tribal courts

Statement by Navajo Nation Special Prosecutor Regarding Motion to Dismiss Claims against Council Members

Matthew L.M. Fletcher

Here (NN v Benally July 6 2012):

Statement by The Navajo Nation Special Prosecutor Regarding Motion To Dismiss (PDF)

Today the Rothstein firm, which has been acting as the Special Prosecutor of the Navajo Nation since mid-2011, announced the filing of a Motion to Dismiss the civil complaints against Louis Denetsosie, the former attorney general of the Navajo Nation; Harrison Tsosie, the current attorney general; and council delegates Leonard Tsosie and Lorenzo Bates.

According to the Special Prosecutor:

It is important for the Special Prosecutor to clear present and former government officials of charges where the facts and the law do not justify continued legal proceedings.  We are now able to announce that we will not pursue the civil claims filed in July 2011 alleging breach of fiduciary duty against Louis Denetsosie, Harrison Tsosie, Leonard Tsosie, and Lorenzo Bates.

The Special Prosecutor was appointed to investigate claims that Navajo Nation council delegates had misused the discretionary fund program, which was established by the Navajo Nation Council, to provide financial relief to needy constituents.  The Special Prosecutor is also charged with investigating whether former President Joe Shirley acted improperly in connection with the OnSat contract with the Navajo Nation and the Navajo Nation’s guarantee of a JP Morgan Chase loan to BCDS Manufacturing, Inc., a failed Shiprock steel and fiberglass fabrication company.

During the course of investigating these potential claims, the scope of the Special Prosecutor’s jurisdiction was expanded to cover former Attorney General Louis Denetsosie, Attorney General Harrison Tsosie, and the controller of the Navajo Nation, Mark Grant.  In July 2011, the Special Prosecutor brought a civil action for breach of fiduciary duty which included claims against the former and current attorney general.  The complaint alleged that each of the attorneys general had improperly interfered with the Special Prosecutor by approving Navajo Nation funds to hire an attorney for President Joe Shirley and for the president’s chief of staff, Patrick Sandoval.  Former Attorney General Louis Denetsosie was also charged with failing to prevent the Navajo Nation Council from adopting or misusing the Discretionary Fund Program.

After completing a thorough investigation, the Special Prosecutor has concluded that no crimes or misconduct were committed by Louis Denetsosie or Harrison Tsosie, and neither of them violated any civil laws within the jurisdiction of the Special Prosecutor.  In this case, the former attorney general and the current attorney general authorized the use of Navajo Nation funds to retain separate counsel for the president and the chief of staff based upon a determination that this would be in the best interest of the Navajo Nation.  The Navajo Nation is not obligated to provide a defense for an employee or elected official charged with a crime, but there is no prohibition against its doing so.  One can agree, or disagree, with the decision to pay for separate counsel for President Shirley and Chief of Staff Sandoval, but that decision does not constitute a crime or misconduct.

The Special Prosecutor is continuing to investigate the use of the Discretionary Fund Program by council delegates.

We have concluded that a number of council delegates misused the Discretionary Fund Program to improperly benefit close family members.  The Discretionary Fund Program was administered without careful financial controls or oversight.  The few written rules for the program were frequently ignored.

The investigation has revealed two common abuses — First, some council delegates approved grants from the discretionary fund for family members.  The second abuse was more involved.  Council delegate A would approve payments to family members of Council delegate B, while Council delegate B in turn approved payments to family members of Council delegate A.  The abuses of the Discretionary Fund involved large sums of money.  Navajo law specifically prohibits a council delegate from using his or her position to benefit himself and/or his immediate family.

The Special Prosecutor has interviewed a number of witnesses and has reviewed detailed financial records of the Discretionary Fund Program.  A number of council delegates and other witnesses have cooperated in this investigation.  As a result, a number of instances of misuse of discretionary funds have become clearly apparent, and the Special Prosecutor intends to pursue claims arising from those cases vigorously.  At the same time, the Special Prosecutor has concluded that Leonard Tsosie and Lorenzo Bates did not misuse the Discretionary Fund Program.  This conclusion is based on independent records as well as the willingness of Leonard Tsosie and Lorenzo Bates to cooperate fully with the Special Prosecutor.

