tribal courts – Page 197

Patrick Garry et al. on Tribal Incorporation of First Amendment Norms

May 27, 2008May 27, 2008Matthew L.M. Fletcher

Patrick M. Garry (South Dakota), Candice Spurling (South Dakota), Jennifer Keating (South Dakota), and Derek Nelson (South Dakota) have posted “Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota” on SSRN, recently published in the South Dakota Law Review.

From the abstract:

This article analyzes how Indian tribal courts have incorporated First Amendment norms within tribal legal systems. Given the more traditionally communal nature of tribal societies, Indian tribal courts have taken a slightly different approach to the kind of individual rights articulated in the First Amendment. As this article demonstrates, tribal courts have elevated community interest and values when considering individual rights issues. The ways in which those interests and values have been elevated may prove instructive to those who advocate a more balanced approach to First Amendment freedoms within the U.S. judicial system.

The article examines the legal obligation imposed on Indian tribes to protect certain individual rights, and whether the First Amendment applies to Indian tribes, and finally how the Indian Civil Rights Act applies. The article analyzes how federal courts have interpreted the Indian Civil Rights Act and surveys Indian tribal court decisions concerning individual rights issues such as free speech, free press, and free exercise of religion.

The final part of the article analysis turns away from reported tribal court decisions and focuses on tribal political, social, and cultural issues relating to First Amendment-type rights. In this respect, the article focuses exclusively on the nine tribes of South Dakota, exploring how First Amendment-type issues have arisen within those tribes and how they have been resolved outside of the judicial system.

Mullally v. Havasu Landing Casino — FLMA Claim Against Tribal Casino

May 23, 2008Matthew L.M. Fletcher

The district court for the Central District of California dismissed the FMLA claim on grounds of sovereign immunity. Other claims, including defamation, were dismissed without prejudice on the tribal court exhaustion doctrine. And, under tribal law, the casino immunity was waived.

havasu-landing-motion-to-dismiss

mullally-opposition-to-motion

mullally-opposition-to-motion-part-2

havasu-landing-reply-brief

mullally-v-havasu-landing-casino-dct-order

Research Paper on Tribal Court Civil Contempt Power

May 19, 2008May 19, 2008Matthew L.M. Fletcher

This short paper was prepared for last week’s Michigan Indian Judges Association meeting at Bay Mills. It is available on SSRN. Here is the abstract:

Supreme Court doctrine bars tribal courts from exercising criminal jurisdiction over non-Indians, but tribal courts often are the only practical mechanism available to protect Indian women from non-Indian domestic violence. Congress recognized this fact in the Violence Against Women Act by noting that tribal courts may use their civil contempt power to enforce personal protection orders originating in foreign jurisdictions.

This short paper describes the civil contempt power of tribal courts, and how tribal courts have used this power. The paper concludes with a short analysis of the implications of federal Indian law on tribal court authority to issue civil contempt citations to non-Indians.

Gaming Per Cap Bankruptcy Proceeding

May 8, 2008Matthew L.M. Fletcher

The case is In Re DeCora. It involves a Ho-Chunk member declaring bankruptcy and whether the Ho-Chunk Nation Bank’s interest in the member’s per cap proceeds were secured. The opinion is a little entertaining, beginning with a reference to Frank Zappa:

Musician and satirist Frank Zappa once quipped that “Communism doesn’t work because people like to own stuff.” Whether this is an accurate take on geopolitical realities or not, the concept of personal property rights is certainly deeply ingrained into American culture and jurisprudence. In America, people may own all the stuff they can afford, and they can sell or give their stuff to someone else. Even when life doesn’t take Visa (or some other unsecured form of credit), people find ways to use their stuff as collateral for loans so that they can run out and buy more stuff. The present case involves competing interests in an intangible bit of stuff that this Court has encountered before-namely, a debtor’s right to receive tribal per capita distributions from tribal gaming revenues. The debtor used his right to future distributions as collateral for a loan so that he could afford, among other things, a new car. The question is whether the creditor took sufficient steps to protect its security interest from challenge.

Slip op. at 1-2.

The court also cites to numerous Ho-Chunk tribal court opinions. For example:

Third, the tribal courts of the Ho-Chunk Nation have themselves indicated that tribal members have a right to per capita distributions, if and when they are made, as long as that member is on the rolls of the Ho-Chunk Nation. See Kedrowski, 284 B.R. at 448-49; Hendrickson v. HCN Enrollment, CV 99-10 (Ho-Chunk Nation Trial Court 1999).

Slip op. at 3.

Here are the materials:

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Third Part of Billings Gazette Special Report on Tribal Sovereignty

May 8, 2008Matthew L.M. Fletcher

From the Billings Gazette:

Despite court rulings that slice away at tribal sovereignty, Indian law specialist Tom Fredericks of Boulder, Colo., believes “tribal governments are stronger than ever.”

They have to be. Retreating federal budgets place ever more burden on Indian governments to provide basic services.

The Bureau of Indian Affairs for years has been turning more federal responsibilities over to the tribes, contracting with them to provide services such as law enforcement, education and social services on the reservations.

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Montezuma Creek Clinic Plaintiffs Ask Navajo Supreme Court to Ignore Tenth Circuit Ruling

May 8, 2008Matthew L.M. Fletcher

From the Salt Lake Tribune:

Federal appeals court judges have said a Navajo tribal court can’t force the San Juan County-owned Montezuma Creek Clinic to rehire employees who alleged they were wrongfully terminated.

But three former employees won’t take no for an answer.

In March, they asked the Navajo Supreme Court to instruct tribal courts to ignore that ruling from the 10th U.S. Circuit Court of Appeals [Supreme Court Project materials] — and to order the clinic to pay fines totaling more than $26 million. In addition, the ex-workers want their former employer to pay their attorneys’ fees for the past nine years.

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Eastern Cherokee Judge Martin on Tribal Criminal Jurisdiction

May 6, 2008Matthew L.M. Fletcher

Here is the article from the ABA Judicial Division Record — inside-the-maze.

This story highlights the problem of violence against women in Indian Country, with the Amnesty Report (available here) as a jumping off point.

Part II of Billings Gazette Special Report on Tribal Sovereignty

May 6, 2008Matthew L.M. Fletcher

From the Billings Gazette (Part I is here):

Three days a week, a dozen or so defendants in criminal cases appear before a Crow Tribal Court judge.

They could be charged with anything from a traffic violation to murder, and they could be there for a five-minute guilty plea or a weeklong trial. It’s all in the mix of a court schedule that begins at 8 a.m. and sometimes stretches into the evening.

Last year, the court handled 3,410 criminal cases, 335 civil cases, plus an intensive drug court and juvenile proceedings for a total of more than 4,200 cases, according to Associate Justice Julie Yarlott. During most of that year, the court was operating with just two judges. A second associate judge position is in the process of being filled.

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Billings Gazette Special Report on Tribal Sovereignty

May 6, 2008Matthew L.M. Fletcher1 Comment

From the Billings Gazette:

When the last of the bison herds disappeared in the early 1880s, Indian nations on the Northern Plains were reduced to poverty.

In Montana, where there are no high-flying gambling operations and big population centers, economic conditions for American Indians have been slow to change. Unemployment is rampant, and business opportunities are scarce.

Through various acts of Congress, tribes are contracting with the federal government to provide essential services to their people. But federal funds, static for years, are shrinking. Tribes are taking on more responsibilities than ever for the welfare of their people and are pursuing economic opportunities to support their efforts.

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