tribal courts

Agenda for Harvard Law School Tribal Courts Symposium — This Thursday and Friday

Matthew L.M. Fletcher

Tribal Courts and the Federal System

Cambridge, MA

November 8th and 9th, 2012

Tribal Courts and Criminal Law: Assessing the Work of the Tribal Law and Order Commission

November 8, 2012

8:30–8:45 am              Introductions and Overview of Conference

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:30 am              Introducing the Work of the Tribal Law and Order Commission (TLOC)

Commission Chairman Troy Eid

9:30–11:30 am                        Improving Criminal Law Enforcement in Indian Country

Professor Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Honorable Theresa Pouley, Tulalip Tribal Court and TLOC Commissioner; Kristen Carpenter, Professor, University of Colorado School of Law

What are the major issues that arise in adjudication of crimes covered by the Major Crimes Act and Indian Country Crimes Act?  What is the relationship between tribal and state authorities in jurisdictions where Congress has authorized state criminal jurisdiction within Indian country?  Who is an Indian for federal criminal jurisdiction purposes?

11:30 am–12:15 pm    Break

12:15–1:45 pm                        Lunch and Keynote Address

Honorable Kevin Washburn, Assistant Secretary for Indian Affairs, U.S. Department of the Interior

2:00–3:30 pm              Tribal Criminal Jurisdiction:  Theory and Practice

Angela Riley, Professor of Law, UCLA; Professor Ron Whitener, University of Washington Public Defense Clinic; Anita Fineday, Annie E. Casey Foundation (former White Earth Tribal Judge)

What are the major jurisdictional issues that tribal courts confront?  How do tribal courts approach sentencing alternatives?  What should be the long-term plan for strengthening tribal courts?  What is being done to provide defense for indigent defendants?

3:30–3:45 pm              Break

3:45–5:00 pm              Intergovernmental Cooperation Among Tribes, States, and the United States

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law School and Professor of Law, University of Washington School of Law; Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Wenona Singel, Associate Professor of Law, Michigan State University

What are the legal and practical relationships between federal, state, and tribal courts and law enforcement officials in the area of criminal law?  What are the opportunities for retrocession at the state level to return criminal jurisdiction to Indian tribes and the federal government?  How can cooperative public safety agreements be a solution to jurisdictional complications in Indian Country?

Tribal Civil Jurisdiction and Sources of Tribal Law

November 9

8:30–8:45 am              Introductions and Overview of Day 2

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:45 am              Tribal Civil Jurisdiction

Judge William C. Canby, Jr., Ninth Circuit Court of Appeals

9:45–10:15 am                        Break

10:15–11:45 am                      Tribal Civil Law Development

Judge Michael Petoskey, Pokagon Band of Potawatomi Indians; Professor Matthew Fletcher, Michigan State School of Law; Julie Kane, General Counsel, Nez Perce Tribe; Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

How do tribal courts approach the task of developing common law?  To what extent do they focus on tribal norms and to what extent do they borrow from state or federal law?  How do tribal courts understand their relationship to tribal councils or other legislative bodies?  How do tribal courts relate to tribal executives?

11:45 am–12:00 pm    Break

12:00–1:30 pm                        Lunch and Closing Address

Honorable Hilary Tompkins, Solicitor, U.S. Department of the Interior, Washington, D.C., The Importance of Tribal Courts in the Federal System

Materials (so far) in Tribal Court Jurisdiction Matter involving Tort Claim against On-Reservation Public School

Matthew L.M. Fletcher3 Comments

Here are the materials in Fort Yates Public School District #4 v. Murphy (D. N.D.):

Fort Yates School District TRO Brief

DCT OrderGrantingTRO-23Oct12

Murphy Motion to Dismiss

Standing Rock Sioux Tribe Amicus Brief

Tribal court materials:

Fort Yates School District Tribal Court Motion to Dismiss

SRST Tribal Court Opinion

 

ICRA Habeas Claim re: Lummi ICW Case Dismissed

Matthew L.M. Fletcher2 Comments

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

Jones Habeas Petition Memorandum

Jones Reponse to Show Cause Order

R&R Recommending Jones Complaint Dismissal

DCT Order Dismissing Jones Complaint

 

Navajo Nation SCT Defines Customary Adoption in Family Law Case

Matthew L.M. Fletcher

Here is the opinion in James v. Window Rock Family Court.

Here is the court’s syllabus:

The Court grants James’ petition for writ of mandamus where James’ adoption filing was not acted on by the family court for several months. The writ compels the timely processing of cases within statutory and rule-based timeframes and emphasizes the responsibilities of the Court Administrator. The Court also addressed the family court’s erroneous interpretation of the adoption statute, which the family court interpreted as requiring a separate petition for termination of parental rights (TPRs) to be filed when an adoption is sought.  Clarifying that the Navajo Nation favors formal adoptions with TPRs only in cases of child abuse or neglect, the Court stated that the recent Alchíní bi Beehaz’áanii Act emphasizes that “customary adoptions” must be considered before all other options, including TPR as a last resort.  As the Act does not define customary adoptions, the Court provides the definition in this opinion.

 

Federal Court Orders DISH Network to Exhaust Tribal Remedies in Challenge to Tribal Regulatory Authority

Matthew L.M. Fletcher1 Comment

Here is the order in DISH Network v. Tewa (D. Ariz.):

DCT Order in DISH v Tewa

Briefs are here.

