tribal courts – Page 3

Grant Christensen on Oliphant

May 8, 2025Matthew L.M. Fletcher

Grant Christensen has posted “Tribal Judicial Power,” forthcoming in the University of Southern California Law Review, on SSRN.

Here is the abstract:

In 1978’s Oliphant v. Suquamish Indian Tribe the Supreme Court announced a new common law rule: tribal courts lack criminal jurisdiction over non-Indian defendants. Under the guide of the common law, unmoored from interpreting the text of any treaty or statute, the Oliphant opinion made reservation communities less safe by denying tribal governments a critically important tool in law enforcement – the power to arrest, charge, prosecute, and sentence persons who commit crimes on tribal lands. This unilateral evisceration of an inherent tribal power has contributed directly to the crisis of missing and murdered Indigenous women in the United States by preventing tribal law enforcement from prosecuting non-Indian offenders. The Oliphant precedent has made Indian country less safe for everyone by hobbling the ability of tribal governments to criminally convict non-Indians who openly violate tribal law.

In 2004 the Court made its first concession to the absolutist approach taken in Oliphant by recognizing that its decisions limiting the scope of the inherent power of Indian tribes were not constitutionally mandated but rather reflected the understanding of the Court “at the time of those decisions.” It is a new day, and the Court’s understanding of inherent tribal power can evolve. It can remove the common law barrier preventing tribes from exercising their pre-constitutional powers.

This Article takes the position that Congress’s reauthorization of the Violence Against Women Act in 2022 is the death knell of the Oliphant opinion and a congressional restoration of tribal judicial power. The gossamer strands of the Court’s 1978 reasoning can no longer survive even cursory review in an era when Congress has given its imprimatur upon both inherent tribal power and tribal court criminal jurisdiction over non-Indian defendants. Oliphant was never a constitutional nor statutory barrier to the assertion of inherent tribal power, and it should not take an act of Congress to reverse. As non-Indians again contest their criminal prosecution in tribal courts under the expanded powers recognized in VAWA, federal courts should reconsider the common law rule announced almost fifty years ago and, consistent with the direction of legal and congressional precedent, make clear that Oliphant no longer accurately reflects American common law.

Eighth Circuit Briefs in WPX Energy Williston LLC v. Jones

April 29, 2025Matthew L.M. Fletcher

Here:

Opening Brief.pdf Download

Appellee Brief.pdf Download

Lower court materials here.

Muscogee (Creek) Nation SCT Strikes Down Special Justice Statute

April 25, 2025Matthew L.M. Fletcher

Here are the materials in In re the Constitutionality of NSA-24-007:

Petitioners’ Brief, 09202024

Respondent’s Brief (National Council), 10072024

Respondent’s Brief (Executive Branch), 10072024

Petitioners’ Reply Brief, 10172024

Order Setting Oral Argument, 11082024

Amended Order Resetting Oral Argument, 01172025

Order and Opinion, 04222025

Eighth Circuit Briefs in Tix v. Tix

April 21, 2025Matthew L.M. Fletcher

Here:

Appellant Brief

Appellee Brief

Law Prof Amicus Brief

Tribal Amicus Brief

Tribal Orgs Brief

Lower court materials here.

Harvard Law Review Feature on Lexington Insurance Co. v. Smith

April 11, 2025Matthew L.M. Fletcher

Here, authored by Kieran Murphy. PDF

An exceprt:

First, tribal courts are not, as Judge Bumatay suggested, “subordinate to the political branches of tribal governments.”⁶⁸ For support, Judge Bumatay cited to Duro v. Reina,⁶⁹ which cites to the 1982 edition of Cohen’s Handbook of Federal Indian Law.⁷⁰ But tribal courts have changed since 1982: The 2024 edition of Cohen’s Handbook states that “[t]he structure of tribal courts is often similar to that of state courts” and “[p]rinciples of judicial independence have strong and growing roots in tribal courts.”⁷¹ Increasingly, tribes are “professionaliz[ing] the[ir] judiciar[ies]” in ways that “insulate them from tribal political pressure.”⁷²

The Suquamish Tribe itself is illustrative. Judges are appointed by the Suquamish Tribal Council, which may alter judges’ powers or set salaries only at the time of judicial appointment.⁷³ And judges are removable by a two-thirds vote of the Tribal Council, but only for “misfeasance in office, neglect of duty,” “incapacity,” or “convict[ion] of a criminal offense.”⁷⁴ Judicial independence is thus a central feature of the Suquamish judiciary, as it is in many tribal courts.

