tribal courts – Page 48

1. Pascua Yaqui (51 investigations, 18 Convictions, 3 jury trials, 3 extradtions) *
2. Tulalip Tribes of WA. (23 cases, 14 Convictions) *
3. Sisseton Wahpeton Oyate (SD/ND) (7 cases, 4 Convictions) *
4. Confederated Tribes of Umatilla (OR)(10 Arrests, 10 Convictions) *
5. Assiniboine & Sioux Tribes of the Ft. Peck Reservation (MT) (16 Arrests) *
6. Little Traverse Bay Band of Odawa Indians (MI) (no arrests)
7. Alabama Coushatta Tribe of Texas (TX) (1 Arrest)
8. Choctaw Nation of Oklahoma (OK)(1 Arrest, 1 conviction)*
9. Seminole Nation of Oklahoma (OK)(No arrests)
10. Eastern Band of Cherokee Indians (NC)(25 Arrests 16 convictions) *
11. Sac and Fox Nation (KS)(No arrests) *
12. Kickapoo Tribe of Oklahoma (OK)(No arrests)
13. Nottawaseppi Huron Band of Potawatomi (MI) (No Arrests)
14. Muscogee Creek Nation (OK) (No arrests)
15. Standing Rock Sioux Tribe (ND) (1 Arrest) *
16. Sault St. Marie Tribe of Chippewa (MI) (4 arrests, 2 convictions, 1 Jury Trial)
17. Chitimacha Tribe of Louisiana (1 arrest)
18. Lower Elwha Klallam Tribe (No arrests)

* denotes DOJ TAP Tribe (NCIC Access)

Nationwide Statistics:

* 18 Implementing Tribes
* Over 138 Arrests
* 42 Convictions
* 36 Guilty pleas
* 8 federal referrals
* No federal Appeals
* 3 Jury acquittals
* 30 dismissals

Federal Court Denies Reconsideration Motion; Plaintiff “Nooksack Tribe” Still Lacks Standing

November 15, 2017Matthew L.M. Fletcher

Here are the new materials in Nooksack Indian Tribe v. Zinke (W.D. Wash.):

45 Plaintiff’s Motion for Reconsideration of Order Granting Motion to Dismiss

47 Federal Defendants’ Memorandum of Points and Authorities in Opposition to Motion for Reconsideration

48 Plaintiff’s Reply in Support of Motion for Reconsideration of Order Granting Motion to Dismiss

54 Joint Status Report

55 Minute Order Lifting Stay

56 Order On Plaintiff’s Motion for Reconsideration

Split Utah SCT Affirms Tribal Immunity, Adopts Tribal Court Exhaustion Doctrine

November 9, 2017November 10, 2017Matthew L.M. Fletcher1 Comment

Here is the opinion in Harvey v. Ute Indian Tribe.

UPDATE (11/10/17) Briefs:

Appellant’s Brief

Appellant’s Reply Brief

Appellee’s Brief-LaRose

Appellee’s Brief-Newfield

Appellee’s Brief-Ute Indian Tribe

Joinder in Brief

Response to Supplemental Authority-Appellee 1

Response to Supplemental Authority-Appellee 2

Supplemental Authority-Appellant

An excerpt:

The oil and gas industry is a major economic force in the Uintah Basin. This industry relies, to some extent, on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs allege that, through its ability to restrict the industry’s access to tribal lands, the tribe has held hostage the economy of the non-Indian population.

Ryan Harvey, a plaintiff and part owner of the two corporations that are the other plaintiffs in this case, alleges that tribal officials from the Ute Tribe attempted to extort him by threatening to shut down his businesses if he did not acquiesce to their demands, despite the fact that his businesses do not operate directly on tribal land. After his refusal to make certain payments, the tribal officials sent a letter to the oil and gas companies operating on tribal land informing them that they would be subject to sanctions if they used any of Harvey’s businesses. The tribal official’s letter dried up a large portion of Harvey’s business, and Harvey brought claims against the tribe, the tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies he alleges are complicit in this extortionate behavior. Most of the defendants filed motions to dismiss on various grounds and the district court dismissed Harvey’s claims against all of the defendants. On direct appeal, Harvey seeks to set aside the dismissals. We affirm the dismissal of the Ute Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted. But we vacate the dismissal of the remaining defendants and remand for further proceedings consistent with the tribal exhaustion doctrine.

