Melissa Tatum, Devon Lomayesva, and Jill Doerfler
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UCLA GNG Breakout Panel — Tribal constitutional revitalization
Melissa Tatum, Devon Lomayesva, and Jill Doerfler
tribal constitutions
New Scholarship on Tribal Constitutional Amendment and Reform
Jason Hipp has published “Rethinking Rewriting: Tribal Constitutional Amendment and Reform,” in the Columbia Journal of Race and Law. This paper won the 12th Annual NNALSA Indian Law Writing Competition. Here is the abstract:
This Essay examines the recent wave of American Indian tribal constitutional change through the framework of subnational constitutional theory. When tribes rewrite their constitutions, they not only address internal tribal questions and communicate tribal values, but also engage with other subnational entities, i.e. states, and the federal government. This Essay applies that framework to a study of tribal constitutional amendment and reform procedures. Focusing on the processes of constitutional change produces insight into tribes’ status as “domestic dependent sovereigns” in the contemporary era of self-determination, a status reflected in the opportunities, and limitations, inherent in tribal constitutions. In so doing, this Essay aims to highlight an aspect of tribal constitution writing that enables successful reform and communicates the significance and goals of constitutionalism within the tribal context.
Updates to Various Nooksack Disenrollment Cases
Here are the new materials in St. Germain v. Kelly — the Christmas TRO:
St Germain v Kelly Denial Order on Motion for Order to Show Cause Re Contempt
St Germain v Kelly Motion for Order to Show Cause Re Contempt
St. Germain v Kelly Declaration of Agripina Smith
St Germain v Kelly Declaration of Leah Zapata
St. Germain v Kelly Response to Plaintiffs’ Motion of Order to Show Cause Re Contempt
Here are the new materials in Adams v. Kelly I:
Adams v Kelli I Order Granting Defendants’ Motion to Dismiss
Adams v Kelly I Motion to Dismiss
Adams v Kelly I Plaintiffs’ Response to Defendants’ Motion to Dismiss
Adams v Kelly I Reply to Plaintiffs’ Response to Motion to Dismiss
Here are the new materials in Adams v. Kelly II — MLK removal of two council members:
Adams v Kelly II Order Denying Plaintiffs’ Motion for Preliminary InjunctionWrit of Mandamus
Adams v Kelly II Councilperson Michelle Roberts Declaration
Adams v Kelly II Declaration of Chairman Robert Kelly Jr
Adams v Kelly II Motion for Preliminary Injunction-Writ of Mandamus
Adams v Kelly II Reply Re Motion for Preliminary Injunction-Writ of Mandamus
And an order in Lomeli v. Kelly:
Lomeli v Kelly Order Denying Motion for Order to Show Cause Re- Contempt
WaPo Article on Interior and the Cherokee Freedmen
Here.
Nooksack COA Stays Nooksack Disenrollments
Here are the orders in Lomeli v. Kelly and Roberts v. Kelly:
Nooksack Council Members Sue Over Removal from Tribal Council
Here are the materials in Adams v. Kelly II:
Adams v. Kelly II Michelle Roberts Declaration w Exh
And the press release: Continue reading
Nooksack Tribal Court Materials on Disenrollees Motion for Contempt
Here are the new materials in St. Germaine v. Kelly (Nooksack Tribal Court):
St Germain v. Kelly Motion for Order to Show Cause Re Contempt
St Germain v. Kelly Declaration of Leah Zapata
St. Germain v. Kelly Declaration of Agripina Smith
St. Germain v. Kelly Response to Plaintiffs Motion of Ord to Show Cause Re Contempt
Previous materials in this case are here and here.
Nooksack COA Rules against Nooksack Disenrollees
Here is the opinion in Lomeli v. Kelly (Nooksack App.):
An excerpt:
This appeal is from the Tribal Com1’s order dismissing Appellants· second amended complaint. Appellants requested the Tribal Court enjoin members of the Nooksack Tribal Council from conducting disenrollment proceedings against them. Appellants are understandably gravely concemed at the prospect of disenrollment. We understand how serious the prospect of disenrollment is to Appellants. and how it impacts their cultural. social and political identity.
We also recognize that determining its own membership is a hallmark of a tribe’s sovereignty. It is one of the few aspects of tribal sovereignty that has withstood the relentless attempts by outside forces to tear down tribal self-governance, and one of the few aspects of tribal sovereignty that has not been eroded by the federal government.
Judges are not sages. We do not delude ourselves into believing we have the wisdom of a Solomon. It is not our role to insert ourselves into the Tribe’s political fray. or second guess the political judgments made by the Tribe’s elected leaders or its voting members, even if we believe those judgments unwise. We, like the trial court. are limited to resolving legal questions where authorized by the Tribe’s Constitution and laws.
The nature of this dispute requires us to find the delicate balance between Nooksack lawand politics keeping in mind the equal importance attached to both Tribal membership and Tribal sovereignty. The Tribe’s Constitution guides us in this difficult task. which we are duty bound to perform.
The Nooksack judiciary is not the only Nooksack governmental body whose decisions are tethered to the Tribe’s Constitution and laws. The decisions of its elected officials are as well. The trial judge expressed it well and it is worth repeating:
The Tribal Council members named in this Complaint hold an obligation to act in the best interests of the Nooksack Indian Tribe. Membership and enrollment decisions impact individual lives in the deepest possible ways and those decisions cannot be taken lightly. This Cotut recognizes the serious implications of this case and its decision on this motion and all the others that have preceded it. It is the solemn obligation of this Court to follow the law of the Nooksack Indian Tribe and it is the obligation of the Tribal Council to do the same.
Lower court materials are here.
Fletcher Paper on “Tribal Justice Systems”
I drafted a paper titled “Tribal Justice Systems” for the Allegheny College Undergraduate Conference “Democracy Realized? The Legacies of the Civil Rights Movement” and posted it on SSRN. You can download here.
Here is the abstract:
This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).
United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.
This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.
The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.
In case one wonders, “Representing Justice” by Judith Resnik and Dennis Curtis influenced the paper.
Federal Court Rejects Narragansett Effort to Dismiss Attorney Fees Suit on Immunity Grounds
Here are the updated materials in Luckerman v. Narragansett Indian Tribe (D. R.I.):
18-1 Narragansett Motion for Reconsideration
22 DCT Order Denying Reconsideration
An excerpt:
On August 29, 2013, this Court denied Defendant Narragansett Indian Tribe’s (“Tribe”) motion to dismiss, but stayed adjudication of the case pending tribal exhaustion.1 Now, the Tribe has filed a motion for reconsideration of that decision (ECF No. 18), re-emphasizing the Tribe’s position that its tribal sovereign immunity bars the instant lawsuit, and asking again that the Court dismiss the claims brought by Plaintiff Douglas J. Luckerman. For the reasons set forth below, Defendant’s motion for reconsideration is DENIED.
Earlier, the federal court remanded the case to tribal court for exhaustion purposes, post here. Other lower court materials here and here.
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