tribal courts

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.

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.