Here are the updated materials in Picayune Rancheria of Chukchansi Indians v. Rabobank (E.D. Cal.):
Our prior post that includes the proceedings in what the district court called the “Ayala tribal court” are here.
tribal courts
Navajo Nation SCT Decision Asserting Jurisdiction over Nonmember Helium Plant Repossession Action
Here is the opinion in Neptune Leasing Inc. v. Mountain States Petroleum Corp. and Nacogdoches Oil and Gas Inc. The court’s syllabus:
The Supreme Court issues its opinion in this appeal of the Shiprock Court’s dismissal of a repossession action on the basis of a lack of personal jurisdiction over Mountain States. The Court reverses and remands for further proceedings. The action concerns the sale and re-sale of a helium plant and its assets located on a Navajo Nation business site leasehold performed without involvement or consent of the Navajo Nation and without even a written business site lease. Finding that the Shiprock Court erred in providing conclusory findings as to jurisdiction, the Court found jurisdiction after engaging in a full jurisdictional discussion involving inherent sovereignty, Navajo statutes, and federal common law tests. The parties had additionally challenged subject matter jurisdiction on the basis of a private agreement between the purported buyer and seller which selected Texas as their litigation forum; however the Court stated that no private contractual clause may avoid Navajo Nation jurisdiction over transactions on Navajo Nation land involving assets in which the Navajo Nation may have an interest. Additionally, the Court repeated that there is no such things as an equitable business site lease.
Tort Claims Styled as Compact Breach against Barona Band Dismissed
Here are the materials in Nasella v. Barona Valley Ranch Resort and Casino (S.D. Cal.):
DCT Order Granting Motion to Dismiss
Update in Nooksack Membership Dispute
News coverage here. Previous post on the recent tribal court litigation. And an update on tribal court filings:
Second Declaration of Gabriel S. Galanda
And a federal complaint alleging FOIA violations by the Bureau of Indian Affairs — St. Germain v. Dept. of Interior (W.D. Wash.):
St Germain v Interior Complaint
Ninth Circuit Dismisses Fred v. Washoe Tribe Appeal
Here is the unpublished opinion.
Briefs:
From the opinion:
This is an interlocutory appeal asserting jurisdiction in this court under the collateral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiff’s grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiff’s daughter). After pursuing tribal remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.
Prior posts on this case here and here.
Op-Ed on Indian Country Prosecutions and Investigations
Authored by:
Michael W. Cotter, U.S. Attorney, District of Montana
Calvin Wilson, Chief Prosecutor, Northern Cheyenne Tribal Court
Glen Littlebird, Sr., Prosecutor, Northern Cheyenne Tribal Court
This week the United States Department of Justice released a report to Congress entitled Indian Country Investigations and Prosecutions which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010. The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO) with Indian Country jurisdiction, and FBI crime data from reservations, shows among other things a 54 percent increase in Indian Country criminal prosecutions since Fiscal Year 2009.
Here in the District of Montana, justice in Indian Country is achieved through both tribal and federal courts. Currently, under the Indian Civil Rights Act, a tribal court’s authority to sentence a defendant is limited to a term of imprisonment of 1 year and a fine of $5000 per offense. Because tribal court penalties are limited, the most serious of crimes are prosecuted in federal court by the USAO. In Montana, the USAO shares prosecutorial responsibilities with tribal prosecutors on all of the reservations in the state, except the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation.
The Indian Country Investigations and Prosecutions report released this week by the Department of Justice previews a new era of partnership between the federal government and American Indian tribes. The report documents an unprecedented level of collaboration with tribal law enforcement, regular consultation on a crime fighting strategy, joint federal/tribal task forces, information sharing, training of investigators, and cross deputizing tribal police and prosecutors to enforce federal and tribal law. We certainly have seen the changes described by the report in the USAO’s relationships with its tribal partners in Montana.
