Tribal Codes

Incidentally, a few days after the petitioners filed, the Ninth Circuit panel adopted an amended opinion (here).

Lower court materials are here.

Questions presented:

1. Is the Writ of Habeas Corpus under the Indian Civil Rights Act limited solely to tribal criminal proceedings instead of also including tribal civil proceedings which result in the disenrollment of life-long tribal citizens?

2. Does the combination of “disenrollment,” which is the stripping away of Appellants’ life-long tribal citizenship and the current and potential restrictions placed on Appellants, constitute a severe restraint on their liberty so as to satisfy the “detention” requirement of Section 1303 of the Indian Civil Rights Act?

3. Does the disenrollment of life-long tribal members, by itself, constitute a severe restraint of liberty so as to satisfy the “detention” requirement of the Indian Civil Rights Act?

4. Did the Appellants exhaust their tribal remedies by going through every Pechanga Tribal appeal proceeding available to contest their disenrollment?

I don’t see how this is certworthy. There’s no split in authority alleged by the petitioners (they didn’t even try to assert a split with the Second Circuit which decided a somewhat similar case (Poodry) years ago). I imagine the Supreme Court one day will reconsider the National Farmers Union tribal court exhaustion doctrine but this doesn’t seem to be a very good vehicle for that because it’s not a tribal court jurisdiction case at the heart of the doctrine. Plus, it’s an internal tribal matter with no national importance whatsoever (other than the side-show of Indian gaming wealth).

Finally, despite the dissent from District Court Judge Wilkens, I don’t think the Roberts Court is inclined to expand habeas rights in any way, let alone to benefit Indian people in this way. As Justice Holmes told Justice Brandeis, the Supreme Court is not there to do justice.

U-M Law Day 2010 Poster (April 2, 2010)

March 24, 2010March 24, 2010Matthew L.M. Fletcher

U-M Law School, April 2, 2010, at 1-5 PM.

Confirmed speakers include Frank Ettawageshik, Matthew Fletcher, Allie Maldonado, Mike Phelan, and Zeke Fletcher.

Sisseton Tribal Council Passes Resolution Attempting to Reverse Tribal Appellate Court on 11-Part Tribal Business Entity Immunity

March 17, 2010Matthew L.M. Fletcher

Here’s an interesting development that may have some impact on the Colorado v. Cash Advance case.

The Sisseton tribal council enacted the following resolution designed to “fix” the Northern Plains Intertribal Court of Appeals decision raised by the Colorado AG in the supplemental pleading referred to here.

Sisseton Resolution

NPR on Mashantucket Pequot Labor Deal

March 14, 2010March 14, 2010Matthew L.M. Fletcher

From NPR:

American Indian casinos are big business in the United States, with an estimated 280,000 people employed across more than 400 sites.

That huge workforce is largely unorganized. Only a few such casinos recognize union contracts. Among them is North America’s largest gaming center, Foxwoods Resort Casino in Connecticut.

Its dealers recently struck a deal after a lengthy dispute with the Mashantucket Pequot Tribe. What makes this agreement different is that it was brokered under tribal law.

Unionizing Casinos

Continue reading →

Federal Court Reverses IBIA in Tribal Customary Marriage Case

March 2, 2010March 2, 2010Matthew L.M. Fletcher

Very interesting recognition of tribal customary law.

The case is Senator v. United States (E.D. Wash.), and arose on the Yakama Indian Nation. Here are the materials:

Senator Motion for Summary Judgment

DOI Cross Motion for Summary J

Senator Reply Brief

Senator v US DCT Order

Dine Fundamental Law Survives Another Day

February 18, 2010Matthew L.M. Fletcher

From the Santa Fe New Mexican via Pechanga:

WINDOW ROCK, Ariz. (AP) — Navajo Nation President Joe Shirley Jr. has vetoed legislation that he contends limits the Navajo way of life.

