Ninth Circuit Holds Timbisha Leadership Dispute Mooted by Adoption of New Constitution

Here is the opinion in Timbisha Shoshone Tribe v. Dept. of Interior.

The court’s syllabus:

The panel dismissed, as moot, an appeal from the district court’s dismissal of a case challenging the Department of the Interior’s recognition of the election results for leadership authority over the Timbisha Shoshone Tribe. The panel held that the Tribe’s recent adoption of a new constitution, which overhauled tribal membership requirements, mooted the appeal because there was no chance that a remand to the Bureau of Indian Affairs would make any difference whatsoever in the election results.

Briefs here.

Tribal NLRB Background Materials

Here are the materials relevant to Little River Band of Ottawa Indians Tribal Government v. NLRB.

Supreme Court cert stage briefs

Little River Petition and Appendix COMBINED

USET Amicus Brief

Final CO-UMUT Amicus Cert Petition – Saginaw Chippewa and LRB

National Right to Work Legal Defense Foundation

CNIGA Amicus

NCAI Amicus

Michigan Amicus Brief

US Cert Opposition

Little River Reply

Sixth Circuit En Banc Stage Continue reading

Osage Supreme Court Decision in Separation of Powers Matter

Here is the opinion in Standing Bear v. Whitehorn:

SCO-2015-01 Slip Opinion 3-8-16

Robert Miller on Tribal Constitutions and Their Influence on the American Constitution

Robert Miller has posted “American Indian Constitutions and Their Influence on the United States Constitution” on SSRN. 

Here is the abstract:

This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.

Al Jazeera Show on Disenrollments

Here is “Without a tribe: Fighting to stay Native American — The contentious practice of disenrollment in some tribes sparks a discussion about Indigenous identity.”

MCN Adopts Free Press Legislation for Mvskoke Media

Muscogee (Creek) Nation introduces protections for tribal media

NORMAN, Okla. – The Muscogee (Creek) Nation (MCN) added free press protections for the tribe’s media division, Mvskoke Media, with the passage of a free press act.

The MCN National Council passed NCA 15-218 by a unanimous vote of 14-0 during the Sept. 26 meeting at the tribal headquarters in Okmulgee, Okla. MCN Principal Chief George Tiger signed the legislation into law Oct. 8.

The council cited access to information and a need for an independent media with stronger objective reporting by the tribe’s media department as findings of support for the amendment.

Reps. Thomas Yahola, Pete Beaver, Johnnie Greene, David Nichols, Dode Barnett, Joyce Deere, Frank Coachman, Mark Randolph, Lucian Tiger, David Hill, Robert Hufft, James Jennings and Adam Jones co-sponsored the legislation.

The department includes a semi-monthly newspaper, weekly radio and television broadcasts and graphic design and printing services.

Mvskoke Media was previously organized under the tribe’s executive branch.

Sterling Cosper, editor of the tribe’s official newspaper, the Muscogee Nation News, said the passage of the act is a positive first step toward an independent press.

“Officially confirming the fourth estate to the framework of our government is an imperative exercise in tribal sovereignty and self-governance,” he said. “We intend to perpetuate this exercise by immediately utilizing the protective provisions of this bill to fulfill its purpose of bringing fair and balanced accounts of MCN affairs to the citizens.”

Jason Salsman was named interim manager of the department earlier this year. He is also the multimedia producer and host of Native News Today, the only all-Native news format currently airing on network television in the state of Oklahoma.

“The citizens will get timely, pertinent news from credible journalists with excellent sources and documentation to back their work,” Salsman said. “The fact that the fourth largest tribe in America will fund a department to be the watchdog sends a clear, concise message that transparent government is a top priority. My hope is that many others will do the same.”

The amendment established an independent three-member editorial board, which oversees Mvskoke Media, without influence from the tribal government.

The executive branch, legislative branch and Mvskoke Media are each responsible for nominating one member to the newly established three-person editorial board. Each member will serve a three-year term.

