tribal courts

Supreme Court Denies Cert in Harjo and Elliott

Matthew L.M. Fletcher

The order list is here, with the Harjo and Elliott cases listed on page 3.

Neither decision is a big surprise, as the Court grants cert in only a small percentage of cert petitions. The trademark suit against the Redskins will continue through different plaintiffs, but the laches argument that served to defeat the Harjo plaintiffs applies with virtually equal force to the new plaintiffs. (AP article here).

The Elliott case is a welcome relief, given that the Court seems to grant cert petitions filed by non-Indians against tribal jurisdiction almost randomly. Here, one suspects the fact that the Ninth Circuit merely was remanding to tribal court for a decision on the merits may have some importance, but the Court has previously granted cert in cases prior to a tribal court decision on the merits (see Strate). The takeaway from the Elliott cert petition denial is simply that one must continue to assume the Court continues to look at tribal jurisdiction cases carefully, but makes its certiorari decisions based on some utterly random calculus.

We surely would love to know if Justice Sotomayor weighed in on these cases in any way, and if so, how.

Idaho Federal Court Declines to Issue Order to Tribal Court in Criminal Case

Matthew L.M. Fletcher

In Chippewa v. Shoshone-Bannock Tribes Fort Hall Indian Reservation (D. Idaho), the court held that it has no jurisdiction to issue a writ of mandamus to a tribal court — Chippewa DCT Order

An excerpt:

Lara, Wheeler,  and Enas clearly illustrate that tribal courts and courts of the United States each have separate jurisdiction to prosecute offenses against their respective sovereigns. A federal court does not have jurisdiction over a tribal court prosecution. Furthermore, a tribal court is not an inferior court to the federal court. Therefore, the Court cannot issue a writ of mandamus directing the Tribal Court to either act on Chippewa’s motions or run three Tribal sentences concurrently with the now expired federal sentence.

Although the Court has not located any cases specifically holding that a federal court cannot issue a writ of mandamus to a Tribal Court, it is clear by analogy to cases addressing the issue in the context of state courts that it cannot. See, e.g., Craigo v. Hey, 624 F.Supp. 414, 416 (S.D.W.Va. 1985) (declining to issue a writ of mandamus finding that the Court had no original jurisdiction over a matter filed in state court and because it did not sit “as an appellate or supervisory tribunal” for the state court). See also Harris v. Department of Corrections, 426 F.Supp. 350 (D.C.Okl. 1977) (same; federal district courts do not sit to review actions taken in state court and do not have jurisdiction to compel a state or its officers to perform any duty owned to a plaintiff under state law). Accordingly, Chippewa’s Petition shall be dismissed.

MSU NALSA Tribal Court Event TOMORROW (Veterans Day)

Matthew L.M. Fletcher1 Comment

09-STU-18 NALSA Poster

Supreme Court Indian Law Petitions Set for This Week’s Conference

Matthew L.M. Fletcher

Two important cert petitions, Elliott v. White Mountain Apache Tribal Court (09-187) and Harjo v. Pro-Football, Inc. (09-326) are set for this Friday’s Conference.

Our sense is that the Court will decline to hear either case, and there’s no word from SCOTUSBlog on these petitions yet. However, the Court’s interest is always heightened when a tribal court asserts jurisdiction over a non-Indian, as is the case in the Elliott case. And there appears to be a circuit split (on trademark grounds) in the Harjo case, with one side of the split supposedly involving an opinion from then-Third Circuit judge Alito. So there is a possibility in each case.

Here are the materials in Elliott:

Docket Sheet

Petition for Cert

Brief in Opposition

And here are the materials in Harjo:

Continue reading →

NALSA Panel Event: Tribal Judges

Kate Fort1 Comment

MSU NALSA is hosting a panel of tribal judges on Wednesday, November 11 at 4:30 pm in the Castle Board Room.  Hon. Michael Petsokey, Hon. Holly Thompson and Hon. Matthew Fletcher will be talking.

Food and drink will be served.

NALSA Tribal Judges Event

NALSA logotest

Senate Report Accompanying Tribal Law and Order Act

Matthew L.M. Fletcher

S Report 111-93

Also, the prepared remarks of Associate A.G. Tom Perrelli (ASG.Listening Session Remarks) and Deputy A.G. David W. Ogden (DAG.Listening Session Remarks) from last week’s Minneapolis listening session.

Miigwetch to MBL for this!

No ICRA Habeas Right in Tribal Criminal Contempt Fine

Matthew L.M. Fletcher

Here is the magistrate’s report in Boyd v. Fort Peck Tribes, adopted by the judge a few days ago — Boyd v Fort Peck Tribes R&R

An excerpt:

On September 10, 2009, Petitioner Roberta Boyd filed this action seeking a writ of habeas corpus under 25 U.S.C. § 1303. Petitioner is proceeding pro se.

The Fort Peck Tribal Court ordered Petitioner to pay a $500.00 fine for criminal contempt. Pet. (doc. 1) at 2 ¶¶ 3-4. A writ of habeas corpus is available under 25 U.S.C. § 1303 “to test the legality of his detention by order of an Indian tribe.” The phrase “detention” has the same meaning as “custody” under28 U.S.C. §§ 2241 and 2254. Imposition of a fine does not constitute custody or detention. Moore v. Nelson, 270 F.3d 789, 791-92 (9th Cir.2001). The writ of habeas corpus is not available. The Court lacks subject matter jurisdiction to entertain this action. It should be dismissed.

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.