Here:
Lower court materials here.
tribal courts
Federal Defender Positioning United States v. Drapeau to Force Circuit Split over Use of Prior Uncounseled Tribal Court Convictions in Federal Sentencing Enhancement
Here are the briefs in United States v. Drapeau:
An excerpt:
Santana Drapeau was convicted of two counts of domestic assault by an habitual offender. In support of those charges the United States offered evidence of Drapeau’s three prior domestic abuse convictions in Crow Creek Tribal Court. In each instance Drapeau entered a no contest plea; in two of the three he did so without a lawyer. Over Drapeau’s objection under Federal Rules of Evidence 402, 403, and 404, the District Court admitted testimony about the underlying facts giving rise to those convictions. The District Court admitted that evidence based on a flawed understanding of whether the court or the jury decided what was a qualifying predicate offense under 18 U.S.C. § 117.
The District Court denied Drapeau’s motion for judgment of acquittal based on the use of no contest pleas obtained without counsel as qualifying predicate offenses. Drapeau acknowledges that this issue is controlled by United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), but presents it here in order to preserve it for review by this Court en banc and through petition for writ of certiorari.
We’ve commented on this issue extensively here and here. Right now, there is no circuit split as both the Eighth and Tenth Circuits have allowed use of the tribal court convictions under 18 U.S.C. § 117, a habitual offender statute. The cases are Cavanaugh and Shavanaux. There’s a Ninth Circuit case from the 1980s — United States v. Ant (882_F.2d_1389) — that is in disagreement with these cases but in a different context (confessions).
Ah, there is a clean split that I forgot about! United States v. Bryant in the CA9.
A case worthy of watching.
I wrote a short paper about these issues more generally a while back: Sovereign Comity
North Dakota SCT Holds State and Tribal Courts Enjoy Concurrent Jurisdiction over Child Support Matters…
… where one parent lives on and the other lives off the reservation.
Here is the opinion in Lavallie v. Lavallie.
Briefs:
FTCA/Civil Rights Suit against BIA Officers Enforcing N. Cheyenne Tribal Bench Warrant against Non-Indian Dismissed
Here are the materials in the case captioned In re Roberts Litigation (D. Mont.):
33 Federal Motion for Summary J
54 DCT Order Granting Federal Motion for Summary J
An excerpt:
In order for Roberts’ claim under Bivens to survive, the law must have been sufficiently clear to place a reasonable officer on notice that the Tribal Court acted in complete absence of jurisdiction in issuing the warrants, and that in carrying out the Tribal Court mandate to serve the warrants, reasonable officers would have known they were [8] engaging in an unlawful act, Existing law permits no such conclusions, notwithstanding Roberts’ contention that the law was clearly established that the Tribal Court lacked criminal jurisdiction over non-Indians under the authority of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978) and that the officers had personal knowledge that Roberts was a non-Indian.
Roberts’ argument fails to take into account the Northern Cheyenne Tribal Court’s claim of capacity to exercise jurisdiction over non-Indians by consent. It is not necessary, however, for this Court to decide the question of whether a tribal court may exercise such jurisdiction. Rather, the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains.
The officers were presented with facially valid warrants, they were charged with the responsibility to execute the warrants, and they had a reasonable basis to believe in the validity of the warrants and in the lawfulness of their actions in executing the warrants. They are entitled to qualified immunity for the personal capacity claims brought against them under the Bivens doctrine.
Public Radio Profile of DV Prosecutions at Pascua Yaqui
Here.
An excerpt:
FRED URBINA: In 19 of our cases, we had 18 children involved; the average age being around 4 years old. Some of them were assaulted. A lot of times it was the children that were calling to report these domestic violence incidents.
MORALES: The Justice Department chose the Pascua Yaqui to pilot the program because they have state certified judges and lawyers and a brand new courthouse and jail. Police Chief Michael Valenzuela says the old jail was a two-bedroom house with a cage.
M. VALENZUELA: In the past, if someone was in jail people could go outside and knock on the window and talk – yeah and they did. We’d have to shoo them away. It was not safe. We had people assaulted.
MORALES: Now, thanks to federal stimulus money, they have a 65,000-square-foot justice complex.
Part 2 of Cynthia Ford’s Article on Evidence Rules in Montana Tribal Courts
In the March 2015 edition of the Montana Lawyer (page 18).
Part 1 was here.
Federal Court Holds Tribal Exhaustion Doctrine Does Not Apply to ERISA Claims
Here are the materials in Coppe v. Sac & Fox Casino Healthcare Plan (D. Kan.):
9 Sac and Fox Motion to Dismiss
An excerpt:
This case is now before the court upon a motion to dismiss or stay for failure to exhaust tribal remedies. The motion is brought by defendant Sac & Fox Casino Healthcare Plan. This motion asks the court to rule as a matter of comity that before bringing a claim in this court, plaintiff must bring an ERISA action for recovery of insurance benefits under the casino’s nongovernmental plan in tribal court. We assume for purposes of this order that plaintiff is not a member of the Sac & Fox Tribe and that the Plan is not a “governmental plan” as defined in ERISA. We hold that Congress has preempted the tribe’s adjudicatory authority over ERISA claims and, therefore, exhaustion of tribal remedies is not required.
