tribal courts – Page 119

As Assistant Secretary of Indian Affairs Kevin Washburn wrote recently, “in the exercise of sovereignty and self-governance, tribes have the right, like other governments, to make good decisions, bad decisions, and decisions with which others may not agree.” Aguayo, page 1. The Tribal Council members named in this Complaint hold an obligation to act in the best interests of the Nooksack Indian Tribe. Membership and enrollment decisions impact individual lives in the deepest possible ways and those decisions cannot be taken lightly. This Court recognizes the serious implications of this case and its decision on this motion and all the others that have preceded it. It is the solemn obligation of this Court to follow the law of the Nooksack Indian Tribe and it is the obligation of the Tribal Council to do the same.

All Things Considered on Prosecuting in Tribal Court

August 5, 2013ilpc

Here.

“We live here. We engage the community here. We have an understanding of the crimes and the crime scenes, and we have Hopi juries here, and it gives us an advantage in that there are some cases I believe the tribal courts can more effectively prosecute,” she [Jill Engel] says.

Eighth Circuit Decides DISH Network Must Exhaust Tribal Court Remedies in Dispute at Turtle Mountain

August 5, 2013August 5, 2013Matthew L.M. Fletcher1 Comment

Here is the opinion in DISH Network v. Laducer:

CA8 Opinion

Briefs are here.

Lower court materials are here.

Update in Omaha Tribal Liquor Jurisdiction Case

August 2, 2013August 2, 2013Matthew L.M. Fletcher1 Comment

The parties have filed cross-motions for summary judgment:

Village of Pender Brief

Omaha Tribe Brief

The United States and the State of Nebraska have each filed briefs on the question of whether the Omaha Tribe’s 1854 reservation has been diminished/disestablished, with the federal government supporting the tribe and the state opposing:

Federal Brief

Nebraska Brief

Prior posts here, here, and here.

Answer Brief in EXC, Inc. v. Jensen

July 25, 2013Matthew L.M. Fletcher

Here:

EXC Answer Brief

Opening briefs are here.

Cherokee Nation Tribal Court Grants Custody to Father’s Wife and Father’s Parents in Baby Veronica Matter

July 22, 2013Adrea Korthase2 Comments

Tulsa World article here.

Commentaries by Fletcher and Richotte on Proposed White Earth Constitution

July 9, 2013Matthew L.M. Fletcher

Available in Anishinaabeg Today, the White Earth Band tribal newspaper. Check out page 2 for the commentaries.

Eighth Circuit Briefs in Tribal Court Jurisdiction Appeal from Rosebud Sioux

July 8, 2013Matthew L.M. Fletcher1 Comment

Here are the briefs in Columbe v. Rosebud Sioux Tribe:

Columbe Opening Brief

RST Answer Brief

Columbe Reply Brief

Lower court materials here.

Federal Magistrate Decides (Non-)Indian Status of Defendant in General Crimes Act Case

July 3, 2013Matthew L.M. Fletcher

Here are the materials in United States v. Loera (D. Ariz.):

DCT Order Denying Motion to Dismiss

Loera Motion to Dismiss — Indian Status

USA Response

An excerpt:

Defendant’s motion and the government’s response raise matters for the Court’s consideration which other courts have left for another day. See Means v. Navajo Nation, 432 F.3d 924, 934–35 (9th Cir.2005). The resolution of the issues requires the Court to journey into the world of “Indian Law” which has been described as a “complex patchwork of federal, state and tribal law, which is better explained by history than by logic.” United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (internal quotations omitted). Indian law has also been described as “schizophrenic”: “Federal Indian policy is, to say the least, schizophrenic. And the confusion continues to inform federal Indian law …” United States v. Lara, 541 U.S. 193, 219, 124 S.Ct. 1628, 1644–45 (2004) (Thomas, J., concurring).

Another:

This case presents a unique factual and jurisdictional conundrum apparently of first impression. Notwithstanding the 1990 amendments to the Indian Civil Rights Act, codified at 25 U.S.C. § 1301 et seq., the Fort Mojave Indian Tribe has declined to prosecute a defendant who may be an “Indian” and the Tribe’s decision is apparently based solely on the defendant’s lack of tribal membership, i.e., the Tribal Court has determined it does not have jurisdiction under its laws.

And finally:

Since its first enactment in 1817 (3 Stat. 383), additions added in 1854 (10 Stat. 270), sequent codification in 18 U.S.C. § 1152, and the enactment and amendment of the Indian Civil Rights Act, the language of section 1152 has never been amended, yet the government has entered into nine separate treaties with thirteen separate and distinct tribes obligating the federal government to remove all “bad men” from those tribes’ lands and prosecute them in federal courts when requested by the Tribe, exactly what occurred in this matter. In order to give validity to those treaties, as the Court is obligated to do, and which Congress has not repealed, and even though the treaties are with tribes other than the Fort Mojave Indian Tribe, the use of the term “Indian” in section 1152 must, as Judge Sneed concluded, mean an Indian who is a tribal member. As such, should this Court have concluded Defendant was an “Indian” section 1152 would not grant him immunity from federal prosecution as he is not a tribal member.