Lawmakers voted last month to amend a set of laws based on the tribe’s centuries-old traditional values and customs. Under the measure, any dispute regarding the validity, application or interpretation of Dine (Din-EH’) Fundamental Law would not be heard in Navajo courts but be resolved consensually through peacemaking.

Shirley struck down the measure last week, saying the laws protect and preserve the Navajo way of life and what makes the tribal government unique. He also says the council’s vote was politically motivated.

Lawmakers can override the veto with 59 votes, representing two-thirds of the 88-member Tribal Council.

Michigan Supreme Court Denies Leave for Sault Tribe to Appeal Bouschor Case

February 16, 2010Matthew L.M. Fletcher1 Comment

The appeal focused on the Michigan court of appeal’s decision to drop Miller Canfield from the suit. It sounds like the suit against Bouschor and some of the other co-defendants will go to trial next.

The materials are here:

Sault Tribe Motion for Leave to Appeal

Leave Denied

Lower court materials are here.

Continue reading →

Ugly Story: Tribal Law Allegedly Steers Tort Victim to Legal Dead End

February 15, 2010Matthew L.M. Fletcher

If this story is true, then this tribe should do the right thing. This bad press for all of Indian Country.

From the San Diego Union Tribune via Pechanga:

During a visit to Sycuan Casino five years ago, Sarah Harris walked into a restroom altercation that she says changed her life.

Now, after what feels like countless hearings on the Indian reservation and in federal court, the 75-year-old former diesel engine mechanic still doesn’t have the $160,000 an arbitrator says she’s due.

Although tribal law says arbitration awards are to be enforced in federal court, the tribe has convinced a federal judge that he has no jurisdiction over the case.

* * *

Sycuan’s lawyers say it wasn’t an intentional dead end.

“The ordinance surely wasn’t written to steer parties to a forum the tribe knew was not going to enforce something; that was not at all the tribe’s intent,” said lawyer Jay Shapiro. “Sometimes documents get written at times when it’s not clear what the law is, or what cases a federal court will hear or not hear.”

I hope this lawyer was misquoted because this statement is awful and wrong. Such an ordinance should be amended immediately, and at a later paragraph in the same article, another tribal lawyer says it will “look at rewording the ordinance.”

The tribe doesn’t want to pay the $160,000 because a tribal arbitrator failed to follow the rules when making the award, which is reasonable in most contexts, but not this one.

The link to the three district court opinions is here.

Mackinac Bands Constitution Developed

February 12, 2010Matthew L.M. Fletcher3 Comments

From Indianz:

The Mackinac Bands of Chippewa and Ottawa Indians of Michigan are asking the Bureau of Indian Affairs to be treated as a federally recognized tribe.

The Mackinac Bands are considered a part of the federally recognized Sault Ste. Marie Tribe of Chippewa Indians. But the bands say they are a distinct and self-governing tribe.

The bands wrote a new constitution to reflect their status.

Get the Story:

New Anishinabe Constitution presented (The Cheboygan Daily Tribune 2/12)

ICT Editorial by Kaighn Smith re: Tribal Work Laws

January 27, 2010Matthew L.M. Fletcher1 Comment

From ICT:

Imagine this scenario: “If you don’t sleep with me, you can kiss your job goodbye,” the male supervisor warns the female waitress at the tribe’s gaming facility. (We’ll call her Joyce.) She consistently says no. His threats continue and even escalate.

Although he threatens to make her life miserable if she tells anyone, Joyce seeks help from the Equal Employment Opportunity Commission; EEOC informs her that federal sexual harassment laws exclude tribes. She goes to tribal court. She finds she has no remedy under tribal law. Overwhelmed by her boss’ intimidation, Joyce quits her job. Unemployed and unable to afford her rent, she moves in with her brother, Bob.

A host of other laws that are silent about their application to tribes pose similar threats to tribal sovereignty.

Bob, a union organizer, is outraged. He starts talking to Joyce’s co-workers and learns that other women have experienced similar harassment. Other workers complain that management plays favorites with tribal members, giving them better jobs and shifts than non-members. Bob says that with union representation, management would be held accountable for workers’ rights.