tribal courts

Christine Zuni Cruz on Shadow Scholarship and Indian Law

Matthew L.M. Fletcher

Christine Zuni Cruz has posted her great paper, “ Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country “, published in the Tribal Law Journal, on SSRN.

Here is the abstract:

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Law’s electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista’s engagement of the Mexican government has been described as a “shadow war” for its engagement in conflict in “symbolic rather than real terms.” This early exploitation of the internet allowed the Zapatista to get their position across without having to rely on gatekeepers. The article describes how the Journal follows the same strategy in respect to tribal law. The important developments occurring in law at the tribal level require Indigenous Peoples’ awareness of trends among Indigenous peoples in the United States and across the world. Electronic communication has significantly facilitated this. The article concludes with a discussion of the limitations that challenge electronic communication among Indigenous Peoples.

Leech Lake Band 2011 Election Declared Invalid by Tribal Court

Matthew L.M. Fletcher1 Comment

Here is the order:

Leech Lake Election Case

Federal Court Refuses to Suppress Statements Made to FBI under Advice of Tribal Court Lay Advocate

Matthew L.M. Fletcher

Here are the materials in United States v. Chase Alone (D. S.D.):

Chase Alone Magistrate R&R

Chase Alone Objection

DCT Order on Chase Alone R&R

Apparently under the Red Bird case, a tribal lay advocate is not “counsel” under the Fifth and Sixth Amendments, so any statements made to the FBI after a tribal criminal defendant is represented by a lay advocate are not required to be suppressed.

Briefs and Materials in Snoqualmie v. Ventura Case

Matthew L.M. Fletcher

It’s a massive download (about 10 MB), but well worth the read:

Snoqualmie Supporting Docs

 

Cherokee Nation Supreme Court Orders Manual Recount

Matthew L.M. Fletcher1 Comment

Here is the order:

SC-11-06 12-ORDER 7-12-11

Also available on the Cherokee Nation Judiciary website.

Split Arizona Supreme Court Holds that Tribal Judges May Serve on State Redistricting Panel

Matthew L.M. Fletcher

Here is the opinion in  Adams v. Comm’n on Appellate Court Appointments.

An excerpt describing the tribal judge in question, Paul Bender:

Bender, an independent, stated on his application that he serves as “Chief Judge of two Arizona tribal courts.” Bender, a law professor at Arizona State University, serves as the Chief Justice of the Supreme Court of the Fort McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe.

And from the analysis:

Consistent with the tribes’ distinctive status, Arizona’s constitution and laws generally do not include tribes within the meaning of the word “public.” Cf. Ariz. Const. art. 20, § 4 (referring separately to “public lands” and “lands . . . owned or held by . . . Indian tribes”). As noted above, see supra ¶¶ 23-29, Arizona’s constitution and statutes refer in many places to public office or public officers (for example, in provisions governing recall or financial disclosure), but none of those provisions has been construed to embrace tribal offices. Indeed, at oral argument, counsel could not identify any instance in Arizona law in which the word “public” has been interpreted to refer to Indian tribes.

From the dissent:

Giving the term “public office” the broad construction that § 1(3) suggests, I would conclude that Bender, as chief justice of two tribal courts, holds public office. At oral argument, amicus Valley Citizens’ League’s counsel (advocating for Professor Bender’s eligibility) expressly stated that Bender is a public officer of the respective tribes he serves. The constitutions and bylaws of both the San Carlos Apache and Fort McDowell Yavapai tribes support this acknowledgement, expressly delegating the judicial authority of their respective nations to their judiciaries. And it is indisputable that the judicial powers of a tribal nation are governmental powers of a sovereign. See 25 U.S.C. § 3631 (2006) (recognizing inherent sovereign authority of each tribal government’s judiciary); Penn v. United States, 335 F.3d 786, 789 (8th Cir 2003) (“[A] tribal court judge is entitled to the same absolute judicial immunity that shields state and federal court judges.”). As a judge, therefore, Bender exercises a portion of the governing power of these two sovereigns, making him a public official of these tribes.

Updated Materials in Cherokee Election Dispute (Updated again on 7/12/2011)

Matthew L.M. Fletcher

 

From the Cherokee judiciary website (no.05):

From the Cherokee judiciary website (no.06):

1- Appeal and Challenge of 2011 General Election
1- Appeal Exhibits 1-4
1- Appeal Exhibit 5a
1- Appeal Exhibit 5b
1- Appeal Exhibit 5c
1- Appeal Exhibit 5d
1- Appeal Exhibit 5e
1- Appeal Exhibit 5f
1- Appeal Exhibit 8
2- Order
3- Amended Order
4- Motion to Seal
5- Motion to Compel
6- Notice of Document Subpoena
7- Order
8- Motion to Intervene
9- Motion to Dismiss Appeal and Challenege

Snoqualmie v. Ventura — Tribal Corruption and Tribal Prosecutor Misconduct

Matthew L.M. Fletcher

Here is the opinion:

Snoqualmie Indian Tribe v. Ventura

Federal Court Dismisses Effort to Block Rincon Eviction of Non-Indian (Alleged) Trespassers

Matthew L.M. Fletcher

Here are the materials in Rogers-Dial v. Rincon Band of Luiseno Indians (S.D. Cal.):

DCT Order Dismissing Rogers-Dial Complaint

Rogers-Dial Motion for PI — Part 1

Rogers-Dial Motion for PI — Part 2

Rogers-Dial Motion for PI — Part 3

Rincon Motion to Dismiss

We posted the complaint here.

An Aboriginal Justice On The Supreme Court Of Canada? Why?

Peter Scott Vicaire3 Comments

Soon, there will be two vacancies on the Supreme Court of Canada, as Justice Charron is retiring on August 30 and Justice Binnie will leave when a replacement is named.   As such, the Indigenous Bar Association recently asked Prime Minister Stephen Harper to consider appointing an aboriginal to the Supreme Court.  Of course, there has been some opposition to appointing someone because of their race to the highest court in Canada.  In fact, former Supreme Court Justice John Major (who found in favor of aboriginal interests only 20.6% – 6/29 times — one of the lowest ever) expressed his disdain for such a racially-based appointment.  Oddly enough, I happen to agree with Mr. Major, but for wildly different reasoning.

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