Alaska SCT Vacates Restrictive Visitation Schedule Involving Fort Peck Father
Here is the opinion in Red Elk v. McBride.
An excerpt:
Two parents disputed the legal custody and visitation rights for their
daughter; the mother resides in Homer and the father resides on the Fort Peck Indian
Reservation in Montana. The superior court awarded sole legal custody to the mother
because it concluded that the parties could not communicate effectively to co-parent their
daughter. The court ordered unsupervised visitation between the father and the daughter
in Alaska, but prohibited visitation on the reservation until the daughter turned eight. Although the superior court did not abuse its discretion when it decided legal custody,
it failed to fully justify its decision when creating its restrictive visitation schedule and
allocating visitation expenses. Consequently we remand for further proceedings
consistent with this opinion.
Reposting for Nottawaseppi Huron Band Potawatomi Associate Judge
POSTING FOR THE
ASSOCIATE JUDGE OF THE NOTTAWASEPPI HURON BAND OF THE POTAWATOMI TRIBAL COURT
SUMMARY:
The Nottawaseppi Huron Band of the Potawatomi seeks an Associate Judge of the Tribal Court to be appointed for an initial term of two (2) years. This is a part-time position (estimated 25 hours per month) and will be compensated on an hourly basis.
The NHBP Constitution requires that the Chief Judge, Supreme Court Justices and Associate Judges must: have attained the age of thirty (30); be a licensed attorney in good standing; cannot be a Member of Tribal Council or running for a Tribal Council position or a Tribal employee; and never been convicted of, or entered a plea of guilty or no contest to, a violent crime, felony, or a crime of fraud. Candidates must have experience in the practice of Indian law, whether in tribal, state or federal court(s). Judicial experience and 5 or more years experience as a licensed attorney and/or judge is preferred.
Applicants must submit a letter of interest, resume/curriculum vitae and complete the Affirmation(s) that the applicant meets the requirements for appointment under NHBP Constitution. Documents must be submitted to the Legal Department no later than 5:00 P.M. on March 18, 2015. Applications may be submitted via mail or e-mail to: William Brooks, NHBP Chief Legal Counsel at: 1485 Mno-Bmadzewen Way, Fulton, MI 49052 or bbrooks@nhbpi.com. Applicants will also be required to submit to a background investigation and drug screen before confirmation of appointment.
For more information, including copy of the Affirmation form(s) to be completed as part of the application process, please visit the NHBP Legal Department website at: http://nhbpi.com/support/legal/
NCAI Press Release: Tribal Governments Able to Take Criminal Action on Non-Indians
Tribal Governments Able to Take Criminal Action on Non-Indians
Washington, DC- On March 7, 2015, Tribal governments may elect to begin exercising jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands.
“This is a major step forward to protect the safety of Native people, and we thank all Members of Congress for passing the Violence Against Women Act of 2013 and recognizing tribal authority,” said Brian Cladoosby, President of the National Congress of American Indians and Chairman of the Swinomish Tribe.
So far three Tribes, the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes have been able to exercise jurisdiction over non-Indians under a Pilot Project since February 6, 2014. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.
“I want to encourage all tribal governments to get this law on their books,” said Juana Majel, Chair of the NCAI Task Force on Violence Against Women. “The main goal is deterrence of domestic violence. On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries. They need to get the message. If they continue to assault our women we will prosecute and put them in jail.”
Violence against Native women has reached epidemic proportions. The root cause is a justice system that forced tribal governments to rely on distant federal — and in some cases, state —officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women. However, outside law enforcement has proven ineffective in addressing misdemeanor level reservation-based domestic violence. The Justice Department has found that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates. The 2013 VAWA Reauthorization authorizes tribal governments to investigate and prosecute all crimes of domestic and dating violence regardless of the race of the offender.
Tribes choosing to exercise Special Domestic Violence Criminal Jurisdiction must provide the same rights guaranteed under the Constitution as in state court. This includes the appointment of attorneys for indigent defendants and a jury drawn from the entire reservation community. “Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all. Just like county courts, tribal courts can contract for public defenders on a case-by-case basis,” encouraged President Cladoosby.
Key Statistics:
34% of American Indian and Alaska Native women will be raped in their lifetimes
59% of assaults against Native women occur at or near a private residence
59% of American Indian women in 2010 were married to non-Native men
46% of people living on reservations in 2010 were non-Natives (single race)
On some reservations, Native women are murdered at more than ten times the national average
For an overview on tribal VAWA, and more information please see: http://www.ncai.org/tribal-vawa. The Tribal Law & Policy Institute has developed a Legal Code Resource for implementation at www.TLPI.org.
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