tribal courts

On the Minnesota SCT Rule 10 Proposed Revisions on Recognizing Tribal Court Orders and Judgments

Matthew L.M. Fletcher

Link: Proposed Rule 10

The Minnesota Tribal Court State Court forum is petitioning the Minnesota Supreme Court for a new and improved rule on the recognition of tribal court judgments in state courts, known as Rule 10 of the Minnesota General Rules of Practice. The existing rule was adopted in 2003, and it fell far short of what advocates sought at the time. At the time, Professor Washburn was critical of the outcome as not being sufficiently respectful of tribal court judgments. In this article, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2935279, Washburn and Chloe Thompson explained that the rule was far less respectful than Arizona’s equivalent rule and speculated as to why Minnesota’s rule would be less respectful than Arizona’s. Washburn characterized Rule 10 as providing wide discretion and little guidance to Minnesota District Courts. According to a letter submitted on the rule, Professor Washburn finds the new proposed Rule 10 to be much improved and believes that it addresses most of the concerns about the previous rule. He urges the Minnesota Supreme Court to adopt the improved rule.
The comment period closes today. The next step is consideration of the petition by the Minnesota Supreme Court Advisory Committee on General Rules of Practice. A public hearing on the petition will be held by the advisory committee on March 31, 2017 at the Minnesota Judicial Center.

Federal Court Dismisses Dispute over Nonmember Property Boundary Line Dispute on Ute Reservation

Matthew L.M. Fletcher

Here are the materials in Austin v. Dietz (D. Utah):

12 Motion to Dismiss

12-2 Motion to Dismiss First Tribal Court Suit

12-3 Motion to Dismiss Second Tribal Court Suit

12-4 Tribal Court Panel Decision

13 Response

15 Reply

28 DCT Order

 

Motion for TRO Rejected in Northern Arapaho Tribe v. LaCounte

Matthew L.M. Fletcher

Here are the materials in Northern Arapaho Tribe v. LaCounte (D. Mont.):

115 NAT Motion for TRO

123 Federal Response

127 Reply

147 DCT Order Denying Motion for TRO

An excerpt:

Negotiations concerning the operation of the two courts are ongoing. Interactions between the courts are, and will be, varied, continual, and context-specific. An order from the Court would prove an undesirable and perhaps unwieldy solution, particularly as opposed to a protocol negotiated by the parties. The Court especially is not the proper arbiter for the dispute while the parties continue to negotiate an MOU. An MOU would provide a set protocol that the Court could evaluate. The addition of an MOU to the factual record would aid the Court in coming to a more accurate, useful resolution to the issues presented.

Complaint in Pawnee Nation lawsuit for Earthquake Damage caused by Wastewater Injection

Singel1 Comment

Here is the complaint filed in the Pawnee Nation Tribal Court in Pawnee Nation of Oklahoma v. Eagle Road Oil LLC, et al.

On Friday, March 3, the Pawnee Nation sued 27 companies that operate wastewater disposal wells used in fracking operations in and near Pawnee, Oklahoma.  The complaint alleges that the actions of the defendants have contributed to earthquakes and resulting damage to the Pawnee Nation of Oklahoma, and it includes claims based on strict liability, negligence, private nuisance, and trespass. The Tribe seeks compensatory and punitive damages.

New Student Scholarship on Tribal Criminal Jurisdiction to Crimes Against Children

Matthew L.M. Fletcher

The Harvard Civil Rights-Civil Liberties Law Review has published “What about the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children” by Alison Burton.

An excerpt:

As explained in Part IV, if Congress extends tribal criminal jurisdiction to non-Indian crimes against children, challenges to this legislation are un- likely to succeed as long as Congress explicitly enacts such jurisdiction through inherent tribal sovereignty.11 Non-Indian defendants’ United States Constitutional rights will be somewhat diminished in tribal courts. How- ever, extending tribal criminal jurisdiction is still justified because criminal defendants’ rights always vary according to the sovereign state in which the crime is committed.12 Furthermore, Part IV demonstrates how tribal crimi- nal jurisdiction can be analogized to court-martial,13 another arena in which the accused is not entitled to full constitutional protections. Just as court- martial is limited to members of the military who have commited crimes, tribal jurisdiction would be limited to non-Indians who have close ties to a tribe and have commited crimes in Indian country.

Leech Lake Band of Ojibwe Judicial Postings

Matthew L.M. Fletcher

Here (PDF):

Leech Lake Band of Ojibwe is seeking a Full Time Associate Judge and a Part-time Deputy Judge

Applicants must possess their Juris Doctorate from an accredited Law School with prior study and or practice in the field of Indian Law.  Be a licensed attorney to practice in the State of Minnesota or any other state.  Salary is DOQ.

