Tribal Codes

Harris v. Sycuan Band Claim Dismissed a Third and Final Time

Matthew L.M. Fletcher

Here is that opinion — Harris DCT Order

The two earlier dismissals are here and here.

An excerpt:

On November 26, 2004, Harris was a patron of the Sycuan Casino, a gaming establishment owned and operated by Defendant Sycuan. “At that place and time, plaintiff suffered serious physical injury occasioned by the assaultive conduct of an employee of defendant….” (SAC P 5). “[A]ll claims for damages for physical injuries against defendant … were governed by a ‘Tort Claims Ordinance’ duly enacted by defendant … in June 2004.” (SAC P 6). On March 9, 2005, Harris filed a claim under the Ordinance, and on December 5, 2005, “the Sycuan Gaming Commission certified plaintiff’s claim for processing on the merits, pursuant to Section XI of the Ordinance.” (SAC P 7). After Harris’s claim was denied by the Sycuan Gaming Commission, “Plaintiff duly appealed the substantive denial of her claim pursuant to Section XII(G) of the ordinance, which provides that an appeal from a substantive denial is to be heard by an arbitrator selected by the Sycuan Gaming Commission. The Gaming Commission selected Hon. Gerald Lewis, retired appellate justice, as the arbitrator for plaintiff’s claim…. On September 30, 2008, Judge Lewis issued his decision and award of arbitrator, awarding plaintiff the sum of $ 160,000.”

* * *

The Court concludes that the allegations in the SAC related to the “duty of good faith in the implementation” of the IGRA, the Compact and the Ordinance, are insufficient to confer federal question jurisdiction. In the alternative, the Court concludes that this claim fails to state a claim for relief.

Washington Court Reverses Conviction of Non-Indian Who Fished Under Tribal Law

Matthew L.M. Fletcher

Interesting case. Here is the opinion in State of Washington v. Guidry, a split court (2-1). Here are links to the briefs:

An excerpt:

Larry Guidry appeals his convictions for first degree fish dealing without a license, first degree fish trafficking without a license, four counts of participation of a non-Indian in an Indian fishery for commercial purposes, and four counts of first degree commercial fishing without a license. He argues that the trial court should have dismissed the charges against him because he lawfully fished under the Nisqually Tribal Code. He also argues that insufficient evidence supports his convictions for fish dealing and fish trafficking and that the trial court erred in imposing restitution. We reverse his convictions, vacate the restitution order, and remand.

Navajo Voters Approve Referendum Reducing Size of Council and Granting Presidential Veto Power

Matthew L.M. Fletcher

From the Navajo Times:

If he were a gambling man, this would be the week for President Joe Shirley Jr. to buy a lottery ticket.

Navajo Nation voters overwhelmingly supported his government reform initiatives including a question to reduce the membership of the Navajo Nation Council, just one day after a Window Rock District Court judge rescued Shirley from a two-month-long forced leave imposed Oct. 26 by the council.

“I am very happy for the people,” Shirley said Tuesday night at the Window Rock Sports Center, where election results were posted along the wall as they came in from the chapters. “I’ve always said this is their initiative, their money, their laws. They put the initiatives in the books. This is history in the making.”

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Little River Band of Ottawa Indians’ Summary Judgment Motion against NLRB

Matthew L.M. Fletcher1 Comment

Previous materials are here, including the complaint and exhibits.

LRB Motion for Summary Judgment

LRB Statement of Material Facts

NLRB Opposition

LRB Reply

NLRB Surreply

Federal Court Declines to Issue Injunction in Timbisha Leadership Dispute

Matthew L.M. Fletcher

Here is the opinion in Timbisha Shoshone Tribe v. Kennedy (E.D. Cal.) — Timbisha Shoshone v Kennedy DCT Order

And the briefs:

Plaintiff Motion for PI

Kennedy Opposition to PI

Plaintiff Reply

Federal Court Dismisses Long-Running Jamul Election and Land Disputes

Matthew L.M. Fletcher

Here is the opinion in Rosales v. United States (Ct. Cl.) — Rosales DCT Order Dismissing Complaints

US Motion to Dismiss Rosales Complaints

Rosales Opposition

US Reply Brief

New Scholarship on Same-Sex Marriage in Indian Country

Matthew L.M. Fletcher

Mark Strasser has posted “Tribal Marriages, Same-Sex Unions, and the Interstate Recognition Conundrum” on Berkeley Electronic Press (article here).

The abstract:

When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.

Ninth Circuit Reverses Dismissal of Civil Rights Claims against Tribal Officers

Matthew L.M. Fletcher

Here is the opinion in Bressi v. Ford, authored by Judge Canby, which is a sort of companion case to Murgia v. Reed. The court did affirm the dismissal of a Bivens-type action against the officers. Here are the lower court materials in Bressi.

An excerpt detailing what tribal officers may do during a traffic stop of non-Indians:

We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.

And an excerpt recognizing the implications of the decision:

We recognize that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to constitutional standards in establishing roadblocks. That result is consistent with our prior decision inEvans v. McKay, 869 F.2d 1341, 1348(9th Cir.1989), which held that officers acting pursuant to both tribal and city authority in making arrests were subject to a § 1983 claim. This result also appears to us to be an inevitable consequence of the accommodation of tribal authority over rights-of-way within Indian country and the rights of non-Indians to travel those rights-of-way. If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.

Navajo Council to Repeal Dine Fundamental Law?!?!

Matthew L.M. Fletcher

From the Navajo-Hopi Observer:

WINDOW ROCK, Ariz. – Last Thursday, the 21st Navajo Nation Council tabled a measure that would have repealed the Diné Fundamental Laws – a codified set of laws based on centuries-old Navajo traditional values and customs. The measure was tabled until the fall session with a vote of 48-21.

Council Delegate Raymond Joe (Tachee/Blue Gap/Whippoorwill) introduced the measure during the final day of the council’s summer session. He and others cited that these laws, which are primarily meant to govern the upbringing of Navajo youth and promote balance and harmony among Navajo people, are being abused and misinterpreted by Navajo lawmakers in order to promote their own political agendas.

The laws, codified in 2002, provide no guidance on how they should be used or applied.

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Cherokee Trial Court Holds Hearing on Freedmen Case

Matthew L.M. Fletcher1 Comment

From the Cherokee Phoenix (via Pechanga):

TAHLEQUAH, Okla. – The Cherokee Nation District Court held a July 17 hearing for the case of Raymond Nash v. CN Registrar as attorneys for both parties presented arguments for their motions for summary judgment.

A summary judgment is a decision based on statements and evidence presented for the record without a trial. It is used when there is no dispute regarding facts and one party is entitled to judgment as a matter of law.

The Nash case is a class action lawsuit involving 386 Freedmen descendents claiming they were illegally removed from the CN citizenship rolls by a voter-approved constitutional amendment in March 2007.

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