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
Tribal Codes
Dine Fundamental Law Survives Another Day
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
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
Lower court materials are here.
Ugly Story: Tribal Law Allegedly Steers Tort Victim to Legal Dead End
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
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
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.
Constitutional Convention at Blackfeet
For more details, see the Blackfeet Constitutional Reform website.
From the Great Falls Tribune (via Pechanga):
Blackfeet tribal members can help write their new constitution today in Browning.
A constitutional convention will be held today at Blackfeet Community College starting at 5 p.m. Participants will be broken into groups and will draft ideas on articles in the tribe’s new governing document.
A presentation of the ideas will be held later that night, and participants can refine them up until a deadline in February. The event is being put on by the Blackfeet Constitutional Reform Committee.
“The more people we can get to participate and feel ownership, the more success we will have,” said Lona Burns, committee spokeswoman. Continue reading
Banishments at Mashantucket Pequot
From local news:
In banishing Christopher Pearson, the former tribal official facing sentencing on federal wire-fraud charges, the Mashantucket Pequot Tribal Elders Council meted out an ancient form of punishment employed by Indian tribes across the country.
Within weeks of his Nov. 19 conviction in U.S. District Court in Hartford, Pearson was ordered off the Mashantucket reservation, where he owns a home, and to surrender his tribal badge, having “forfeited all rights and privileges of Tribal membership with the exception of services provided by Tribal Health Services.”
The elders council also directed the tribe’s finance department to cut off Pearson’s monthly “incentive” payments — the distributions of Foxwoods Resort Casino revenue that all tribal members in good standing receive.
While the tribe would provide no information about banishments, it’s believed that their frequency has increased since the tribe’s constitution and by-laws granted the elders council “the authority and responsibility” to impose them.
Mashantucket Pequot Tribal Council resolutions show that 12 people were banished by the tribal council prior to the establishment of the elders council in 1996. Currently, several people are banished each year, maybe more, according to Thomas Weissmuller, chief judge of the Mashantucket Pequot Tribal Court. Continue reading
Harris v. Sycuan Band Claim Dismissed a Third and Final Time
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
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.
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