tribal constitutions

Split Ninth Circuit Dismisses ICRA Banishment Challenge

Matthew L.M. Fletcher1 Comment

Here is the opinion in Tavares v Whitehouse.

Briefs:

Appellant Brief

Appellee Brief

Reply Brief

Lower court materials here.

Nooksack Tribe Sues Interior for Refusing to Recognize Tribal Council, Fund Contracts

Sarah M Donnelly1 Comment

Download(PDF): Complaint for Injunction, Writ of Mandamus, Declaratory Judgment, and Other Relief

Tohono O’odham Court of Appeals Finds Constitutional Waiver of Immunity in Banishment Suit

Sarah M Donnelly

Downloads(PDF):

Massive NYTs Magazine Article on Nooksack Disenrollments

Matthew L.M. Fletcher

Here is “Who Decides Who Counts as Native American? Four years ago, the Nooksack in Washington State announced that they were expelling hundreds of members, setting off a bitter debate over tribal identity.”

Bloomberg Commentary on Cherokee Marriage Equality

Matthew L.M. Fletcher

Noah Feldman has published “Cherokees’ Gay-Marriage Law is Traditional.”

Cherokee Nation AG Opines that Cherokee Constitution Protects Fundamental Right to Marriage; Same-Sex Marriage Legal at Cherokee

Matthew L.M. Fletcher6 Comments

Here is the opinion:

Hembree Opinion

An excerpt:

For the reasons discussed below, it is the official opinion of the Attorney General that the Cherokee Nation Constitution protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of the Nation’s marital laws. The Nation may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage based solely upon the sex of the persons in the marriage union. Therefore, Section 1 of the Cherokee Nation Marriage and Family Act (“Act”), which defines marriage as “a civil contract between one man and one woman,” is  unconstitutional. Likewise, Section 3 of the Act, which prohibits marriage “between parties of the same gender,” is also unconstitutional. 

Revised: Penobscot Nation RFP for Constitution and Code Drafting

Matthew L.M. Fletcher

Here (PDF). The description:

This request for proposal (RFP) is to contract for legal drafting services to be provided for the Penobscot Nation, a federally recognized Indian tribe, for the period of December 1, 2016 to September 30, 2017.  Services to be provided will include assisting the Penobscot Nation Constitution Committee to draft its Constitution in time to be considered for adoption at the Nation’s June 2017 General Meeting (legislative body). Following the drafting of the Constitution, drafting of a code governing the operations of the Penobscot Nation Judicial System, comprised of the trial-level Tribal Court and the Court of Appeals will be undertaken.

BIA Will Not Recognize Actions of Holdover Nooksack Tribal Council

Matthew L.M. Fletcher2 Comments

Here is the letter from ASIA Larry Roberts to Robert Kelly:

Letter

An excerpt:

We will not recognize any actions until duly elected officials are seated in accordance with the Tribe’s Constitution and Bylaws.  This includes recent actions by you and two Council members to enjoin the authority of the Northwest Intertribal Court System (NICS).  Since the NICS was authorized by a quorum of the Council to adjudicate matters prior to March 24, 2016, we will continue to recognize judicial decisions issued by the NICS.

Ninth Circuit Dismisses Challenge to Native Hawaiian Governmental Elections as Moot

Matthew L.M. Fletcher

Here is the opinion in Akina v. State of Hawai’i.

An excerpt:

These appeals concern recent efforts by a group of Native Hawaiians to establish their own government. The plaintiffs are Hawaii residents who challenge that process. They appeal the district court’s order denying their request for a preliminary injunction to stop activities related to the drafting and ratification of self-governance documents. Separately, another group of Hawaii residents appeals the district court’s denial of their motion to intervene in the plaintiffs’ lawsuit. For the reasons that follow, we dismiss the plaintiffs’ appeal of the preliminary injunction order as moot, and we affirm the district court’s denial of the motion to intervene.

Briefs here.

Article, “The Timbisha Decision – A Familiar Story and Dangerous Precedent”

Victoria Sweet2 Comments

Christopher Foley, attorney at The Indian Law Resource Center, has published an article criticizing the most recent court decision in the Death Valley Timbisha Shoshone case.

Link to article here

From the article:

The Death Valley Timbisha Shoshone Tribe was dealt another setback last week in its ongoing efforts to preserve its constitutional government in the face of persistent federal interference.

On May 27, 2016, the United States Court of Appeals for the Ninth Circuit issued a disappointing decision in the Tribe’s federal lawsuit asserting that the Interior Department’s installation of a new Timbisha government was illegal. The court did not rule on the claims of the Tribe that the Bureau of Indian Affairs had acted illegally. Instead, the court simply said that the case was moot, that deciding those issues would make no difference. The court erroneously found that a tribal constitution that was purportedly adopted in 2014 should retroactively govern this case, and it decided all this without any factual record and no trial at which to present evidence.

This is a familiar story. The United States government claims to support tribal sovereignty and to respect self-government, but when it wants to overrule or take over a tribe it simply does so. It is rarely stopped or restrained by the courts.

Previous coverage here