Sylvia Struss, a DNA attorney, published “DV Cases in Tribal Court” in the October 2009 issue of Arizona Attorney.
tribal courts
Federal Court Dismisses Effort to Enforce Billion-Dollar Judgment Against Harrah’s
But not on Indian law grounds — because the case was settled orally in 2003.
An excerpt:
A balancing of the Winston factors tips decidedly in favor of the conclusion that a binding oral settlement agreement was reached on March 31, 2003 ending the litigation in this Court over the Tribal Court Judgment. “[T]o protect the parties appearing before it, to preserve the integrity of an action, to maintain its ability to render a final judgment and to ensure the administration of justice,” Haitian Ctrs., 817 F. Supp. at 337, the Court finds that the prior actions were finally dismissed by virtue of the oral settlement agreement entered on March 31, 2003. See Mone, 2001 U.S. Dist. LEXIS 19445, 2001 WL 1518263, at *1 (finding that the action had been settled even though the formal stipulation was never submitted where defense counsel wrote the court confirming a conversation with the judge’s law clerk that the matter had been settled and stating that a formal stipulation would be drafted and forwarded to the court within three weeks); Van Ness, 129 A.D.2d at 932, 514 N.Y.S.2d at 571 (finding that an out-of-court oral agreement to settle as case was binding even though defendant never executed the general release and stipulation discontinuing the action forwarded by defendant counsel). Accordingly, because the subject matter of this action has been asserted in a prior action and settled by an oral agreement to end that matter with prejudice, Defendants’ motion must be granted and this action dismissed. The Court need not, and does not, reach the alternative arguments for dismissal.
On a Proposed U.S. Attorney for Indian Country
Some commentators have proposed that there should be a United States Attorney’s Office for Indian Country (h/t Indianz). Any kind of dedicated law enforcement structure for Indian Country would be a dramatic improvement, but there are still serious issues that must be addressed. This is an interesting proposal, and it should be looked at from a historical perspective.
The proposal recalls Title 4 of H.R. 7902 of the 73rd Congress, the original bill of the Indian Reorganization Act, in which the drafters (primarily Felix Cohen) proposed a Federal Court of Indian Affairs. As we all know, that part of the bill went nowhere. As Vine Deloria and Clifford Lytle noted in 1984, the federal court of Indian affairs would bring the federal courts to Indian Country, the framers of the bill recognizing that Indians had extreme practical difficulty in appearing in federal court due to georgraphic isolation.
That geographic isolation remains, as does the difficulty in traveling to appear in federal court. Part of the reason, according to present and former U.S. Attorneys, that the declination rates in Indian Country crime are so high is this geographic isolation. Any proposal must acknowledge this factor and take steps to respond.
Another practical diffculty, not present in the same degree in the 1930s as it is now, are the jurisdictional quandries created by the checkerboarding of lands and jurisdiction. Questions about the jurisdiction of the proposed USAIC will be raised by the USAs already in Indian Country (ND, MI, WA, ID, AZ, NM, and so on). Declinations also result from the added difficulty of proving Indian Country status as an element of the crime committed. The new USAIC will not help this problem.
We continue to firmly believe that any Indian Country law enforcement program must involve the reaffirmation of tribal criminal jurisdiction. Expansion of federal capacities, while an improvement, cannot solve the problem.
Cherokee Freedmen Cases Discussed at FBA Annual Meeting
From ICT:
OKLAHOMA CITY – Cherokee Chief Chad Smith wonders why the push to preserve tribal sovereignty by removing the descendants of freed slaves from his tribe was regarded as immoral at a Federal Bar Association meeting Sept. 10.
“We certainly want to be included in the fabric of this United States, but we always maintained that we are domestic dependent nations. The idea is why something is wrong when a tribe wants to be a tribe of Indians.”
Smith made the comments to around 150 onlookers at a discussion on the issue that included Harvard University law scholar Charles Ogletree, and Oklahoma Western Federal District Judge Vicki Miles LaGrange as moderator.
Ogletree and Smith each made 10 minute presentations summarizing viewpoints on the controversial issue. Panelists then fielded questions that went 20 minutes beyond the session’s scheduled time.
The discussion centered on the Cherokee Nation’s push to remove freedmen descendants from its rolls in March 2007. The freedmen ascertain that removal violates an 1866 treaty and has taken their case to federal court. No decision has been made on the federal level.
