Here:
transcript of proceedings 6-22-12
Exhibits to the Comanche Nation’s Motion to Dismiss filed
Prior materials here.
tribal courts
Tribal Court Materials in Comanche Election and Leadership Dispute
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
Challenge to Federal Prosecution under Double Jeopardy Clause Fails
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)
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
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.
Tenth Circuit Affirms Dismissal of Suit against Kiowa Court of Indian Offenses
The plaintiff wanted the CIO to enjoin his state court prosecution for violation of anti-cockfighting statutes. Here are the materials in Turner v. McGee:
And the briefs after the CA10 appointed counsel for Turner:
And the Tenth Circuit’s opinion.
A related cockfighting case out of the Tenth Circuit, United States v. Langford, holding federal courts had no jurisdiction.
Agamenv LLC v. Lavedure
North Dakota federal district court refrains from issuing a TRO in a dispute between Turtle Mountain Tribal Council, Tribal Court, and gaming company.
Motion to Withdraw TRO-tribal court
New Muscogee (Creek) Nation Supreme Court Website
Here. Includes links to the tribal constitution, code, and cases, as well as the Justices:
Fletcher on NAICJA/Getches’ “Indian Courts and the Future”
I posted my University of Colorado Law Review symposium paper, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited.” Here is the abstract:
This paper comes out of the University of Colorado Law Review’s symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches’ framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. The paper focuses on the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and the equal protection of the law for individuals under tribal government authority is uniquely tied to the legal infrastructure available to the courts. Congress tried to provide the basic framework in the Indian Civil Rights Act, and many of the most successful tribal justice systems have borrowed from ICRA or developed their own indigenous structure to guarantee due process and equal protection. I argue that ICRA is declining in importance as Indian tribes domesticate federal constitutional guarantees by adopting their own structures to guarantee fundamental fairness.
The Colorado Law Library recently archived Indian Courts and the Future and its two appendices (here and here). Check them out. The Indian law portion of the symposium is here.
Hopi Tribe Moves to Dismiss Dish Network Effort to Avoid Tribal Jurisdiction
Here is the motion in Dish Network v. Tewa (D. Ariz.):
The complaint is here.
Turtle Talk 
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