Since 2010, the District of Montana USAO has implemented a bi-monthly meeting involving the federal prosecutors assigned to each reservation, the tribal prosecutors for the reservation and tribal and federal law enforcement officers. During these meetings, cases arising on a particular reservation during the preceding two-week period are discussed and a joint decision is made concerning which jurisdiction – Federal or tribal or both – will prosecute a particular case. Between 2010 and the present, the USAO in Montana has devoted six prosecutors to Indian Country. With these additional resources, over the last two years, 76% of all cases staffed have been resolved in either federal or tribal court. During the last two years, the Montana USAO has averaged 30 jury trials each year. Each of the approximately 60 trials involved violent crimes committed in Indian Country. In addition, numerous trials have occurred in tribal courts across Montana resulting in convictions of defendants that have committed less serious crimes.
Tribal courts play an integral role in providing public safety in our Indian communities. In Montana, federal and tribal prosecutors recognize and respect each other and the courts in which they work. Tribal courts, like tribal governments, are important federal partners. The members of federal law enforcement and the USAO Montana support partners in tribal law enforcement and the tribal court system, and vice versa. That is why federal prosecutors and agents share investigative files with their counterparts in Indian Country. Just as tribal law enforcement respond to federal court subpoenas, special agents from the FBI routinely respond to tribal court subpoenas to provide testimony in criminal proceedings and trials.
Tribal communities as a whole, and defendants as well as victims of crime in Indian country must have confidence that their tribal court systems are capable of delivering justice. When that confidence is lacking for whatever reason, the Department of Justice and the USAOs must do all we can to develop that confidence. The federal and tribal governments need a true partnership. It is only through this “court to court” relationship that justice truly may be achieved in Indian Country for victims of crimes. We agree that the process in place is way better than it has ever been before. It’s real. It’s working. It is also important to remember that often tribal court can provide quicker and better answers in various criminal matters.
Although it will take some time before we can understand the full impact of the recent efforts on crime in Indian Country, some things are clear. The increase in enforcement will bolster the faith and confidence that American Indian communities have in the criminal justice system. The increase in collaboration and communication strengthens the bond of trust between federal and tribal investigators, prosecutors, and other personnel in both federal and tribal criminal justice systems. Finally, the efforts undertaken in the last few years by the men and women of the federal and tribal criminal justice systems will make communities safer in Montana.
Michael W. Cotter was nominated by President Barack Obama to serve as the United States Attorney for the District of Montana. He was sworn in as Montana’s 39th United States Attorney on December 30, 2009.
Calvin Wilson has been licensed to practice law in the State of Montana since 1977. He is currently the Chief Prosecutor for the Northern Cheyenne Tribal Court. He has also served as a tribal judge, a tribal attorney, an elected Country Attorney for Big Horn County and a prosecutor for the City of Hardin.
Glen Littlebird, Sr., who is also a prosecutor for Northern Cheyenne Tribal Court, has served as a special agent for the BIA, a tribal judge, and a tribal councilman.
Barbara Creel on the the Right to Counsel in Indian Country
Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.
While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe’s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts.
Defense counsel is an indispensable element of the adversary system without which justice would not “still be done.” Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.
Highly recommended!
Tribal Court Denies Injunction in Nooksack Disenrollee Challenge
Here are the materials available in Lomeli v. Kelly (Nooksack Tribal Court):
Order Denying Motion for Preliminary Injunction
Defendants Response Brief in Opposition to Plaintiffs Emergency Motion for T
Confederated Tribes of Grand Ronde RFP for Code Development
The Tribal Nation of the Confederated Tribes of Grand Ronde, located in Northwest Oregon, is seeking Requests for Proposals from interested individuals, legal service providers, agencies or law firms to develop new Tribal ordinances, revise current ordinances, develop self-help packets, and develop local rules for the Court. For questions contact Angela Fasana, Tribal Court Administrator, at angela.fasana@grandronde.org. Proposals must be received by 5:00 p.m. on June 28, 2013.
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