Tribal Codes – Page 35

In this case the plaintiff alleges that she was employed by the Southern Ute Tribe and the Southern Ute Tribe Growth Fund. However, she does not specify whether her employment was within or outside the confines of the reservation. The defendants seem to assume that the plaintiff’s employment was within the confines of the reservation. However, the defendants do not provide any declarations or other evidence to support this assumption. The locus of the plaintiff’s employment is a potentially pivotal jurisdictional fact.

The issues outlined above relate directly to the court’s subject matter jurisdiction. Those issues must be resolved before the court may address other issues presented in the motion to dismiss. Thus, I deny the motion without prejudice and grant [8] the defendants an opportunity to file a renewed motion that addressing the issue of subject matter jurisdiction. To the extent specific facts are relevant to the determination of the court’s subject matter jurisdiction, I note that the “court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If the defendants choose to file a renewed motion to dismiss, I direct the defendants to address the scope and limits of tribal jurisdiction, as outlined in Montana v. U.S., 450 U.S. 544, 565 (1981), MacArthur v. San Juan County, 497 F.3d 1057, 1068 (10th cir. 2007), and related cases. Of course, the analysis of this issue must be focused on the jurisdictional facts of this case.

Little River Band Ottawa Signs Second Collective Bargaining Agreement Under Tribal Law

March 22, 2012Matthew L.M. Fletcher

(March 22, 2012) Manistee, MI

Second Collective Bargaining Agreement Signed under Tribal Law

The Little River Casino Resort and the United Steelworkers Union have entered into a collective bargaining agreement covering slot machine technicians. This is the second collective bargaining agreement entered into by the Resort and the Union under tribal law. The first, involving the Resort’s security guards, was signed in December, 2010.

“Like our first agreement, this is the product of hard work and long negotiations,” said Tom Davis, General Manager at the Resort. “It reflects a lot of give and take from both sides of the bargaining table.”

In 2007, the Band enacted a law governing labor unions and collective bargaining modeled on state labor relations laws. The law allows collective bargaining within the Band’s governmental operations, which includes its gaming operations at the Little River Casino Resort. It requires unions to hold a license from the Band, and it provides a structure for resolving unfair labor practice charges. “In designing our law, we found there was much to learn from the way state governments regulate collective bargaining in the public sector,” said Tribal Council Speaker Stephen Parsons. “In the end, however, this law reflects the unique values of our Ottawa community.”

Few Indian nations have laws governing collective bargaining. The short list includes the Navajo Nation and the Mashantucket Pequot Tribal Nation. “We decided that it was in the best interests of our community to give employees the right to bargain collectively,” explained Parsons. “As a sovereign tribal government, we have authority to grant employees those rights.” he said.

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LTBB Considering Recognition of Same-Sex Marriage

March 21, 2012March 21, 2012Matthew L.M. Fletcher1 Comment

Here. H/t Pechanga.

Grand Canyon Skywalk Case Stayed Pending Tribal Court Resolution

March 20, 2012March 20, 2012Matthew L.M. Fletcher3 Comments

Here are the materials:

DCT Order 3-19-12

Hualapai Bad Faith Brief

Prior materials on the request for TRO are here.

Public Radio Coverage of Grand Canyon Skywalk Controversy

March 19, 2012March 19, 2012Matthew L.M. Fletcher

Here, h/t Pechanga.

An excerpt:

The Hualapai council members say the unfinished site is an embarrassment to the tribe, which approved the project despite some internal objections about building on land roughly 30 miles from a place central to the Hualapai creation story. Traditional tribal belief places man’s origin on Hualapai lands.

“I believe the canyon is a sacred place. The Hualapai look at is as a church. Why take trash and throw it in the church. I voted against it,” said Philip Bravo, a former council member. “What does the tribe have out there? A half-finished building.”

Angry at the developer, the tribe passed an ordinance last year creating a legal path to effectively cancel the developer’s contract through the sovereign right of eminent domain.

The tribe set compensation for the seizure at $11.4 million, a sum they said represents the fair value of a project that the Las Vegas-based developer says is worth over $100 million.

“They took everything. And then the tribal court issued an order that we were trespassers if we were even there. You do understand this is like Hugo Chavez’s Venezuela, don’t you?” said Troy Eid, a lawyer for the Grand Canyon Skywalk Development Corporation, which built the skywalk.

There is little doubt that tribes can legally seize property for the public good, much like a state or the federal government. But by seizing a non-tangible asset of a non-Indian company as a way to escape a contentious business deal, the tribe may have stepped into untested waters.

“I think on first glance the tribe is exercising a power that they have. Whether they are exercising it wisely is a different question,” said Addie Rolnick, an expert in Indian law at the University of Nevada at Las Vegas.

Fletcher on Free Speech and Tribal Law

March 15, 2012Matthew L.M. Fletcher1 Comment

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?