Denezpi v. United States — Cert Petition re: CFR Courts as Federal Courts

Here is the petition and appendix:

Cert Petition

Appendix

Lower court materials here.

Question presented:

Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?

Update:

Federal Opposition Brief

Update on ICRA Habeas Petition by Washoe Tribe Prisoners — Petition Dismissed for Lack of Exhaustion of Remedies

Here are the updated materials in Lundy v. Balaam (D. Nev.):

19 Tribe Brief

20 Prisoner Traverse

21 DCT Order

Prior post here.

CSKT Tribal Judge Winona Tanner Walks On

Contact: Robert McDonald

CSKT Communications Director

Robert.mcdonald@cskt.org

406-249-1818

FOR IMMEDIATE RELEASE

July 3, 2021

PABLO, MT ­ — Winona Tanner, long time Chief Judge of the Confederated Salish and Kootenai Tribal Court and tribal employee for almost 40 years, passed away Friday. CSKT’s Tribal Council ordered that flags be flown at half-mast in her honor.

Tanner began working at Tribal Legal Services in 1983. She also worked at the Tribal Prosecutors Office and Tribal Defenders Office. Tanner became chief judge in 2004 after her predecessor, Louise Burke, encouraged her to step up in the leadership role.

“Everyone who ever worked with Winona behind the bench or appeared before her will miss her dedication, care and deep understanding of our community,” said CSKT Chairwoman Shelly R. Fyant. “We lowered our flags in her honor. She’s among the Evelyn Stevenson’s and Louise Burke’s as builders of our court system.”  

Tanner was regularly asked to swear in new people elected to Tribal Council. Her beaded robes were often pointed out and complemented by dignitaries and guests who toured the tribal court system. She was generous and known for gifting star quilts to the tribal court founders.

Judge Tanner actively participated in activities and organizations that helped improve the delivery of services within tribal justice systems. She served in leadership roles for the Montana-Wyoming Tribal Judges Association, the Montana Access to Justice Committee, and the National American Indian Court Judges Association for many years.

She was most recently working on plans to remodel the court building and expand the facilities with a successful grant effort. CSKT Chairwoman Shelly Fyant will say a few words about Tanner at the planned memorial for all those who have been lost this past year in Arlee at the powwow grounds Saturday afternoon.

Judge Tanner recognized the value of tribal sovereignty and she frequently utilized tribal traditions within the court system, particularly when children were involved in a matter.  Her concerns for the best interest of children, families and the tribal community ran deep.  She supported approaches that insured promotion of cultural connections and identity with compassion and great wisdom. Casey Family Programs recognized Judge Tanner’s dedication to family issues with the 2015 Casey Excellence for Children Leadership Award. The ripple effects of her work leaves a rich legacy of how restorative principles can address community problems and help create a strong respect for the CSKT tribal court system both locally and nationally.  

Judge Tanner used her deep understanding of the Flathead Reservation community to apply the legal system in a way that was mindful of the values and culture of the people. In her quiet way, she applied her wisdom to guide young people who had lost their way. Once while hearing a case on a tribal member charged with a fish and game violation over a shot deer left to rot, instead of issuing a fine, she referred the young man to visit with the Selis Qlispe Culture Committee. He missed his first appointment, but during the follow-up hearing, she again ordered him to meet with the elders. Once he finally showed, and heard stories on how our ancestors used all parts of an animal, she told a newspaper reporter that she believed those lessons would do a better job reforming the young man than if he had received a fine.

Despite her deep involvement in promoting strong tribal justice systems, Winona was known as a private person from a large family. Her compassion, fairness and wisdom will be greatly missed. Services are planned for early next week.

Kongiganack Tribal Village Judge John Phillip Sr. Walks On

Honorable Judge John Phillip, Sr. Walks On, 6/24/2021

Honorable Judge John Phillip of the Traditional Village of Kongiganak died June 25, 2021 peacefully at home in his native village in Kongiganak, Alaska.

Judge Phillip began serving as one of three first judges in the small coastal village over 30 years ago. The Traditional Village of Kongiganak is a coastal village near the mouth of the Bering Sea and the Kukokwim River in Southwest Alaska.

