Here is the article, via Pechanga.
tribal courts
US Motion for Reconsideration in Remand to Makah Tribal Court of Federal Trespass Case
Here is the underlying order, in which the federal court remanded a federal government effort to prosecute trespass on an Indian allotment to the Makah Tribal Court.
The government, extremely unwilling to go to tribal court, seeks reconsideration of the federal court order. Here are the materials:
US Motion for Reconsideration in Ray
Ray Opposition to Motion for Reconsideration
The government brief concludes with this unfortunate (unusual) footnote:
Not insignificantly, the United States also asks this Court to consider the practical effect of its Order. If its Order stands, to protect trust property on Indian land, government attorneys — currently required only to have an active membership in one bar — potentially will have to join the 25 tribal bars in the Western District of Washington and learn 25 different rules of court procedure. Even a cursory review of the tribal codes for these tribes shows that this would be no small feat. As a 1992 tribal court procedural handbook for federally-recognized tribes in Washington State states, “fundamental differences are evident. First there is no consistency between the courts from tribe to tribe. Each tribe operates its own courts using its own code and procedures. Thus, a practitioner must be familiar with the unique scope and procedures of each tribal court in which she practices.” Ralph Johnson & Rachael Paschal, Tribal Court Handbook for the 26 Federally Recognized Tribes in Washington State at I (2d ed., 1992) (available at http:// http://www.msaj.com/papers/handbook.htm). Imposing such requirements on government attorneys will impact materially and adversely the federal government’s ability to exercise its trust responsibilities and protect trust lands.
Just to help out the government, here is a tribal court directory, available on the Washington courts website.
And here is the Makah tribal court code.
Eighth Circuit Briefing in Alltel v. Oglala Sioux Tribe
Long Term Plan to Build and Enhance Tribal Justice Systems
Earlier this month the DOI and DOJ released the Long Term Plan to Build and Enhance Tribal Justice Systems. An excerpt:
Central Themes of the Tribal Justice Plan
The following major themes emerged from consultation and public comment:
- Establishing alternatives to incarceration should be the major focus.
- The Tribal Justice Plan should be implemented in consultation and collaboration with Tribal Leaders and should be flexible enough to allow tribes to develop strategies tailored to their specific public safety needs and tribal history and culture.
- The Tribal Justice Plan should coordinate federal, tribal, state and local government resources to support operations, programming in tribal justice systems, and critical infrastructure issues with tribal correctional facilities, fully mindful of the sovereign status of tribes in these coordination efforts.
- There should be greater coordination between DOJ and DOI with respect to awards for grants that may be used to construct tribal correctional facilities and multi-purpose justice centers (which may be provided by DOJ) and P.L. 93-638 contracts and self-governance compacts for funding operations (provided only by DOI). The Departments are committed to addressing the issue of coordination to address this and other issues related to detention in Indian country.
Additional links can be found at NCAI.
Treaty Rights and the Cherokee Freedmen Decision
This isn’t a post on the merits of the Freedmen case, but instead a rumination about the import of U.S.–tribal treaty rights in tribal courts. Generally, do treaty rights have legal import in tribal court?
My reading of the Nash case (here) is that anyone claiming to assert treaty rights against an Indian tribe who was a party to the treaty may be foreclosed from bringing those claims without the presence of the United States (the other party to the treaty) as a party to the litigation. If that reading has broad implications for Indian treaties, then no treaty right could effectively be litigated in tribal court without the presence of the United States. An odd result, to be sure.
This isn’t a purely academic question. A few years back, the Ninth Circuit wondered why it was still deciding treaty rights subproceedings in United States v. Washington that don’t involve either the United States or Washington, or really any of the underlying issues about the treaty right. Many of the cases are intertribal conflicts. There may be an intertribal court for the Puget Sound treaty tribes someday, all without the presence of the United States. And properly so.
This all suggests the United States doesn’t need to be a party to treaty rights litigation in every case.
Cherokee Supreme Court Dismisses Challenge to Cherokee Freedmen Disenfranchisement
Here is the opinion in Cherokee Nation Registrar v. Nash (h/t Indianz):
SC-11-02 15-Opinion CN Registrar v Nash
And the relevant briefs:
Federal Court Holds Sac and Fox Tribal Court Has No Jurisdiction over Conversion Claims against API
This arises out of the remand from the Eighth Circuit (the SCT eventually denied cert) in Attorney’s Processes and Investigation Services v. Sac and Fox Tribe (N.D. Iowa):
On Justice Alito’s Visit to Pine Ridge
Of course, too much will be read into this. The last time this happened, when Justices Breyer and O’Connor visiting the Spokane and Navajo tribal courts at the behest of NAICJA, it was part of a program that culminated in a symposium at the National Judicial College. Justice Alito’s visit did not seem to have the same educational focus, but is a very good thing anyway. The more the Supreme Court Justices know, the better.
