Here is the opinion: Eastern Shawnee Tribe v. State of Oklahoma.
The Tribe’s motion for summary J and its complaint were posted earlier today here.
tribal courts
Eastern Shawnee Complaint and Motion for Summary J in Gaming Compact Arbitration Case
Similar to the Chickasaw and Choctaw case we noted last week.
Here are the materials in Eastern Shawnee Tribe v. Oklahoma:
2010172 – ESTOO v. OK – Complaint – FILE-STAMPED 5.4.10 – 1 –
2014075 – ESTOO v. OK – Plaintiff ESTOOs Motion for Summary J
Choctaw and Chickasaw Nations Win Injunction against Oklahoma Courts for Accepting Jurisdiction over Claims under their Gaming Compact
Here is the order in Choctaw Nation and Chickasaw Nation v. State of Oklahoma (W.D. Okla.): choctawchickasaworder.
If you’ll recall, the Oklahoma Supreme Court in a series of cases held that state courts were “courts of competent jurisdiction” to take jurisdiction over tort claims brought under a Class III gaming compact approved by Oklahoma voters and, later, several Oklahoma tribes.
Oklahoma tribes (with the State consenting) then invoked the arbitration provision of the compacts, arguing the Supreme Court had violated the terms of the compact. They were successful.
This federal suit followed. Very interesting case.
News Coverage of Senate Passage of Tribal Law and Order Act
From the Denver Post (Michael Riley; link to 2007 articles in the Post on this question):
WASHINGTON — With spiraling crime rates battering Indian reservations across the West, the Senate on Wednesday passed legislation designed to plug gaping holes in the way crimes are investigated and prosecuted on Indian lands.
The legislation requires federal prosecutors to justify dropped cases to tribal leaders and allows tribal courts to impose sentences of up to three years, expanding authority that has been limited for more than 100 years.
It gives tribal police access to a key national crime database and allows felony crimes to be tried for the first time on the reservations where they occur.
“This will signify a dramatic change in the years ahead in the personal safety of a lot of American Indians who
have been abused, who have been victims of crime,” said Sen. Byron Dorgan, D-N.D., who chairs the Senate Indian Affairs Committee.
The system for investigating and prosecuting crimes on Indian reservations is complex — even arcane, according to some critics.
Felony crime is the sole responsibility of federal prosecutors, often based in cities hundreds of miles away. Under a law passed in 1885, the authority of tribal courts is severely limited and they can impose sentences of no more than a year.
Tribal leaders for years have accused U.S. attorneys of doing their jobs poorly, often showing little interest in prosecuting the rapes, assaults or small-time drug peddling that devastate some tribal communities.
In 2009, federal prosecutors declined to prosecute nearly half of all Indian Country felony cases presented to them, while federal crime statistics show that some reservations have violent-crime rates that are 20 times the national average.
But there is also wide disagreement on fixing the problem.
Expanding the authority of tribal courts has long been considered controversial, because in many cases tribal prosecutors and even judges aren’t required to have law degrees. Tribal court decisions in many cases are not appealable to federal court.
The Tribal Law and Order Act approved Wednesday — it passed with unanimous consent, meaning there was no formal, recorded vote — attempts to address those concerns.
Only tribal courts that meet certain standards, including minimum training requirements and the guarantee of counsel for indigent defendants, will be granted the new authority.
For the first time, the legislation also requires the Justice Department to make public yearly statistics on the number of Indian Country cases declined by federal prosecutors — and each declination must be reported to tribal leaders.
The bill also makes it easier to deputize tribal police so that they can enforce federal laws, including giving them jurisdiction over non-Indians.
GTB Primary Election Certified
From the Leelanau Enterprise:
The Grand Traverse Band of Ottawa and Chippewa Indians on June 10 completed a successful Primary Election process after experiencing delays earlier this spring.
“No challenges were filed and we certified the Primary Election,” reported Desmond Berry, chairman of the tribal Election Board. “We are moving forward with our schedule of events and look forward to a July 15, 2010 General Election,” he said.
The primary was originally scheduled for April with the General Election slated for last month. Election challenges delayed the process, however. The names of three candidates were removed from the original Primary Election ballot after the Election Board determined the three had violated campaign rules.
One of the candidates, incumbent tribal councilor Rebecca Woods, appealed the Election Board’s determination to the Tribal Judiciary. But the Election Board’s determination was upheld by the panel of Tribal Court judges.
Woods has since resigned from the Tribal Council and accepted a position as the tribe’s chief financial officer. The names of candidates Gail Diaz and Angela Shinos were also removed from the Primary Election ballot.
