tribal courts

Ninth Circuit Rejects Challenge to 2001 Crow Constitution

Matthew L.M. Fletcher

Here is the unpublished opinion in Harris v. Parisien.

And an excerpt from a local news article (Billings Gazette):

A federal appeals court has rejected a Billings woman’s claim that her rights were violated when the Crow Tribe of Indians adopted a new constitution in 2001.

Frances Harris is an enrolled member of the Crow Tribe. She sued in U.S. District Court, seeking to invalidate the 2001 tribal constitution because it eliminated a voting district for tribal members who do not live on the Crow Indian Reservation.

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Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law

Matthew L.M. Fletcher

Ann Tweedy has posted the abstract of her fine paper “Conceptions of Sex-Based Equal Protection under Tribal Law: Broad-Based Prohibitions Against Discrimination, Context-Specific Protections, and Sex-Based Distinctions” on SSRN. Here is the abstract:

This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington’s 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

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Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”

Matthew L.M. Fletcher2 Comments

SCOTUSBlog lists Coushatta Tribe v. Meyer & Assoc. as a petition to watch for the April 3, 2009 conference. A cursory review of the cert petition shows that there may be a conflict in the state courts about whether the tribal court exhaustion doctrine enunciated by National Farmers Union and Iowa Mutual applies to state courts. The conflict seems to be with the Connecticut courts, and perhaps the New York and Wisconsin courts (though there are good reasons to doubt whether those courts have really embraced the doctrine), which have held that the tribal court exhaustion doctrine applies to its courts. Other courts — Louisiana, Arizona, and others — have rejected the application of the doctrine to their courts.

My sense is that the Court will deny this petition, though it is definitely worth watching. Three key reasons: (1) Louisiana’s course of action was to treat this common law doctrine as applying only to federal courts, preserving its own choice whether or not to adopt this federal court doctrine (a choice it made in the negative, just as Connecticut chose to adopt it, presumably of its own free will), making this dispute more a state law question than a federal law question; (2) the tribe is the petitioner; and (3) this is a common law case, rather than a federal statutory interpretation case or a federal constitutional case.

If a state court followed National Farmers Union, complaining loudly that it had no choice because of federal bullying or something, then there probably would be more Supreme Court interest. There doesn’t seem to be a federal government interest in the tribal court exhaustion doctrine that would be apparent to the Court, a serious problem I suspect is behind much of the Court’s recent 25-year retreat from its earlier federal Indian law jurisprudence.

A potential wildcard is that the state court’s opinion seems to run a little roughshod over the tribe’s immunity, but this seems to be limited to the tribe’s own laws, something that wouldn’t be likely to interest the Court.

From SCOTUSblog:

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Graham v. Applied Geo Techs — Failure to Exhaust Tribal Court Remedies

Matthew L.M. Fletcher

Here are the materials in this case, out of the Southern District of Mississippi, where a plaintiff brought a race discrimination suit against a tribally owned enterprise (Mississippi Band Choctaw).

defendant-motion-to-dismiss

defendant-rebuttal-memorandum

graham-dct-order-dismissing-claim

District Court Refuses to Dismiss ERISA Claim against Tribal Business

Matthew L.M. Fletcher

Here are the materials in Vandever v. Osage Nation Enterprises, out of the Northern District of Oklahoma. The court rejected a magistrate report and recommendation to dismiss an ERISA claim against ONE and the Osage Nation, and also rejected a request by the Nation to require the plaintiff to exhaust tribal court remedies.

dct-order-rejecting-magistrate-report

vandever-magistrate-report

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Case to Watch — Amerind v. Malaterre

Matthew L.M. Fletcher2 Comments

The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure–I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]

This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.

Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.

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Connecticut Law Review Note Profiles GTB and Criminal Jurisdiction

Matthew L.M. Fletcher

Benjamin J. Cordiano published “Unspoken Assumptions: Examing Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina” in the Connecticut Law Review. Here is an excerpt from the abstract:

This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life.

Cert Opposition in Coushatta v. Meyer and Assoc.

Matthew L.M. Fletcher

Here is the cert opp — meyer-assoc-cert-opp

The cert petition is here.

Little River Tribal Court Judge Issues Gag Order on Tribal Enrollment

Matthew L.M. Fletcher

From Indianz:

“A tribal court in Michigan has issued an injunction ordering a journalist not to report on issues related to “blood quantum” and qualifications for tribal enrollment.

Judge Melissa Pope of the Little River Band of Ottawa Indians Tribal Court entered the injunction last month, after another judge issued a temporary restraining order in August 2008. According to Pope’s February 19 order, “Defendants and Plaintiffs shall not discuss any parties’ enrollment in the Little River Band of Ottawa Indians with respect to enrollment fraud, meaning questioning whether any of the parties are properly enrolled; status as a descendant; or blood quantum.” Judge Pope issued the injunction in connection with a libel case against reporter Nancy Kelsey and three other defendants. Among other allegations in their complaint, the plaintiffs claim that Kelsey “sent numerous e-mails claiming that Plaintiffs and their families have engaged in enrollment fraud and are not rightful members of this Tribe.” ”

Get the Story:
Tribal court bans reporter from covering fraud claims (Reporters Committee for Freedom of the Press 3/2)

Wisconsin Supreme Court Justice Warns of Constitutional Problems in a Potential “Oliphant Fix”

Matthew L.M. Fletcher

The Honorable Patience Drake Roggensack has published “Plains Commerce Bank’s Potential Collision with the Expansion of Tribal Court Jurisdiction by Senate Bill 3320” in the University of Baltimore Law Review. She concludes:

Congress should deliberate carefully on Senate Bill 3320. While crime on tribal land is a real problem that must be addressed, increasing the subject matter jurisdiction of tribal courts has the potential to create additional problems of constitutional dimension. Therefore, even though Plains Commerce Bank involves the examination of subject matter jurisdiction in a civil law context, it provides a well-reasoned framework for significant constitutional concerns. Consideration of Plains Commerce Bank will aid the examination of Senate Bill 3320’s proposed changes in the subject matter jurisdiction of tribal courts in criminal cases. It should not be overlooked in Congress’ deliberative process.