~~If anyone has the briefs in this fascinating case, please send them along.~~

ABA Human Rights Journal: “Tribal Disenrollment Demands a Tribal Answer”

November 8, 2017November 8, 2017Matthew L.M. Fletcher

William R. Norman Jr., Kirke Kickingbird, and Adam P. Bailey have published “Tribal Disenrollment Demands a Tribal Answer” in the ABA Human Rights Journal.

MSU/ILPC Alums Whitney Gravelle & Bryan Newland Sworn in as Bay Mills Chief Judge and Chairman

Image November 7, 2017November 7, 2017Matthew L.M. Fletcher

AB8D3DF3-CA49-4474-ACC9-4259FC3AE37B

Federal Court Rejects Effort to Enforce Settlement Agreement in Tribal Court

November 6, 2017Matthew L.M. Fletcher

Here are the materials in Enerplus Resources (USA) Corporation v. Wilkinson (D.N.D.):

78 Motion for Summary J

84 Response

85 Reply

91 DCT Order

An excerpt:

Given the forum selection clauses in the Settlement Agreement, the ORRI Assignment, and the Division Orders, the Tribal Court clearly lacks jurisdiction over the case. The record before this Court clearly establishes that every party to the dispute agreed to the forum selection clauses at issue. Thus, Enerplus is entitled to a declaratory judgment that the forum selection clauses at issue preclude the Tribal Court from exercising jurisdiction over any dispute arising from those documents, and preclude Wilkinson from asserting in Tribal Court any claims arising from, and related to those documents.

CA8 materials here.

Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers

November 6, 2017Matthew L.M. Fletcher

Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)

An excerpt:

Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased.

Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.

Differing Scholarly Opinions on the Ethics of Representing Tribes Engaged in Disenrollments

November 6, 2017Matthew L.M. Fletcher

Here is George K. Komnenos, Tribal Advocates as Ministers of Justice: A Potentially Problematic Concept, 29 Geo. J. Legal Ethics 1079 (2016): GeorgeKKomnenosTribalAdvo

An excerpt:

In June 2015, the National Native American Bar Association (NNABA) adopted its first Ethics Opinion entitled Formal Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment (“Opinion”). The Opinion is not intended to prescribe an overarching code of professional conduct for tribal advocates. On the contrary, the Opinion serves as a reminder to attorneys and Indian bar associations that “lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.” The Opinion puts forward the notion that tribal advocates have a dual duty: they are bound not only to their individual clients, but to the Native American community at large. According to the Opinion, “[t]he responsibility of a tribal advocate differs from that of the usual advocate; his or her duty is to further justice in the greater Native American community, not merely to win his or her case.” Though this statement is made in the context of encouraging lawyers to be vigilant in defending their clients’ constitutional rights, it bears grave dangers.

And here is Nicole Russell, “To Further Justice in the Greater Native American Community”: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes, 30 Geo. J. Legal Ethics 911 (2017):

TO FURTHER JUSTICE IN THE GREATER NATIVE AMERICAN COMMUNITY ETHICAL RESPONSIBI

An excerpt:

This Note will explore the ethical challenges faced by attorneys when representing member clients in two contexts. Part I will examine the generally heightened ethical obligations facing attorneys in their representations of tribal clients. This section will provide an analysis of procedural and ethical requirements, detail their variances, and point to recent attempts by tribal coalitions to develop a more coordinated code to guide nonmember representation. The discussion will necessarily involve the Model Rules of Professional Conduct(Model Rules) and their state derivations because many tribes have used these codes as the foundation for their own standards. Part II will examine what has been termed the tribal “disenrollment epidemic” and interrogate the premise that tribal advocates have a duty to distance themselves from disenrollment proceedings. Ultimately, this Note posits that not only are tribal advocates held to more– and sometimes higher–ethical standards than those put forth in the Model Rules, but that they are barred from representing tribes in many of the ongoing disenrollment proceedings which take place without the trappings of due process.