tribal courts – Page 113

Apparently, four Nooksacks have been automatically disenrolled, since August, in violation of a Stipulation and Order in Lomeli providing that nobody would be disenrolled until all of the hearings were concluded.

Federal Court Dismisses Indian Child Welfare-Related Habeas Petition arising from Yakama

November 15, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in George v. Superior Court (E.D. Wash.):

35 Fox Motion to Dismiss

39 DCt Order Dismissing Claims

An excerpt:

Here, the three elements for abstention are met. The underlying Superior Court proceedings are ongoing and it is generally recognized that family relations are a traditional area of state concern. Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); H.C. ex rel. Gordon, 203 F.3d at 613. The Superior Court had apparent concurrent personal jurisdiction over the parties with the Tribal Court and has jurisdiction to determine the legal affect of the Tribal Court proceedings, its own jurisdiction, and to consider deferring to the Tribal Court if it finds it appropriate. See Wash. Rev.Code 37.12.010; Maxa v. Yakima Petroleum, Inc., 83 Wash.App. 763, 767, 924 P.2d 372 (1996); Confederated Tribes of the Colville Reservation v. Superior Court of Okanogan County, 945 F.2d 1138, 1140, n. 4 (9th Cir.1991) (noting that Pub.L. 280 did not divest Tribal Courts of concurrent jurisdiction over child custody matters). The children were residing off-reservation in Spokane County for at least six months consecutive prior to when the custody petitions were filed, and it appears the children may have been domiciled on Yakama Nation land for at least a day when Plaintiff’s custody petition was filed in Tribal Court. Finally, both parties availed themselves of the child custody proceedings held in the respective courts. Defendant participated in the Tribal Court proceedings, and Plaintiff participated in the Superior Court proceedings. Thus, Plaintiff has an adequate forum in which to assert her federal claims. At this point, extraordinary circumstances do not exist that would require the Court to refrain from abstaining in this matter.

Grand Canyon Resort Corp. Cert Opposition in Skywalk Case

November 15, 2013Matthew L.M. Fletcher

Here:

Grand Canyon Resort Cert Opp

Petition here.

Turtle Mountain COA to Hold Oral Argument at UND Law School

November 14, 2013Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

The Turtle Mountain Tribal Court of Appeals will be at the University of North Dakota School of Law on Monday, November 18, 2013 to hear an oral argument in the matter of Ronald Allery et al v. Chairman of the Turtle Mountain Band. The argument begins at 9:00 a.m. in the Baker Courtroom on the third floor of the Law School building. The argument is free and open to the public.

The matter of Ronald Allery et al v. Chairman of the Turtle Mountain Band, to be heard on November 18, involves three tribal members terminated from employment by the Tribe who were reinstated by the Trial Court for the alleged failure of the supervisor to notify them of their right to grieve the terminations. The employees have also filed a cross-appeal claiming that the Tribe has refused to reinstate them and they have asked for back pay.

The issues involved include:

1. Whether the supervisor’s failure to notify the employees of their grievance rights justifies automatic reinstatement to positions;
2. Whether the Tribe has the authority to disobey a Court order it disagrees with;
3. Whether the employees were terminated for cause.

Opening Eleventh Circuit Brief in Inetianbor v. Cashcall

November 12, 2013Matthew L.M. Fletcher2 Comments

Here:

Cashcall Opening Brief

Lower court materials here.

Update in Bettor Racing v. NIGC — Flandreau Intervenes and Files Counterclaim

November 8, 2013November 8, 2013Matthew L.M. Fletcher2 Comments

Here are the updated materials in Bettor Racing Inc. v. National Indian Gaming Commission (D. S.D.):

9-1 Tribal Court Docs Part 1

9-2 Tribal Court Docs Part 2

35 DCT Order Allowing Intervention

36 Flandreau Answer and Counterclaim

Complaint was posted here.

David Wilkins in ICT on the Nooksack Disenrollments

November 7, 2013Matthew L.M. Fletcher4 Comments

Here.

An excerpt:

To her credit, it appears that the Chief Judge was attempting to console the disenrollees and explain a decision that gravely disappointed them. Unfortunately, she also utilized words that profoundly diminished indigenous sovereignty:
“While the Court recognizes the important entitlements at stake for the proposed disenrollees, this is a fundamentally different proceeding than a loss of United States’ citizenship…. In the case of tribal disenrollees, the disenrollee loses critical and important rights, but they are not equal to the loss of U.S. citizenship. A person who is disenrolled from her tribe loses access to the privileges of tribal membership, but she is not stateless. While she loses the right, for example, to apply for and obtain tribal housing through the Tribe, her ability to obtain housing in general is unaffected. Though she loses the right to vote in tribal elections, she does not lose the right to vote in federal, state, and local elections. While the impact on the disenrollee is serious and detrimental, it is not akin to becoming stateless.” (Emphasis mine.)

Whatever one’s views on the way each Native nation chooses to exercise their sovereignty with regard to defining membership, the judge’s view of Native nationhood is chilling. By ruling that the termination of a Native person’s citizenship is “not equal to the loss of U.S. citizenship” and the loss of tribal membership is “not akin to becoming stateless,” she places Native citizenship in a position squarely inferior to U.S. citizenship. The implications are profound. It is not realistic to expect to maintain true government to government relations with states and the federal government if we begin by diminishing our own status as citizens of sovereign nations.

Lummi Tribe Prevails in Indian Child Welfare Matter involving Tribal Court Jurisdiction

November 7, 2013Matthew L.M. Fletcher3 Comments

Here are the materials in Jones v. Lummi Tribal Court (W.D. Wash.):

48 Jones Motion

55 Lummi Response

57 Jones Reply

60 DCT Opinion and Order

61 DCT Order Dismssing Complaint

Prior orders in this case are here and here.

Legal Services Corp. Proposed Rule on Restrictions on Criminal Representation

November 6, 2013Matthew L.M. Fletcher

Here. Comment period expires Dec. 4, 2013.

The summary:

This proposed rule updates the Legal Services Corporation (LSC 
or Corporation) regulation on legal assistance with respect to criminal 
proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the 
LSC Act to authorize LSC funds to be used for representation of persons 
charged with criminal offenses in tribal courts. This proposed rule 
will bring the regulations into alignment with the amended LSC Act. The 
proposed rule will also revise the conditions under which LSC 
recipients can accept or decline tribal court appointments to represent 
defendants in criminal proceedings.