teachers/professors and students of American Indian studies.
This conference may qualify for up to 8 CLE credit hours for Navajo Nation Bar Association, and New Mexico MCLE credits, including 2 credit hours Navajo Ethics* – approval pending. The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education requirement. This activity may quality for up to 8 hours toward your annual CLE requirement, including 2 hours of professional responsibility.
http://conferences.asucollegeoflaw.com/navajolaw/
Sessions include: Continue reading
Turtle Talk Poll — Same-Sex Marriage in Indian Country
You may be waiting for the final match-up in the greatest cases tournament, but wait until next week when I get back from the Frickey thing.
Several Indian tribes in recent years have considered whether to authorize same-sex marriage in their respective lands — Coquille and Suquamish have said yes, while Cherokee, Navajo, and Little Traverse Odawa (!?!?!) have said no. What do you think?
On Steve Russell and English Common Law
Steve Russell’s short commentary on the English common law of tort and tribal governance was a delight to read.
Two points in somewhat in response and largely in agreement. First, I really do think more tribes should reconsider what Anglo-American tort law does to their governance culture. Tribes should do this for all of the law that they borrow deriving from English common law. Many tribes (most) already have rejected the formality and formalism of civil procedure and evidence rules, rules the derive from rules designed to exclude the lower classes from the judicial system. That said, many tribes politically and economically need to integrate seamlessly with surrounding communities and have chosen to borrow and adapt the law of their neighbors. It would be helpful if tribes actually made a choice, after legislative consideration. A clear determination in cases such as Plains Commerce Bank and the Crazy Horse Malt Liquor case could have precluded the obfuscation on traditional tribal law that defendants (and some judges) used to complicate those cases. Nonmember defendants have a legitimate beef that they don’t know the law applied to them.
Second, I’ve argued before that tribal courts should continue to assert jurisdiction over nonconsenting nonmembers. It’s baffling to me that federal courts can issue orders enjoining tribal courts from engaging in their own business (though the court in a recent case out of Navajo got around that by enjoining the tribal court plaintiffs). Steve raises an excellent point about using tort law as a means of excluding what they used to call “bad men.” Tribal judgments can be sufficient to keep undesireables away. Not always, see the Lara case, and some tribes might not want to effectively exclude a particular defendant.
Update in Diné CARE v. Salazar
Here is Navajo’s latest pleading (limited motion to intervene and motion to dismiss):
FINAL COMBINED NAVAJO NATION AREA IV PLEADINGS
The complaint is here.
Update in Grand Canyon Skywalk Development v. ‘Sa’ Nyu Wa: Complete Ninth Circuit Briefing
Here are the briefs (argument is October 19, 2012):
Lower court materials here.
Fletcher on “Tribal Membership and Indian Nationhood”
I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).
Here is the abstract of the new paper:
American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.
This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.
I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.
Western Sky Financial Effort to Litigate Maryland Consumer Investigation in Federal Court Fails
Here are the materials in Western Sky Financial LLC v. Maryland Commissioner of Financial Regulation (D. Md.):
DCT Order Remanding Case to State Court
Maryland CFR Motion to Dismiss
Here is our post on the state court case, ongoing.
LTBB Tribal Council Votes Down Same-Sex Marriage Amendment, but Debate Continues
An excerpt from the Petoskey News:
The motion to approve the amendment failed on a 4-5 vote, but a second vote — passing 5-4 — put the entire tribal marriage statute that defines marriage as between a man and a woman up for legislative review.
The amendment would have made the tribe the first in Michigan to allow same-sex couples to wed. Only two tribes in the nation have adopted a similar marriage definition.
The decision would also have skirted a 2004 ballot proposal by Michigan voters that banned gay marriage for the entire state population, because the federal government recognizes tribes’ rights to govern themselves as a domestic nation.
Despite the failed vote, the issue is unlikely to be dropped.
Previous post on the topic is here. Miigwetch to C.D.
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