Here are the materials:
Prior materials on the request for TRO are here.
tribal courts
Supreme Court Denies Cert in Shavanaux
As expected, given the denial in Cavanaugh. Here is today’s order (Shavanaux is on page 4).
Here is our post on this question — how (and whether) federal courts may use uncounseled tribal court convictions for sentencing purposes. The cert petitions are here. OSG doesn’t publish cert opps for unpaid petitions, so if anyone has them, please send along.
Public Radio Coverage of Grand Canyon Skywalk Controversy
An excerpt:
The Hualapai council members say the unfinished site is an embarrassment to the tribe, which approved the project despite some internal objections about building on land roughly 30 miles from a place central to the Hualapai creation story. Traditional tribal belief places man’s origin on Hualapai lands.
“I believe the canyon is a sacred place. The Hualapai look at is as a church. Why take trash and throw it in the church. I voted against it,” said Philip Bravo, a former council member. “What does the tribe have out there? A half-finished building.”
Angry at the developer, the tribe passed an ordinance last year creating a legal path to effectively cancel the developer’s contract through the sovereign right of eminent domain.
The tribe set compensation for the seizure at $11.4 million, a sum they said represents the fair value of a project that the Las Vegas-based developer says is worth over $100 million.
“They took everything. And then the tribal court issued an order that we were trespassers if we were even there. You do understand this is like Hugo Chavez’s Venezuela, don’t you?” said Troy Eid, a lawyer for the Grand Canyon Skywalk Development Corporation, which built the skywalk.
There is little doubt that tribes can legally seize property for the public good, much like a state or the federal government. But by seizing a non-tangible asset of a non-Indian company as a way to escape a contentious business deal, the tribe may have stepped into untested waters.
“I think on first glance the tribe is exercising a power that they have. Whether they are exercising it wisely is a different question,” said Addie Rolnick, an expert in Indian law at the University of Nevada at Las Vegas.
Western Mohegan Bankruptcy Petition
Petition for Bankruptcy filed in the U.S. Bankruptcy Court, Northern District of Illinois.
WSJ on Bankruptcy and Indian Tribes (In Light of W. Mohegan Bankruptcy)
Here.
Fletcher on Free Speech and Tribal Law
My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.
Here is the abstract:
Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.
In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?
Ninth Circuit Reverses Dismissal of Effort to Avoid Navajo Jurisdiction — UPDATED with Briefs
Here is the opinion in Salt River Project v. Lee.
Lower court materials here.
More materials later.
Update — here are the briefs:
NYTs Coverage of the Politics of the VAWA Reauthorization
Here. An excerpt or two:
Democrats, confident they have the political upper hand with women, insist that Republican opposition falls into a larger picture of insensitivity toward women that has progressed from abortion fights to contraception to preventive health care coverage — and now to domestic violence.
“I am furious,” said Senator Maria Cantwell, Democrat of Washington. “We’re mad, and we’re tired of it.”
And:
The legislation would continue existing grant programs to local law enforcement and battered women shelters, but would expand efforts to reach Indian tribes and rural areas. It would increase the availability of free legal assistance to victims of domestic violence, extend the definition of violence against women to include stalking, and provide training for civil and criminal court personnel to deal with families with a history of violence. It would also allow more battered illegal immigrants to claim temporary visas, and would include same-sex couples in programs for domestic violence.
Federal Court Rejects Removal of Tribal Court Case; Remands to Tribal Court
Here are the materials in Northern Arapaho Tribe v. Star Trucking (D. Wyo.):
Star Trucking Notice of Removal (includes tribal court complaint)
Kristen Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law
Kristen Carpenter has published her essay, “Individual Religious Freedoms in American Indian Tribal Constitutional Law” in our new book, The Indian Civil Rights Act at Forty (UCLA American Indian Studies Center Publications 2012). It is available on SSRN.
Here is the abstract:
Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.
Turtle Talk 
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