tribal courts – Page 155

Navajo Supreme Court Issues Opinion on Informal Methods of Deciding Divorce Cases

August 4, 2011Matthew L.M. Fletcher

Here is the opinion in Manning v. Abeita.

The court’s summary:

In this appeal of a divorce action in which the husband objected to the judge using informal methods in deciding his divorce, the Court sets forth the premises under which informal methods are permissible under the Rules of Civil Procedure, and affirms in part, reverses in part, and remands on limited issues.

An excerpt from the opinion, which largely deals with when trial judges may dispense with the formal rules of civil procedure:

We have rule-based and traditional Diné dispute resolution methods in our courts. We encourage the use of traditional methods, especially in family matters. The family is the core of Navajo society. Davis v. Means, 7 Nav. R. 100, 103 (Nav. Sup. Ct. 1994). We have stated: “The eternal fire burning in the center of the hogan is testament that the family is central to Navajo culture and will remain so in perpetuity.” Id. However, in today’s society, a court session cannot be turned into a peacemaking session without warning and consent.

In this case, the trial judge dispensed with formal rules and convened a single Final Hearing, followed by a brief supplemental hearing, to collect information, seek stipulations, and dispose of all non-stipulated issues in regard to the parties’ divorce. Essentially, the judge failed to follow a properly structured process in the use of two very different methods of dispute resolution. In our dual-culture courts, our rules require there must be observed the two stages:
(1) the pretrial conference wherein settlement is facilitated and horizontal decision-making is encouraged using informal methods, including Diné traditional methods; and (2) the trial phase.

The Navajo Rules of Civil Procedure do not provide judges the authority to truncate proceedings in the manner shown in this case, especially when a matter involves pro se parties. Because the judge did not use efforts to distinguish the two stages, we find that this was his error, arising to an abuse of discretion. We hold that a court must maintain the distinction between pretrial and trial hearings. If courts maintain this distinction, then the use of traditional methods in our court system will work.

BIA Tribal Court Trial Advocacy Training

August 3, 2011Matthew L.M. Fletcher

Flyer and details here:

TribalCourtTrialAdvocacyTrainingProgram2011

Navajo Supreme Court Decides Navajo Sovereign Immunity Act Case

July 31, 2011July 29, 2011Matthew L.M. Fletcher

The caption is Begay v. Navajo Engineering & Construction Authority and the Navajo Nation. The opinion is here.

Here is the court’s summary:

In this appeal of a district court’s dismissal of a tort action for failure to state a claim upon which relief may be granted, the Court affirms the dismissal on jurisdictional grounds and emphasizes that trial courts must first find jurisdiction before making substantive rulings.

Tenth Circuit Vacates Sentence (Again) in Major Crimes Act Conviction

July 29, 2011Matthew L.M. Fletcher

Here is the opinion in United States v. Lente.

Here is our prior post on the case, which at one time turned on the import of prior tribal court DUI convictions. Here is our post on the prior CA10 opinion.

Ho-Chunk Nation Trial Court Grants One and Denies One Petition to Access Gaming Per Cap Trust Fund

July 29, 2011July 29, 2011Matthew L.M. Fletcher

Here is the opinion granting a petition, In the Interest of Adult CTF Beneficiary: Joan M. Frank, DOB 03/27/1990 v. HCN Office of Tribal Enrollment, and here is the one denying a petition, In the Interest of Adult CTF Beneficiary: Tasha Hand, DOB 08/07/1988 v. HCN Office of Tribal Enrollment.

Tribal Court Training Programs Announcement — UNM and American Indian Law Center — Sept. 12-14, 2011

July 28, 2011Matthew L.M. Fletcher

Here is the flyer:

TCTraining – SavetheDate – Sept 12-14 – Admin-Clerks with Reg

Wisconsin Supreme Court Narrowly Reaffirms Discretionary Transfer Statute (Former Teague Protocol)

July 28, 2011Matthew L.M. Fletcher

Here is that order, with a 3-judge dissent: 7-11B.

Justice Roggensack’s dissent repeats her earlier dissent, and seems to focus on this major point:

I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.

She repeats this paragraph at the end of the dissent. And more:

Prior to the creation of Wis. Stat. § 801.54, all litigants who satisfied the statutory provisions for jurisdiction in Wisconsin courts had a statutory right to avail themselves of the Wisconsin court system. See Wis. Stat. § 801.04. Wisconsin’s open courthouse doors provide a significant, substantive right for tribal members as well as nonmembers. However, since § 801.54 has become effective, the courthouse doors of Wisconsin have been closed to some litigants, both tribal members and nonmembers.

Oddly, she seems to see no import of the “discretionary” aspect of the transfer rule, or the fact that the rule rightfully gives credence, for the first time in Wisconsin, to the property rights of tribes and tribal members.

Discretionary transfers, as far as I can tell, so far, are Indian child welfare cases mostly. There has been one tort/contract case to have reached the Wisconsin Court of Appeals. Other than Justice Roggensack, and likely people just generally opposed to Indian tribes, no one has a constitutional complaint. Would like to hear more if there is any useful material to digest.

More on Uncounseled Tribal Court Convictions

July 27, 2011Matthew L.M. Fletcher3 Comments

Recently, two federal circuits — the Eighth and the Tenth — have affirmed trial courts’ use of uncounseled tribal court convictions to increase prison sentences under the federal habitual offender statute (18 U.S.C. § 117). The cases are Cavanaugh and Shavanaux.

Both circuits reversed trial court decisions ruling that the portion of § 117 allowing the use of uncounseled tribal court convictions for sentencing purposes was unconstitutional. Both circuits held that since the uncounseled tribal court conviction did not violate either the U.S. Constitution (under Talton v. Mayes) or the Indian Civil Rights Act (which does not require tribes to provide indigent defendants paid counsel), the tribal court convictions were valid.

Frankly, I’m surprised, and to a considerable extent pleased. I’m pleased that the federal courts are so deferential to tribal courts as a matter of comity. I’m surprised because there is some federal constitutional infirmity in using such convictions to enhance a federal sentence, though apparently not enough to trouble these circuits. Both courts agree that the uncounseled convictions could not be used to prove an element of a federal offense, for example.

Conceivably, both could be reversed en banc, assuming petitions for rehearing are filed (especially, the CA8 decision, where the panel was split). There’s no circuit split … yet … though it seems at least possible that Ninth Circuit or another circuit would come out the other way in the next 5, 10 years.

One possible outcome, even if the Supreme Court never reviews these cases, is a big impact on tribal court criminal justice. More and more tribal defendants will, the theory goes, refuse to plea bargain given these cases. Regardless, the need for full-scale tribal public defender offices grows daily.