tribal courts

Forthcoming Scholarship on Indian Law Preemption

Matthew L.M. Fletcher

Jackie Gardina has posted “Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts,” forthcoming in the American Indian Law Review. [Also available at BEPRESS.]

Here is the abstract:

This article contends that state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Instead Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges: if a tribe has legislative jurisdiction over the dispute, tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create laws and have those laws applied to disputes over which they have jurisdiction. This article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice of law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice of law rules provides limited protection to a tribe’s sovereignty interest. To the extent that the state’s choice of law rules can be bypassed, they should be.

Kirsty Gover on Comparative Tribal Constitutions

Matthew L.M. Fletcher

Kirsty Gover has published Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand, and the United States in Law and Social Inquiry (Summer 2010) (pdf). Here is the abstract:

In the “self-governance era” of indigenous-state relations, there is a growing interest in the first-order question of tribal governance: who are the members of recognized tribes, and how are they chosen? Tribal constitutions contain formal tribal membership criteria but are not ordinarily in the public domain. This article presents findings from a study of the membership rules used in more than seven hundred current and historical tribal constitutions and codes. It offers a comparative analysis to explain significant differences between North American and Australasian tribal constitutionalism, particularly in the administration of descent, multiple membership, and disenrollment. It advances the argument that tribes self-constitute in ways that are more relational and less ascriptive than is suggested in current political theory and policy; that existing representations of tribes obscure nontribal expressions of indigeneity, on which tribes depend; and that these expressions should be officially supported in public law and policy.

Challenge to Crow Tribal Court Jurisdiction Dismissed on Exhaustion Grounds

Matthew L.M. Fletcher

Here are the materials in Switzer v. Dust (D. Mont.):

Switzer Magistrate Report

Switzer DCT Order

News Article on Saginaw Chippewa Membership Dispute in Tribal Court

Matthew L.M. Fletcher1 Comment

From the Mt. Pleasant Morning Sun, via Pechanga:

Mt. Pleasant attorney Paula Fisher says she is pleased with her victory in Saginaw Chippewa Tribal Appellate Court on Aug. 16.

The Tribe’s Court of Appeals reversed the decisions of past Tribal Councils, the Tribe’s Office of Administrative Hearings and the Tribe’s Community Court said Fisher.

“The Tribe had previously taken the position it would not honor its own Tribal blood quantum certifications,” said Fisher, attorney for Tappen and Ayling. “That resulted in Tribal applicants who were born to Tribal members who had at least one half degree Indian blood quantum, not being allowed to use their parents to prove their members (eligibility).

“The Tribe has taken the position for the last several years that one half of one half does not equal one quarter.”

Chief Judge Kevin K. Washburn, Associate Judges Robert Kittecon, and Dennis Peterson issued an opinion and an order that would allow Dennis Tappen, Angela Ayling and Skykur Graveratte “due process rights” with their applications for Tribal enrollment.

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Disturbing Dicta from Federal Court in Arizona

Matthew L.M. Fletcher1 Comment

Here is the offending quote:

In March 2009, plaintiff’s son Andy was struck and killed by a Bashas’ truck backing into a loading dock at a supermarket in Chinle, Arizona. In June 2009, plaintiff brought negligence claims against debtors on behalf of herself and the estate in a Navajo tribal court. Although the parties provide little detail on the status of the tribal case, which also involves claims against a property owner and the driver of the truck, we note that non-Indian entities are not subject to the jurisdiction of the tribal court. Plains Commerce Bank v. Long Family Land & Cattle Co.,     U.S.    ,    , 128 S. Ct. 2709, 2726 (2008); Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245 (1981). Nevertheless, the entire case was apparently stayed after debtors entered Chapter 11 bankruptcy in July 2009. Motion, Ex. 3 at 2 (“Because of the automatic stay, no serious discovery has been advanced in the Navajo Nation case.”).

Not really true, it just seems that way.

Here is the order: In re Basha’s

And here is a reference to recent scholarship on how dicta becomes law.

GTB Election Dispute Opinion from GTB Appellate Court — McClellan v. GTB Election Board

Matthew L.M. Fletcher

Here: GTB Opinion.

Earlier materials in related matters are here.

Fletcher on American Indian Tribes and Constitutional Authority

Matthew L.M. Fletcher

Please check out my Consent and Resistance: The Modern Struggle between American Indian Tribes and the United States on SSRN. Here is the abstract:

    After a few years of late 19th century confusion, the United States Supreme Court held definitively in 1898 that the United States Constitution does not bind Indian tribes. Indian tribes were not invited to the Constitutional Convention. Indian tribes never ratified the Constitution (nor were they asked). The Constitution places Indian tribes and foreign nations in the same category of governments that, by definition, were not American.

