tribal courts – Page 71

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

New Filings at Nooksack

April 11, 2016Matthew L.M. Fletcher2 Comments

Here:

Belmont v. Kelly Motion for Order to Show Cause Re Contemp

Galanda v. Bernard Appellate Petition for Writ of Mandamus

Nooksack Tribal Court Clerk Rejects Galanda Pro Se Filing

April 6, 2016Matthew L.M. Fletcher2 Comments

Here are the materials in Galanda v. Bernard:

Nooksack Court Clerk Correspondence Rejecting Pro Se Complaint

Galanda Broadman Dreveskracht Pro Se Email Inquiry to Nooksack Judge Re Status of Complaint, State of Tribal Court

Prof. Frank Pommersheim at Snoqualmie

April 5, 2016April 5, 2016Ann Tweedy

Among the highlights of Professor Pommersheim’s sage talk was the advice to Tribes to broaden business licenses to include consent to tribal jurisdiction over tort claims related to the business and consent by the business’ employees. He also suggests that Tribes consider amending their civil procedure codes to eliminate interlocutory appeals over jurisdictional questions.

Hopi Job Vacancies

April 4, 2016Matthew L.M. Fletcher1 Comment

Here are current vacancies for the Hopi Tribe. These positions are vacant until filled. Position descriptions are attached. The employment application may be obtained on their website.

GEN COU General Counsel02996

HTC Chief Judge 012014 E80

OGC Deputy General Counsel 122006

You can also find their Job Vacancy Listing on-line at the following address: http://www.hopi-nsn.gov/tribal-services/human-resources/job-listings/

Applications can be submitted:

a: To the Office of Human Resources

b: Mailed to: The Hopi Tribe, Human Resources, PO Box 123, Kykotsmovi Arizona 86039

c: Faxed to (928) 734-6611 (Please call to verify that HR received your fax)

d: Or e-mail to HumanResources@hopi.nsn.us

Questions may be directed to 928-734-3212.

Midwest Peacemaking Conference is June 8-10 in Manistee

March 31, 2016Sarah M Donnelly

Download agenda and presenter bios here.

Link to registration here.

Federal Court Orders Tribal Exhaustion in Challenge to Lummi Seizure

March 30, 2016March 30, 2016Matthew L.M. Fletcher

Here are the materials in Wilson v. Doe (W.D. Wash.):

57 Horton’s Towing Motion for Summary J

61 Wilson Opposition to 57

62 Horton’s Towing Reply

64 Horton’s Towing Response to 60 & 61

65 US Brief

66 Wilson Reply

67 DCT Order

An excerpt:

On October 22, 2014, Plaintiff Curtiss Wilson was stopped by a Lummi Tribe police officer while driving on the Lummi Reservation after drinking at the Lummi Casino. (Dkt. No. 4-1 at 2.) Lummi Tribal Police Officer Grant Austick stopped Plaintiff, searched his 1999 Dodge Ram Pickup, and developed probable cause that Plaintiff was committing a DUI. (Dkt. No. 4-1 at 2.) Officer Austick then called the Washington State Patrol and Plaintiff was arrested. (Id. at 3.) Plaintiff’s truck was towed by Defendant Horton’s Towing and impounded at the direction of the Washington State Trooper. (Id.)

The following day, Lummi Tribal Police Officer Brandon Gates presented a “Notice of Seizure and Intent to Institute Forfeiture” (“Notice of Seizure”) from the Lummi Tribal Court of the Lummi Tribe to Horton’s Towing. (Dkt. No. 4-1 at 3-4, 9.) The seizure and intent to institute forfeiture of Plaintiff’s vehicle was based on violations of the Lummi Nation Code [3] of Laws (“LNCL”) 5.09A.110(d)(2) (National Indian Law Library 2016) (Possession of Marijuana over 1 ounce), and authorized by LNCL 5.09B.040(5)(A) (National Indian Law Library 2016) (Civil forfeiture section addressing Property Subject to Forfeiture, specifically motor vehicles used, or intended for use, to facilitate the possession of illegal substances.) (Dkt. No. 4-1 at 9.) Horton’s Towing released the truck to the Lummi Tribe. (Id. at 3-4).

Plaintiff brought suit in Whatcom County Superior Court and the case was removed. (Dkt. No. 1.) Plaintiff originally brought claims for outrage, conversion, and relief under 42 U.S.C. §§ 1983 and 1988. (Dkt. No. 4-1 at 7-8.) All of Plaintiff’s claims, save conversion, have been previously dismissed either voluntarily or by Court order. (See Dkt. Nos. 25, 35, and 53.) Plaintiff’s conversion claim against both Horton’s and the United States is based on Horton’s release of the vehicle to the Lummi Tribe pursuant to the order served by Gates. (Dkt. No. 4-1 at 6.)

Defendant Horton’s moves for summary judgment, claiming the release of the vehicle was pursuant to the Notice of Seizure, and [4] therefore with lawful justification. (Dkt. No. 57.) Plaintiff argues in response that the Notice of Seizure is invalid or not enforceable off the reservation. (Dkt. No. 61.) The United States moves for summary judgment based on, inter alia, Plaintiff’s failure to exhaust his administrative remedies. (Dkt. No. 65.) In response, Plaintiff regurgitates failed arguments from previous briefing, relying on an overturned, out-of-Circuit case and “maintaining” a line of reasoning with respect to Brandon Gates and the scope of employment that this Court has already ruled against. (Dkt. No. 66.)