Here are the materials in the case, In re Estate of Big Spring:
Tribal Codes
ABA Journal Article on Ethics Codes in Tribal Jurisdictions
Thanks to M.O. for pointing this out.
From the ABAJ:
One of the notable trends in the legal ethics field over the past several years has been a gradual movement toward more uniformity in the substance and application of professional conduct rules.
There is little, if any, expectation that the states will fall into complete lockstep on how they apply ethics principles for lawyers and judges, or how they structure their disciplinary systems. But the ABA’s Model Rules of Professional Conduct and Model Code of Judicial Conduct have served as starting points for efforts to bring more uniformity to the field. The Model Rules, for instance, have been adopted in some form by every state except California.
But in Indian country — the lands occupied by more than 600 tribes recognized by the U.S. government as sovereign entities — that trend hasn’t caught on. And experts say it is unlikely that there will be much uniformity any time soon in the way that tribal courts address ethics and discipline issues for lawyers and judges.
“Tribes are all over the place on this,” says B.J. Jones, director of the Tribal Judicial Institute in the Northern Plains Indian Law Center at the University of North Dakota in Grand Forks. “A lot of them do use the ABA Model Rules,” says Jones, who serves as chief judge for the Sisseton-Wahpeton Oyate and chief justice for the Turtle Mountain Band of Chippewa Indians, and is admitted to practice in a number of tribal courts. But, he says, “It’s hard to gauge what the most prevailing form of discipline is.”
The somewhat random pattern of ethics rules for lawyers and judges in Indian country reflects the nature of general rules and procedures in tribal courts, says W. Gregory Guedel, who chairs the Native American Concerns Committee in the ABA Section of Individual Rights and Responsibilities, and other practitioners in the field.
“The thing that makes it both interesting, complex and a little maddening at times is that every tribe’s system is different,” says Guedel, chairs the Native American Legal Services Group at Foster Pepper in Seattle. “Some tribes have extremely well-developed legal codes and court procedures that are as intricate and broad as any non-tribal system. Other jurisdictions have just adopted the federal code or whatever is available because they won’t have the resources.”
Tribal jurisdictions vary greatly, says Paul Stenzel, an attorney in Shorewood, Wis., outside Milwaukee, who represents a number of tribes. “Some are handling a complete range of topics and cases that you would see in a state court, almost, with the exception of major felonies,” he says. “Smaller ones are doing very narrow dockets, maybe only hunting and fishing violations, maybe only adoptions or family law. And there’s everything in between.”
IMPETUS FOR CHANGE
Increasingly, there are good reasons for tribal courts to firm up conduct codes for lawyers and judges, and to identify ethics issues on which a more uniform approach might be beneficial.
Some of that impetus should come from passage of the Tribal Law and Order Act of 2010 (PDF), which President Barack Obama signed into law on July 29. The act gives tribal courts and police more authority to deal with crimes committed in Indian country, and promises more federal money to help bolster tribal justice systems.
“The act gave a lot of people the thought that, ‘Let’s not stop there. Let’s continue and see what else we need to do,’ ” says Guedel. “There’s a lot of discussion in general about it.”
Economic considerations are another reason for tribal courts to take a harder look at their ethics rules for lawyers and judges. As some tribes have gained wealth — often in the form of casino revenue — their financial operations have become more complex and their commercial dealings with outside entities have grown.
“Private businesses are very afraid of the notion of a tribal court,” Guedel says. “Tribes have recognized that impression and have been trying to say, ‘This is a legitimate system. This is not just a kangaroo court.’ The adoption of the model codes in wide usage, which people understand inside and outside the tribal context, would be helpful in that regard. You would have a level playing field. A business that’s considering doing business with a particular tribe would say, ‘At least we’ve got an understandable way to resolve our differences.’ ”
EEOC Files Conditional Cross-Petition in Navajo Tribal Preference Case
Here: EEOC Conditional Cross-Petition
The question presented:
Whether the Secretary of the Interior is a “required party,” within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.
The cert petitions filed by Peabody Coal and the Navajo Nation are here.
New Book on Navajo Tribal Labor Relations
David Kamper has published “The Work of Sovereignty: Tribal Labor Relations and Self-Determination at the Navajo Nation.” Here is the book’s website.
And the description:
Who is shaping the future of economic development in Indian Country? Who has a say in tribal economic growth and who benefits? What role do American Indian workers play in shaping how tribal economies and enterprises work? What would it mean to conceive of indigenous self-determination from the vantage point of work and workers? The Work of Sovereignty addresses these vital questions. It explores the political, economic, and cultural forces that structure and influence indigenous economic development, giving special attention to the perspectives and priorities of the indigenous working people who build tribal futures with their everyday labor. Kamper argues for the importance of recognizing tribal labor relations as a factor in indigenous economic enterprises from gaming to health care and beyond. Although most research on tribal sovereignty and economic development focuses on legal theory and governmental operations, The Work of Sovereignty centers on the people who make sovereignty work. It presents a thoughtful, in-depth look at the ways labor relations play out in Indian Country, how tribal employees view their relationships with their bosses and tribal enterprises, and how this view connects to their enactment of indigenous self-determination.
Peabody Coal and Navajo Nation File Cert Petitions against EEOC over Navajo Tribal Employment Preference
Here is the Peabody Coal petition: Peabody Coal Cert Petition.