FBA Announcement — Indian Law Section Members May View Nov. 8-9, 2012 Harvard Law School Indian Law Conference Online

Matthew L.M. Fletcher2 Comments

More details on the Harvard conference here (HLS Conference Schedule FINAL)

From the FBA:

Dear Indian Law Section Members:

It is with great pleasure that we announce to you a new, free program offering from the Federal Bar Association. Indian Law Section member Professor Robert Anderson, currently serving as the Oneida Nation Visiting Professor at Harvard Law School, has put together a fantastic two-day conference on Tribal Courts and the Federal System. The conference is set to take place in Cambridge, Massachusetts November 8 and 9, 2012, and features a number of tribal leaders and prominent Indian Law scholars and policy-makers. As a service to our members, the Indian Law Section is sponsoring live-streaming of this event via our website at www.fedbar.org. Indian Law Section members will be able to enjoy the entirety of the two-day conference free via the internet broadcast.

A full conference agenda is attached, and also pasted below. This conference will bring together tribal judges and attorneys, tribal, state, and federal government policymakers, and scholars to explore issues Indian tribal courts currently face in criminal and civil enforcement, jurisdiction, and lawmaking. The first of its kind at Harvard Law School, the conference promises to provide expert dialogue on the latest developments in tribal civil and criminal jurisdiction and to increase awareness within the legal community of the unique place of tribal courts in the federal system.

During the first day, the conference will focus upon the work of the Tribal Law and Order Commission, which Congress established in the Tribal Law and Order Act of 2010. Because the Commission’s work focuses upon criminal jurisdiction, the panels on the first day will address criminal law enforcement in Indian Country, tribal criminal jurisdiction, and intergovernmental cooperation in criminal enforcement. We are fortunate to have the new Assistant Secretary for Indian Affairs, Kevin Washburn, to provide the keynote address. The second day will turn to tribal civil jurisdiction, with a half-day session on the federal common law rules affecting tribal adjudicatory and regulatory authority as well as a discussion of tribal lawmaking. The conference closes with an address from the Honorable Hilary Tompkins, Solicitor, U.S. Department of the Interior.

The conference will be an opportunity for tribal judges, attorneys, and officials to meet with federal and state judges and officials as well as academics for focused discussions of pressing issues in tribal civil and criminal theory and practice. We are delighted to be able to make this conference accessible to our membership around the country.

To access the live-streaming broadcast on the day of the event, Indian Law Section members should please visit http://www.fedbar.org/TribalCourts2012. Pre-registration is not necessary for this event. If you require assistance with your Section log-in credentials, please contact Sherwin Valerio at svalerio@fedbar.org.

This conference event replaces, on a trial basis, our annual D.C. Indian Law Conference, which we have traditionally offered in November. We are hopeful that our Section members will find this conference thought-provoking and meaningful and will also enjoy the opportunity to take advantage of this great programming from the comfort of your own homes or offices. Please do not hesitate to contact me if you have any questions or concerns.

Best,

Jennifer Weddle, Indian Law Section Chair

Bravo!!!!

DOJ Grants Federal Law Enforcement Commission to Tigua Tribal Police

Matthew L.M. Fletcher

Here is the article.

An excerpt:

The U.S. solicitor general granted the Tigua Police Department a special law enforcement commission to apprehend potential felons, where before they would have to rely on Soccorro or El Paso PD to investigate a crime, and and could only hope justice would be served. Tribal Police Chief Raul Candelaria, Celina’s uncle, says not being able to protect the Pueblo made him feel like 2nd class citizens.

“El Paso has encroached on the land of the res, and now a lot of the indians living on the pueblo are married to non-indians,” said Chief Candelaria. “We also have visitors coming into the reservation that are non-indian and unfortunately we cannot enforce any penalty or law on them.”
The new law enforcement recognition though, changes that for the ten officers that make up the tribal police department.

“Now we have the ability to enforce our own laws, tribal laws and US laws,” Chief Candelaria said, and for Officers like Celina Candelaria, the power to protect their people.

“Now any crime that’s under the felony list, we can actually go ahead and convict them of that,” Candelaria said.

Chief Candelaria tells ABC-7 domestic violence, rape, drug abuse and theft are the most common non-native crimes on the reservation, and the ones tribal police will be pursuing.

Federal Court Denies Motion to Remand Serial DV Case to Tribal Court

Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Pego (E.D. Mich.):

DCT Order Denying Motion

Pego Indictment

Pego Superceding Indictment

US Opposition to Pego Motion

 

News Profile of Tulalip Tribal Judiciary

Matthew L.M. Fletcher

Here.

An excerpt:

Today, the judges that preside over the Tulalip Tribal Court are provided by the Northwest Intertribal Court System and aren’t tribal employees, Taylor said. The judges, Theresa Pouley and Gary Bass, both members of the Colville Confederated Tribes, have decades of legal and judicial experience.

Pouley, the Tulalips’ chief judge, is president of the Northwest Tribal Court Judges Association. She also formerly served on the board of directors for the National American Indian Court Judges Association. She’s provided testimony to the U.S. Senate Committee on Indian Affairs and last year was appointed to the federal Indian Law and Order Commission.

In remarks to the U.S. Senate in 2008, Pouley said, “No government has a greater stake in effective criminal justice system in Indian Country than the tribes themselves.”

The Tulalip Tribal Court’s expansion has been significant since 2001. That’s when the Tulalips successfully petitioned the state and federal governments to return law enforcement powers on the reservation to the tribes and federal authorities. The retrocession cleared the way for the Tulalips to create their own police force to oversee public safety on the reservation.

Ninth Circuit Oral Argument Audio in Grand Canyon Skywalk — UPDATE

Matthew L.M. Fletcher1 Comment

Here.

News coverage from WaPo. More detail from HuffPo.

I will note that at the end of oral argument one of the Ninth Circuit judges found part of the Grand Canyon Skywalk Development LLC’s opening brief “offensive,” “histrionic,” and “vituperative.” There was a “big frown face on the opening brief.” Lots of frustration in this case.