tribal courts

Navajo Tribal Court Suit against Gallup Diocese: Interesting, Even Strange Supreme Court Implications

October 19, 2011Matthew L.M. Fletcher

As we noted a few weeks ago, the Navajo Nation Supreme Court remanded a suit against the Gallup Diocese. The suit apparently alleges sexual abuse against Catholic priests and others against the plaintiff, a John Doe. The case does not have national importance yet, but it one day could.

Consider a class action suit brought in tribal court against any number of Catholic dioceses around the nation. We could have them here in Michigan in relation to the Holy Childhood school abuses, which are extensive and extensively documented.

Most outsiders would say why not sue in state or federal court, but a significant portion of the claimed abuses would have happened within reservation boundaries, making tribal court jurisdiction an issue. If the torts alleged occurred on church property, then the Montana case becomes the “pathmarking” doctrine. Since the church probably never consented to tribal jurisdiction, what remains is Montana 2 — the so-called health, welfare, political integrity, and economic security exception to the general rule that tribes cannot assert jurisdiction over nonmembers.

A class action successfully proving intergenerational trauma and multiple wrongful deaths could arguably meet the Montana 2 criteria, even in a federal circuit court.

So that raises the specter of Supreme Court review. Seven of the nine Justices, at least right now, are Catholic. Will they have to recuse themselves? Actually, they aren’t required to at all, but will they? I would guess no. It’s one thing to persuade the Court to affirm tribal jurisdiction, but another to persuade the Court to affirm jurisdiction over a Catholic diocese.

I always thought the commentary about the fact that there are so many Catholics on the Court was kind of silly, until I started thinking about this case.

Interesting, and strange.

New Scholarship on the Cherokee SCT Decision re Freedmen

October 17, 2011Matthew L.M. Fletcher

Darryl Omar Freeman has posted “Neo-Colonial Adaptation or Neo-Sovereignty: Oklahoma Cherokee/African Ancestry Freedmen Conflict” on SSRN.

Might want to do some quick fact checking on Ward Churchill’s membership status with United Keetoowah Band.

Commentary: Cherokee Nation SCT Quashes Injunction Issued by Federal Court in Cherokee Freedmen Case

October 12, 2011Matthew L.M. Fletcher3 Comments

Here is a link to the Cherokee court order, via Indianz, and a news article from an informer reader on the issue.

The real question becomes, then, will the vote tally seeming to favor Bill John Baker be sufficient to make irrelevant the votes of the descendants of the Cherokee Freedmen, hopefully mooting this inter-judicial showdown.

I have advocated that tribal courts, in narrow circumstances, should resist federal court orders where the federal court appears to have no other source of jurisdiction but for pure federal common law, such as National Farmers Union. I was thinking, and continue to think, that certain questions of tribal court authority should not concern federal interests — subject areas like tort claims by tribal members against nonmembers who have burned down the entire reservation or tortiously damaged tribal government property and vital materials. But I’d hate to see tribal sovereignty go to the wall to defend the decision of one tribe to clumsily racialize its membership criteria. [I say clumsy because the Dawes rolls are so obviously flawed as to make membership decisions involving the Freedmen with them is negligent at best, and racist at worst.]

The Cherokee Nation Supreme Court could have done what the U.S. Supreme Court has done in circumstances involving international law — defer to the policymaking branches and invoke a form of the political question doctrine. The Court could have simply sat on the case until the dust settled. In fact, it appears both the Nation and the Freedmen descendants asked them to do so. Cherokee already lost millions in HUD money. The tribal court isn’t doing much to alleviate this dispute, and appears to be inflaming it even more.

Yakama Tribe’s Efforts to Obtain Retrocession Under P.L. 280

October 11, 2011Ann Tweedy

Here’s a news article about the Yakama Tribe’s ongoing efforts to obtain retrocession of state jurisdiction under P.L. 280.

Malaterre v. Amerind Risk Management Cert Petition — Section 17 Corporation Immunity

October 7, 2011Matthew L.M. Fletcher2 Comments

Here is the petition:

Malaterre Cert Petition

And the questions presented:

Whether a tribal business corporation formed pursuant to 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities may properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units.

Lower court materials here.

And for good measure, the Federal Reporter 3d version of the lower court opinion:

Amerind v. Malaterre, 633 F.3d 680 (CA8 2011)

Self-Government For Mi’kmaq in Nova Scotia?

October 6, 2011October 6, 2011Peter Scott Vicaire

CTV recently released (October 4) a tiny story on what could be a monolithic advancement for the Mi’kmaq of Nova Scotia, and in turn for aboriginals throughout Canada. Here’s the story. However, be forewarned, this small piece, not even 200 words, barely offers any substance and reads more like an Onion article (“[O]ne of the most pressing details to work out for the Mi’kmaq is to find a place to put a House of Assembly”). And perhaps tellingly, Federal Aboriginal Affairs and Northern Development Minister John Duncan would not offer comment on it. Curioser and curioser. Stay tuned…

Congress Approves Tribal Court Improvement Program

October 5, 2011Matthew L.M. Fletcher

From the National Council of Juvenile and Family Court Judges:

The President signed the Child and Family Services Improvement and Innovation Act on Friday with authorizes Court Improvement Program (CIP) funding and includes Tribal Court Improvement funding! The Court Improvement funding is to support states and tribes in actions to:

“increase and improve engagement of the entire family in court processes relating to child welfare, family preservation, family reunification, and adoption.”.

Here’s the portion specifically related to tribes. (See pages 7-8 of the Act here)

”(3) ALLOCATION OF FUNDS.- ”(A) MANDATORY FUNDS.-Of the amounts reserved

under section 436(b)(2) for any fiscal year, the Secretary shall allocate-

”(iv) $1,000,000 for grants to be awarded on a

competitive basis among the highest courts of Indian tribes or tribal consortia that-H. R. 2883-8

”(I) are operating a program under part E, in accordance with section 479B;

”(II) are seeking to operate a program under part E and have received an implementation grant under section 476; or

”(III) has a court responsible for proceedings related to foster care or adoption.

We will send any updates as we hear further information about this exciting opportunity for tribal courts!

Update in Columbe v. Rosebud Sioux Tribe

September 27, 2011Matthew L.M. Fletcher2 Comments

The court has dismissed the plaintiff’s claims that were not appealed to the tribal appellate court for failure to exhaust tribal remedies. Other claims remain extant due to a waiver of immunity.

Here are the materials:

DCT Granting Motion to Dismiss in Part

RST Supplemental Memorandum

RST 2d Supplemental Memorandum

Columbe Affidavit

Prior materials are here.

Navajo Judicial Branch Press Release Opposing Changes to Judicial Qualifications

September 26, 2011Matthew L.M. Fletcher

Here is the press release: 92311_ProposaltoAmendQualificationsofNavajoNationJusticeMayUn.

And here are links to other responses to the proposal, including comments by Dr. Raymond Austin, former Navajo Supreme Court Justice, from the judicial branch website:

September 23, 2011: The Judicial Branch has issued its comments on proposed amendments to the qualifications of Navajo Nation Supreme Court justices at 7 N.N.C. § 354 (B) that were submitted last week to the Navajo Nation Council legislative process through Legislation No. 0388-11. Chief Justice Yazzie and branch Human Resources Director Darren Tungovia commented separately, expressing concerns about the candidate pool and the consequences on Supreme Court’s ability to continue to be a leader in tribal court adjudication rather than in “a borrowed state or federal system in which our culture is merely anthropological speculation.” Late Friday, Asso. Justice Emeritus Raymond Austin also submitted comments. See press release.

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