tribal courts – Page 177

Poaching Case to Reach Sault Tribe Tribal Court

May 12, 2010May 12, 2010Matthew L.M. Fletcher

From the Escanaba Daily Press vie Pechanga:

ESCANABA – Three members of the Sault Ste. Marie Tribe of Chippewa Indians, accused of illegal commercial fishing in Little Bay de Noc in 2009, will appear in tribal court this month, officials said.

Five tribal members and one Delta County man were arrested in early 2009 for allegedly illegally catching and selling walleye from Little Bay de Noc. The tribe has legal jurisdiction over the five tribal members, while Delta County has legal jurisdiction over the non-tribal member.

In March of this year, the tribe announced three of the accused tribal members were cited with approximately 100 civil infractions including illegally setting nets and selling thousands of pounds of walleye for profit.

The fish were allegedly being sold through a tribal commercial fishing operation consisting of two tribal members and a state-licensed wholesaler. Investigation continues regarding these three individuals who have not yet been officially charged.

According to Brenda Browning, a clerk at the tribal court in Sault Ste. Marie, the citations have been issued against the three tribal members accused of illegally poaching and selling walleye. Their pretrial hearings are scheduled in tribal court in mid-May. The court is not releasing their names because the case is in the pretrial phase, Browning explained Friday.

Browning also said these three cases are considered civil matters, which are being handled by Special Prosecutor Monica Lubiarz-Quigley.

When contacted Monday, Lubiarz-Quigley referred the Daily Press to the tribe’s general counselor, Thomas Dorwin. Dorwin did not return a call from the newspaper prior to press time.

The Daily Press also left a message with the tribe’s attorney, Aaron Schlehuber, on Monday.

Continue reading →

Navajo Nation Council Attacks on Navajo Judiciary?

May 12, 2010May 12, 2010Matthew L.M. Fletcher1 Comment

Here are three competing press releases from various branches of Navajo government (two of three, as Paul notes below):

Navajo Judiciary Committee on Court Reform

Navajo Nation Council Unhappy with TRO

Navajo President Opposes Election of Navajo Judges

Ninth Circuit Affirms Tribal Court Conviction

May 8, 2010Matthew L.M. Fletcher

The case is Eagle v. Yerington Paiute Tribe, and involves an interesting question: whether tribal prosecutors have to prove Indian status beyond a reasonable doubt. The answer appears to be no.

Opinion.

[Appellant opening brief unavailable.]

Yerington Paiute Brief

Eagle Reply Brief

“Resisting Federal Courts on Tribal Jurisdiction” Draft Paper Available

May 6, 2010Matthew L.M. Fletcher2 Comments

My paper, “Resisting Federal Courts on Tribal Jurisdiction,” forthcoming in the University of Colorado Law Review‘s 2010 symposium issue, is available for download on SSRN.

The abstract (if you want to call it that):

This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.

In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.

Comments appreciated, as this is still a draft.

Navajo Office of Legislative Counsel Opinion on Pres. Shirley’s Effort to Run for a Third Term

May 6, 2010Matthew L.M. Fletcher

Here it is: CLC0110

And here is news coverage of President Shirley’s announcement he’s running for a third term by relying on Dine Fundamental Law.

Race Discrimination Complaint against Tulalip Resort Casino Dismissed

April 29, 2010Matthew L.M. Fletcher1 Comment

Apparently, this is the fifth suit brought by this particular plaintiff, and the third one in federal court. The case is Parks v. Tulalip Resort Casino (W.D. Wash.). Our earlier post on the first case is here.

Here are the materials:

DCT Order Dismissing Parks Third Federal Suit

Tulalip Motion to Dismiss

Parks’ Response

Tulalip Reply

Daniel Heath Justice on Queer Indians and the Cherokee Nation

April 27, 2010Matthew L.M. Fletcher1 Comment

Daniel Heath Justice has published “Notes on a Theory of Anomaly” in GLQ: A Journal of Lesbian and Gay Studies (article here: Notes Toward a Theory of Anomaly.

Here is the abstract:

Recent laws against same-sex marriage in the Cherokee Nation provide the backdrop for this analysis of alternative models of Cherokee sexual diversity. Rather than seek identifiable historical precedent that is largely unavailable in the historical record and vehemently denied by the predominantly Baptist Cherokee majority, this essay argues instead for a modern queer Cherokee aesthetic that is both responsive to the contemporary experiences of gender- and sexuality-variant Cherokees and inspired by the late Mississippian category of “anomaly” as a queer-inclusive tribal model for belonging.

Supreme Court Asks Solicitor General for Views on Kaltag ICWA Case

April 26, 2010April 26, 2010Matthew L.M. Fletcher1 Comment

Interesting development, and better than a grant, I suppose, but the Supreme Court has asked the Office of Solicitor General to express the federal government’s views in the Hogan v. Kaltag Tribal Council case — also known as a CVSG. Order list here.

It is extremely likely that the Court will decide whether or not to take the case based on the brief filed by the OSG.

Other materials here.