tribal courts – Page 28

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.

It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.

In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.

Highly recommended!

MHA Nation Citizens Sue over Tribal Voting Rights

September 30, 2020October 31, 2020Matthew L.M. Fletcher

Here is the complaint in Cross v. Fox (D.N.D.):

1 Complaint

1-3 MHA Nation SCT Order

6 Motion for Injunction

21 Motion to Dismiss

Update in Adams v. Dodge [Nooksack Habeas Matter] — Updated

September 24, 2020November 5, 2020Matthew L.M. Fletcher

Here are the new materials in Adams v. Dodge (W.D. Wash.), formerly Adams v. Elfo:

45 Magistrate R&R on 2d Habeas Petition

46 Petitioner Objections

48 Supplement to Petitioner’s Objections to Magistrate’s Second Report and Recommendation

51 Tribe Response

52 Tribal Court Response

54 DCt Order Adopting Magistrate R&R

Prior post here.

Update:

56 Motion for Reconsideration

60 Response

62 DCT Order

Pleadings in Navajo Nation v. Benally [industrial hemp]

September 22, 2020Matthew L.M. Fletcher

Here are the pleadings in Navajo Nation v. Benally (Shiprock D.Ct.):

2020_06_12_Navajo_v_Benally___Complaint_3

2020_06_29_Navajo_v_Benally___Plaintiff_s_Motion_for_TRO_and_PI

2020_07_06_Navajo_v_Benally___Defendant_s_Motion_to_Dismiss

2020_07_06_Navajo_v_Benally___Defendant_s_Opposition_to_TRO_and_PI

2020_07_21_Navajo_v_Benally___Plaintiff_s_Reply_in_Support_of_TRO_and_PI

2020_07_21_Navajo_v_Benally_Plaintiff_s_Brief_in_Opposition_to_Motion_to_Dismiss

2020_08_20_Navajo_v_Benally___Defendant_s_Supplemental_Jurisdiction_Brief

2020_08_20_Navajo_v_Benally___Plaintiff_s_Supplemental_Brief_on_Jurisdition_3

2020_08_20_Navajo_v_Benally___Plaintiff_s_Supplemental_Brief_on_Jurisdition_Exhibit_3___USDA_letter_denying_Benally_hemp_plan

2020_09_10_NN_v._Dineh_Benally___Order_denying_Defendant_s_Motion_to_Dismiss

SR_CV_014_20_Order_Granting_Plaintiff_s_Motion_for_Temporary_Restraining_Order_and_Preliminary_Injunction_1

Other pleadings here.

Navajo Nation Press Release on Injunction Granted to Stop Hemp Cultivation [Shiprock DCT]

September 22, 2020Matthew L.M. Fletcher

Here is the release:

Press Release – TRO and Preliminary Injunction Granted

SHIPROCK, NAVAJO NATION—Following a full day of testimony, cross-examination, and oral argument on Thursday, Shiprock District Court Judge Genevieve Woody granted the Navajo Nation’s motion for a Temporary Restraining Order and Preliminary Injunction to immediately stop defendant Dineh Benally’s illegal hemp farming activities on Friday.

“We respect the ruling of the Shiprock District Court. The ruling allows our law enforcement officers to enforce the temporary restraining order and preliminary injunction to stop the production of hemp. We strongly urge everyone to respect the ruling of the court and move forward peacefully to ensure the safety of community members, police officers, and everyone in the impacted areas. Lastly, I commend the Navajo Nation Department of Justice and outside legal counsel for their commitment to this case,” said Navajo Nation President Jonathan Nez.

In granting the motion, Judge Woody found that the Navajo Nation had met its burden by demonstrating (1) a protected right or interest and a high likelihood of success on the merits; (2) that irreparable harm to that right is likely to occur unless a preliminary injunction is issued; (3) that harm is substantial in nature; and (4) that the moving party had no other adequate remedy at law.

In ruling from the bench, Judge Woody cited to the testimony offered on behalf of the Navajo Nation by both Navajo Nation government officials and the citizens and residents who have been directly impacted by Defendant Benally’s illegal hemp farming.

The Navajo Nation filed this lawsuit on June 12, 2020 seeking to stop the illegal and unregulated growth, production, transporting, licensing, and selling industrial hemp within the exterior boundaries of the Navajo Nation. Defendants in the case are Dineh Benally, in his personal and official capacity, the Native American Agricultural Company and Navajo Gold Company, which are both controlled by Benally.

Defendant Benally began growing hemp without Navajo Nation’s approval required by the 2018 Farm Bill and regulations of the United States Department of Agriculture. Despite his claims,

Defendant Benally also does not have the required approval of the USDA for his hemp cultivation activities. The expansion of his operation to hundreds of acres complete with “man camps” for workers, massive growth facilities that include hundreds of greenhouses has drained law enforcement resources, caused clear environmental damage, and has created substantial disharmony in the Shiprock and surrounding communities. Benally has also employed aggressive security guards that have intimidated and threatened elders, kids, and other Navajo community members. Benally has also been charged with Aggravated Assault.

“I personally experienced the intimidation and threats of Dineh Benally’s security in Shiprock while working in my official capacity in a clearly marked tribal vehicle, said Navajo Nation Attorney General Doreen N. McPaul. “I am incredibly pleased with the court’s decision today, and on behalf of the Navajo Nation, I would like to offer sincere gratitude to the Nation’s witnesses who came forward to testify in what an intense and confrontational case. We are also grateful to all the community members, neighbors, and farmers who reached out to share their own stories and information about the devastating impact of hemp cultivation activities on themselves, their families, and their property.”

The Court’s action makes clear what the Navajo Nation leadership has made clear each time hemp legislation has been considered – that it is illegal on the lands of the Navajo Nation unless specifically authorized and cultivated under a properly regulated system. To date, the Navajo Nation has not approved tribal regulations for hemp cultivation nor has it submitted a hemp production plan to the USDA for approval.

The Navajo Nation is represented in this case by Charlie Galbraith and Krystalyn Kinsel of Jenner & Block, both are enrolled members of the Navajo Nation.