tribal courts – Page 124

New Student Scholarship on VAWA’s Tribal Jurisdiction Provisions

April 12, 2013Matthew L.M. Fletcher

Laura Saylor has posted “Back to Basics: Special Domestic Violence Jurisdiction in the Violence Against Women Reactivation Act of 2013 and the Expansion of Inherent Tribal Sovereignty” on SSRN.

Here is the abstract:

Indian Country is home to some of the highest rates of violent crime in the United States. Specifically, Indian women are at least twice as likely as women in any other demographic in the United States to be victims of domestic violence, dating violence, and sexual violence, and most Indian women report that their attacker was non-Native. On March 7, 2013, President Obama signed the Violence Against Women Reactivation Act of 2013, which contained provisions to help alleviate this crisis in Indian County. These provisions include Sections 904 and 905, which outline special criminal jurisdiction over certain non-Indian perpetrators of domestic violence, dating violence, and sexual violence in Indian Country. This Student Note proposes a method of interpretation of Sections 904 and 905 and argues that, upon a constitutional challenge to this special domestic violence jurisdiction, the Supreme Court should find that that these provisions validly expand inherent tribal sovereignty and do not represent a delegation of Congressional power. To reach this conclusion, Court should first return to the texts that form the foundation of tribal sovereignty, namely the Constitution and the Marshall Trilogy. Incorporating these early principles of robust inherent tribal sovereignty, the Court should then look to the legislative intent of Congress, as it has many times in Federal Indian law, to confirm that Congress has validly exercised its power to expand inherent tribal sovereignty. However, in explicating Congress’ power to enact such legislation, this Note further proposes that the Court should clarify that Sections 904 and 905 are consistent with a more limited understanding of Congress’ power to legislate in Indian Country that requires legislation to be rationally related to Congress’ unique obligations to the Indian tribes. Thus, on a constitutional challenge, this Note argues that the Court should uphold Sections 904 and 905 because they are both a valid exercise of Congress’ power to expand tribal inherent sovereignty and consistent with Congress’ unique obligations to the tribes.

Update on Eastern Band Cherokee Election Dispute

April 10, 2013Matthew L.M. Fletcher

Here is the response to the petition:

Response to Petition for Writ of Mandamus

The petition is here.

MSU-E (Emily Proctor): “How VAWA Impacts Tribal Nations in Michigan”

April 10, 2013April 10, 2013Matthew L.M. Fletcher

Here. H/T Pechanga.

An excerpt:

Each of the 12 federally recognized tribes of Michigan have their own tribal court and social service departments that assist women and families who are in violent situations. Michigan State University Extension continues to work with Michigan tribal nations to address the needs of communities in the area of government and public policy.

For more information, please contact Emily Proctor, MSU Extension educator on tribal nations, with questions or comments at 231-439-8927 or proctor8@anr.msu.edu.

This article was published by Michigan State University Extension. For more information, visit http://www.msue.msu.edu. To contact an expert in your area, visit http://expert.msue.msu.edu, or call 888-MSUE4MI (888-678-3464).

PBS Frontline: Where Tribal Justice Works

April 5, 2013Matthew L.M. Fletcher

Here.

An excerpt:

In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.

Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.

So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.

But had the assault happened a week earlier, the case could never have gone to trial.

The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.

Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse.

Brent Leonhard, the general counsel for the Umatilla tribes, is proud of the conviction: “I personally was concerned that the victim at some point would end up dead,” he said.

“People here were pretty happy to see the person held accountable.”

Interesting Election Challenge at Eastern Band Cherokee

April 5, 2013Matthew L.M. Fletcher1 Comment

Here is the petition for a writ of mandamus in the Cherokee Supreme Court:

Petition for a Writ of Mandamus 3262013

The dispute centers around a new election code, of which the parties disagree as to when the next election for Principal Chief will be — in 2013 or 2015.

Ninth Circuit Decides Competency Question in Criminal Case Involving Tohono O’odham Nation Juvenile

April 3, 2013Matthew L.M. Fletcher

Here is the opinion in United States v. LKAV.

From the court’s syllabus:

Reversing an order committing a juvenile for a study of his competency to stand trial, the panel held that the district court erred by committing the juvenile under 18 U.S.C. § 4241(d), rather than proceeding pursuant to Federal Juvenile Delinquency Act.

Appellant’s Brief in Thlopthlocco Tribal Town v. Stidham

April 3, 2013Kate Fort1 Comment

This case involves the authority of the Muscogee (Creek) Nation courts’ authority to hear internal government disputes of the Thlopthlocco Tribal Town.

Lower court materials and order of dismissal here.

Appellant’s Brief to the 10th Circuit here.

Update in Inetianbor v. Cashcall (Western Sky Financial): Federal Court Reopens Case

April 2, 2013Matthew L.M. Fletcher3 Comments

You may recall from our February post that a federal court had honored an arbitration provision in a Cashcall/Western Sky Financial form agreement and sent the case to the Cheyenne River Sioux Tribal Court. That court responded to the plaintiff that the Cheyenne River Sioux Tribe does not authorize arbitration under the American Arbitration Association rules, so the plaintiff successfully brought the case back to federal court.

Materials in Inetianbor v. Cashcall Inc. (S.D. Fla.) are here:

DCT Order Granting Motion to Reopen

Inetianbor Motion to Reopen + Tribal Court Letter

Cashcall Opposition

Important Montana 1 Decision in Federal Trade Commission Suit against On-Rez Payday Lenders

March 29, 2013Matthew L.M. Fletcher

Here are the materials in FTC v. Payday Financial LLC (D. S.D.):

DCt Order Denying Defendants’ Motion

Defendants’ Motion for Partial Summary J

FTC Opposition

Defendants’ Reply

From the opinion:

The pending motion for partial summary judgment presents the issue of tribal court jurisdiction over non-Indians who contract with a company doing business from an Indian reservation. The “pathmarking” case on tribal authority over nonmembers is Montana v. United States, 450 U.S. 544 (1981). See Strate v. A-I Contractors, 520 U.S. 438, 445 (1997) (describing Montana as “pathmarking” and applying Montana to evaluate tribal court jurisdiction authority over non-Indians.) In Montana, the Supreme Court recognized two areas in which Indian tribes have sovereign power to exercise authority over nonmembers on their reservation. The first such “Montana exception” recognizes tribal authority over “the activities of nonmembers who enter consensual relationships with a tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”Montana, 450 U.S. at 565. The precise question presented in this case is one of first impression: When a company conducting business from an Indian reservation enters into a commercial contract with a non-Indian, is it an unfair and deceptive practice for the company to include forum selection and consent to tribal jurisdiction provisions in [2] the contract and to then expect to litigate any alleged breach of contract claim against the non-Indian in tribal court? This Court determines that, under the circumstances of this case and on the sole issue currently before this Court, such contract provisions are not unfair and deceptive when the non-Indian has entered into “consensual relationships [with tribal] members” with a sufficient connection to on-reservation activities to make the consent to jurisdiction and forum selection provisions enforceable under the first Montana exception. See Montana, 450 U.S. at 565. However, in this case, two open issues prompt this Court to deny Defendants’ Motion for Partial Summary Judgment: (1) This Court’s record lacks information establishing that the Defendants are in fact “members” of the tribe for purposes of the first Montana exception; and (2) an ambiguity in the contract exists as to under what circumstances the non-Indian is consenting to tribal court jurisdiction in addition to binding arbitration.