The question presented:
Where the EEOC contends that conduct required by a tribal coal mining lease provision mandated by the Secretary of the Interior violates Title VII of the Civil Rights Act of 1964, which statute expressly bars the EEOC from suing the Secretary to enforce Title VII, does Federal Rule of Civil Procedure 14 permit the coal mining lessee or the tribal lessor to implead the Secretary as a third-party defendant?
And here is the Navajo cert petition: Navajo Nation Cert Petition
The questions presented:
1. May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the Civil Rights Act of 1964, be abrogated by application of Rules 14 and 19 of the Federal Rules of Civil Procedure?
2. May a court use Rule 14 to permit or require a party to implead the Secretary of the Interior in a case where the applicable statute does not confer a right of contribution?
Lower court materials here.
And here is Dr. Ray Austin’s fine history of the tribal law in question. And my paper from 7 years ago on Rule 19 and Indian tribes. [Read my paper and you’ll know how this is going to turn out.]
Anthony Broadman on Tribal Bankruptcy Law
From Casino Enterprise Management:
For businesses unable to pay creditors, bankruptcy can offer rebirth or an orderly demise. In either case, the federal bankruptcy process can protect debtors from their creditors, giving “to the honest but unfortunate debtor … a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” (Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).) In other words, filing bankruptcy can be a valuable tool in the life of a business concern. But it is one tool that has not been used widely by tribal enterprises, let alone tribal governmental gaming operations.
The federal bankruptcy code dictates how businesses die and how their creditors divide what is left. Its use, like the use of corporate codes at the inception of a business, goes to the heart of what it means to be a firm in a particular jurisdiction. So it is somewhat curious that tribal businesses are prevented, either practically or legally, from using tribal law to order their affairs in bankruptcy. At the very least, it runs counter to the right of tribes “to make their own laws and be ruled by them.” (Williams v. Lee, 358 U.S. 217, 220 (1959).)
The current economic climate has triggered speculation regarding how tribal gaming operations would navigate the bankruptcy process. Fanned by the bankruptcy of Greektown Casino Hotel (once partially owned by a tribe) and the Wells Fargo/Lac du Flambeau debacle, that speculation, coupled with cases abrogating tribal sovereign immunity in the bankruptcy context, suggests that tribes should at least attempt to control their exposure to insolvency by (1) legislating tribal approaches to bankruptcy and (2) contracting with potential future creditors and potentially tribal debtors regarding a common treatment for bankruptcy in Indian country. If federal bankruptcy laws do not work for tribe-owned businesses, tribal bankruptcy laws should.
It is likely that, if implemented, both approaches would be challenged. A tribal bankruptcy code would be attacked as infringing on the exclusive jurisdiction of the federal bankruptcy courts. Agreements with potential future debtors and creditors would be attacked based on tribal court jurisdiction over such entities. Both challenges may be surmountable—and worth the trouble. Non-Indian creditors might even eventually find tribal bankruptcy to be quicker, more efficient and more predictable than attempts to fit tribal businesses into the typical bankruptcy process.
Little River Band Enters into Collective Bargaining Agreement with United Steelworkers
Here is the ratifying resolution: 10-1220-059 Ratifying Collective Bargaining Agreement
And the press release:
(December 21st, 2010) Manistee, MI
Historic Collective Bargaining Agreement Signed under Tribal Law
The Little River Band of Ottawa Indians announced today that a collective bargaining agreement has been reached between the Little River Casino Resort and the United Steelworkers. The agreement is the first to be reached after a union election campaign and collective bargaining process governed solely by tribal law. Security guards voted last Thursday to approve the agreement. The Board of Directors of the Resort subsequently approved it on Monday, December 20th, and the Agreement is effective upon that approval.
“This is proud moment for our Tribe,” said Stephen Parsons, Tribal Council Speaker for the Band. “We have worked hard to design a fair law to govern labor relations within our jurisdiction. This agreement shows that tribal sovereignty works.”
Tribal Ogema Larry Romanelli echoed this sentiment: “This agreement is just another progressive step for the Little River Band of Ottawa Indians as we accept responsibility for our own affairs and fairly protect the interests of all parties involved.”
The Little River Casino Resort operates pursuant to the Indian Gaming Regulatory Act, a sweeping federal law enacted by Congress to enable tribes to generate revenues to support tribal government—similar to state lotteries. The Band’s law governs labor relations within its public sector.
Salt River Project Federal Challenge to Navajo Labor Relations Board Dismissed
Here are the materials in Salt River Project Agricultural Improvement and Power District v. Lee (D. Ariz.):
Navajo Exhaustion Motion to Dismiss
Navajo Rule 19 Motion to Dismiss
Salt River Motion for Summary Judgment
This case is on remand from the Ninth Circuit — and that order is here.
Oneida Waives Immunity in Madison County v. OIN Suit Pending before the Supreme Court
To say the least, an interesting development.
Here is the letter referencing the OIN ordinance waiving immunity irrevocably: 2010_11_30 Letter to Clerk re Declaration and Ordinance.
Madison County’s opening merits brief is due today.
Ray Austin & Howard Brown on the Navajo Preference in Employment Statute
Howard L. Brown & Hon. Raymond Austin will soon publish “The Twenty-Fifth Anniversary of the Navajo Preference in Employment Act” in the New Mexico Law Review. Here is a sneak preview: Navajo Preference in EmploymentAct, 40 NMLR 17 (2010).
A very, very timely and important article, especially given the recent Ninth Circuit order and remand in EEOC v. Peabody Coal.
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