My paper on domestic violence in Indian Country will appear in the American Constitution Society publication “Advance” Spring 2009 edition.
tribal courts
Elliott v. White Mountain Apache Tribal Court Cert Petition
This case arises out of a major forest fire (the Rodeo-Chediski fire) partially caused by Valinda Jo Elliott on White Mountain land (she started the Chediski part). The tribe sued her in tribal court for damages related to the fire. On her federal claim, she argued that the tribal court could not have jurisdiction over her. The Ninth Circuit’s holding was that tribal court jurisdiction was plausible (read: not entirely frivolous) and ordered her to exhaust tribal court remedies. As such, it appears the reason the Supreme Court would grant cert here is because four members of the Court believe it is time to either overrule or significantly undermine National Farmers Union and Iowa Mutual, the key cases in the tribal court exhaustion doctrine
Here is the petition — Elliott Cert Petition
The question presented:
Can a tribal court assert jurisdiction over a non-consenting non-Indian and force her to defend against civil claims in that unfamiliar forum when it is plain that the tribal court has neither regulatory nor adjudicatory jurisdiction and where the conduct at issue by the non-consenting non-Indian on tribal land does not and cannot ever threaten or directly effect the tribal political integrity, economic security, or the health or welfare of the tribe?
The lower court materials are here.
Federal Court Dismisses Civil Rights Claim against Menominee Jail
Here is the opinion in Lyons v. Menominee Tribal Jail (E.D. Wis.) — DCT Order Dismissing Lyons Complaint
The petitioner claimed to have been jailed for four months without seeing a judge — Lyons Pro Se Complaint. One hopes that isn’t true.
An excerpt from the order (technically, an order refusing the petitioner to waive filing fees):
Moreover, the complaint does not appear to state a claim upon which relief may be granted. Section 1983, the civil rights statute, imposes liability on individuals who act under color of state law, but it does not apply to those acting under color of tribal law. Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (“A § 1983 action is unavailable ‘for persons alleging deprivation of constitutional rights under color of tribal law.’ ”) (quoting R.J. Williams Co. v. Ft. Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir.1983)). Accordingly, it will be dismissed for that additional reason. “Because plaintiff does not allege that defendant acted under color of state law, the district court was correct to grant summary judgment to defendant on that basis.” Pounds v. Killion, 35 Fed. Appx. 819, 821, 2002 WL 1038774, *1 (10th Cir.2002).
The court also noted that no jurisdiction existed under the Indian Civil Rights Act:
Similarly, the Indian Civil Rights Act (“ICRA”) does not provide a remedy. The only remedy provided in ICRA is that of habeas-style relief (i.e., release from custody)-it does not authorize damages actions after release. United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir.2005) (“We acknowledge that in the civil context, habeas corpus relief generally is the sole federal remedy for a violation of ICRA.”); Stevens v. Skenandore, 2000 WL 1069404, * 1 (7th Cir.2000) (“Stevens cannot sue the individual Oneida defendants under the ICRA because the only remedy authorized by the statute is a habeas corpus proceeding brought against the tribe pursuant to 42 U.S.C. § 1303.”)
No Removal from Tribal Court to Federal Court in Domestic Dispute
Here is the opinion in Velarde v. Velarde (D. N.M.) in which the court remanded a case filed in Jicarilla Tribal Court back to tribal court — Velarde v Velarde DCT Order
An excerpt:
The Court, having exercised its responsibility to assure that it has subject-matter jurisdiction, has determined that remand is appropriate in this case. An examination of the Petition reveals that there are no federal claims and no diversity jurisdiction. The Court has no basis for exercising jurisdiction and will accordingly remand the case to the Jicarilla Apache Nation Court.
Navajo Council to Repeal Dine Fundamental Law?!?!
From the Navajo-Hopi Observer:
WINDOW ROCK, Ariz. – Last Thursday, the 21st Navajo Nation Council tabled a measure that would have repealed the Diné Fundamental Laws – a codified set of laws based on centuries-old Navajo traditional values and customs. The measure was tabled until the fall session with a vote of 48-21.
Council Delegate Raymond Joe (Tachee/Blue Gap/Whippoorwill) introduced the measure during the final day of the council’s summer session. He and others cited that these laws, which are primarily meant to govern the upbringing of Navajo youth and promote balance and harmony among Navajo people, are being abused and misinterpreted by Navajo lawmakers in order to promote their own political agendas.
The laws, codified in 2002, provide no guidance on how they should be used or applied.
Cherokee Trial Court Holds Hearing on Freedmen Case
From the Cherokee Phoenix (via Pechanga):
TAHLEQUAH, Okla. – The Cherokee Nation District Court held a July 17 hearing for the case of Raymond Nash v. CN Registrar as attorneys for both parties presented arguments for their motions for summary judgment.
A summary judgment is a decision based on statements and evidence presented for the record without a trial. It is used when there is no dispute regarding facts and one party is entitled to judgment as a matter of law.