As a result, the Special Prosecutor has concluded that it is in the best interest of the Navajo Nation to dismiss all claims for breach of fiduciary duty with prejudice against Leonard Tsosie and Lorenzo Bates.

Update in Cherokee Nation v. Nash (Cherokee Freedmen Case)

Matthew L.M. Fletcher2 Comments

Here are new materials filed by the Freedmen and the feds against the Cherokee Nation:

Federal Answer to Amended Complaint

Federal Counterclaim

118-1 Attachment

Freedmen Amended Answer — Counterclaims — Cross Claims

Freedmen Exhibits

News coverage here.

Ninth Circuit Briefs in ICWA Case Involving Washoe Tribe

Matthew L.M. Fletcher1 Comment

Here are the briefs so far in Fred v. Washoe Tribe of Nevada & California:

Washoe Opening Brief

Fred Answer Brief

Lower court materials are here.

Judge Matthew Martin on the Origins of Westernized Tribal Jurisprudence

Matthew L.M. Fletcher1 Comment

EBCI Judge J. Matthew Martin continues his interesting scholarly work in the legal histories of tribal justice systems with “Chief Justice John Martin and the Origins of Westernized Tribal Jurisprudence,” recently published in the Elon Law Review.

From the article:

Judge John Martin created the modern Tribal Court. This template, still in use today, envisions a Court based on notions of jurisprudence easily recognizable to western eyes, yet leavened with aspects of Tribal culture and tradition. The model comprises a Court system that is familiar and dedicated not only to sovereignty, but also to defiance. The significance of the beginnings of the modern Tribal Court has been consistently underestimated, particularly by the Supreme Court of the United States. John Martin’s crucial role in it has largely been forgotten.

More Materials in Comanche Election Dispute

Matthew L.M. Fletcher

Here:

1 – Petition 05.24.12

2 – Request for Expedited Hearing 05.29.12

3 – Notice of Supplement to Petition 06.06.12

4 – Interim Order 06.07.12

10 – Petitioners Response to Motion to Dismiss 06.14.12

11 – Motion for Show Cause Hearing to Determine Coffey and Wa

12 – Notice of Hearing for June 22, 2012 at 10 am 06.15.12

16 – Judgment of Dismissal 06.26.12

Additional Tribal Court Materials in the Comanche Election Dispute

Matthew L.M. Fletcher

Here:

transcript of proceedings 6-22-12

Comanche Motion to Dismiss

Comanche Mtn to Vacate Orders

Exhibits to the Comanche Nation’s Motion to Dismiss filed

Prior materials here.

Tribal Court Materials in Comanche Election and Leadership Dispute

Matthew L.M. Fletcher2 Comments

Here:

Judge Lujan’s verbal decision: Excerpt of Transcript of Proceedings 6-22-12

News coverage: News Article

Motion to Dismiss: Reply re Motion to Dismiss in CFR Court Litigation

Materials in the parallel bank suit are here and here.

Challenge to Federal Prosecution under Double Jeopardy Clause Fails

Matthew L.M. Fletcher

Here is the opinion in United States v. Gatewood (D. Ariz.):

DCT Order Denying Gatewood Motion to Dismiss

An excerpt:

Defendant argues that because the Tribe receives federal funding, regulatory oversight, and law enforcement assistance from the BIA, “it no longer makes sense to maintain the fiction that federal and tribal governments are so separate in their interests that the dual sovereignty doctrine is universally needed to protect one from the other.” (Doc. 137 at 7). Defendant further contends that this cooperation transforms the Tribe from a “dependant sovereign power” into a “political subdivision” of the federal government. Id. at 6.

Although the financial and regulatory relationship between tribal authorities and the federal government may be significant, this mutual cooperation does not create a “de facto divestiture of tribal sovereignty” or rise to the level of collusion necessary to meet the Bartkus exception.

