tribal courts

Article on Applying International Law to Freedmen Disenrollment Cases

Matthew L.M. Fletcher

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.

Briefs in Miccosukee Decision on Enforcement of a Tribal Court Judgment in 11th Circuit

Matthew L.M. Fletcher

Here:

Initial Brief appellant

Answer brief Appellee

Reply brief

Earlier posting with opinion here.

Fletcher on “Race and American Indian Tribal Nationhood” — UPDATED

Matthew L.M. Fletcher

“Race and American Indian Tribal Nationhood” is available for download here. [The paper is there now, sorry.]

Here is the abstract:

Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.

Constructive feedback welcome.

Eighth Circuit Briefing Complete in United States v. Cavanaugh–Challenge to Use of Uncounseled Tribal Court Convictions

Matthew L.M. Fletcher1 Comment

Since this is also a challenge to a federal statute, expect a strong cert petition from the US if it loses this case in the Eighth Circuit. If not, then look for a circuit split down the line.

Here are those materials:

US v Cavanaugh Appellant Brief

Cavanaugh Answer Brief

US v Cavanaugh Reply Brief

Earlier posting with lower court materials here.

Eleventh Circuit Holds that Indian Tribes Cannot Sue to Enforce Tribal Court Judgment against Parties Located in the Same State

Matthew L.M. Fletcher3 Comments

Baffling.

Here is the opinion in Miccosukee Tribe v. Kraus-Anderson Constr. Co.: 11th Circuit Opinion

And here is the Tribe’s complaint, which includes the 166-page tribal court opinion as an attachment: Miccosukee Complaint w Tribal Court Decision

Here is the court’s summary of the case:

In 2004, Kraus-Anderson Construction Company (“Kraus-Anderson”) sued the Miccosukee Tribe of Indians of Florida (the “Tribe”) for breach of contract in the Miccosukee Tribal Court. The Tribe denied liability and counterclaimed, alleging that Kraus-Anderson was the breaching party. Following a trial on the merits, the Tribal Court denied Kraus-Anderson’s claims and, finding for the Tribe on its counterclaim, awarded the Tribe a judgment of $1.65 million. Kraus-Anderson petitioned the Tribe’s Business Council for leave to appeal the judgment to the Tribe’s General Council, which acts as the Tribal Court of Appeals. The Council denied Kraus-Anderson’s petition.

Kraus-Anderson refused to satisfy the Tribal Court’s judgment, so the Tribe brought suit against Kraus-Anderson in the United States District Court for the Southern District of Florida to enforce it. As an affirmative defense, Kraus-Anderson alleged that, in denying its petition for leave to appeal the Tribal Court’s judgment, the Business Council denied it due process of law, thereby rendering the judgment void. On cross-motions for summary judgment, the district court, relying on principles of comity, held the judgment unenforceable and granted Kraus-Anderson summary judgment. The Tribe now appeals. We reverse and remand the case to the district court with the instruction that it dismiss the case for lack of subject matter jurisdiction.

I’m willing to bet a dollar that the real reason for the 11th Circuit’s decision is based entirely on the fact that the tribal council sits as the tribal appellate court.

If anyone has the appellate briefs, please send. 🙂

Navajo Supreme Court Decides Cases on the Removal of the President and the Reduction of the Tribal Council

Matthew L.M. Fletcher

Here are these opinions:

NNSC OPVP v TNN Council OPINION

NNSC Initiative Committee to Reduce Council

Elena Kagan’s Remarks on the Navajo Judiciary in 2006

Matthew L.M. Fletcher1 Comment

Very nice. I imagine soon-to-be-Justice Kagan’s words will be quoted time and again by tribal advocates:

At about four minutes in she describes the Navajo Judiciary and caseload, and then the money quote (at about 4:25):

“And the Navajo Nation’s judicial system is distinguished by quality as well as by scope.”

She then quoted at length from the Harvard Project from 1999 in awarding honors to the Navajo judiciary, noting:

“[The judiciary’s] innovative legal system is independent, fair, responsive, and consistent with the Nation’s culture and traditions.”

Must have RealPlayer to view.

Download here (near the bottom), or here:

April 12, 2006 – Remarks – Opening of Navajo Supreme Court Session

Oglala Sioux Tribe Ordered to Arbitration in Service Agreement Dispute with Alltel (AT&T)

Matthew L.M. Fletcher

Here are the materials in Alltel v. Oglala Sioux Tribe (D. S.D.):

Alltel Service Agreement

Tribal Court Order Denying Alltel Motion to Dismiss

Alltel Motion for PI

OST First Motion to Dismiss

OST Second Motion to Dismiss

DCT Order on Arbitration

Court Orders Exhaustion of Tribal Court Remedies in Speedy Trial Case at Oglala

Matthew L.M. Fletcher

Here are the available materials in Chipps v. Oglala Sioux Tribal Court (D. S.D.):

Chipps Habeas Petition

Chipps Speedy Trial Brief

Chipps DCT Order

SLAPP Lawsuits and the Tribal Court Exhaustion Doctrine

Matthew L.M. Fletcher2 Comments

There’s an interesting exchange in a District of North Dakota case (Laducer v. DISH Network) involving an allegation that a non-Indian-owned business claim that a tribal court has no jurisdiction over it is actually a SLAPP lawsuit. A SLAPP lawsuit — strategic lawsuit against public participation — often is a frivolous countersuit by a corporate defendant against an individual plaintiff designed to bleed the plaintiff’s finances dry, effectively ending the original case. In this instance, it doesn’t appear that the facts support the claim.

But what if an Indian plaintiff brings a legitimate claim against a non-Indian in tribal court, and the defendant frivolously brings a federal court action to shut down the tribal court action? The non-Indian likely would not be subject to Rule 11 sanctions for filing a frivolous claim because the Supreme Court’s Montana jurisprudence is so negatively swayed against tribal jurisdiction that even easy cases are not easy (see the Water Wheel case). Any non-Indian defendant can bleed a tribal plaintiff dry.

Here are the materials:

Brian Laducer Motion to Dismiss

DISH Network Response

Brian Laducer Reply