The Nash case is a class action lawsuit involving 386 Freedmen descendents claiming they were illegally removed from the CN citizenship rolls by a voter-approved constitutional amendment in March 2007.
Article on Indian Law Cases in New York State Courts
Law.com has published an article on several Indian law cases that are active in New York state courts, including the Cayuga cigarette tax case and another involving the application of state civil regulatory law to a tort claim arising out of actions that occurred entirely within the Akwesasne Mohawk reservation.
From the article:
Hart’s attorney, John A. Piasecki of Malone, N.Y., said he argued that application of the Labor Law is an administrative action by the state and does not have force in the St. Regis Mohawk territory. Piasecki said he would like to someday argue the point before the U.S. Supreme Court.
“It is larger than mere tribal sovereignty,” Piasecki said Tuesday in an interview. “We have argued that unless a law is specifically adopted on an Indian reservation or specifically imposed on an Indian reservation by a federal act of Congress … New York statutes simply don’t apply within the boundary of the St. Regis Mohawk Indian Reservation.”
The article also notes that the Plaintiff in the litigation surrounding the alleged tort occurring on the Akwesasne reservation made a conscious effort to avoid incorporating the tribe in the lawsuit. Presumably, the Tribe’s attorney would know better than to try to bring this type of case all the way to the U.S. Supreme Court (as presently constituted).
It seems to me that it is these types of cases that present the greatest threat to sovereign authority, because the advocacy of tribal interests is in the hands of a self-interested litigant (perhaps with an attorney not well-versed in Indian law). These types of cases provide the courts with opportunities to limit tribal jurisdiction without the tribe being the primary party in interest a la Hicks, Strate, Means, and Lara (although the latter two did not end too badly for tribal interests).
You can read the entire article here
NYTs: Navajo Nation to Vote on Structure of Government
From the NYTs (Navajo Supreme Court opinion):
FLAGSTAFF, Ariz. (AP) — Navajo voters have never had much of a say in how their modern government was shaped. But that may soon change, after a tribal judge cleared the way for a special election on a restructuring that could alter the balance of power on the sprawling reservation.
The government structure was forced upon Navajo voters 86 years ago and was reorganized under three branches without their consent.
Maybe Navajos “will have a greater sense of ownership in the government than they now have,” said Dale Mason, who teaches Navajo government at the University of New Mexico, Gallup.
In 1923, the federal government created the Tribal Council to sign off on oil and gas leases. Before that, Navajos largely governed themselves. Small bands were led by headmen, or naataanii, who came together only in times of crisis to solve problems that extended beyond their communities.
Even if such a meeting, called a naachid, resulted in a decision to act, no Navajo was bound to comply.
With the discovery of oil on the reservation in 1922, the federal government needed an entity to deal with for leasing matters. It appointed three Navajos to a business council, but soon realized that the group needed to be more representative and expanded it to include delegates from across the reservation.
Interdepartmental Tribal Justice, Safety, and Wellness Meeting
Here is the flyer for this training, scheduled for August 10-14, 2009 in Tulsa.
API v. Sac and Fox — Court Finds Tribal Court Jurisdiction over Nonmembers
Here is the district court order granting the tribe’s motion to dismiss a challenge to the tribal court’s jurisdiction in this long-running intratribal dispute — DCT Order on Cross Motions
The pleadings are here.
An excerpt:
API’s conduct imperiled the Tribe’s political integrity. In essence, API invaded the Tribe’s land to quell an intra-tribal governmental dispute. API argues this intra-tribal dispute was merely incidental to the raid. API contends that, if the court finds the raid imperiled the Tribe’s political integrity, any action taken by a non-member on tribal land during an intra-tribal governmental dispute would justify a court’s invocation of the second Montana exception. The court disagrees. API’s actions were made and intended to be a direct challenge to the Bear Council. API raided the Casino on behalf of the Walker Council, which was not the Tribe’s true governing authority. API conducted the raid pursuant to the Agreement, and the Agreement’s terms indicate the services API was expected to provide related directly to the Tribe’s governmental affairs. See Agreement at P I.2.A (stating API “shall perform services directly relating to the investigation of a takeover by dissidents at the [Casino] located on the Tribe’s reservation lands” and “[i]nvestigat[e] [. . .] individuals involved in the unlawful acts against the Tribal Government”). In other words, API was hired to assist in the resolution of an intra-tribal governmental dispute, which strikes at the heart of the secondMontana exception. The fact API believed it was operating with the consent of the Tribe’s governing authority, that is, the ousted Walker Council, has no effect on the application of this exception. In truth and in fact, API raided the Casino specifically to weaken one side of an intra-tribal governmental dispute, which happened to be the Bear Council, the Tribe’s true governing body. This is an act with potentially catastrophic consequences to the Tribe’s government. The court concludes this merits the application of the protective prong of the Montana exception and that the Tribal Court’s exercise of civil jurisdiction over API was proper.
Turtle Talk 
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