Here are the materials from the District court in Montana:
tribal courts
Bustamante v. Valenzuela Magistrate Report Rejects Consecutive Tribal Court Sentences
Here is the magistrate R&R in this matter, a companion case to Miranda v. Nielson (D. Ariz.), though a different federal judge will review this report, so we’ll see.
Bustamante Report and Recommendation
Briefs are here.
28 U.S.C. 1362 Doesn’t Waive Tribal Sovereign Immunity
Well, someone was bound to try it. 🙂
Turner v. McGee (N.D. Okla.)
An excerpt:
Petitioner, a member of the Kiowa Tribe, has brought this pro se action seeking injunctive relief against four administrative law judges employed by the Bureau of Indian Affairs. Respondents as administrative law judges preside over cases brought before the Court of Indian Offenses for the Kiowa Tribe. Petitioner seeks injunctive relief relative to decisions rendered by respondents while acting in their official capacities as administrative law judges.Indian tribal governments, such as the Kiowa Tribe, enjoy immunity from suit the same as any other sovereign power. Tribal governments are subject to suit only where suit has been expressly authorized by Congress or the tribe has waived its immunity. * * *
ICT Editorial by Kaighn Smith re: Tribal Work Laws
From ICT:
Imagine this scenario: “If you don’t sleep with me, you can kiss your job goodbye,” the male supervisor warns the female waitress at the tribe’s gaming facility. (We’ll call her Joyce.) She consistently says no. His threats continue and even escalate.
Although he threatens to make her life miserable if she tells anyone, Joyce seeks help from the Equal Employment Opportunity Commission; EEOC informs her that federal sexual harassment laws exclude tribes. She goes to tribal court. She finds she has no remedy under tribal law. Overwhelmed by her boss’ intimidation, Joyce quits her job. Unemployed and unable to afford her rent, she moves in with her brother, Bob.
| A host of other laws that are silent about their application to tribes pose similar threats to tribal sovereignty. |
Bob, a union organizer, is outraged. He starts talking to Joyce’s co-workers and learns that other women have experienced similar harassment. Other workers complain that management plays favorites with tribal members, giving them better jobs and shifts than non-members. Bob says that with union representation, management would be held accountable for workers’ rights.
New Scholarship on Williams v. Lee
Dewi I. Ball has posted “Williams v. Lee (1959) – 50 years later: A Re-assessment of One of the Most Important cases in the Modern-era of Federal Indian Law” on BEPress (download here). Here is the abstract:
It is 50 years since the landmark decision of Williams v. Lee was handed down by Justice Hugo Lafayette Black and the United States Supreme Court. At the time, the case was a watershed event that signified the legal resurgence of Native America in Federal Indian law and in particular, the renaissance of the Indian sovereignty doctrine, inherent tribal sovereignty and the principles of Worcester v. Georgia. There can be no doubt that the eloquently constructed opinion by Hugo Black brought positive news for all Native Americans, especially in light of the process of Termination that was being pursued by Congress and the United States President. However, against this nascent sense of renewal and hope, the Williams case also began what became an insidious trend in the decision-making process of the U.S. Supreme Court; the weakening of the Indian sovereignty doctrine and some of the key attributes of tribal power; namely civil, criminal and taxation authority. Much of the academic literature in the field of Federal Indian law and Native American studies points to the importance of the Williams case as one which strengthened Native American sovereignty but other academics, from the 1990s, have questioned whether the case was an overall success for the authority of Native Americans on their reservations in the complexity of what is Federal Indian law. Although this article will analyze the re-affirmation of the Indian sovereignty doctrine and inherent tribal sovereignty in the Williams opinion, through the use of archival materials from the private papers of U.S. Supreme Court Justices, it will also be the first article in Native American studies to examine behind the scenes discussions and processes used in the Williams case and argue that the weakening of the Indian sovereignty doctrine began in 1959.
Scholarship on this case is burgeoning. Hon. Raymond Austin’s book “Navajo Courts and Navajo Common Law” touches upon the case from the point of view of the Navajo Nation government, which treated it as a kind of test case.
This work parses through the papers of Justice Brennan for an inside look at how the Court decided the case. A sobering work well worth reading.
Dean Washburn Testimony on Tribal Law and Order Act before the U.S. Sentencing Commission — Updated
Dean Kevin Washburn has posted the abstract of his written testimony on the Tribal Law and Order Act before the United States Sentencing Commission on SSRN. He will be appearing later today. Testimony is here.