Next, contra Judge Bumatay’s assertion that “tribal courts don’t rely on well-defined statutory or common law” but on values “expressed in [their] customs, traditions, and practices,”⁷⁵ tribal law is “written, knowable, and publicly available.”⁷⁶ Tribal constitutions, codes, and judicial opinions, including those of the Suquamish Tribe, are available from tribal governments, often online.⁷⁷ While it is true that some tribal courts use traditional, nonadversarial practices to resolve internal disputes,⁷⁸ those courts do not typically apply them to nonmembers, but instead use common law from the Anglo-American tradition.⁷⁹ And tribes have little incentive to apply unknown or unfair tribal law to nonmembers given the Supreme Court’s anxiety about that possibility.⁸⁰

Finally, Judge Bumatay misunderstood tribal law when he wrote that “because the tribes lie ‘outside the basic structure of the Constitution,’ the Bill of Rights, including the rights of due process and equal protection, doesn’t apply in tribal courts.”⁸¹ As Judge Smith noted in her Suquamish Tribal Court opinion, the “Indian Civil Rights Act . . . guarantees the right of due process under the law.”⁸² Furthermore, “[t]he test for due process in tribal courts is no different than for state or federal courts.”⁸³ Federal courts ensure that a tribal court’s exercise of personal jurisdiction over nonmembers complies with the Fourteenth Amendment.⁸⁴ And the criminal procedure protections of the Bill of Rights are inapplicable, as tribal courts may not exercise criminal jurisdiction over non-Indians.⁸⁵

Judge Bumatay specified only one constitutional concern: “[W]ithout any constitutional backstop, tribal suits are almost exclusively tried before tribe-member judges and all-tribe-member juries.”⁸⁶ For support, he cited to a footnote in Oliphant v. Suquamish Indian Tribe,⁸⁷ which states that tribes are “not explicitly prohibited from excluding non-Indians from the jury” and that the Suquamish tribal code provides “that only Suquamish tribal members shall serve as jurors in tribal court.”⁸⁸ But Oliphant does not say that tribal courts employ “almost exclusively . . . tribe-member judges and . . . juries.”⁸⁹ To the contrary, many tribal juries do include nonmembers,⁹⁰ while some do not rely on juries for civil cases at all.⁹¹ And tribes, including the Suquamish Tribe, regularly hire judges who are nonmembers or non-Indian altogether.⁹²

Fletcher on AI and Tribal Court Practice

April 9, 2025Matthew L.M. Fletcher

Here is “AI and Tribal Court Practice,” soon to be published in the American Journal of Trial Advocacy.

Here is an excerpt:

American Indian tribal court practice resides at the intersection of two difficult legal problems. First, because tribal justice systems are usually very young and dynamic, awareness and analysis of tribal law is underdeveloped. Second, because tribal nations are not governed by state or federal law, tribal law is culturally unique. Tribal court practitioners often find that even routine legal matters will involve questions of first impression in the jurisdiction. All of this is to say tribal court jurisprudence is intensely jurisgenerative.

Because tribal law is often unsettled or indeterminate, the costs of discovering and applying this law are occasionally high. Most tribal law involves tribal constitutional or statutory interpretation or the application of federal and state court precedents, which is not terribly costly to perform. But applying tribal customary or traditional law, also known as tribal common law, can be much more difficult. Today, legal practice is knee-deep in reliance on artificial intelligence (AI). More practitioners are using AI to conduct legal research and even to draft pleadings. Assuming a practitioner reasonably utilizes AI generators, the use of AI can be beneficial. One assumes that the larger the corpus of law (statutes, cases, regulations, etc.), the greater value AI can provide in cutting out the relevant legal wheat from the irrelevant legal chaff.

This Article offers preliminary thoughts on how tribal court practitioners can use AI to research and apply tribal law using a common legal issue—tribal sovereign immunity. This Article analyzes written research memoranda and pleadings generated by AI. As a result, this Article concludes there is great potential for the use of AI in tribal court practice, but there are definite and indefinite pitfalls.