tribal constitutions

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.

Materials in Tribal Immunity Dispute Involving Apache Tribe of Oklahoma

Matthew L.M. Fletcher1 Comment

This disputes arises out of an alleged breach of a gaming machine lease agreement, and an alleged waiver of tribal immunity needed to enforce the agreement. Currently, the Tribe’s motion to remand the case back to state court is pending.

Here are the materials so far in Apache Tribe of Oklahoma v. TGS Anadarko (W.D. Okla.):

Wells Fargo Notice of Removal

Apache Tribe Motion to Remand

TGS Anadarko Opposition

Apache Tribe Reply

And here are the related state court materials:

Apache Tribe Complaint

Apache Tribe Application for Stay of Arbitration

TGS Anadarko Motion to Transfer Venue

Updated Version of Tulalip Justice System Study

Matthew L.M. Fletcher

We previously posted the study here.

Here is the updated study:

Justice in Indian Country- A Case Study of the Tulalip Tribes

Tulalip Tribes Justice System Case Study

Matthew L.M. Fletcher1 Comment

Important scholarship. [Will be replaced soon.]

Updated version:

Justice in Indian Country- A Case Study of the Tulalip Tribes

Literary Scholarship on the White Earth Revised Constitution Ostensibly Drafted by Gerald Vizenor

Matthew L.M. Fletcher

Here are a pair of articles about a constitution drafted at White Earth by a team headed by Gerald Vizenor.

Lisa Brooks article

David Carlson article

These are from the most recent issue of Studies in American Indian Literatures. I have a book review in the same issue of Vizenor’s Native Liberty:

Fletcher review

 

Kansas COA Affirms Tribal Authority to Adjudicate Kickapoo Tribal Member Land Disputes

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Nancy Sue Bear claims the Brown County District Court did not have jurisdiction to dissolve the family partnership and then partition and order the sale of real estate that she and her family, all enrolled members of the Kickapoo Nation Tribe, had farmed on the Kickapoo Reservation. Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Because all of the parties to their action are enrolled members of the Kickapoo Nation Tribe and all of the land is located within the Kickapoo Reservation, we hold that the tribal court is the proper forum for resolving this dispute. It is a matter of sovereignty. We reverse the judgments of the district court and remand the matter with directions to dismiss the case.

NYTs Article on California Tribal Disenrollments

Matthew L.M. Fletcher2 Comments

Here.

Saginaw Chippewa Indian Tribe Changes Tribal Membership Criteria

Matthew L.M. Fletcher3 Comments

Here is the news coverage. An excerpt:

A deeply divided Saginaw Chippewa Tribal Council has voted to change the requirements to become a member of the Tribe.

In a 6 to 5 vote, the council voted to tighten the source of the Indian blood quantum requirement for members.

The Tribe’s constitution, adopted in 1986, requires that members be descended from a person on one of three lists compiled in the 19th century, or from a Tribal base role compiled in 1982, plus be at least one-quarter “Indian blood.”

The constitution does not, however, define what is meant by Indian blood.

Early version of the Tribe’s enrollment ordinance also left it largely undefined, and it was interpreted to mean descent from most North American indigenous people. The council then tightened that to define it as descent from a member of any federally recognized Tribe.

The newest version, adopted at a special session of the Tribal Council Oct. 26, specifies that only “Saginaw Chippewa Indian Tribe of Michigan” blood counts toward the one-quarter Indian blood.

“Tribal Council finds that the current definition of ‘Indian blood’ provided in (the enrollment ordinance) is overly broad and inconsistent with the constitution,” said the resolution adopting the revised law. “The Tribal Council finds that blood inherited from the Saginaw Chippewa Indian Tribe of Michigan is the only blood directly relevant to membership under the constitution of the Saginaw Chippewa Indian Tribe.”

Under the old law, for example, a child born to a Saginaw Chippewa Tribal member with one-fourth Indian blood and a full-blooded member of the federally recognized Navajo Nation would qualify for membership. By most reckonings, that child would have five-eighths Indian blood quantum.

Under the new law, that child would not qualify as a Saginaw Chippewa.

New Scholarship on the Cherokee SCT Decision re Freedmen

Matthew L.M. Fletcher

Darryl Omar Freeman has posted “Neo-Colonial Adaptation or Neo-Sovereignty: Oklahoma Cherokee/African Ancestry Freedmen Conflict” on SSRN.

Might want to do some quick fact checking on Ward Churchill’s membership status with United Keetoowah Band.