tribal courts

New Sixth Amendment Case Out of Indian Country re: Lay Counsel and Miranda

Matthew L.M. Fletcher

Here is yet another case holding that the appointment of tribal lay advocates/counsel to defend an Indian in tribal court does not trigger Sixth Amendment protections under Miranda.

cottier-dct-order

cottier-report-and-recommendations

Here is an important footnote in the R&R (n. 4):

There is a split of authority among the circuits as to whether, in cases involving an allegation of a Sixth Amendment violation, the Texas v. Cobb decision incorporates the full panoply of double jeopardy analysis–specifically the dual sovereign analysis–or whether only the Blockburger test applies. This would be of significance where, for example, state and federal officials charged a defendant with offenses having identical elements. If the defendant had already appeared in state court and asserted his Sixth Amendment right to counsel, and federal officials subsequently interrogated the defendant before the institution of federal charges with the same essential elements as the state charges, courts disagree on whether this would constitute a Sixth Amendment violation. See United States v. Coker, 433 F.3d 39, 43 (1st Cir. 2005). The Second Circuit does not apply the dual sovereign analysis to allegations of Sixth Amendment violations. United States v. Mills, 412 F.3d 325 (2d Cir. 2005). The Eighth Circuit is in accord with this approach at least where the other sovereign is an Indian tribe. See Red Bird, 287 F.3d at 715. The First and Fifth Circuits apply the dual sovereign analysis to Sixth Amendment violations. See Coker, 433 F.3d at 43; United States v. Avants, 278 F.3d 510 (5th Cir. 2002).

U.S. v. Perez — Sixth Amendment Right to Counsel when Tribe Appoints Lay Advocate Defender

Matthew L.M. Fletcher

Here are the materials in U.S. v. Perez:

perez-r-and-r

dct-order-denying-perez-motion-to-suppress

The interesting excerpt from the district court’s denial of the motion is here:

After a careful review of the parties’ arguments, the facts, and relevant caselaw, the court adopts the magistrate judge’s recommendation and finds that Perez’s Sixth Amendment right to counsel was not violated. While Perez is correct that United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002), would likely require this court to find a Sixth Amendment violation if he had been represented by an attorney on his tribal charges, the court agrees with Magistrate Judge Duffy and other judges in the District of South Dakota that Red Bird is distinguishable when it is lay counsel, not an attorney, who represented the defendant in tribal court. Red Bird, 287 F.3d at 716; see also Docket 54, page 25-27; United States v. Tools, CR 07-30109-01-KES, 2008 U.S. Dist. LEXIS 49490 (D.S.D. June 27, 2008); United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763, 2007 WL 4459348, *5-*8 (D.S.D. Dec. 17, 2007) (stating that “[t]here is a clear distinction between licensed legal counsel and lay representation under the Sixth Amendment” and concluding that “the appointment of ‘counsel’ pursuant to the Rosebud Constitution does not in all circumstances cause Sixth Amendment protections to attach” when that “counsel” is lay counsel); United States v. Dupris, 2006 DSD 4, 422 F. Supp. 2d 1061, 1068 (D.S.D. 2006); see also United States v. Whitefeather, 2006 U.S. Dist. LEXIS 17237, 2006 WL 763204, *2 (D. Minn. Mar. 24, 2006). Because Perez’s Sixth Amendment right to counsel had not “attached” as discussed in McNeil, statements made during Agent Cresalia’s conversation with Perez on January 11, 2008, are admissible. Perez’s motion is denied.

Justin Richland Talk Here–February 17, 2009–11 AM

Matthew L.M. Fletcher

Justin Richland, a professor in the Department of Criminology, Law, and Society at the University of California, Irvine, will be giving a talk about his new book from the University of Chicago Press — “Arguing with Tradition: The Language of Law in Hopi Tribal Court.” Here is the synopsis:

Arguing with Tradition is the first book to explore language and interaction within a contemporary Native American legal system. Grounded in Justin Richland’s extensive field research on the Hopi Indian Nation of northeastern Arizona—on whose appellate court he now serves as Justice Pro Tempore—this innovative work explains how Hopi notions of tradition and culture shape and are shaped by the processes of Hopi jurisprudence.

Like many indigenous legal institutions across North America, the Hopi Tribal Court was created in the image of Anglo-American-style law. But Richland shows that in recent years, Hopi jurists and litigants have called for their courts to develop a jurisprudence that better reflects Hopi culture and traditions. Providing unprecedented insights into the Hopi and English courtroom interactions through which this conflict plays out, Richland argues that tensions between the language of Anglo-style law and Hopi tradition both drive Hopi jurisprudence and make it unique. Ultimately, Richland’s analyses of the language of Hopi law offer a fresh approach to the cultural politics that influence indigenous legal and governmental practices worldwide.

The Chief Judge of the Little Traverse Bay Bands of Odawa Indians, JoAnne Cook-Gasco will be commenting on the book.

Duwyenie v. Moran — Arizona COA Case Involving Parallel Tribal and State Custody Actions

Matthew L.M. Fletcher1 Comment

Unusual case, involving what likely was the kidnapping of an Indian child in a child custody squabble originating in Arizona. One parent removed the child to South Dakota and initiated proceedings in the Rosebud Sioux Tribal Court after Arizona state court proceedings had begun. The other parent initiated tribal court proceedings on the same matter in Gila River Tribal Court, which was a smart move, since the tribal courts talked to each other, leading the RSTC to dismiss its part of the case and admonish the parent who (likely) kidnapped the child.

Here is the opinion.

Coushatta Tribe v. Meyer & Associates Cert Petition

Matthew L.M. Fletcher

This case involves the question of whether state courts have to comply with the tribal court exhaustion doctrine. Here is the petition — coushatta-tribe-v-meyer-and-assoc-cert-petition

Here is the lower court opinion, from the Louisiana Supreme Court.

CA9 Decides Philip Morris v. King Mountain Tobacco

Matthew L.M. Fletcher2 Comments

Here is the opinion from the Ninth Circuit denying that a colorable claim to tribal court jurisdiction existed in this trademark violation issue. And here are the briefs:

philip-morris-opening-brief

king-mountain-response-brief

philip-morris-reply-brief

Section 1303 Tribal Court Exhaustion — Bercier v. Turtle Mountain Tribal Court

Matthew L.M. Fletcher

bercier-v-turtle-mountain-tribal-court

2009 Spring Speaker Series Announcement

Matthew L.M. Fletcher

Here is the announcement for our spring speaker series.

2009 Spring Speaker Series

Gillette v. Edison — Younger Abstention Doctrine Applied in Disciplinary Action against Indian Lawyer

Matthew L.M. Fletcher1 Comment

The District of North Dakota dismissed a federal action brought by an attorney seeking an order forcing North Dakota state courts to dismiss a disciplinary action against a tribal lawyer. Interesting case involving an issue about whether state bar disciplinary boards can discipline a lawyer for on-reservation conduct.

dct-order-in-gillette-v-edison

north-dakota-motion-to-dismiss

gillette-motion-for-declaratory-judgment

Attorney’s Process and Investigation Services v. Sac and Fox Tribe — Case Reopened

Matthew L.M. Fletcher1 Comment

This case arises out of alleged tortious nonmember conduct during the leadership dispute at Meskawki a few years back. In 2005, the Northern District of Iowa applied the tribal court exhaustion doctrine as justification for staying the case (nov-2005-dct-order). The tribal court’s processes have run (motion-to-reopen-case [includes tribal court decision]), and now the case has been reopened (dct-order-reopening-case).

This will be a very interesting application of the Montana test, if the court reaches the merits.