Fletcher on Tribal Customary Law and an Indigenous Canon of Construction

Check out “The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” on SSRN.


This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.

Student Note on the Exclusionary Rule and the Indian Civil Rights Act

Seth E. Montgomery has published “ICRA’s Exclusionary Rule” in the Boston University Law Review.

The abstract:

The Fourth Amendment does not limit the actions of the 574 federally recognized Indian tribes. In an affront to tribal sovereignty, Congress enacted the Indian Civil Rights Act (“ICRA”) in 1968. The ICRA provides limitations on tribal governments that parallel the Bill of Rights. For example, the ICRA provides that no Indian tribe shall “violate the right of the people to be secure . . . against unreasonable search and seizures.”
But the ICRA—like the Fourth Amendment—does not state what happens when police obtain evidence from an unreasonable search or seizure and prosecutors seek to introduce that evidence in a criminal trial. Federal courts have developed an exclusionary rule for evidence obtained in violation of the Fourth Amendment: subject to myriad exceptions, if police obtain evidence unconstitutionally, then that evidence may not be introduced in a criminal trial. This Note asks whether the ICRA’s search-and-seizure provision incorporates such an exclusionary rule.
This Note advances an interpretation of the ICRA based on the statute’s 1968 meaning: the ICRA’s text compels an exclusionary rule, conditioned on deterring tribal police misconduct, but not subject to the myriad exceptions that apply in the Fourth Amendment context. And, with important qualifications, this Note explains why a court applying this interpretation should turn to tribal law. A deterrence-based exclusionary rule requires courts to consider whether exclusion deters police misconduct, how to measure the benefits of deterrence against the harms of excluding probative evidence, and how much deterrence is necessary for exclusion. Comity, self-determination, and federalism all compel deference to tribal law in answering these questions. Thus, tribal law can and should guide the application of the ICRA’s search-and-seizure provision in a criminal prosecution.
This Note contributes to the legal and academic landscape in three ways. First, it adds to an ever-growing body of literature advocating for federal and state deference to tribal law. Second, this Note fills a gap in the literature by addressing a remedy that the ICRA does not expressly provide—namely, exclusion. Most academics and courts describe federal habeas review as the ICRA’s only available remedy outside of tribal courts. Finally, this Note provides a roadmap for litigants arguing for or against a suppression motion based on an ICRA violation. Only a limited number of reported cases address whether the ICRA incorporates an exclusionary rule, and even fewer provide a full analysis. This Note thus answers an open question in a way that harmonizes constitutional criminal procedure with deference to tribal legal precedent.

Minnesota Federal Court Dismisses Challenge to MCT Election

Here are the materials in LaRose v. Dept. of the Interior (D. Minn.):

Prior post here.

New Student Scholarship on Tribal Courts and Environmental Tort Litigation

Helia Bidad has published “The Power of Tribal Courts in Ongoing Environmental-Tort Litigation” in the Yale Law Journal. Here is the abstract:

Cities, counties, and states across the country are bringing environmental and climate tort suits to hold environmental tortfeasors accountable. These cases are commonly brought in state and federal court, but the possibility of bringing these suits in tribal courts has largely been left out of the discussion. In the wake of attacks on tribal sovereignty in the form of tribal jurisdiction stripping, this Essay uses an original empirical analysis of 308 cases to understand the circumstances in which tribal-court jurisdiction currently exists for tribal members to sue nonmembers for environmental torts in tribal court. This Essay makes recommendations for how to strategically bring these suits and highlights important considerations for tribal sovereignty.

Florida State Bar Authorizes Practices of Lawyer Admitted in St. Croix Tribal Court

Nicholas Stamates, a recent UMich law grad, suggested I post the letter he filed with the Florida State Bar. The letter led to the bar authorizing him to practice as “house counsel” in Florida on the basis of his admission to practice in the St. Croix Chippewa courts. Interesting development. Here is the letter:

California Federal Court Dismisses Tribal Member Property Dispute after Failure to Exhaust Tribal Appellate Remedies [Round Valley Indian Tribe]

Here are the materials in Pacino v. Oliver (N.D. Cal.):

27 Second Amended Complaint

71 Tribal President Motion to Dismiss

73 Interior Motion to Dismiss

76 Pacino Opposition to 71

77 Pacino Opposition to 73

83 Reply in Support of 71

86 Oliver Motion to Dismiss

88 Pacino Opposition to 86

89 Reply in Support of 86

90 DCT Stay Order

98 DCT Order to Show Cause re Tribal Exhaustion

100 Oliver Supplemental Brief

102 Pacino Supplemental Brief

103 Round Valley Amicus Suppemental Brief

112 DCT Order

California Federal Court Decides Lexington Insurance Co. v. Mueller [Cabazon Band of Mission Indians]

Here are the materials in Lexington Insurance Co. v. Mueller (C.D. Cal.):