tribal constitutions

New Student Scholarship on Tribal Waivers of Immunity by Unauthorized Tribal Officials

Matthew L.M. Fletcher

Adam Keith, a Penn Law student, has published “Who Should Pay for the Errors of the Tribal Agent?: Why Courts Should Enforce Contractual Waivers of Tribal Immunity When an Agent Exceeds Her Authority under Tribal Law.” The article appears in the Penn Journal of Business Law. The article criticizes a recent Sixth Circuit decision on the immunity of Section 17 corporations.

Here is a snippet:

When tribal commercial organizations engage in commercial dealings, their non-tribal counterparties almost universally insist that a waiver of tribal immunity be included within any contractual agreement so as to retain their access to state and federal courts should they decide to litigate any commercial disputes against the tribal entity. In a recent case, the Sixth Circuit weakened the reliability of these waivers by ruling that the court will not enforce such a waiver when a tribal agent assents to one while possessing only apparent authority in the eyes of the tribal counterparty but not actual authority under tribal law. This comment will argue that there are three reasons that courts should enforce such waivers: because doing so is consistent with the principles associated with waivers of tribal immunity; because it will not have deleterious effects on tribal sovereignty; and because it will improve the efficiency of tribal commercial dealings with non-tribal entities.

Opening Ninth Circuit Brief Grand Canyon Skywalk Case

Matthew L.M. Fletcher1 Comment

Here:

GCSD Opening Brief

Here is our last posting on the district court case.

Diné CARE File Another Suit to Stop Coal Mine at Navajo Mine

Matthew L.M. Fletcher2 Comments

Here is the complaint in Diné Citizens against Ruining Our Environment v. United States Office of Surface Mining Reclamation and Enforcement (D. Colo.):

Dine CARE Complaint

Our posting on the related and previous suit is here.

Update on Skagit County GOP

Matthew L.M. Fletcher1 Comment

More materials here:

Bulletin – 2012 Skagit GOP Plank

Skagit GOP Platform 2012

Our previous posts are here and here and here.

Addendum to Report on Anti-Indian Movement in Skagit County, Wash.

Matthew L.M. Fletcher3 Comments

Here:

Anti-Indian Movement in Skagit County – 5-1-12

The earlier version of this report is here.

Santa Clara Pueblo Votes to Change Membership Rules

Matthew L.M. Fletcher

Here.

New Report on Anti-Indianism in the Skagit County, WA GOP

Ann Tweedy3 Comments

Here’s a new report from Borderlands Research and Education, based in Silverdale, WA: Anti-Indianism in Skagit County – 4-15-2012 Having practiced in Skagit County, it’s good to see this sort of sentiment, which I found to be fairly prevalent, brought to light. I mentioned the State Republican Party’s resolution requesting termination of tribal sovereignty, which this report addresses in considerable detail, in one of my articles. See 13 U. Pa. J. Const. L. 737 n.239 (2011).

LTBB Considering Recognition of Same-Sex Marriage

Matthew L.M. Fletcher1 Comment

Here. H/t Pechanga.

Fletcher on Free Speech and Tribal Law

Matthew L.M. Fletcher1 Comment

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

Kristen Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Matthew L.M. Fletcher

Kristen Carpenter has published her essay, “Individual Religious Freedoms in American Indian Tribal Constitutional Law” in our new book, The Indian Civil Rights Act at Forty (UCLA American Indian Studies Center Publications 2012). It is available on SSRN.

Here is the abstract:

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.