From Indianz:
The Senate Indian Affairs Committee will hold a hearing next Thursday, July 24, on tribal courts and the administration of justice in Indian Country.
The hearing takes place at 9:30am in Room 562 of the Senate Dirksen Office Building. A witness list hasn’t been made public. The committee has been examining law and order issues in Indian Country since 2007. A comprehensive bill addressing tribal courts and other justice matters is being introduced next week.
Justin Richland has published “The State of Hopi Exception: When Inheritance is What You Have” in Law & Literature. Here is the abstract:
This essay asks after the potentialities and desires generated by the epistemological limits that animate Hopi tradition as a mode of inheritance. Every effort by Euro-Americans to give “order” to Hopis via two dominant modalities of modern intervention–law and science–have regularly and repeatedly confronted their exceptions among aspects of Hopi life. It will be argued that the obdurate qualities that Hopi culture, society, and language present to Euro-American ways of knowing resonate with tropes of tradition and its inheritance generated by and between Hopis themselves, revealing that Hopis operate in something like a state of exception where their negotiation of epistemological limits animate potentialities that exceed their own moments of authoritative prescription, generating a largely dispersed sovereignty. Moreover, as the lines and limits by which this Hopi exceptionalism is generated and dispersed come to give Hopi traditional knowledge the form of property, and its transmission the character of inheritance, they produce a nostalgic, possessory desire among Euro-Americans to “know” Hopis, even as (and arguably because) these limits result in a Hopi sociality that defies the techno-rational modes of production that reside at the heart of contemporary Euro-American state orders.
From the Petoskey News-Review:
PELLSTON — A proposal to create a place of healing for troubled youth at the former Camp Pellston got words of encouragement Saturday from legislators and some local residents.
The White Feather Wellness Project hosted an open house at the former corrections camp west of Pellston, which the state shut down in 2002.
White Feather, which includes members of several Indian tribes and other community members, would like to convert the camp to a residential treatment facility that would use Native American teachings in treating teens facing substance abuse and other difficulties.
The University of Pennsylvania Law Review has published a paper (with a really long title I don’t feel like typing) on the UN Declaration and Indigenous Peoples’ courts. It is here. It looks like a good read. Here is the summary of the argument in the paper:
This Comment makes two arguments, one broad and one narrow. Broadly, it argues that concerns of the United States and others about the “workability” of the DRIP–at least regarding self-determination–are misplaced, and that the meaning of self-determination is clearly delimited, not merely by Article 46(1), but by the substantive rights conferred in the DRIP. The Comment argues that the appropriate way to understand the DRIP’s self-determination provisions involves a two-stage process, moving first from the skeletal right conferred in Article 3 to the more substantive Article 4, and then to specific features of the right conferred in subsequent provisions. This broader argument is woven through a more narrowly focused argument that examines the applicability of a single provision in the DRIP–Article 34, which confers rights to “juridical systems”–to “egalitarian juridical pluralism” (EJP), the emerging recognition of the exclusive jurisdiction of indigenous courts. On this score, the Comment argues that EJP is an appropriate exercise of the rights guaranteed by Article 34. By examining the applicability of EJP to Article 34, this Comment seeks to shed light not only on the meaning and workability of Article 34, but also on the content and functionality of the overarching right of self-determination conferred in Article 3. As the United States has asserted, this right is “fundamental” “to interpreting all of the provisions” in the DRIP.
One quibble. Footnote 168 is just a bit off:
To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress’s Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 137 (2004) (“[T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority ….”); id. at 145 (discussing “Congress’s plenary power over Indian tribes”).
Most tribal courts have developed without federal government control, although many have been funded in part by federal grants. Some tribal courts originated as “CFR Courts” or “Courts of Indian Offenses,” created by the Dept. of Interior, but few of these remain under federal control. So, contrary to the assertion made in the footnotes, tribal courts are Indigenous, meaning that the power they exercise is tribal sovereign power, not federal power. See United States v. Lara, 541 U.S. 193 (2004).
Lay advocates in tribal court do not trigger Sixth amendment rights, since they are not a “licensed professional attorney[s]”:
Thus, the issue before the court is whether a tribal public defender, who is not a licensed professional attorney but who appears in tribal court, is “counsel” within the meaning of the Sixth Amendment.
The court found that s/he was not.
The Longs lost 5-4, opinion by Roberts, dissent by Ginsberg was joined by Stevens, Souter, and Breyer.
The first, In the Interest of N.N.E., an Iowa Supreme Court case involving the Tyme Maidu Tribe in California, struck down a portion of the Iowa ICWA.
The second, Langdeau v. Langdeau, a South Dakota Supreme Court case involving an Indian Country divorce proceeding, rejected exclusive tribal court jurisdiction over the case.
David Wilkins has published “Exiling One’s Kin: Banishment and Disenrollment in Indian Country” in Western Legal History. This excellent piece describes banishment and membership laws from traditional law through the early 20th century and into the modern era of tribal banishment and disenrollment.
Here, the Minnesota Court of Appeals in an unpublished decision declined to dismiss a claim for tortious interference with contract and other claims, denying a Rule 19 (state law) motion. From the opinion:
Appellant challenges the district court’s denial of her motion to dismiss respondent’s complaint on the ground that it is barred by the doctrine of sovereign immunity. Appellant asserts that the Shakopee Mdewakanton Sioux Community (the tribe) is an indispensable party to the suit and that, because the tribe cannot be joined, the suit must be dismissed. We conclude that the tribe is neither a necessary nor an indispensable party and therefore affirm the district court’s decision.
Slip op. at 2.
The underlying dispute arose when the nonmember tribal casino employee was barred from the casino by the tribal court (and therefore terminated). The state trial court made disturbing statements about the tribal court, but the COA, while troubled, did not find those statements sufficient to reverse:
We agree that the district court’s comments are troubling. “‘Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.'” St. Pierre v. Norton, 498 F. Supp. 2d 214, 221 (D.D.C. 2007) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66, 98 S. Ct. 1670, 1680-81 (1978)); see also Lewis v. Norton, 424 F.3d 959, 962 (9th Cir. 2005) (“The issue is not whether the plaintiffs’ claims would be successful in these tribal forums, but only whether tribal forums exist that could potentially resolve the plaintiffs’ claims.”). The district court’s suggestion that the tribal courts could not provide an adequate alternative forum for Shepherd’s claims lacks foundation. The fact that Shepherd is the subject of a no-trespass order by the tribe does not necessarily mean that she cannot receive a fair trial of her claims against Stade in tribal court.
Slip op. at 10.
In the long-running MacArthur v. San Juan County case, the plaintiffs have filed a motion to reconsider in the district court. That’s not the candidate for a Rule 11 sanction. The response to that motion is. It’s captioned “San Juan County Defendants’ Memorandum Opposing Plaintiffs’ Latest But Not Last Motion to Reconsider.” (emphasis added). But that’s not all. The argument portion of the “brief” includes nothing but a quotation from the King James’ Version of the Bible. Huh?!?!
macarthur-v-san-juan-county-defendants-brief
It reminds me of something a very angry person would email in the middle of the night before they’ve had a chance to collect their thoughts and rethink their position with a calmer mind.
Turtle Talk 
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