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:
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.
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.
Here is the news article via Pechanga, and here are the documents:
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 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 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.
Sylvia Struss, a DNA attorney, published “DV Cases in Tribal Court” in the October 2009 issue of Arizona Attorney.
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.
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.
Turtle Talk 
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