tribal courts

New Jersey Cherokee Man’s Attempt to Transfer Divorce to Tribal Court Fails

Matthew L.M. Fletcher

Here is the opinion — NJ Sand Hill Band v. California

An excerpt:

Claiming to be a Cherokee Indian, pro se plaintiff Ronald-Stacey seeks an order transferring his divorce proceeding to tribal court from state court. Although Ronald-Stacey filed this action on behalf of himself and his tribe, Civil Local Rule 3-9(b) prevents a pro se party from appearing on behalf of an entity. This order uses “plaintiff” in the singular, in reference to Ronald-Stacey alone.

Three separate motions to dismiss have been filed in this action: one by the attorney general of California on behalf of both the State of California and the Superior Court of California for the County of Contra Costa; one by David Timko on behalf of himself and Lynda Ann Holloway, a.k.a Lynda Ann Andrews; and one by county counsel for Contra Costa on behalf of the county. Because this Court does not have subject-matter jurisdiction over plaintiff’s claims, defendants’ motions are GRANTED.

Talk at Columbia Law School re: DV in Indian Country

Matthew L.M. Fletcher

I’ll be presenting my paper “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty” at Columbia Law School today, on the gracious invitation of the Columbia NALSA and Domestic Violence Project.

White Mountain Apache Files Cert Opposition in Elliott Case

Matthew L.M. Fletcher

Here it is  — Elliott v WMAT Cert Opposition

The cert petition is here and the lower court materials are here.

There seems no real reason for the Supreme Court to take this case. The Ninth Circuit merely found that tribal court jurisdiction was “colorable” and remanded back to tribal court in accordance with the tribal court exhaustion doctrine.

FMLA Claim against Soaring Eagle Casino Dismissed

Matthew L.M. Fletcher

Here is the court order in Sober v. Soaring Eagle Casino (E.D. Mich.), dismissed on grounds that the plaintiff failed to exhaust tribal court remedies (she did not appeal tribal court’s dismissal of her claim to the tribal court of appeals) — Sober v Soaring Eagle DCT Order

Here are the materials:

SCIT Motion to Dismiss

Sober Tribal Court Order

New Scholarship on Same-Sex Marriage in Indian Country

Matthew L.M. Fletcher

Mark Strasser has posted “Tribal Marriages, Same-Sex Unions, and the Interstate Recognition Conundrum” on Berkeley Electronic Press (article here).

The abstract:

When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.

Second Circuit Summarily Dismisses Joe Frazier Suit against Oneida’s Turning Stone Casino

Matthew L.M. Fletcher1 Comment

Here is the opinion in Frazier v. Brophy — Frazier v Brophy CA2 Order

An excerpt:

An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Frazier, 254 F. Supp. 2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation’s presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute’s provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.

And, importantly:

The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www.oneidaindiannation.com/pressroom/factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino’s employees, he could attempt to bring them there.

Friday Eagle Criminal Trial to be Heard in Tribal Court

Matthew L.M. Fletcher

Here is the news article via Pechanga, and here are the documents:

US Motion to Continue

Order Granting Continuance in Friday Case

New Paper on Federal and State Court Recognition of Tribal Court Convictions

Matthew L.M. Fletcher1 Comment

My new paper, “Sovereign Comity: Factors in Recognizing Tribal Court Convictions in State and Federal Courts,” forthcoming in Court Review is available for download on SSRN here.

Here is the abstract:

State and federal courts increasingly are being confronted with prosecutors moving the court to consider prior convictions in American Indian tribal courts during the sentencing phase, and sometimes earlier. If the conviction being introduced occurred in state or federal court, the instant court would be obligated to give full faith and credit to that conviction. But if the prior conviction occurred in a tribal court, state and federal courts are often confronted with unforeseen complexities. This paper is intended to parse through much of the political baggage associated with recognizing tribal court convictions. To be frank, the law is unsettled, leaving little guidance for state and federal judges in these cases, while at the same time granting enormous discretion to judges on the questions involved. The first part of this paper will provide a quick overview of the constitutional status of Indian tribes and tribal courts, as well providing a basic but sufficient introduction to relevant principles of federal Indian law. The second part will offer a summary of criminal jurisdiction in Indian Country and, in particular, what role tribes play – and how well they play it. The third part offers a short description of the key cases in the field, as well as relevant federal and state statutes, and state court rules. It also offers a short normative argument on the question of what state and federal court judges who are confronted with prior tribal court convictions should look for in these cases, especially where the defendants convicted in tribal court are not represented by counsel.

Sarah Deer on Decolonizing Rape Law

Matthew L.M. Fletcher1 Comment

Sarah Deer has published her excellent paper “Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty” in the Wicaso Sa Review. (Deer Decolonizing Rape Law)

Here is an excerpt:

The question I raise is–should the tribal government itself respond to such crimes? If yes, how–and what might a Native feminist analysis have to offer in addressing this crisis?

Many people will argue that such crimes are too serious to be handled by contemporary tribal justice systems. (3) Given the numerous legal and financial limitations faced by tribal court systems, they might say, tribal governments must simply rely on the federal (or state) system to prosecute and sentence such rapists. However, this over-reliance on foreign governmental systems has often been to the detriment of Native women. Today, Native women suffer the highest per capita rates of sexual violence in the United States. (4) Conservative estimates suggest that more than one of three Native women in America will be raped during their lifetime. (5) Rape was once extremely rare in tribal communities. (6) Arguably, the imposition of colonial systems of power and control has resulted in Native women being the most victimized group of people in the United States.7 Moreover, statistics indicate that most perpetrators of rape against Native women are white. (8) As a result of a 1978 U.S. Supreme Court decision, tribal governments have been denied their authority to criminally prosecute non-Indian perpetrators.

Aliza Organick and Tonya Kowalski on Tribal-State Court Cooperation

Matthew L.M. Fletcher

Aliza Organick and Tonya Kowalski have posted “From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination,” forhtcoming from Court Review, a publication of the American Judges Association.

Here is the abstract:

State and Tribal sovereigns have historically had a tense relationship, beginning in colonial times, when states vied with the federal government for trading rights and for control of Indian lands. Today, that tension still expresses itself in matters such as gaming compacts, criminal and civil jurisdiction, and taxation, to name just a few. While different sovereigns within a federal system may always vie for resources and power to some extent, it is time for states and Tribes to focus on what a more mutually supportive relationship with Tribal communities has to offer. This Essay explores the history of the two sovereigns’ relationship, how they tend to interact today, and possibilities for positive growth and interaction between them.