tribal courts

Background materials here.

Quick commentary:

This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117.

If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.

Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.

The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter).

News Profile of Nooksack Disenrollments (and others, too)

April 18, 2016Matthew L.M. Fletcher2 Comments

Here is “In Washington, the Nooksack 306 fight to stay in their tribe” from the High Country News.

Gila River Indian Community Letter to NACDL re: Bryant Amicus Brief

April 18, 2016April 18, 2016Matthew L.M. Fletcher2 Comments

Here:

NACDL US v Bryant 04-15-16

An excerpt:

I am writing to you to express the Gila River Indian Community’s concerns regarding the Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Experienced Tribal Court Litigators in Support of Respondent (“Brief’) recently filed with the Supreme Court of the United States in United States v. Bryant (No. 15-420). The Brief makes numerous attacks on the Community’s criminal justice system, hasty generalizations regarding tribal justice systems, and omits relevant facts and conclusions regarding the Community.

The stated purpose of the Brief is “to draw upon amici’s knowledge and experience with tribal-court criminal litigation to give this Court an informed perspective from which to assess these claims.” Brief at 4 (emphasis added). Unfortunately, the Brief does not do so. Instead, it reads as a narrative and anecdotal attack on tribal justice systems, prominently including the Community. These attacks on the Community’s criminal justice system have often come in a third-party form, such as letters from the National Association of Criminal Defense Lawyers and National Association of Federal Defenders to members of Congress regarding proposed legislation. Despite prominent mention of the Community, these letters- and the Brief-were not provided to the Community when sent or filed. We suspect it may have to do with the favorable outcomes to the Community in the cases discussed in the Brief.

Briefs and other materials in this case are here.

Updated Materials in Suit over N. Arapaho from Wind River Joint Business Council

April 18, 2016Matthew L.M. Fletcher1 Comment

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

17-1 NAT Motion for PI

26 Shoshone Business Council Motion to Dismiss

28 Tribal Court Parties Motion to Intervene

40 Shoshone Business Council Response to 17

44 DOI Response to 28

45 Shoshone Business Council Response to 28

49 NAT Reply in Support of 17

50 DCT Order Denying Motion to Intervene

51 NAT Response to 26

Complaint here.

SCOTUSBlog Preview of United States v. Bryant

April 13, 2016Matthew L.M. Fletcher

Here.

Three Day VAWA Training and Mock Trial at Sisseton-Wahpeton Oyate

April 12, 2016Sarah M Donnelly

1. Save-the-Date SWO VAWA (PDF)

2. Conference Registration – SWO VAWA Training (PDF)

3. Agenda (DRAFT) SWO VAWA (PDF)

Sault Tribe RFP for Appellate Judge

April 12, 2016Matthew L.M. Fletcher

REQUEST FOR PROPOSALS

The Sault Ste. Marie Tribe of Chippewa Indians seeks qualified licensed attorneys and/or non-attorneys for the position of Appellate Judge in the Sault Ste. Marie Chippewa Tribal Appellate Court. The Appellate Court has the following vacancies to fill:

Licensed attorney positions –(active & reserve)
Elder position (active & reserve)

The Appellate Court meets monthly. Oral argument is held in Sault Ste. Marie, MI.

Appeals filed vary from year to year, but typically can be anywhere from 1 – 4 per year.

These positions include a $200 per month stipend (if not employed by the tribe). Licensed attorney positions are also paid at the rate of $150 per hour with a maximum billing of $5,000 per year.

Qualifications for Licensed Attorney positions include:

Must be a member of the Sault Ste. Marie Tribe of Chippewa Indians
Must be a member in good standing with the State Bar of Michigan

Qualifications for Elder (attorney or non-Attorney) position include:

Must be a member of the Sault Ste. Marie Tribe of Chippewa Indians
Must be age 60 or older
If an attorney, must be a member in good standing with the State Bar of Michigan

To further be considered for these positions, Applicants should be able to demonstrate that they have:

Substantial education and experience working with Tribal, State and Federal law
Extensive knowledge in juvenile, criminal and child welfare proceedings
Knowledge and understanding of the history and traditions of the Sault Tribe

A letter of interest, resume, and application should be submitted to:

Sault Ste. Marie Chippewa Tribal Court Continue reading →

Fletcher Commentary on Dollar General in the Yale Law Journal Forum

April 12, 2016April 12, 2016Matthew L.M. Fletcher1 Comment

Here is “Contract and (Tribal) Jurisdiction.” (PDF)

Excerpts:

Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fora over which the Supreme Court does not exercise supervisory jurisdiction. Both arbitration and tribal courts are favored by acts of Congress.1 Both contracts are hotly contested in the Supreme Court. But the arbitration clause contract has been affirmed in a series of recent decisions.2 The tribal court contract, by contrast, is pending before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians.3 Ironically, while the more conservative Justices signed on to the arbitration clause decisions, these same Justices may be Dollar General’s best bets for escaping tribal jurisdiction. This short Essay details the key arguments in Dollar General and argues that to undo the tribal contract would unnecessarily and unconstitutionally undo the right to contract for Indian nations.

And:

Justice Scalia’s death may mean a 4-4 tie in the Dollar General case. Justice Scalia was in the majority in the most recent tribal civil jurisdiction dispute, Plains Commerce Bank v. Long Family Land & Cattle Co.,32 decided by a 5-4 vote, split along the traditional conservative-liberal voting pattern. In Plains Commerce, Justice Scalia asked a nonmember company that had not specified jurisdiction in its commercial agreement with a tribal member-owned business: “[Y]our client could have obtained that certainly [sic] by inserting a choice of law provision providing that any disputes would be resolved somewhere else, couldn’t it?”33 The answer in that case from the nonmember? “I think that in the face of silence in the contract, the general rule [against tribal jurisdiction] controls rather than its exceptions.”34 There is a choice of law provision in Dollar General, negotiated at arm’s length by sophisticated business entities, and it points to tribal court jurisdiction.35