Travis Snell and Rebecca Landsberry were confirmed as board members by tribal resolution Oct. 31 during the MCN National Council quarterly session.

As of press time, a third member has not yet been nominated.

Snell is a member of the Cherokee Nation and serves as the associate editor of the Cherokee Phoenix, the oldest Native American newspaper. The Phoenix is one of a handful of tribal media outlets with free press protections currently in place. He is a longtime member of the Native American Journalists Association (NAJA).

NAJA is a nonprofit organization educating and connecting its membership through programs that promote diversity and defend challenges to free press, speech and expression. NAJA currently has more than 500 members across the U.S., and Canada covering Native communities through local, tribal and mainstream media.

Landsberry is a Muscogee (Creek) citizen and former editor of the Muscogee Nation News. She is the current NAJA interim executive director and treasurer for the Native Health News Alliance.

Landsberry says freedom of the press empowers tribes.

“It is essential for these journalists covering stories in Native America to have autonomy and the means to hold those in power accountable to the citizens,” she said. “This historic act will continue to strengthen tribal sovereignty and is a tremendous accomplishment for NAJA members there in Mvskoke Media, the Muscogee (Creek) Nation and Indian Country.”

Cosper said the next step will be to add a freedom of information act (FOIA).

“We encourage citizens and officials alike to strengthen our role in the checks and balances system by supporting the passage of a FOIA, which will provide attributive documentation for the content of our coverage,” Cosper said.

Cosper said the department aims to ask for citizen input with adding free press language directly into the MCN Constitution, in addition to the new code of law.

“Through this, citizens would vote to add us as a functioning body of the foundational document for MCN government with their approval being the only means to reverse it,” Cosper said.

MCN is the fourth largest Native American tribe in the U.S., and includes more than 79,000 citizens across the globe. It is the third tribe in the state of Oklahoma to enact free press protections, following the Osage Nation’s passage of the Independent Press Act in 2008 and the Cherokee Nation’s Independent Press Amendment in 2009.

Rosebud Sioux Tribe Supreme Court Decision in Tribal Chairman’s Removal Dispute

Here is the opinion in Scott v. Kindle:

Scott

An excerpt:

The case at bar is fraught with such risk. There is no doubt that the action of the Tribal Council in removing President Scott from office is of historical significance. As such, it ought not be too readily set aside, especially when no practical remedy is available. As noted above, a new Tribal president, William Kindle, has recently been elected and taken office. Mr. Scott, even if he could prevail on his substantive arguments, cannot be placed back in office.3 Under these circumstances, it’s best to avoid any unnecessary constitutional conflict.

 

Reminder: AALS Indian Nations & Indigenous Peoples Call for Papers on Same-Sex Marriage & LGBT Families

The deadline is coming up 9/1. Please submit if you have a qualifying research project and also feel free to share widely:

The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.

Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at steelem@law.byu.edu. Questions can also be directed to Ann Tweedy, Chair.

National Native American Bar Association Issues Formal Ethics Opinion on Duties of Advocates in Tribal Disenrollment Proceedings

Here is ethics opinion number 1: “Duties of Tribal Court Advocates to Ensure Due Process  Afforded to All Individuals Targeted for Disenrollment”:

National Native American Bar Association Formal Ethics Opinion No. 1

This follows up an earlier resolution from NNABA.

 

Tribes and Same-Sex Marriage in Columbia Human Rights Law Review

My article on tribal laws relating to same-sex marriage has just been published in Columbia Human Rights Law Review. It delves into the twelve tribal laws that allow same-sex marriage and also looks at tribal DOMAs, tribal domestic partnership laws, and other tribal laws that bear on same-sex marriage. Finally, it addresses the somewhat limited effects Windsor and the future Supreme Court decision in Obergefell are likely to have on tribal DOMAs.

Thanks to everyone who provided information on tribal laws. I couldn’t have done it without you!