tribal courts

Caroline Mayhew in ICT on “VAWA Tribal Provisions and Race Discrimination Arguments”

Matthew L.M. Fletcher2 Comments

Here.

An excerpt:

Interestingly, the prospect of enhanced tribal jurisdiction over non-members has raised the issue of racial discrimination in varied and even competing ways. Two recent statements by members of Congress, both of whom have been important allies in tribal law enforcement efforts including the enactment of the Tribal Law and Order Act, illustrate this point. Following passage of the Senate bill, Senator Jon Kyl of Arizona released a statement claiming that “by subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race,” the tribal jurisdiction provision “would quite plainly violate the Constitution’s guarantees of Equal Protection and Due Process.” Then, during the House Judiciary Committee’s markup of a bill that did not contain the tribal jurisdiction provisions, Representative Darrell Issa of California stated that the lack of such a provision raised questions of race discrimination, since whether an individual will be brought to tribal, state, or federal court for a domestic violence offense under current law depends on whether the defendant is Indian or non-Indian.

While seemingly in opposition to each other, neither one of these statements accurately reflects the current legal and political reality of Indian tribes. Instead, they illustrate how easy it can be for us to slip into a widely employed discourse of race that is not always helpful or relevant in the realm of Indian law and policy. Unfortunately, this mistake can obscure the role that racial discrimination is actually playing in the VAWA reauthorization debate.

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Utah State Judge Sues Ute Tribe to Enjoin Tribal Court Processes

Matthew L.M. Fletcher1 Comment

Here are the materials in Poulson v. Ute Indian Tribe of the Uintah and Ouray Reservation (D. Utah):

Poulson Complaint

Swain v Poulson Tribal Court Complaint

Reed v Dalton Tribal Court Complaint

An excerpt from the judge’s complaint:

This action arises out of the arrests of and/or criminal charges being brought against members of the Ute Indian Tribe by Duchesne County, Utah. As a result of these arrests and/or charges, members of the Ute Indian Tribe persist in bringing actions in the Ute Tribal Court against Duchesne County Deputy Sheriffs, Judges of the Duchesne County Justice Court and other Duchesne County officials and/or employees. By these actions, members of the Ute IndianTribe seek an award of damages for alleged civil rights violations and to enjoin their prosecutions for violations of State and/or local laws.

Ninth Circuit Vacates Sentence of Salt River Member

Matthew L.M. Fletcher

Apparently, the judge who handled his case at trial was absent that day, so they got a substitute judge.

Here is the opinion in United States v. Harris.

Opening Ninth Circuit Brief Grand Canyon Skywalk Case

Matthew L.M. Fletcher1 Comment

Here:

GCSD Opening Brief

Here is our last posting on the district court case.

Update on Skagit County GOP

Matthew L.M. Fletcher1 Comment

More materials here:

Bulletin – 2012 Skagit GOP Plank

Skagit GOP Platform 2012

Our previous posts are here and here and here.

House Barely Passes VAWA Reauthorization (without Tribal jurisdiction provisions)

Matthew L.M. Fletcher4 Comments

Here.

Tenth Circuit Affirms Dismissal of Section 1983 Claim against Navajo Nation and Navajo Courts

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Chavez v. Navajo Nation Tribal Courts.

An excerpt:

The district court dismissed the case for lack of jurisdiction. The court held that Mr. Chavez’s lawsuit against the Tribal officials could not be maintained in federal court under §1983 because all of his challenges to the Tribal officials’ actions relied on Tribal law. See Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006) (“A § 1983 action is unavailable for persons alleging deprivation of constitutional rights under color of tribal law, as opposed to state law.” (internal quotation marks omitted)); see also Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981) (observing that acting under color of state law is “a jurisdictional requisite for a § 1983 action”). Turning to the Tribe, the court held–after noting that Mr. Chavez failed to even address the Navajo Nation’s sovereignty–that Congress had not authorized suit “against tribal entities pursuant to 42 U.S.C. § 1983.” R. at 631. See Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1152 (10th Cir. 2011) (“[A]n Indian tribe is not subject to suit in a federal or state court unless the tribe’s sovereign immunity has been either abrogated by Congress or waived by the tribe.”); E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001) (observing that tribal sovereign immunity “is a matter of subject matter jurisdiction”).
Mr. Chavez appeals.

Briefs and lower court materials are here.

Additional VAWA Reauthorization Materials

Matthew L.M. Fletcher2 Comments

Here is the Administration’s policy statement on the VAWA reauthorization, largely opposition to the House version.

And here is the House Judiciary Committee Report on the H.R. 4970, VAWA Reauthorization (HRPT-112-HR4970cj).  According to the Report, “The justification for why these [tribal] provisions are necessary is also questionable. Proponents of these provisions tout unverifiable statistics about the rate of non-Indian violence against Indian women on Indian land…”

VAWA Reauthorization Bill to be Considered by Rules Committee Today at 5PM

Matthew L.M. Fletcher1 Comment

Here is the House Bill:

BILLS-112-HR4970RH

H.R. 4970, the VAWA reauthorization bill will be considered by the Rules Committee today at 5pm.  The hearing can be viewed at: http://rules.house.gov/Legislation/hearings_details.aspx?NewsID=834

Instead of the three tribal provisions in S. 1925 that would:

  • Provide Indian tribes criminal jurisdiction over domestic violence, dating violence, and violations of protective orders that occur on Indian lands;
  • Provide Indian courts civil jurisdiction to issue and enforce protection orders. Excludes Indian courts in Alaska from that jurisdiction, except with respect to the Metlakatla Indian Community, Annette Islands Reserve.
  • Amend the federal criminal code to increase the maximum federal penalties for assault convictions.

H.R. 4970 (above) instead includes section 905 that authorizes and encourages the Attorney General to appoint U.S. Attorney Tribal Liaisons in each judicial district that includes Indian Country to serve a domestic violence tribal liaison.  The duties of the tribal liaison include:

  • Encouraging and assisting in arrests and Federal prosecution for crimes, including misdemeanor crimes, of domestic violence, dating violence, sexual assault, and stalking that occur in Indian country.
  • Conducting training sessions for tribal law enforcement officers and other individuals and entities responsible for responding to crimes in Indian country to ensure that such officers, individuals, and entities understand their arrest authority over non-Indian offenders.
  • Developing multidisciplinary teams to combat domestic and sexual violence offenses against Indians by non-Indians.
  • Consulting and coordinating with tribal justice officials and victims’ advocates to address any backlog in the prosecution of crimes, including misdemeanor crimes, of domestic violence, dating violence, sexual assault, and stalking that occur in Indian country.
  • Developing working relationships and maintaining communication with tribal leaders, tribal community and victims’ advocates, and tribal justice officials to gather information from, and share appropriate information with, tribal justice officials.