Tribal Codes – Page 40

Oneida Waives Immunity in Madison County v. OIN Suit Pending before the Supreme Court

December 3, 2010Matthew L.M. Fletcher2 Comments

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

November 18, 2010Matthew L.M. Fletcher3 Comments

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.

Ho-Chunk Tribal Court Addresses DNA testing for Tribal Enrollment Purposes

November 3, 2010Matthew L.M. Fletcher1 Comment

We imagine the DNA issue will arise again and again in Indian nations all over.

Here is the opinion in Powless v. NCN Enrollment Committee (CV 10-15 Decision).

An excerpt:

The DNA test allowed into evidence by the Committee is hearsay as defined by the FEDERAL RULES OF EVIDENCE (hereinafter FED. R. EVID.) 801(c). It is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. A written assertion is considered a “statement.” FED. R. EVID. 801(a). Thus, the DNA test‟s assertion that Mr. Powless is not the petitioner‟s father is a “statement.” A “declarant” is a person who makes a statement. FED. R. EVID. 801(b). The “declarant” of the results of the DNA test is the Oklahoma State University Human Identity Laboratory (hereinafter OSU Laboratory). At the hearing, no one from the OSU laboratory testified. The DNA test results were offered to prove the truth of the matter asserted; specifically that Mr. Powless is not the father of the petitioner. Therefore, the DNA test results meet the definition of hearsay. Such hearsay is inadmissible. FED. R. EVID. 802. The DNA test does not fall under the business records hearsay exception. FED. R. EVID. 803(6) allows business records to be admitted “if witnesses testify that the records are integrated into a company’s records and relied upon in its day to day operations.” Matter of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981). Although OSU laboratory may engage in DNA analyses on a daily basis, those analyses are not akin to the running of the day-to-day operations of the business. The necessary witnesses also
did not testify at the removal hearing.

Federal Court Denies Seneca Nation Motion for Preliminary Injunction in Tax Collection Case

October 15, 2010Matthew L.M. Fletcher

Here is the opinion: DCT Denying SNI Motion for Preliminary Injunction

The court issued a stay pending appeal.

Federal Court Dismisses Little River Band’s Challenge to NLRB Jurisdiction for Lack of Jurisdiction

September 24, 2010Matthew L.M. Fletcher

Here is that opinion: LRB v. NLRB

An excerpt:

Plaintiff has simply not established federal-question jurisdiction. The NLRA does not create a cause of action for a plaintiff in federal district court. To the extent plaintiff’s right to relief depends on resolution of a substantial question of federal law, namely, the NLRB’s exercise of jurisdiction over it, that question is properly decided by the NLRA in the first instance, then the court of appeals. This Court lacks jurisdiction to prevent the NLRB from proceeding on the charge that plaintiff is engaged in an unfair labor practice.

Briefs and other materials here and here.

Judicial Symposium for Michigan-Wisconsin-Minnesota Tribal-State-Federal Judges

September 11, 2010October 7, 2010Matthew L.M. Fletcher

The conference is Oct. 12-13, 2010, at the Grand Traverse Resort just outside of Traverse City, Michigan. Come see the colors!!!!

Here is the flyer: Flyer and Agenda.

The speakers include Walter Echo-Hawk, Hon. Korey Wahwassuck, and Hon. David Rausch.

And on the evening of October 11, Walter will be reading from his book at Horizon Books.

Book Announcement: Kirsty Gover’s “Tribal Constitutionalism”

September 7, 2010Matthew L.M. Fletcher

Oxford University Press will publish Kirsty Gover’s “Tribal Constitutionalism: States, Tribes and the Governance of Membership” in December.

Here is the blurb:

Recognised tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution.

Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. This book presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain.

Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on.

Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.