tribal courts

Utah SCT Dismisses Navajo ICWA Tribal Court Transfer Denial Suit as Moot

Matthew L.M. Fletcher

Here is the opinion:

AdoptLO1223041312

An excerpt:

This case involves a dispute over the Division of Child and Family Services’ (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation’s direct appeal of the juvenile court’s denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation’s consent to the child’s adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.

 

 

Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction

Matthew L.M. Fletcher

Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.

Here is Paul’s abstract:

The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.

Alaska Native Regional Corporation Seeks Injunction Against Karluk Tribal Court Judge and Tribal Attorney

Adrea Korthase4 Comments

Story from Courthouse News Service is here.

Koniag Complaint.

Eastern Cherokee Vote Down Alcohol Ordinance

Matthew L.M. Fletcher

Here is the news coverage, via Pechanga.

And the tribal court opinion rejecting the challenge the vote, which was negative anyway.

VAWA Reauthorization Bill Close to Senate Floor Vote

Matthew L.M. Fletcher

Here is the Congressional report that accompanies the bill —

VAWA S 1925 Report

Federal Court Allows Pueblo of Santa Ana’s Challenge to N.M. Gaming Compact’s Jurisdiction Shifting Provisions to Proceed

Matthew L.M. Fletcher2 Comments

Here are the materials in Pueblo of Santa Ana v. Nash (D. N.M.):

Memo Opinion

Party Defendants Motion to Dismiss

Judge Nash Motion to Dismiss

Response to Party Defendants

Response to Judge Nash

Party Defendants Reply

Judge Nash Reply

Here are the materials in the state supreme court decision that is the subject of this challenge.

Corrected Opinion in Alltel v. DeJordy

Matthew L.M. Fletcher

Here:

ALLTEL V. DEJORDY – CORRECTED OPINION

Federal Court Decides Tribal Court Exhaustion Case Involving Blue Lake Rancheria Tribal Court

Matthew L.M. Fletcher

Here are the materials in Admiral Insurance Co. v. Blue Lake Tribal Court (N.D. Cal.):

Admiral Renewed Motion for TRO

Blue Lake Tribal Court Opposition

Wood’s Roofing Opposition

DCT Order Denying Admiral Renewed TRO Motion

Materials on Admiral’s prior attempt to secure a TRO are here.

Paul Spruhan on the Meaning of Due Process at Navajo

Matthew L.M. Fletcher

Paul Spruhan (Navajo DOJ) has posted his chapter, “The Meaning of Due Process in the Navajo Nation.” This is a chapter from “The Indian Civil Rights Act at Forty.”

Here is the abstract:

The article is a contribution to the Indian Civil Rights Act at Forty, and describes the Navajo Nation’s approach to the concept of due process under the Indian Civil Rights Act and the Navajo Bill of Rights. It traces the evolution of the Navajo Supreme Court’s views on due process from direct application of federal definitions to the development of a unique Navajo doctrine informed by federal constitutional doctrine, but ultimately reflecting Navajo values of fairness. Based on the discussion of the development of Navajo due process, the article suggests the Navajo Nation’s approach in synthesizing federal doctrine with tribal values can be a model for other tribes grappling with developing modern court systems that emphasize jurisprudential sovereignty through the development and application of unique tribal law.

Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act

Matthew L.M. Fletcher

Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.

Here is the abstract:

This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.

Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.