Here:
Proposed removal of Navajo Nation Chief Justice
tribal courts
Wisconsin Judicare Indian Law Office Job Posting
INDIAN LAW STAFF ATTORNEY
DESCRIPTION — Wisconsin Judicare’s Indian Law Office is hiring an additional attorney to represent Native American individuals on a variety of issues including civil and criminal defense representation in the Ho-Chunk Nation Tribal Court. Wisconsin Judicare is a non-profit legal services law firm serving northern Wisconsin where there are 11 Indian reservations. This attorney will be responsible for representing members of the Ho-Chunk in both tribal and state court. The Judicare office is in Wausau, however this position could be based in another location depending on the candidate. Position start date is early June.
DUTIES — (1) Represent individual tribal members charged with crimes in the Ho-Chunk Nation Tribal Court; (2) Represent individuals in civil cases (family law, elder law, and estate planning) in tribal and state court. (3) Conduct community education and outreach.
QUALIFICATIONS — (1) Must be admitted to practice law in Wisconsin; (2) admitted, or the ability to gain admission within 60 days of hire to the Ho-Chunk Nation Bar. (3) Good communications and advocacy skills; and (4) Knowledge of Native American issues, and familiarity with the Ho-Chunk Nation preferred.
SALARY — DOE. There are excellent fringe benefits.
APPLICATION PROCEDURE — Please submit resume, writing sample and 3 references to David Armstrong, Director, Indian Law Office, Wisconsin Judicare, P.O. Box 6100, Wausau, WI 54402 or at darmstrong@judicare.org. For inquiries call David at 1-800-472-1638 ext. 309.
NATIVE AMERICANS, MINORITIES, WOMEN, OLDER PERSONS AND
INDIVIDUALS WITH DISABILITIES ARE ENCOURAGED TO APPLY.
First Circuit Briefs in Luckerman v. Narragansett Tribe
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.
Turtle Talk 
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