tribal courts – Page 173

News Article on Saginaw Chippewa Membership Dispute in Tribal Court

August 24, 2010Matthew 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

August 23, 2010August 23, 2010Matthew 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

August 20, 2010Matthew L.M. Fletcher

Here: GTB Opinion.

Earlier materials in related matters are here.

Fletcher on American Indian Tribes and Constitutional Authority

August 18, 2010Matthew 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:

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

August 16, 2010Matthew 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

August 13, 2010Matthew 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)

August 7, 2010Matthew 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.

Sandia Pueblo Cert Opposition in Hoffman Jackpot Case

August 5, 2010Matthew L.M. Fletcher

Here: Sandia Cert Opp.

Petition and other materials here.

Navajo Supreme Court Opinion Denying Pres. Shirley from Running for a Third Term at Navajo

August 5, 2010Matthew L.M. Fletcher1 Comment

Here is the opinion in Todacheene v. Shirley.

Troy Eid on the Tribal Law and Order Act

August 4, 2010Matthew L.M. Fletcher1 Comment

from the Denver Post:

WINDOW ROCK, Ariz. — After pressing for months, the chief criminal prosecutor for the Navajo Nation, Bernadine Martin, finally persuaded the U.S. Department of Justice to release its internal statistics on felony investigations. It turns out federal agents last year made just 28 arrests in sexual assault cases on an Indian reservation the size of West Virginia.

That’s an arrest rate in sexual assault cases of about 11 per 100,000 people. By comparison, Denver’s arrest rate in the same category in 2008 was 38 per 100,000. In other words, federal agents investigating sexual assaults on the Navajo Nation made less than one arrest for every three by Denver police.

This kind of unfairness prompted the Tribal Law and Order Act, sponsored by retiring Sen. Byron Dorgan, D-N.D., and signed by President Obama last week.

Despite the good intentions of many fine public servants, the federal government isn’t getting the job done. Violent crimes on Indian reservations are two and a half times the national average, yet tribal lands are served by half the number of police as comparable communities.

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