Tribal Codes

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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NYTs: Navajo Nation to Vote on Structure of Government

Matthew L.M. Fletcher

From the NYTs (Navajo Supreme Court opinion):

FLAGSTAFF, Ariz. (AP) — Navajo voters have never had much of a say in how their modern government was shaped. But that may soon change, after a tribal judge cleared the way for a special election on a restructuring that could alter the balance of power on the sprawling reservation.

The government structure was forced upon Navajo voters 86 years ago and was reorganized under three branches without their consent.

Maybe Navajos “will have a greater sense of ownership in the government than they now have,” said Dale Mason, who teaches Navajo government at the University of New Mexico, Gallup.

In 1923, the federal government created the Tribal Council to sign off on oil and gas leases. Before that, Navajos largely governed themselves. Small bands were led by headmen, or naataanii, who came together only in times of crisis to solve problems that extended beyond their communities.

Even if such a meeting, called a naachid, resulted in a decision to act, no Navajo was bound to comply.

With the discovery of oil on the reservation in 1922, the federal government needed an entity to deal with for leasing matters. It appointed three Navajos to a business council, but soon realized that the group needed to be more representative and expanded it to include delegates from across the reservation.

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Sault Tribe to Vote on Chairman/CEO Separation

Matthew L.M. Fletcher

From AIPBlog:

Tonight the Sault Ste. Marie Tribe of Chippewa Indians voted to have a referendum to change the Tribes Constitutional By-Laws and Separate the Chairman/CEO position into two distinct positions: one elected and one otherwise.

AIPBlog followers realize I have advocated this type of separation and cited several academic studies which indicate more positive outcomes from separating politics and business in Tribes. It is a pleasure as a member of the Sault Tribe to see some action in this direction.