In the March 2015 edition of the Montana Lawyer (page 18).
Part 1 was here.
tribal courts
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.
New Scholarship on the Efficacy of Indigenous Community-Based Approaches to Restorative Justice in Alaska
Brian Jarrett and Polly E. Hyslop have posted “Justice for All: An Indigenous Community-Based Approach to Restorative Justice in Alaska” on SSRN. Here is the abstract:
The current study reviews the comparative successes of two restorative justice programs in Alaska, namely, the Upper Tanana Wellness Program and the Circle Peacemaking Program in Kake, Alaska. In an analysis of the two case studies, the authors develop nine principles useful to those interested in developing restorative-justice programs. The authors recommend an Indigenous community-based approach consistent with practice in the field of Dispute Systems Design.
Written Order Enjoining Nooksack Disenrollments
Western Sky Financial v. Jackson Cert Stage Materials
Here:
Western Sky v Jackson Cert Petition
Questions presented:
I. Whether the validity of an arbitration clause is determined exclusively by the statutory requirements of the Federal Arbitration Act (“FAA”), as held by the First, Fourth, Fifth, and Eleventh Circuits – or by a common-law “reasonableness” test, as held by the Seventh Circuit below?
II. Whether a court may apply a state law defense in a manner that disfavors arbitration by voiding an entire arbitration clause merely because the contractually-designated arbitrator is unavailable, notwithstanding the FAA’s express directive to appoint a substitute arbitrator?
III. Whether the Seventh Circuit erroneously – and in conflict with the Second and Eighth Circuits – required a non-tribal-member’s physical entry onto the relevant Indian reservation in connection with a transaction with a tribal member before ordering tribal court exhaustion of judicial claims arising from the transaction?
Lower court materials here.
Nooksack Disenrollments Enjoined
Here is a news article noting that Judge Doucet ruled from the bench.
An excerpt:
In a hearing Monday afternoon, Feb. 23, Nooksack Tribal Court Judge pro tem Randy Doucet held with the court’s previous rulings: Until tribal council has final word from the Secretary of the Department of the Interior, they may not disenroll anyone, said lawyers for the affected members. A reporter was not allowed in the courtroom as only five people for each side were admitted.
Briefs:
2-10-15 Plaintiffs’ Emergency Motion To Enforce Injuction Orders
2-10-15 Plaintiffs’ Response in Opposition To Defendants Notice of Compliance
2-20-15 Reply Re Plaintiffs’ Emergency Motion to Enforce Injunction Orders
Call for Presentations for NAICJA Annual Conference
Here.
Turtle Talk 
You must be logged in to post a comment.