tribal constitutions – Page 18

Federal Court Declines to Dismiss Tribal Election Dispute Question

August 23, 2012August 23, 2012Matthew L.M. Fletcher

Here are the materials in Eastern Shawnee Tribe v. Douthitt (N.D. Okla.):

An excerpt from the opinion:

Now before the Court is Defendants’ Motion to Dismiss and Brief in Support (Dkt. # 16). Defendants argue that the Court lacks subject matter jurisdiction over this case because plaintiff is asking the Court to resolve an internal tribal dispute. They also assert that they have not waived their sovereign immunity from suit and that plaintiff’s claims should be dismissed. Plaintiff responds that it is asking the Court to determine whether the Court of Indian Offenses for the Eastern Shawnee Tribe of Oklahoma had jurisdiction to decide an election dispute, and this is a federal question that can be decided by this Court. They also argue that defendants are not shielded from suit by the doctrine of sovereign immunity.

Update in Grand Canyon Skywalk Development v. ‘Sa’ Nyu Wa: Complete Ninth Circuit Briefing

August 16, 2012Matthew L.M. Fletcher1 Comment

Here are the briefs (argument is October 19, 2012):

GCSD Opening Brief

Sa Nyu Wa Answer Brief

GCSD Reply Brief

Lower court materials here.

Fletcher on “Tribal Membership and Indian Nationhood”

August 15, 2012Matthew L.M. Fletcher

I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).

Here is the abstract of the new paper:

American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.

I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.

LTBB Tribal Council Votes Down Same-Sex Marriage Amendment, but Debate Continues

July 10, 2012July 10, 2012Adrea Korthase1 Comment

An excerpt from the Petoskey News:

The motion to approve the amendment failed on a 4-5 vote, but a second vote — passing 5-4 — put the entire tribal marriage statute that defines marriage as between a man and a woman up for legislative review.

The amendment would have made the tribe the first in Michigan to allow same-sex couples to wed. Only two tribes in the nation have adopted a similar marriage definition.

The decision would also have skirted a 2004 ballot proposal by Michigan voters that banned gay marriage for the entire state population, because the federal government recognizes tribes’ rights to govern themselves as a domestic nation.

Despite the failed vote, the issue is unlikely to be dropped.

Previous post on the topic is here. Miigwetch to C.D.