Please submit a cover letter with your resume, juris doctorate, and Attorney License to:

Leech Lake Band of Ojibwe
Jacquelyn Wright
Court Administrator
190 Sailstar Drive NE
Cass Lake, MN 56633

Or email to: jacquelyn.wright@llojibwe.org

Closing Date is March 8, 2017 at 4:30 pm

Federal Court Again Dismisses Challenge to Blue Lake Rancheria Tribal Court Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Acres v. Blue Lake Rancheria (N.D. Cal.):

39-blue-lake-motion

41-opposition

48-dct-minute-order

50-dct-order-written

An excerpt:

Plaintiff James Acres seeks declaratory and injunctive relief against the Blue Lake Rancheria Tribe (“Tribe”), the Blue Lake Rancheria Tribal Court (“Tribal Court”) and its Chief Judge, Lester Marston, alleging that the Tribal Court has conducted itself in bad faith in asserting jurisdiction over him in an underlying contractual fraud case because Judge Marston refused to recuse himself from the case and misrepresented his relationship with the Tribe. Judge Marston has now recused himself from the Tribal Court case and appointed the Hon. James Lambden, a retired California Court of Appeal Justice with no prior connection to the Tribe, to preside over the matter. Given Judge Marston’s recusal and the appointment of a neutral judge, there is insufficient evidence of bad faith for the exception to apply. Acres does not meet any of the exceptions to the exhaustion requirement. He must exhaust his tribal remedies before bringing an action of this kind in federal court. The Tribe’s motion to dismiss is GRANTED.

Alaska Tribal Court Selected for Dependency Court Project

Victoria Sweet

The Central Council Tlingit & Haida Indian Tribes of Alaska Child Dependency Court under the leadership of Judge Debra O’Gara been selected by the National Council of Juvenile and Family Court Judges (NCJFCJ) as one of six new courts to join their Implementation Sites Project, which helps to improve outcomes for abused and neglected children and their families.

Full press release available here alaska-implementation-pr-final-02232017.

From the release:

The NCJFCJ Implementation Sites Project, which is funded by the Office of Juvenile Justice and Delinquency Prevention, provides child abuse and neglect courts with training, technical assistance and support to guide program improvement, sustainability and performance. As part of their involvement in this project, Implementation Sites are expected to implement meaningful change, evaluate progress as well as share challenges and successes with other courts across the country.

“Tribal justice systems are growing and evolving to address to the needs and issues of tribal communities. It is vitally important that tribal courts continue to learn, benefit, and share information through the NCJFCJ’s Implementation Site Project,” said Nikki Borchardt Campbell, Executive Director of the National American Indian Judges Court Association.

The Central Council Tlingit & Haida Indian Tribes of Alaska Child Dependency Court, in Juneau, Alaska, began last year through an extensive partnership with the Tribal and Youth Services and the State of Alaska Office of Children Services. In the last decade, the Tribe’s court system has grown quickly beginning with child welfare including child support and paternity cases. Recently, the Tribal court has begun to hear domestic violence protection orders, custody, divorce, guardianship, and adoption cases. The Tribal court is also developing a juvenile wellness court, focused primarily on early intervention and prevention for youth whom are at risk of being involved in the criminal justice system.

“Being a part of the NCJFCJ’s Implementation Sites Project will not only help grow and expand our Tribal court in the child welfare area of services, but would greatly benefit our court’s needs for technical assistance, practical tools, and collaborative assessment,” said the Honorable Debra O’Gara, lead judge of the project.

“We look forward to collaborating with the NCJFCJ to strengthen the court’s infrastructure through data collection, forms and templates, staff training, and greater access to current research and trends in child and family needs to build up the infrastructure to handle the growing case load. I firmly believe that we have much to learn from the knowledge and experience of other judges and courts around the nation on how to best expand and improve the court’s outcomes for our children and families.”

Fletcher on Statutory Divestiture of Tribal Sovereignty

Matthew L.M. Fletcher

“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.

The abstract:

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

North Dakota SCT Awards Attorney Fees to Defendants in Indian Country Tort Claim Brought in State Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in Tillich v. Bruce.

An excerpt:

Don Bruce, Vinier Davis, and Linda Davis (“Defendants”) appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court’s denial of the Defendants’ request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.

Briefs:

1. Tillich v. Bruce – Appellee Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

2. Tillich v. Bruce – Appellant Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

3. Tillich v. Bruce – Reply Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.