    And yet in the 21st century, it is well understood that Indian tribes are a part – somehow – of the American Constitutional structure. Justice O’Connor wrote that Indian tribes are the “third sovereign.” It remains hornbook law that the Constitution does not bind Indian tribes, but the three branches of the federal each purport to maintain plenary control over critical aspects of Indian tribes, citing to admittedly dubious authority.

    The book project will parse through that history into the modern era, and highlight areas in which federal government control over Indian affairs no longer makes sense. Using aspects of consent theory to generate separate theories of tribal and individual Indian consent, I propose a new way of viewing Indian affairs, in which Indian tribes and individual Indians strategically exercise resistance to federal law as a means of vesting Indian tribes and Indian people in the American constitutional structure.

I will be presenting this idea at the 3rd National People of Color Legal Scholarship Conference (Sept. 9-12) at Seton Hall law school, on a panel with fellow Indian law scholars Bob Miller, Ray Austin, and Kate Fort.

U.S. v. Lente Resentencing: Weight Given to Prior Tribal Court Convictions as Issue

Matthew L.M. Fletcher1 Comment

Previously, a badly divided panel of the Tenth Circuit vacated a sentence of 216 months for an Indian woman convicted of vehicular homicide. On remand, the trial judge lessened the sentence to 192 months — DCT Resentencing Order in Lente.

Prior tribal court convictions are an issue in this case:

First, I find that the Guidelines do not adequately represent Lente’s prior criminal history. As noted above, Lente did not receive any criminal history points for her five prior tribal convictions. In four of the five offenses, tribal records show that Lente was intoxicated. In all four, Lente was charged with disorderly conduct, among other things, for starting fights and/or causing property damage. In the last offense, a conviction for assault and battery in 2005, details of the offense were unavailable. Tribal records also show that Lente was arrested three additional times and charged with assault, assault and battery and/or disorderly conduct. None of those three arrests led to convictions. I find that Lente’s criminal history shows a repeated willingness to abuse alcohol and engage in violent and/or reckless behavior. While tribal convictions are not usually taken into account under the Guidelines (although, as noted above, the Guidelines themselves permit tribal convictions to be used as the basis for an upward departure), Lente’s prior convictions should be taken into account in this case. Five prior convictions (and three prior arrests which did not result in convictions) do not constitute an insignificant criminal record. Furthermore, at least four of her five prior convictions involved the use of alcohol. All of her prior convictions involve violent and/or reckless behavior. These prior convictions show a pattern of alcohol abuse and reckless behavior—a pattern which led to Lente’s decision to drink 13 to 19 beers on December 2, 2005 and drive on State Road 47. I recognize that three of Lente’s prior convictions occurred when she was a juvenile and, accordingly, I do not rely on these convictions to enhance Lente’s sentence. However, I find it entirely appropriate to enhance Lente’s sentence on the basis of her two adult tribal convictions—one for assault and battery and one for disorderly conduct. As discussed above, had Lente’s two adult tribal convictions occurred in state or municipal court, Lente would have been placed in criminal history category III and would be facing a Guidelines range of 57 to 71 months—over a year more than the Guidelines range she faces today. Given the patterns in Lente’s offense history, I find it highly unjust that she avoids the consequence of these prior convictions merely because they occurred in tribal court.

One appellate judge before had rejected such an analysis, as the trial judge notes:

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Montana Supreme Court Reverses Conviction of CSKT Member

Matthew L.M. Fletcher

Here are the materials in State v. James:

State v James Opinion

James Opening Brief

Montana Brief

James Reply Brief

Interesting double jeopardy case, in that Montana law recognizes tribal court convictions for state double jeopardy purposes.

Federal Court Blocks Ute Tribe’s Efforts to Exclude QEP (Questar)

Matthew L.M. Fletcher

Here is the P.I. order in QEP v. Ute Indian Tribe (D. Utah): DCT Order Granting QEP Preliminary Injunction.

The court noted:

Although the court would generally stay its proceeding in deference to the tribal system until appellate review was complete, exhaustion is not required “where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” Id. at 856, n.21.

The court would stay its determination if the question of the Tribal Court’s jurisdiction rested on an analysis of the jurisdictional bounds set forth in Montana. But because there was a clear and unambiguous waiver of Tribal Court jurisdiction in the Agreement, the litigation in Tribal Court is patently violative of the parties’ written agreement and exhaustion is unnecessary. In addition, because QEP needs immediate relief as described below and cannot seek money damages from the sovereign Tribe, exhaustion would deprive QEP of an adequate remedy.

Briefs are here.