Anderson v. Henson is a 25 USC 1303 (ICRA Habeas) claim that the Gila River tribal court was improperly installed and therefore convictions in that court are invalid. The District of Arizona rejected the claim.
Here are the materials:
tribal courts
1992 Indian Tribal Court/State Court Forum Final Report
The final report of this important forum is here (in pieces). Obviously parts of it are very dated, but this is important material regardless as legislative history of MCR 2.615.
Appendix II — Directory of Tribal Courts
Makah Whalers Charged in Tribal Court
From the Seattle Times:
5 whalers charged in tribal court
Five Makah tribal members who already face federal charges for killing a gray whale off Neah Bay in September have now been charged in Makah Tribal Court for participating in the unauthorized hunt.
The charges were filed in tribal court on Nov. 16 but weren’t made public until Monday, when the last of the five was officially served with court papers, said Makah tribal attorney John Arum.
Wayne Johnson, Frankie Gonzales, Andrew Noel, Theron Parker and William Secor each face five charges in tribal court, including the violation of the tribe’s Gray Whale Management Plan.
If convicted, they could face up to a year in the tribal jail, a $5,000 fine and a three-year suspension of their tribal fishing rights for participating in the Sept. 8 hunt.
The five were charged in federal court in Tacoma last month and pleaded not guilty to misdemeanor violations of the federal Marine Mammal Protection Act.
It is unclear whether the men will first be tried in federal or tribal court, Arum said. Arraignment on the tribal-court charges is expected in the next two or three weeks, he said.
Article on Tribal Court Authority to Subpoena BIA Officers
From the The Glacier Reporter:
A new system of law enforcement introduced, includes prevention
By John McGill
Wednesday, November 28, 2007 10:26 AM MST
The fact that Bureau of Indian Affairs police officers serving in Blackfeet Country cannot be compelled to appear in Blackfeet Tribal Court by tribal judges, according to a recent U.S. Solicitor General’s opinion, was one of the more interesting tidbits garnered at Monday’s law and order meeting held at Tribal Headquarters. Steve Juneau of Lamar Associates emceed the meeting, which outlined plans adopted by the Blackfeet Tribe for reassuming control of law enforcement and creating a Department of Public Safety that would “provide leadership separate from political changes in tribal government,” Juneau said.
OST Drug Testing Update — Tribal Court Vacates Drug Test Ordinance
From the Rapid City Journal (H/T Indianz):
Members of the Oglala Sioux Tribal Council who were suspended for not taking a drug test have been reinstated, after a tribal judge struck down the requirement.
In October, the tribal council passed a resolution requiring members and other elected officials to take a “hair follicle” drug test.
The ordinance was in response to the arrest in New Mexico of Councilman Don Garnier, who faces a federal charge of possession of marijuana with intent to distribute it.
Tribal Judge Lisa Adams earlier this month upheld the test for council members but struck down the requirement for the tribe’s treasurer.
On Nov. 7, a motion to rescind the drug-test requirement order failed by a vote of 12-2 of the tribal council.
Last week, however, Judge Adams killed the measure “in its entirety for vagueness,” according to documents faxed to the Rapid City Journal from the office of Oglala Sioux Tribe President John Steele.
At least 11 tribal officials took the hair-follicle test, as did Steele.
Two council members refused, arguing the council had no authority to pass the ordinance.
Three council members took a urinalysis test for drugs instead.
One council member’s test was canceled when the machine malfunctioned, and another couldn’t take the test because his hair was too short.
Garnier, who refused the test, remains suspended pending the outcome of charges against him.
It was unclear how many council members had actually been suspended for failing to take the test, but the question apparently is moot.
In a written memo to tribal council members, also faxed to the Journal, Steele said tribal officials suspended were reinstated with pay.
The Myth of the Model IRA Constitution?
I’ve always taught my federal Indian law students that many — if not most — of the tribal constitutions adopted in the years immediately following the Indian Reorganization Act were imposed on the tribes by the Bureau of Indian Affairs. These were the model IRA constitutions. If you look at the constitutions adopted around that time, you see a lot of similar features: lack of separation of powers, no tribal courts, Secretarial approvals for everything up to and including breathing. But as Blake said, he who generalizes is a fool.
Recent works of scholarship challenge that notion that the Bureau imposed model constitutions. First, Elmer Rusco’s chapter in American Indian Constitutional Reform and the Rebuilding of Native Nations. And now David Wilkins’s introduction to the new book, Felix S. Cohen’s On the Drafting of Tribal Constitutions. Elmer Rusco’s 2000 book on the IRA, A Fateful Time, argues that the BIA considered thrusting model constitutions at tribes, but rejected the plan in favor of an outline. Wilkins notes that it appears some tribes did receive a model constitution from the BIA (the one reproduced as Appendix A in the Cohen book), and others received a model corporate charter or the outline.
