tribal courts

ICT Editorial by Kaighn Smith re: Tribal Work Laws

Matthew L.M. Fletcher1 Comment

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.

Continue reading →

New Scholarship on Williams v. Lee

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

Here, in the ABA’s Judges’ Journal, from Mike McBride: Saunooke Article

Here are other articles from the same issue re: judicial diversity:

Right arrow An Interview with Justice Ruth Bader Ginsburg
By Suzanne Reynolds

Right arrow Racial and Gender Diversity on State Courts: An AJS Study
By Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield

Right arrow A Bench That Looks Like America: Diversity Among Appointed State Court Judges
By Ciara Torres-Spelliscy

Banishments at Mashantucket Pequot

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher1 Comment

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

Bustamante Response and Cross Motion

PYT Reply

Bustamante Reply

News Article on Possible Cross-Dep between GTB and Grand Traverse County

Matthew L.M. Fletcher

From local TV:

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

Matthew 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

Matthew 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 →