Here is the flyer:
TCTraining – SavetheDate – Sept 12-14 – Admin-Clerks with Reg
tribal courts
Wisconsin Supreme Court Narrowly Reaffirms Discretionary Transfer Statute (Former Teague Protocol)
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
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.
Grand Canyon Skywalk Developer Motion for Reconsideration Denied; Case to Proceed in Tribal Court
Tenth Circuit Affirms Use of Uncounseled Tribal Court Convictions in Federal Court
Here are the materials in United States v. Shavanaux:
Government Opening Brief in Shavanaux
Government Reply Brief in Shavanaux
Lower court materials are here.
California Appellate Opinion in Barona Bed Bugs Case
Nonmember-on-Nonmember Torts in Indian Country
Reading this morning about the terrible events at the Muckleshoot casino, am reminded about a case I included as a note in American Indian Tribal Law, Barbosa v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 269 (2005). The Supreme Court’s decision in Montana and its progeny make it hard for tribal courts to assert civil jurisdiction over nonmembers. What about a case like Barbosa, where the plaintiff — a Foxwoods customer who was beaten savagely by other customers who drunkenly mistook him for Saddam Hussein in the years after 9/11 (you can’t make these facts up) — failed in his suit against Foxwoods, but attackers never showed up to defend themselves in tribal court (they were from New Hampshire).
Absent Montana etc., it would be relatively easy for Barbosa to enforce his judgment in New Hampshire. But the Supreme Court’s concern about nonmember defendants has also undermined the ability of nonmember plaintiffs to seek justice as well. Barbosa can’t really go to Connecticut or New Hampshire courts, and there’s no federal subject matter jurisdiction. So he’s stuck being saddled in the same boat as Indian tribes.
Navajo Nation Reverses Aggravated Battery Conviction
Here is the opinion in John v. Navajo Nation.
An excerpt:
In this case, the Nation has not filed a brief nor otherwise indicated its interest in participating in the appeal. Previously in Navajo Nation v. Morgan, 8 Nav. R. 732 (Nav.Sup.Ct.2005), we addressed a similar situation in which the Nation, as here, did not file a brief. In Morgan, we stressed “to the Office of the Prosecutor and the Attorney General the importance of participation in appeals, as their responsibilities to the Navajo people should mandate them to take an interest in each case before this Court.” Id. at 736. The Court takes judicial notice that underlying the dispute resolution process of the Diné, there is this expectation: Diné t’áá hat’íshįį yéego bik’í hojiz’ahgo doo éi t’óó bijilkáa’da doołeeł, háálá bila‘ashdla‘ii éi yíní bíighago dilzin dóó baahasti’; doo éi t’óó naaki nilįigo bił hwiizh dooł’aałda. If one brings forth a serious allegation, the accuser is expected to participate in the resolution of the accusation because the truth of the allegation must be determined out of respect and protection of the individual.
Federal Court Decides Concurrent Criminal Jurisdiction Case on Red Lake Reservation
Here are the materials in United States v. Head (D. Minn.):
Turtle Talk 
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