Tribal Law and Order Act Passes Senate as Part of Amendments to Indian Arts and Crafts Act
Here’s the bill: H.R. 725.
Federal Court Dismisses Federal Prisoner’s Complaint against Tribal Police
Mostly.
Here is the slip opinion in Johnson v. Pottawatomie Tribal Police Dept. (D. Kan.): Johnson v Pottawatomi Tribal Police
Navajo Reapportionment Map
From the Navajo Times via Pechanga:
The reapportionment map representing the plan approved Friday. 
Download a large-format PDF version of the map. (2.1 MB, requires Adobe Reader.)
* * *
The Navajo Board of Election Supervisors approved on Friday a reapportionment plan dividing the Navajo Nation into 24 voting districts for a new, reduced tribal council election.
The board also voted to extend the filing deadline for council delegate candidates by one business day, to 5 p.m. Monday, June 14. This will give candidates at least a little time to acquaint themselves with the new apportionment plan, the board said.
“This is good,” said President Joe Shirley Jr., who presented the plan approved by the board. “This is something we should have done a long time ago. We are moving along and progressing.”
The board unanimously approved both measures.
Ninth Circuit Affirms Conviction and Rejects Efforts to Inquire into Tribal Court Judge’s “Neutral[ity] and Detach[ment]”
Here are the materials in United States v. Wahtomy, out of the Shoshone-Bannock reservation:
An excerpt:
With regard to whether Judge Coby was “neutral and detached,” Wahtomy failed to proffer any description of Judge Coby’s testimony beyond stating that Judge Coby was his former wife’s daughter. He did not proffer even basic details of the relationship that were within his personal knowledge, such as whether Wahtomy and Judge Coby were personally acquainted or the extent and frequency of their interaction. He did not proffer any specific evidence of bias, nor why the relationship might have made Judge Coby biased against him in his case. Wahtomy also sought to inquire into Judge Coby’s relationship to law enforcement, but made no showing of any basis for so inquiring. Speculation based on the fact of a relationship or relationships alone is not sufficient to make out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose on an Indian reservation of several thousand people, where the likelihood that the on-call tribal judge has a relationship to the subject of a requested warrant is greater than in a more populous jurisdiction. In the absence of concrete evidence of partiality, we have expressed wariness to “disqualify small-town judges on demand” unless the appearance of partiality is “extreme.” Id.
Wahtomy also failed to proffer evidence of why Judge Coby might not have been competent to determine whether probable cause existed. Laypersons may properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983). Wahtomy acknowledged that he had no specific basis to question Judge Coby’s competency to make a “nontechnical, common-sense judgment[]” as to whether law enforcement had demonstrated probable cause. Id. In the absence of an appropriate proffer, the district court properly declined to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.
Judge Rawlinson concurred, but apparently refused to join this unpublished memorandum opinion.
Article on Applying International Law to Freedmen Disenrollment Cases
Greg Rubio published “Reclaiming Indian Civil Rights: The Application of International Human Rights Law to Tribal Disenrollment Actions” in the Oregon Review of International Law.
An excerpt:
A more detailed description of this Article’s warp and woof is in order. Part I highlights the substance and nature of the injury that forms the basis for potential international human rights claims. It describes the history and background of the Cherokee Freedmen, details the events of their disenrollment by the Cherokee tribe, and briefly considers the stakes that attend Indian membership determinations in the present political and economic context. Part II examines the body of domestic law under which an Indian plaintiff might normally seek redress: federal Indian law. This critical section concludes that through the current ascendancy of tribal sovereignty and self-determination in federal and congressional policy and the strict application of the common law doctrine of tribal sovereign immunity in federal courts, federal Indian law as presently constituted leaves the Cherokee Freedmen without any domestic remedy for the allegedly racially discriminatory action. Part III then turns to a discussion of two potentially applicable provisions of international human rights law. After describing the present status of indigenous peoples under international human rights law, Part III considers the two provisions, detailing how the disenrollment action implicates each. This Part finally outlines the relevant characteristics necessary to hold the United States accountable for the tribal disenrollment action under its international human rights obligations. After describing how the United States might find itself answering in an international forum for the allegedly discriminatory acts of the Cherokee, Part IV ponders the potential ramifications of this reality for Indian tribes and for the federal government. This Part suggests that these conclusions may imply a potential shift in the present status of federal Indian policy and portend a new and sober dimension in the ongoing dialogue over that most familiar ground in federal Indian law: the reach of tribal sovereignty.
Turtle Talk 
You must be logged in to post a comment.