tribal courts

Grand Traverse County could be getting new officers, but without hiring any new ones. It’s part of a cross deputization proposal from the Grand Traverse Band of Ottawa and Chippewa Indians. What are the implications and how might it give a boost to the sheriff’s department budget?

The details are tonight’s Fact Finder Report.

We may all live in northern Michigan, but a complicated past has left some of us in different legal territory.

John Petoskey, General Council for the Grand Traverse Band of Ottawa and Chippewa Indians says, “Because of the history of the relationship between tribes in the U.S. tribes do not have criminal jurisdiction over non tribe members and the state does not have criminal jurisdiction over tribal members.”

One aspect of that relationship may be changing.

The Grand Traverse Band and Grand Traverse County are discussing a cross deputization agreement.

Petoskey says, “What the cross deputization agreement would provide is the ability of the officer on the ground to make the arrest and sort out who has jurisdiction the next day.”

Right now if there’s a non tribal member breaks the law on property owned by the tribe, like Turtle Creek Casino, right now tribal officers can kick them off the property for trespassing, but that’s about it.

Petoskey says, “If we had a cross deputization agreement the tribe would be acting as deputies of Grand Traverse County to affect the arrest. The prosecution would still take place in Grand Traverse County though.”

Currently the Grand Traverse Band has similar agreements in 4 area counties; Charlevoix, Antrim, Benzie and Leelanau counties. He says those agreements are each for a number of years, but can be rescinded with a 30 day notice. And tribal leaders are using that model as the proposal for Grand Traverse County.

But why is Grand Traverse County the only county in the greater Grand Traverse Region without this kind of agreement?

You might blame it on previous administrations. Continue reading →

Federal Court Rejects Stacked Sentences in Tribal Courts — UPDATED

January 12, 2010January 13, 2010Matthew L.M. Fletcher4 Comments

Here is the order in Miranda v. Nielson [Pascua Yaqui Tribe] (D. Ariz.): Order MSJ Granted.

The Magistrate’s report is here.

Briefs are here:

Tribes X Motion Summary Judgment Habeas-Miranda

Miranda Motion for Summary J

PYT Objection to Magistrate Report

Federal Objections to Magistrate Report

PYT Court of Appeals Brief

UCLA Law Student Note on Oliphant Fix

January 9, 2010Matthew L.M. Fletcher3 Comments

Samuel E. Ennis published his Comment, “Reaffirming Indian Tribal Court Criminal Jurisdiction over Non-Indians: An Argument for Statutory Abrogation of Oliphant,” (pdf) in the UCLA Law Review. The abstract:

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes. Continue reading →

Removal of Casino Slip and Fall to Federal Court Fails

January 9, 2010Matthew L.M. Fletcher

Here are the materials in Keim v. Harrah’s Operating Co. (S.D. Cal.):

Harrah’s Motion to Dismiss

Harrah’s Response to Order to Show Cause

Keim DCT Order

New Scholarship on Tribal Jurisdiction and Intertribal and Intratribal Common Law

January 5, 2010January 5, 2010Matthew L.M. Fletcher

Jesse Sixkiller has published, “Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank,” in the Arizona Journal of International and Comparative Law.

Here is an excerpt from the conclusion:

Today, as this Note has demonstrated, there remains a clear divide between state and tribal civil jurisdiction powers. While states have come to enjoy a form of civil jurisdiction that can reach beyond their boundaries regardless of state citizenship, tribes remain confined to specific lands within their territory when it comes to jurisdiction over nonmembers.341 It has become more evident that the reasons are based on fairness to the nonmember parties, particularly to non-Indians.342 That stigma of unfairness must be addressed in order to ensure that jurisdiction over nonmembers is not similarly compromised on tribal lands, and possibly to enlarge tribal jurisdiction on nonmember fee lands.

Continue reading →

Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

January 5, 2010January 5, 2010Matthew L.M. Fletcher4 Comments

Here is United States v. Cavanaugh (D. N.D.), where the court dismissed an indictment under the federal domestic violence by a habitual offender in Indian Country statute (18 U.S.C. 117), holding that the use of prior uncounseled tribal court D.V. convictions to establish the “habitual” element of the crime was unconstitutional. See my paper on how state courts should use, if at all, uncounseled tribal court convictions. The court rejected claims that the statute itself was unconstitutional under Morrison and Lopez.