Judge Phillip is believed to have been the oldest living tribal judge in the United States and served his community through peaceful and wise traditional love. Judge Phillip is also believed to have been the longest serving tribal judge in Alaska, having served the Kongiganak Tribal Court for 30+ years, oftentimes as a volunteer when the Kongiganak Tribal Court had no funding to pay judges.

His quiet passion for justice was delivered in his Yup’ik language, and when Judge Phillip spoke, his reverent respect for justice was felt whether he was translated or not. His wisdom will be truly missed in the village and throughout Alaska.

Judge John Phillip, Sr. was 95 years old.

Federal Court Enjoins Pinoleville Pomo Nation Tribal Court Designed to Challenge Federal Court RICO Judgment

Here is the order in JW Gaming Development LLC v. James (N.D. Cal.):

363 DCT Order

An excerpt:

Shortly after judgment was entered in this case, PPN constituted its Tribal Court for the first time; there is no evidence that it ever existed in any meaningful way until then. Days after the newly appointed judge issued standing orders, PPN filed a civil complaint in that Tribal Court that seeks to (1) declare the judgment issued in this case invalid, (2) limit and control—indeed, vitiate—the scope of enforcement of that judgment, and (3) impose roughly eleven million dollars in liability on JW Gaming for alleged fraud stemming from the same loan agreement here. The lawsuit names not only JW Gaming but its attorneys in this matter and the bank at which PPN maintains accounts that was recently subpoenaed in the course of enforcement of the judgment. It is the first (and, as far as the record shows, only) case brought in the Tribal Court. Remarkably, up until the eve of the hearing on a temporary restraining order (“TRO”) against the proceeding, which I ultimately denied, JW Gaming could not find publicly available information about how appear in that proceeding (despite being served with a summons), who the judge was, or what the rules were.

JW Gaming moved for an order to show cause why an injunction should not issue, which I denied. It then moved for the TRO, which I converted into a motion for a preliminary injunction once PPN’s counsel committed to placing the Tribal Court proceeding on hold. That motion is now ripe for decision.

It is critical that federal courts respect tribal sovereignty and tribal court jurisdiction. Tribes are sovereign nations. Their ability to govern themselves and enjoy the full benefits of sovereignty is unquestioned. Tribal courts, as arms of the tribe, are entitled to substantial comity and deference under established federal law. I previously denied JW Gaming’s motion for an order to show cause why an injunction should not issue out of these concerns. I remain vigilant about the compelling interest that PPN has in maintaining its sovereignty.

Those concerns, however, do not prevent an injunction against a Tribal Court proceeding that seeks to invalidate or interfere with the judgment entered in this Court. There are compelling interests in ensuring that enforcement of valid federal-court judgments is not interfered with, that JW Gaming is not required to litigate a lawsuit precision-engineered to invalidate and interfere with this one, and that third parties are not exposed to court orders or liability for simply enforcing a judgment or attempting to comply with the procedures for enforcing it. To the extent the lawsuit seeks to invalidate the judgment or interfere with enforcement, it is unquestionably meritless: a tribal court lacks authority to invalidate a federal court’s judgments or to dictate the scope of executing that those judgments. JW Gaming has shown it is entitled to a preliminary injunction to the extent that the Tribal Court proceedings attempts to invalidate, interfere with, or thwart the judgment entered here. I possess jurisdiction to enter this injunction to protect and effectuate the judgment. The doctrine of tribal court exhaustion does not apply because PPN exercised its sovereign power to clearly, expressly, and unequivocally waive it.

Briefs and related materials here.

New Update in Adams v. Elfo [Nooksack Habeas Matter]

Here are new materials in Adams v. Elfo (W.D. Wash.):

56 Motion for Reconsideration

60 Response

62 DCT Order Remanding Motion to Magistrate

65 Nooksack Brief

66 Tribal Judge Brief

67 Adams Brief

69 Magistrate Report

70 Adams Objections

72 Tribe Response

73 Tribal Court Response

74 DCT Order

Prior post here.

 

New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems

Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.

The abstract:

Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.