It would be worthwhile to do a survey of the 181 tribes that voted to accept the IRA. What do their constitutions say?
Tribal Court Case Studies: Grand Ronde Case
An interesting case (to me anyway) that has been winding its way through state, tribal, and now federal courts — a case involving an investment contract between the Grand Ronde Confederated Tribes and Strategic Wealth Management (and now its insurance company). In short, the deal between the two went bad and the parties ended up in state court, then before an arbitrator. The arbitrator ruled against the tribe, and awarded millions in attorney fees to SWM (but nothing else). The tribe refused to pay, arguing that it had not waived its immunity in relation to attorney fees, and SWM went to tribal court to enforce the arbitration award of attorney fees. The tribal court affirmed the tribe’s claim of immunity and now the case is in federal district court on a Montana 1 theory (huh?). Anyway, I wrote about this case as it went through the tribal court recently (here). And I personally know the two principals of SWM from my work at Pascua Yaqui a thousand years ago.
This may look like a tribe hiding behind sovereign immunity, but keep in mind that the Sizemore brothers (the SWM principals) prided themselves on being “experts” on federal Indian law (despite not being lawyers) and wrote the contract at issue. Moreover, the amount of atty fees awarded by the arbitrator was extraordinary (in the millions).
Contract with Strategic Wealth Management
Tribal Court of Appeals Opinion
Federal District Court Materials:
Plaintiff Motion for Summary Judgment
South Dakota Tribal-State Court Reciprocity Court Rule Adopted by Standing Rock
From the Rapid City Journal (H/T Indianz):
The Standing Rock Sioux Tribal Court will now recognize judgments made in state court and other tribal courts.
“In exchange, South Dakota’s Unified Judicial System will recognize and honor judgments made in Standing Rock Sioux Tribal Court.
Tribal Rule 23, which allows the Standing Rock court to recognize court rulings from other jurisdictions, was adopted by the tribal court and signed by tribal Chairman Ron His Horse Is Thunder.
Because of Rule 23, South Dakota courts are now authorized under state statute to recognize Standing Rock court orders and judgments.
“It is the first tribe that has actually notified us that they have court rule in place that has been signed by the chairman of the tribe and by the court,” said Judith Roberts, legal counsel for the Unified Judicial System.
Mich. Supreme Court Justice Cavanagh Remarks before the Michigan Indian Judicial Association
The text of Justice Cavanagh’s talk can be downloaded here: Justice Cavanagh’s Remarks
Makah Whaling Prosecution in Both Tribal and Federal Courts
Makah tribal members seek postponement of federal trial for illegal whale hunt
Seattle Times staff reporter
COURTESY US ATTORNEY’S OFFICE
This grey whale was illegally harpooned, shot and killed by five Makah tribal whalers.
Defense attorneys for Makah tribal members accused of illegally hunting a gray whale last September are seeking to postpone a federal trial at least until March so they have more time to prepare their case.
And despite Makah leaders’ earlier vows of swift tribal justice for the men, a trial in tribal court has been slowed because the tribal prosecutor has family and business ties to two of the accused.
The five whalers were indicted on violations of the Marine Mammal Protection Act by a grand jury in U.S. District Court in October. The misdemeanor charges could mean up to a year in jail and a $100,000 fine.
No date has been set for a trial yet, but the defense request for a delay means early March or even April, said Assistant U.S. Attorney Jim Oesterle.
“We would just as soon do this sooner than later,” Oesterle said. The five men harpooned and shot a gray whale in the Strait of Juan de Fuca Sept. 8. The tribe did not have a necessary waiver to hunt a whale under its treaty with the U.S. The case has hampered efforts by the tribe to get that waiver, and that makes tribal leaders eager to put the case behind them.
But Neah Bay is a small town, and the tribe needs to find someone other than its usual tribal prosecutor to try two of the defendants because she is related to one of them and had a family business relationship with the other.
Like many cases, this one may actually never see trial. Members of the Makah tribal council have been discussing the benefits of a settlement, in which a single plea agreement could be negotiated between the federal and tribal governments, said Micah McCarty, a tribal council member.
“I believe it would be better for the federal and tribal government to keep this from going to trial,” McCarty said. “We would lean favorably toward that, we have had discussions just recently among the council, and I think my colleagues would concur if this is a possibility. A trial could be turned into a media circus that we don’t want to be a part of.”
John Arum, an attorney for the Makah Nation, said such a discussion is premature. But he agreed taking the case to trial was not the best outcome for anyone.
“We are doing what we can to make it less likely that will happen,” Arum said. McCarty said the tribe remains committed to prosecution. “We have a sense of urgency in light of our reputation that we are a government that respects the rule of law,” he said.
Turtle Talk 
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