Here is the abstract:
Under longstanding policy, the U.S. Sentencing Commission takes the position that tribal court convictions ought not be counted for purposes of evaluating a convicted defendant’s criminal history. Because in some cases this policy underestimates a defendant’s criminal history, it undermines the utilitarian and retributive purposes of federal sentencing. The Tribal Law and Order Act, currently pending in Congress and supported by the President, should cause the United States Sentencing Commission to reconsider its position on tribal convictions. The Act would provide clear federal authorization for tribal court felony sentences of up to three years per offense as long as tribal governments provide counsel to indigent defendants. I stop short of recommending a particular outcome because I believe that the Commission ought to consider the views of tribal governments before deciding. However, if the Act becomes law, the Commission should take this opportunity to re-open the question and consult with tribes about the future of this provision.
Tribal Judge David Harding Walks On
From ICT:
PLUMMER, Idaho – David Lee Harding was widely known throughout Indian country, having served for 29 years in tribal courts in Idaho, Washington, Oregon, California and Alaska. He passed away Dec. 8, 2009 while playing in a father/son basketball game with his sons and numerous friends. He was 57 years old.
David was a member of the Turtle Mountain Band of Chippewa in North Dakota but grew up in the Willamette Valley of Oregon with two brothers and a sister. He was a fan of Paul Revere and the Raiders and started his own rock band in his early years. This led to working as a radio announcer and in later years to announcing at boxing matches at the Coeur d’Alene Casino as well as basketball games in Plummer and Spokane and he was a backup announcer for the Spokane Indians professional baseball team.
Former Coeur d’Alene Tribal Attorney Ray Givens tells of a night at the boxing matches when David was announcing. “One night I took my son, who was about 8 at the time, to a boxing match at the Coeur d’Alene Tribe’s Casino. We bought some 50/50 tickets as we went in, and I gave the stubs to Joe. Dave Harding was the ring announcer that night, and when the ring girl drew the ticket, we won. The scantily clad lady came down to where we were sitting and escorted Joe up to the ring. He was terrified. Dave smiled, looked down at me, and said over the mike, ‘Ray, under the tribe’s law, which you probably wrote, a minor can’t gamble here and 50/50 is gambling.’ Everyone, including me, had a good laugh at my expense. I went up to the ring, rescued my son and collected the prize from a still laughing Dave. His grace and humor was much appreciated.”
David graduated from the University of Oregon in 1975 where he was president of the Native American Student Union. He attended the University of Oregon School of Law, and later a summer session at the University of New Mexico School of Law and later yet attended the University of Idaho School of Law. Continue reading
Eastern Band Cherokee Judge Saunooke Article on Diversity on Federal Bench
Here, in the ABA’s Judges’ Journal, from Mike McBride: Saunooke Article
Here are other articles from the same issue re: judicial diversity:
An Interview with Justice Ruth Bader Ginsburg
By Suzanne Reynolds
Racial and Gender Diversity on State Courts: An AJS Study
By Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield
A Bench That Looks Like America: Diversity Among Appointed State Court Judges
By Ciara Torres-Spelliscy
Banishments at Mashantucket Pequot
From local news:
In banishing Christopher Pearson, the former tribal official facing sentencing on federal wire-fraud charges, the Mashantucket Pequot Tribal Elders Council meted out an ancient form of punishment employed by Indian tribes across the country.
Within weeks of his Nov. 19 conviction in U.S. District Court in Hartford, Pearson was ordered off the Mashantucket reservation, where he owns a home, and to surrender his tribal badge, having “forfeited all rights and privileges of Tribal membership with the exception of services provided by Tribal Health Services.”
The elders council also directed the tribe’s finance department to cut off Pearson’s monthly “incentive” payments — the distributions of Foxwoods Resort Casino revenue that all tribal members in good standing receive.
While the tribe would provide no information about banishments, it’s believed that their frequency has increased since the tribe’s constitution and by-laws granted the elders council “the authority and responsibility” to impose them.
Mashantucket Pequot Tribal Council resolutions show that 12 people were banished by the tribal council prior to the establishment of the elders council in 1996. Currently, several people are banished each year, maybe more, according to Thomas Weissmuller, chief judge of the Mashantucket Pequot Tribal Court. Continue reading
Companion Case to Miranda on Tribal Court Authority to Issue Consecutive Sentences
This one is called Bustamante v. Valenzuela, and will be decided by a different judge than the Miranda case. Here are the materials:
PYT Motion for Summary Judgment
Turtle Talk 
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