Amanda K. Stephen has published “Navigating Tribal Law Research” in the Washington State Bar Journal.
My favorite excerpt:
Amanda Stephan on Navigating Tribal Law Research
tribal courts
Muscogee (Creek) Nation SCT Suspends Attorney for One Year Due to Conflicts of Interest
Here is the opinion in In the Matter of Lile.
Kekek Stark on Tribal Law Interpretations of the Indian Civil Rights Act
Kekek Stark has posted “The Utmost Rights and Interests of the Indians: Tribal Law Interpretations of the Indian Civil Rights Act” on SSRN.
Highly recommended.
Here is the abstract:
It has been more than fifty years since Congress enacted the Indian Civil Right Act (hereinafter “ICRA”) and more than forty years since the United States Supreme Court in Martinez articulated that the tribal courts are the proper forum for the adjudication of ICRA claims. In the decades since, tribal courts have developed a rich body of intertribal common law pertaining to the implementation of the ICRA. This comes after over a century of assimilative policies in which the federal government attempted to eradicate native culture and traditions and subjected Indians to the deprivation of individual rights by federal and state judicial systems.So how are tribes doing in the implementation of the ICRA? Specifically, how are tribal courts balancing the promotion of tribal sovereignty with the protection of individual rights? Does the ICRA establish a mandate to tribal governments to assume and require judicial review of any allegedly illegal action by a tribal government? Can a Tribe accused of violating these primary rights also be the judge of its own actions and at same the time comply with federal law? This article will examine these questions in detail. In doing so, Part I provides a brief introduction. Part II details the implementation of individual rights protections prior to the enactment of the ICRA. Part III provides an overview of the passage of the ICRA. Part IV examines federal court encroachment into tribal court determinations of individual rights protections. Part V provides an overview of the ruling in Martinez. Part VI details tribal court interpretations of the ICRA associated with tribal sovereign immunity, tribal council actions, equal protection, due process, and criminal protections. Part VII concludes by offering recommendations for tribal courts in their ongoing review of the ICRA.
Judge Tim Connors on “Rights, Relationships, Responsibilities”
In the Detroit Legal News, here.
An excerpt:
Over 30 years ago in Michigan, then Supreme Court Chief Justice Michael Cavanagh began a relationship with our Tribal Courts. His initial words were prophetic to our neighbors: “We know we have more to learn from you than you do from us.” And so, it began. We have only scratched the surface of what we can learn. We can learn because there is a need, perhaps a necessity, that we open spaces and places for incorporating other world views and create procedures that nurture values that address areas of conflict in our communities.
SCOTUS Denies Cert in Tribal Court Jurisdiction Cases
The denied petitions are Lexington Ins. Co. v. Suquamish Tribe and Lexington Ins. Co. v. Mueller.
Grant Christensen on Oliphant
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
Muscogee (Creek) Nation SCT Strikes Down Special Justice Statute
Here are the materials in In re the Constitutionality of NSA-24-007:
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
Eighth Circuit Briefs in Tix v. Tix
Harvard Law Review Feature on Lexington Insurance Co. v. Smith
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
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