tribal courts

Update on Dispute over Muscogee Judiciary

Matthew L.M. Fletcher

Apparently, the Muscogee district court judge believes that attorneys for the Muscogee legislature could be held in contempt for failure to appear in court to defend a claim brought by the tribal executive against the legislature … where the attorneys’ client had expressly forbid them to appear in the court. The legislature had previously enacted legislation purporting to disband the tribal court.

Here is the show cause order: CV 10-157 Show Cause Order

And here is the attorneys’ response: CV 10-157 Objection to the Court’s Order

Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions

Matthew L.M. Fletcher1 Comment

Very interesting opinion (yet another from Judge Rockman) in Gardner v. Littlejohn.

An excerpt describing the question presented:

The Court must determine whether it has subject matter jurisdiction over this defamation action, and concludes that defamation existed under the customs and traditions of the Ho-Chunk Nation.  The Court finds that the plaintiff has shown that she was not terminated from her employment for an inability to administer third party billing, and thus did not seek to have said termination overturned due to nepotism.  Therefore, the Court finds that the April 14, 2010 document penned by the “Nioxawani Political Activists,” which was titled, Contract Employees: Shadowy Government,  defamed the plaintiff.

An excerpt describing the process of determining Ho-Chunk law:

Under the traditions and customs of the Ho-Chunk Nation, the plaintiff alleged that defamation would be a cause of action under the Ho-Chunk common law tradition of “woigixate,” which was recently enunciated within Supreme Court case law.  Compl.  at 2; Daniel Topping v. HCN Grievance Review Bd., SU 09-08 (HCN S. Ct., July 1, 2010) at 7 (“Woigixate  requires that all people be treated with respect and compassion and that no one should be treated badly or demeaned because of their situation”).  Consequently, Associate Trial Court Judge Amanda L. Rockman certified a question of law to the Traditional Court, inquiring whether Ho-Chunk “custom and tradition recognized defamation.” The Judicial Branch, acting through the Ho-Chunk Nation Traditional Court, may articulate binding law in the form of hocąk tradition and custom.

And the law itself:

The Traditional Court indicated that in the tradition and custom of the Ho-Chunk Nation defamation existed, meaning on occasion, individuals did publicly question the honor of another individual.  Nevertheless,  hocąk people generally spoke the truth.  If someone said something that was a lie or a false statement about another person, then that person typically ignored the lie that was said about them, knowing that it will come full circle back to the lying party.  In other instances, the person who uttered the lie or false statement would repeat it to that person face-to-face with tobacco, and the truth would reveal itself.

The presiding judge also questioned the role of a warrior and any privileges imposed upon warriors when publicly speaking.  The Traditional Court indicated that  a warrior maintained a privilege to speak his mind.  Ho-Chunk people have distinctive cultural values, and one such value is their proud warrior tradition.  Warriors  embody strength, honor, pride, and wisdom, and a warrior‟s success depends on the aforementioned embodiments.  Warriors return to their respective community with experiences that make them valued members of their society. Therefore, the Court relies on the above-referenced tradition and custom as the applicable law in this jurisdiction.

And defenses?

Continue reading →

ICT Article on Tribal Law and Order Commission

Matthew L.M. Fletcher

Here. An excerpt:

Federal justice on reservations is discriminatory and harsh, especially for youth, but recently enhanced tribal justice systems – a potential remedy – may not be easy to implement, says a noted advocate for Native rights.

The 2010 Tribal Law and Order Act (TLOA) initiated a nine-member Indian Law and Order Commission that includes Denver-based Troy Eid, a former U.S. Attorney, who has worked with a number of tribes. He and other Commission members have held informal discussions pending full Commission funding.

The Major Crimes Act of 1855, which covers Indian perpetrators and victims on tribal lands, is discriminatory in that it provides harsher penalties for Indian offenders than for non-Natives for essentially the same crimes, he said. It strikes hard at teenaged Indian offenders, about one-third of whom are sentenced as adults as compared to only one to two percent of non-Native youth.

The federal system the Native youth enter requires them to serve about 85 percent of their sentences and there is no parole, while in the state of Colorado, for example, the average proportion of sentences served is 32 percent. There are no juvenile diversion programs, alternative sentencing, restorative justice or other federal rehabilitative programs comparable to those at state level, he said.

Enter TLOA: It reauthorizes substance abuse programs and grants for summer youth programs, constructs youth shelters and detention and treatment centers, develops long-term plans for Indian juvenile detention and substance abuse treatment centers, and supports tribal juvenile delinquency prevention services and care of juvenile offenders.

The Tribal Youth Program would authorize $25 million annually through 2015 for juvenile delinquency prevention services and the care of juvenile offenders.

South Dakota Rep. Kevin Killer (D -Pine Ridge) hailed the potential of the youth programs for his district, where more than half of residents are under age 18, and his state, where nearly 40 percent of those in the juvenile justice system are Native youth. Restorative programs are probably among those the Oglala Lakota would be interested in pursuing, he said.

Other major TLOA provisions allow participating tribal courts to impose penalties of up to three years’ imprisonment compared to the existing one-year limit and require tribal courts to provide court-funded licensed defense attorneys for indigent defendants, with more stringent qualifications for both attorneys and judges.

TLOA offers some financial support for enhanced tribal justice systems – a cost, which Eid himself says is “substantial” and which the Congressional Budget Office estimated at about $1 billion over the first five years.

Continue reading →

Navajo Supreme Court Reverses $30K Emotional Distress Judgment against Tribal Police Dept.

Matthew L.M. Fletcher

Here is the opinion in Wauneka v. Navajo Dept. of Law Enforcement.

