tribal courts – Page 74

The existing rhetoric surrounding tribal civil jurisdiction over non-Indians often leaves out the historical foundations to that jurisdiction. This article compares the tribal economies of the 18th and 19th centuries with the current environment of gaming and economic development on tribal lands. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets.

Through a detailed survey of treaties, tribal statutes, and federal laws covering pre-1970’s tribal economic regulation, this article reveals that non-Indians have continually consented to tribal jurisdiction to access these tribal markets, making outliers of the non-Indians attempting to access tribal markets without consenting to tribal market regulations. Analyzing the laws surrounding the federal and tribal licensing of Indian traders; the Great Lakes fur trade; the marriage laws of the Five Civilized Tribes; and the procedures established for dealing with intruders on Indian lands in the 18th and 19th centuries demonstrates the vast historical underpinnings of the current efforts to retain civil jurisdiction over non-Indians.

This is a work in progress, and so as usual we would be delighted for helpful constructive criticism. Miigwetch!

Fourth Circuit Rules against Western Sky et al.

February 3, 2016Matthew L.M. Fletcher

Here is the opinion in Hayes v. Delbert Services Corp. (4th Cir.).

An excerpt:

We both respect and appreciate the support of Congress and the Supreme Court for an arbitration procedure that reduces the costs and delays of civil litigation. Our review of the record leads us to conclude, however, that the arbitration agreement in this case is unenforceable. The agreement purportedly fashions a system of alternative dispute resolution while simultaneously rendering that system all but impotent through a categorical rejection of the requirements of state and federal law. The FAA does not protect the sort of arbitration agreement that unambiguously forbids an arbitrator from even applying the applicable law. We therefore reverse the district court’s order compelling arbitration and remand for further proceedings.

Briefs here.

ICRA Habeas Claim against Fort Peck Dismissed on Exhaustion Grounds

February 3, 2016Matthew L.M. Fletcher

Here are the materials in Lambert v. Fort Peck Assiniboine & Sioux Tribes (D. Mont.):

5 Magistrate Report

6 DCT Order

Federal Court Rejects Jurisdiction over Lower Brule Sioux Tribe Internal Disputes

February 1, 2016February 1, 2016Matthew L.M. Fletcher

Here are the materials in Wright v. Langdeau (D.S.D.):

12 Motion for TRO

15 Langdeau Motion to Dismiss

15-4 Tribal Court Order

19 US Motion to Dismiss

20 DCT Order

Request to all Tribal Courts from California Forum

January 28, 2016January 28, 2016Sarah M Donnelly2 Comments

As Co-Chair of the Tribal Court-State Court Forum in California and Chief Judge of the Yurok Tribal Court, I would like to learn whether you are encountering any problems getting your tribal court protection orders enforced in California. I am seeking your help because protection orders issued by tribal courts in California are not recognized or enforced unless they are entered into the DOJ California Restraining and Protective Orders System (CARPOS) through California Law Enforcement Telecommunications System (CLETS) by county law enforcement. Because tribal courts in California do not have access to these statewide databases, we have had to develop workarounds. Despite VAWA and California law mandating full faith and credit for protection orders tribal courts have been registering their orders with the state courts in order to have them entered into the statewide DOJ databases.

If you have any examples of recent times when your tribal court protection orders have not been recognized or enforced by law enforcement, we would appreciate learning about these instances. Please contact Pat Lenzi, forum member and Chief Judge of the Cedarville Rancheria Tribal Court, if you have any information you can share with us. Judge Lenzi can be reached at Lenzi.patricia@gmail.com

Judge Abby Abinanti
Co-Chair of the Tribal Court-State Court Forum

Nooksack 306 Allowed to Vote in Elections While IBIA Review is Pending

January 27, 2016January 27, 2016Sarah M Donnelly1 Comment

Belmont v Kelly Defendants’ Motion for Preliminary Injunction

Belmont v Kelly Plaintiffs’ Response to Defendants’ Motion for Preliminary Injuction

Belmont v Kelly Defendants’ Reply on Motion for Preliminary Injunction

Belmont v Kelly Order Denying Defendants’ Motion for Preliminary Injuction

Link to decision coverage in The Bellingham Herald here.

Nooksack Tribal Court has upheld the voting rights of over 300 Nooksack members facing disenrollment over a controversial ordinance passed in 2014. While the federal review of that ordinance drags along, the Tribe requested that contested members be prevented from voting in Tribal elections.

Judge Susan Alexander wrote that the marked members were allowed to vote in 2014 when their enrollment was in doubt, but now the Tribe has unilaterally changed their minds to protect open seats in this year’s general election.