Meanwhile, Ogletree called the freedmen issue a “moral dilemma” and not one entirely of tribal sovereignty, while Smith outlined a history of case law precedent preserving the tribal right to define who qualifies for citizenship.
Order in Water Wheel v. LaRance Finding Tribal Court Jurisdiction over Non-Indian Business
Here is the order — Order – WW v. LaRance – D.Ariz.
Previous materials are here.
An excerpt:
Plaintiffs Water Wheel Camp Recreational Area, Inc. and Robert Johnson have been sued for eviction in an action pending in the Tribal Court of the Colorado River Indian Tribes (“CRIT”). Plaintiffs ask this Court to prevent Defendants – a judge and clerk of the Tribal Court – from proceeding with the Tribal Court action. Plaintiffs argue that the Tribal Court lacks subject matter jurisdiction under Montana v. United States, 450 U.S. 544 (1981).
After hearings on two requests for temporary restraining orders, extensive litigation
in the Tribal Court and Tribal Court of Appeals, and considerable briefing and oral argument, the Court concludes that the Tribal Court properly exercised jurisdiction over Water Wheel, but not over Robert Johnson. The Court will grant Plaintiffs’ request for declaratory relief with respect to Mr. Johnson and deny it with respect to Water Wheel.
LRB Sturgeon Release in Manistee River
From the Chicago Tribune:
MANISTEE, Mich. – A Northern Michigan Indian tribe is releasing young sturgeon into the Big Manistee River on Saturday to help restore the ancient fish in the Great Lakes region.
It’s the sixth year that the Little River Band of Ottawa Indians has placed sturgeon in the river.
Lake sturgeon date from the days of the dinosaurs. They can live from 50 to 150 years. Once plentiful in the Great Lakes, their numbers have been greatly reduced because of overfishing, habitat loss and pollution.
The tribe’s natural resources department operates a facility where young fish are reared until big enough to have a good chance for survival. Then they’re put back into the waterway from which they came. Tribal elders will take part in the release.
New Mexico Court of Appeals Holds that Tribal Court Child Custody Case Does Not Preempt State Case
Here is the opinion in State v. Diggs, in which the court rejected a double jeopardy argument. An excerpt:
Defendants Jonathan Diggs and Rebecca Miller appeal in advance of their trial from the district court’s denial of their motions to dismiss on double jeopardy grounds. We consider whether the New Mexico Constitution and double jeopardy statute prohibit the State from prosecuting Defendants for child abuse because the Children, Youth and Families Department (CYFD) previously investigated Defendants for child abuse and the Acoma Pueblo tribal court previously held a custody hearing on the same issues. We hold that there was no double jeopardy violation and affirm.
District Court Finds “Colorable” Tribal Court Jurisdiction in FMLA Claim
Here are the materials in Paddy v. Mulkey (D. Nev.):
Plaintiff Brief Opposing Tribal Court Jurisdiction
Minnesota COA Orders Trial Court to Transfer ICWA Case to Leech Lake Tribal Court
Here is the unpublished opinion in In re R.L.Z. (Minn. App.). An excerpt:
On appeal from the district court’s denial of a tribe’s motion to transfer this proceeding to terminate parental rights to tribal court, appellant Leech Lake Band of Ojibwe (the Band) argues that good cause to deny its motion did not exist because: (a) the Band filed its motion promptly after receiving notice of the proceedings, which were not at an advanced stage at that time; (b) the record before the district court did not indicate that transfer would create undue hardship on the parties or the witnesses; and (c) the district court improperly based its denial of the Band’s motion on the child’s best interests. We reverse.
New Mexico Court Decides Indian Jurisdiction Case
Here is the opinion in Garcia v. Gutierrez, from the New Mexico Supreme Court (Garcia v Gutierrez — NM SCT Opinion). An excerpt:
In this case—a divorce and custody dispute between an Indian father and a
non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and
tribal courts have entered conflicting decrees. Regrettably, complete resolution of that
In this case—a divorce and custody dispute between an Indian father and a non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and tribal courts have entered conflicting decrees. Regrettably, complete resolution of that conflict lies beyond our reach.
What we can do, however, is conclude that the state court does have jurisdiction. The tribal court—given the importance of the Pueblo’s children to its culture and its future—likely has jurisdiction; and neither is exclusive of the other. As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak, 78 N.M. 743, 744, 438 P.2d 153, 154 (1968) (“In making [a child-custody determination, a court’s] controlling influence should be the welfare and best interests of the child.”).
Thanks to T.L.M. for the head’s up.
Turtle Talk 
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