Thanks to Peter Vicaire’s Supreme Court “report card,” we know that Justice O’Connor sat in on eight Indian law cases after her visit. She voted in favor of tribal interests in five of those cases (Chickasaw, Navajo, White Mountain Apache, Lara, and Cherokee Nation v. Leavitt), and against three times (Inyo County, Sherrill, and Wagnon). As a swing Justice, her vote was significant — tribal interests won three of the five cases in which SOC voted in their favor, and lost all three in which she didn’t. Prior to the July 2001 visit, she voted in favor of tribal interests in 9 out of 39 cases (23 percent).
Justice Breyer has voted in favor of tribal interests in only 4 of 13 cases since July 2001 (31 percent), a markedly worse record than SOC’s post-visit record. His positive votes were in White Mountain, Lara, Cherokee Nation, and Plains Commerce Bank (tribal interests won three of those). His negative votes were in Chickasaw, Navajo, Sherrill, Wagnon, Carcieri, Hawaii, Navajo II, Tohono O’odham, and Jicarilla (tribal interests lost all of these cases; none of them were even close). His pre-visit record was about the same, maybe a little better — 5 out of 19 (26 percent). His most interesting vote was in Plains Commerce, where he added a fourth vote in a tribal court jurisdiction case. Maybe his improved knowledge about tribal courts played a role? His opinion in Carcieri was a nice touch as well, an effort to limit the import of the outcome.
All in all, the track record of any Justice isn’t going to change a whole lot unless the kinds of cases changes. We keep seeing the same kinds of claims — demands for immunity from state taxation, suits for money damages against the United States, and the like. Yes, the facts of the cases are incredibly compelling, and demand real justice (at least the claims against bad actor governments), but they’re losers more often than not in Supreme Court no matter who you are (the lower courts is another matter). The only winning cases are treaty rights and statutory interpretation cases, and even those are just toss-ups (but even toss-ups sound good, don’t they?).
In the future, tribes asserting a kind of progressive, creative, and necessary kind of sovereignty are going to win in the Supreme Court. Visits by Justices to Indian country to learn about tribal law enforcement will give them something useful to think about when presented with claims about how it is almost impossible for the feds to prosecute non-Indian violent crime. Visits to learn about Indian schools (like Red Cloud) and tribal governance overall are helpful now, too (and isn’t there a self-governance cert petition pending right now??!?!). Learning about how every dime of the profits of tribal enterprises goes to fund Indian education, public safety, housing, jobs, etc. (and not to individual per caps, for example) might be persuasive in a sovereign immunity case or something.
So Justice Alito’s visit might be illuminating for him, give him and his colleagues needed context, but only in the right cases.
Parties Ordered to Produce Contract Provision that Will Determine Whether Rosebud Sioux Tribe Waived Immunity in Federal Court
Here are the materials in Colombe v. Rosebud Sioux Tribe (D. S.D.), a convoluted case originating in tribal court on whether the tribal court can pierce the corporate veil of a former gaming management partner of the Tribe:
Saginaw Chippewa Disenrollment Effort Begins Anew
Here is the news article, via Pechanga. And here is an excerpt:
The “D” word has again surfaced on the Isabella Reservation: Disenrollment.
The Saginaw Chippewa Indian Tribe’s Office of Administrative Hearings last week conducted the first hearing in several years into the possibility of removing a current member from the rolls. No decision was reached.
The case involves an 87-year-old elder who lives in Pennsylvania. Anna Bell Atwood. She became a member of the Tribe in 1988 during the Tribe’s open enrollment period, a time when the Tribe reached out to Natives who might qualify to become members.
Since that time, Tribal membership has become extremely valuable. Members qualify for numerous benefits, including per-capita payments of several thousand dollars per month based on income from the Soaring Eagle Casino & Resort, free health care and other perks.
But a high birth rate has caused membership in the Tribe to grow rapidly. At the same time, the economic downtown has cut into the Tribe’s income.
Tribal attorney Shawn Frank admitted during the hearing that a change in the makeup of the Tribal Council had put the disenrollment issue back into the spotlight.
Turtle Talk 
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