And:

Defendant also claims that “Agent Hawkins assisted the White Mountain Apache Tribal Prosecutor John Major in securing information about the case,” citing activities by Agent Hawkins such as faxing Defendant’s criminal history to the White Mountain Apache Tribal Prosecutor’s Office and his presence at nearly all investigation and interviews after being notified of the allegations. (Doc. 137 at 2). Mere assistance and the sharing of records,  however, is insufficient proof of manipulation or undue coercion by federal authorities. Since Defendant has not provided the Court with specific allegations of coercion or collusion that would justify an evidentiary hearing, Defendant’s request for a hearing is denied.

Legislating in Light of the ideology and Politics of the Super-Legislature (On Obamacare and an Oliphant Fix)

Matthew L.M. Fletcher2 Comments

This week, the Supreme Court likely will strike down the individual mandate of the health care law, and perhaps go so far as to strike the whole thing down. It is telling to hear about how Democratic Congressional leaders never took seriously arguments that the health care law was unconstitutional.

Under the current constitutional law, it IS constitutional. But the Supreme Court can use a vehicle like Obamacare to drastically change constitutional law. That’s how judicial review works. Ideology matters. Politics matters. Elections matter. Only the hardest cases reach the Supreme Court, and those cases are usually cases where prior precedent fails. The vast majority of Americans want Obamacare struck down. It would be shocking if the most conservative Supreme Court in memory DIDN’T strike it down.

Tribal advocates should be feeling deja vu, of course. The Court changes Indian law all the time. Ideology matters here, more than politics (because most Americans couldn’t care less about Indian law).

In the past weeks, during the VAWA Reauthorization and SAVE Native Women Act debates, Dems assumed the constitutionality of a partial Oliphant fix. Under current law, it’s obviously constitutional. But the Supreme Court can change things. And it does, as Indian law observers know.

Harold Monteau pointed out the disingenuity of the Congressional Research Service report asserting the unconstitutionality of a partial Oliphant fix. He was right to do so under the law, but that doesn’t make the report wrong.

If I am right and Obamacare goes down, then the world will know what Indian law observers have known (or should know) for a long while.

TOMORROW, if the health care decision doesn’t come out, why Justice Kennedy’s consent theory of tribal governance may play an important role in the theorizing constitutional limits on the commerce clause.

New Scholarship on Tribal Court Contempt Power over Nonmembers

Matthew L.M. Fletcher

The North Carolina Law Review has published “The Jurisdictional ‘Haze’: An Examination of Tribal Court Contempt Powers Over Non-Indians.”

Here is the abstract:

Recently, in the case of In re Russell, the Cherokee Tribal Court confronted the thorny issue of criminal contempt­. The court ruled that because all courts’ criminal contempt powers are inherent, they fall outside the scope of Oliphant. This Recent Development argues, however, that while imprecise facets of Oliphant and contempt law would make it appropriate for the Cherokee Tribal Court to claim power over summary criminal contempt prosecutions of non-Indians in some circumstances, the court’s blanket decree that criminal contempt is always within a tribal court’s jurisdiction runs counter to current law.

Part I presents the facts of the Cherokee Tribal Court’s order in In re Russell as the backdrop for a discussion of the interplay between contempt law and tribal court jurisdiction. Part II provides a brief overview of tribal criminal court jurisdiction under the Supreme Court’s ruling in Oliphant. Part III surveys the history of contempt law, explaining the sometimes subtle differences between the types of contempt proceedings and how they are jurisdictionally determinative in tribal courts. Part IV applies the principles of Oliphant and contempt law to In re Russell, explaining why the Cherokee Tribal Court stepped beyond its jurisdictional limitations in the case. Part IV concludes by setting forth ways in which tribal courts can, consistent with Oliphant, enforce their authority through their contempt powers.

We will post a PDF of the article once we get it. If, that is.

We do have the order that inspired this article, and it is here.