Here are the materials:

Cavanaugh DCT Order on Motion to Dismiss

Cavanaugh Motion to Dismiss

US Opposition to Cavanaugh Motion to Dismiss

Cavanaugh Reply Brief

Continue reading →

Latgawa Indian Tribe Sued

January 4, 2010Matthew L.M. Fletcher4 Comments

Here is a complaint filed in the federal court in Oregon, Airport Chevrolet v. Davis — Airport Chevrolet v Davis

An excerpt:

Plaintiff is an Oregon corporation authorized and licensed to do business within the State of Oregon. Defendants Richard L. Davis aka Richard Red Hawk Davis aka Red Hawk (“Davis”) and John Newkirk aka John Grey Eagle Newkirk (“Newkirk”) are residents of the State of Oregon. Defendant Confederated Tribes-Rogue-Table Rock & Associated tribes is a not-for-profit organization, organized and existing pursuant to the laws of the State of Oregon; this organization conducts business under the name of the “Latgawa Indian Tribe.” These organizations will hereafter be collectively referred to as the “Tribe”.

Defendant Davis claims membership in the Tribe. Defendant Newkirk also claims membership in the Tribe, and also claims to be a “Latgawa Tribal Judge.” The Tribe purports to have established the Latgawa Indian Tribal Justice Court in Central Point, Oregon. Continue reading →

News Profile of Barriers to Justice for Indian Women

January 3, 2010Matthew L.M. Fletcher

From the Lincoln Journal Star:

She needs to call 911. She needs police to arrest the drunken boyfriend who assaulted her. She needs to go to the hospital, because she might be pregnant and he might be HIV-positive. And she needs a lawyer.

She could be one of so many women on Native reservations, where alcoholism and domestic violence often are rampant. In fact, Amnesty International reported in 2007 that Native women were 2 1/2 times more likely to be sexually assaulted.

Yet when a Native woman dials 911, a series of legal obstacles arise. Many stem from laws governing tribes — laws that can amplify the horror of sexual assault on Native reservations.

Among them is a 1950s federal regulation allowing government agencies, such as Indian Health Services, to avoid testifying in state and tribal courts.

The perceived benefit: Less courtroom involvement keeps agencies neutral.

But critics say information being withheld can include forensic evidence that could convict a rapist.

“So we have serial rapists that stalk our women,” said Charon Asetoyer, whose South Dakota-based group fights for Native women’s reproductive rights. Continue reading →

Rosenberg v. Hualapai Indian Nation Cert Petition

December 30, 2009Matthew L.M. Fletcher1 Comment

Here is the cert petition in Rosenberg v. Hualapai Indian Nation (No. 09-742): Rosenberg Cert Petition.

No chance for a grant here. No circuit split. Nothing important for the SCT to decide, especially since they denied cert in the dram shop cases earlier this year. And the petition merely asks the Court to reverse itself, without really stating why. Oh, and the plaintiff had recourse to tribal court, so there isn’t a “no forum” problem.

Lower court materials are here.

The questions presented:

1. Does the sovereign immunity of an Indian tribe extend to off-Indian County (extra-territorial), tortuous conduct?

a. Does Congress, and Congress alone, have the authority to establish the boundaries of tribal sovereign immunity, a judicially-created doctrine, or may this Court define its outer boundaries, as this Court has suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700 (1998)?

b. Is tribal sovereign immunity broader than the immunity provided to foreign sovereign nations?

2. Does a tribe waive its sovereign immunity by engaging in conduct that would lead a reasonable person to believe that he or she might have recourse in a court of competent jurisdiction for the negligence acts of the tribe?

Turtle Mountain Band Tribal Court Exhaustion Case

December 29, 2009Matthew L.M. Fletcher

Here is the opinion in Auto Owners Insurance v. Azure (D. N.D.): Auto Owners Ins v Azure DCT Order.