From Lewis & Clark Law School:
April 4, 2008
8:00 – 8:30 a.m. Registration and Continental Breakfast
8:30 – 8:45 a.m. Welcoming Remarks
Dean Klonoff, Associate Dean Lisa LeSage
8:45 – 9:30 a.m. Keynote Address
Kevin Gover
Introductions by Professor Robert Miller
Robert Cooter and Wolfgang Fikentscher have just published “American Indian Law Codes: Pragmatic Law and Tribal Identity” in the American Journal of Comparative Law. Here is the abstract:
The United States has recognized the power of American Indian tribes to make laws at least since 1934. Most tribes, however, did not write down many of their laws until the 1960s. Written laws have subsequently accumulated in well-organized codes, but scholars have not previously researched them. Using written materials and interviews with tribal officials, we describe the scope, motivation, and interpretation of tribal codes. With respect to scope, we found nine main types of codes that cover almost all fields of law over which tribes have jurisdiction. Few tribes have all nine types of codes. Tribes have internal and external motivations for codifying. Internal motivations include preserving culture, maintaining social order, and encouraging economic development. Financial incentives and demands for transparency supply outside motivation. Tribal officials interpret codes pragmatically, which resembles interpretation of codes in continental Europe. Finally, we note that law and justice sometimes require state or federal courts to use a tribal code to decide a case, but they seldom do so, which undermines tribal power and identity.
This is a case before the same trial judge as in Plains Commerce Bank in the D.S.D. This one is a slip and fall, but Farmers Union Oil the defendant in tribal court at Standing Rock. The judge followed Plains Commerce Bank and many other similar decisions in requiring the exhaustion of tribal court remedies, but then he took an unfortunate potshot at the CA8 opinion in Plains Commerce Bank:
I have previously cited in this order and opinion the case of Plains Commerce. I was the trial judge in that case. The case was affirmed on appeal by the United States Court of Appeals for the Eighth Circuit. As I read the appellate opinion, I was struck by the fact that such opinion would clearly and substantially broaden the jurisdiction of tribal courts in the Eighth Circuit. It would allow tribal courts to decide what common law principles were to be applied in tribal courts. This would be a significant expansion of tribal court jurisdiction in civil cases. In the past few days, I have noted that the United States Supreme Court has granted the petition of Plains Commerce for a writ of certiorari. Apparently, we will have further guidance from the Supreme Court.
The case is In re Harper (Malloy v. Wilserv CU). The CA10 held that tribal law gaps forced the court to resort to Oklahoma law, which appears to have undermined the purpose of having tribal law in the first place. It’s a bankruptcy case, with commercial law as a backdrop.
Here are the materials:
The Makah whaling case in federal court is turning into a very interesting discussion of whaling treaty rights and federal criminal procedure.
Here are the current materials in United States v. Gonzales, et al., No. CR 07-5656 JKA (W.D. Wash.):
The Uniform Law Commission has a special committee that drafts model codes for tribal enactment. Most recently, they’ve drafted a model tribal secured transactions act that is largely based on the UCC’s Article 9 with key changes intended to address unique tribal concerns. The committee is in the process of selecting another model code drafting project, and it’s soliciting input on which codes might be tackled next. If you’d like to suggest a model code drafting project for the committee, contact Tim Berg, the Committee’s chair.
Drafting proposals must be submitted by February 28, 2008, and can be sent to Tim Berg at TBerg@FCLAW.com.
Turtle Talk 