An excerpt:

This  case concems  an appeal  by  the Navajo Department of  Law Enforcement,  of  a May 26, 2009 Final Damages Order of  the Navajo Nation Labor Commission (Commission) in which the  Commission  awarded  a  police  officer  back  pay,  attorney’s  fees,  restoration  of  leave  hours; emotional  damages;  and  further,  imposed  civil  fines.

* * *

Based  on  the  above,  the  Court  REVERSES  the  Commission’s  award  of   $30,000  in emotional  damages,  and  AFFIRMS  the  Commission’s  imposition  of  $500  in  civil  fines.  The Court  further  LIFTS  the  stay  in  the  Window  Rock  District  Court  for  further  disposition consistent with this opinion.

California Appellate Court Orders ICWA Case Transferred to Bois Forte Chippewa

Matthew L.M. Fletcher

Here is the opinion in In re Jack C., reversing the trial court.

An excerpt:

In In re Jack C., III, D057034, the order terminating parental rights is reversed, and the matter is remanded to the trial court with directions to transfer jurisdiction to the Bois Forte Band of the Minnesota Chippewa, subject to the Band’s right of declination.  If the Band declines jurisdiction, the juvenile court shall then reinstate the order terminating parental rights.  (Cf. In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [limited reversal disposition in defective ICWA notice appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases].)

New Developments in Martin v. Little River in Tribal Court

Matthew L.M. Fletcher

Two new orders:

Order Regarding Defendants Motion for Summary Disposition

Order Finding Plaintiff in Contempt of Court

 

Eighth Circuit (2-1) Holds Amerind Insurance Co. Immune From Suit in Tribal and Federal Courts

Matthew L.M. Fletcher3 Comments

Very important decision. Our prior commentary on this case is here.

Here are the materials:

Amerind v. Malaterre CA8 Opinion

Amerind Opening Brief

Malaterre Brief

Amerind Reply

Malaterre Letter Brief re Immunity

Amerind Brief re Immunity

Colville Appellate Court Dismisses Marriage Dissolution Action between Nonmembers, Reversing Lower Court

Matthew L.M. Fletcher

Here is the opinion in Green v. Green: Green v Green.

An excerpt:

At the Initial Hearing on January 21, 2011, Appellee argued that reading the Code as a whole, and in particular the Domestic Relations Chapter, the Tribes allows non-Indians, including descendants to file other civil family matter cases in the Tribal Court. She gave as examples the custody sections, guardianships, paternity actions, and child support. She asserts that to exclude this class of litigants, i.e. non-Indians and descendants, from dissolutions violates their rights to due process and equal protection, by denying them access to the Tribal Court.

We have long upheld the rights of litigants to equal protection and due process in our Courts, as guaranteed by our Tribal Civil Rights Act, CTC § 1-5-2(h). See, Gallaher v. Foster, 6 CCAR 48, 3 CCTR 50 (2002); R.L. and B.J. v. CCT CFS, 6 CCAR 1, 3 CCTR 39 (2001); and Finley v. CTSC, 8 CCAR 38, 4 CCTR 25 (2006). We cannot find a violation of either in the circumstances of this case. It is true the Tribes has restricted who may file for dissolutions in the Tribal Court, but such restriction does not offend due process or equal protection. The tribal legislatures have made a decision to limit the sovereignty it wishes to exercise over non-tribal members, no matter who their families are. It is up to the tribal Council to change this law, not the Courts.

The statute is clear and unambiguous on its face. Statutory construction begins by looking at the statute’s language, giving words their plain meaning, and proceeding to extrinsic interpretive aids only when the statute contains unclear or ambiguous language. CTC § 1-1-7(b) (providing that words given plain and generally understood meaning). The Constitutional responsibility of the tribal legislatures to decide what jurisdiction it wishes the Tribes to exercise is clear and unambiguous. See Constitution, id.

In the matters of domestic relations, the Tribes has restricted its subject matter jurisdiction over marriages, both in granting them and dissolving or annulling them, to only cases in which one party is a member of the Tribes. CTC § 5-1-32(b) (one of the persons getting married under the Code must be an enrolled Colville tribal member); and CTC § 5-1-101 (one of the parties to a dissolution or annulment action must be an enrolled Colville tribal member). There was no subject matter jurisdiction over the dissolution in this case. We so hold.

Conference of Chief Justices Resolution Encouraging Greater Collaboration Between State and Tribal Courts

Matthew L.M. Fletcher

Here: Resolution on Tribal Courts.

Passed unanimously….

Federal Court Dismisses Stalker’s Habeas Petition against Chehalis; Notes that Petition Could Have Merit, However

Matthew L.M. Fletcher

Here are the materials in Youckton v. Stinson (W.D. Wash.):

Youckton Habeas Petition

Chehalis Motion to Dismiss

DCT Order Dismissing Stouckton Petition

An excerpt:

Youckton makes the following argument to support his double jeopardy claim: (1) Youckton committed domestic violence under Chehalis Tribal Code (“CTC”) § 15.03.02; (2) domestic violence is defined under CTC §15.03.01, which sets out five possible ways to commit domestic violence; (3) the only way Youckton’s case fits into the domestic violence definition is under the fifth way, stalking; (4) stalking is defined by CTC § 15.04.01, which envisions “repeated” contact; (5) Youckton’s multiple texts/phone calls should be considered “repeated” contact for purposes of sentencing, which would require sentencing him for this conduct as one unit of offense; therefore (6) sentencing him for 205 separate violations rather than as one unit of crime may constitute double jeopardy.