tribal courts

Walking on Common Ground — New Publications on Tribal Courts & PL 280

Matthew L.M. Fletcher1 Comment

Promising Strategies: Tribal State Court Relations
Tribal courts and state courts interact across an array of issues, including child welfare, cross jurisdictional enforcement of domestic violence orders of protection, and civil commitments. Since the early 1990s, initiatives by judges’ organizations within both judicial systems have focused on an agenda of greater mutual understanding and cooperative action. This publication spotlights some of the most successful strategies within these initiatives. Click here to read full document.

Promising Strategies: Public Law 280
In PL 280 jurisdictions, the concurrent jurisdiction of state and tribal courts over criminal prosecutions and civil actions arising in Indian Country creates many interactions and complications. Tribal and state authorities encounter one another across an array of issues, including government-to-government recognition, concurrent jurisdiction, cross-jurisdictional enforcement of domestic violence orders of protection, cross-deputization, and civil commitments. Tensions and misunderstandings have been common features of tribal and state policing relations in the past, sometimes erupting in jurisdictional conflicts. This publication highlights unique ways in which tribal and state jurisdictions have entered into collaborations to overcome barriers to effective justice provision. Click here to read full document.

Hualapai Tribal Court Issues Stay Order in Tribal Court Suit against Grand Canyon Skywalk

Matthew L.M. Fletcher1 Comment

Here:

Hualapai Tribal Court Stay Order

Katherine Florey on Tribal Courts’ Jurisdiction

Matthew L.M. Fletcher1 Comment

Katherine Florey has posted her paper, “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts – even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. In this project of limiting tribal power, as with so much of the Court’s Indian law jurisprudence, the Supreme Court has emphasized tribes’ distinctive status, notably failing to consider the relevance of more generally applicable doctrines such as personal jurisdiction. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and non-tribal land.

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and treating it in any other way limits and distorts courts’ analysis. Indeed, the field of jurisdiction presents a striking disparity between the absence of factors actually unique to the tribal context and the extreme idiosyncrasy of the Court’s doctrine. No good reason exists why existing personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Further, because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum, personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country. For these reasons, the Article argues, limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.

Cherokee Nation Redistricting Challenge — Tribal Court Materials — UPDATED

Matthew L.M. Fletcher

Here are the materials in Anglen v. Cherokee Nation Council:

Navajo Nation Supreme Court Decides Election Law Dispute

Matthew L.M. Fletcher

Here is the opinion in Sandoval v. Navajo Election Administration.

The court’s syllabus:

The Supreme Court issues its opinion on reconsideration in this appeal of an OHA dismissal on an election grievance. The Court reverses the OHA and orders Leo Johnson disqualified as school board member of the Shiprock Associated Schools Inc. (SASI). The Court emphasizes the duties of the NEA and candidates when conditions concerning qualifications change before an election has taken place. The Court states that the qualifications statute for school board members specifically require mandatory enforcement throughout the term of office. The vacancy shall be filled by special election pursuant to 11 N.N.C.  § 143.

Tracing the Right to Counsel in the VAWA Reauthorization Act

Matthew L.M. Fletcher3 Comments

Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).

Here is the new statute, of which section 904(d) reads:

In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);

The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
(3) require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

On Federal Juries and American Indian Defendants

Matthew L.M. Fletcher1 Comment

Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:

Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.

Louise Erdrich NYTs Op\Ed on Violence against Indian Women

Matthew L.M. Fletcher3 Comments

Here.

A excerpt:

What seems like dry legislation can leave Native women at the mercy of their predators or provide a slim margin of hope for justice. As a Cheyenne proverb goes, a nation is not conquered until the hearts of its women are on the ground.

If our hearts are on the ground, our country has failed us all. If we are safe, our country is safer. When the women in red shawls dance, they move with slow dignity, swaying gently, all ages, faces soft and eyes determined. Others join them, shaking hands to honor what they know, sharing it. We dance behind them and with them in the circle, often in tears, because at every gathering the red shawls increase, and the violence cuts deep.

David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

Matthew L.M. Fletcher3 Comments

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

Free Admission to Cherokee Supreme Court Museum This Weekend

Matthew L.M. Fletcher

Here.