tribal courts – Page 97

California Legislature Enacts Tribal Court Civil Money Judgment Act

August 25, 2014Matthew L.M. Fletcher

Here:

SB-104 CA Tribal Court Civil Money Judgement Act 08-22-2014

From the digest:

The existing Uniform Foreign-Country Money Judgments Recognition Act provides that foreign judgments that grant or deny recovery of a sum of money and that are final and conclusive are enforceable in California, with specified exceptions. The act includes within the definition of “foreign-country judgment” a judgment by any Indian tribe recognized by the government of the United States.

This bill would, until January 1, 2018, exempt Indian tribal judgments from the Uniform Foreign-Country Money Judgments Recognition Act, and would instead enact the Tribal Court Civil Money Judgment Act. The new act would likewise provide for the enforceability of tribal court money judgments in California, except as specified. The act would prescribe the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, the procedure and grounds for objecting to the entry of judgment, and the bases upon which the court may refuse to enter the judgment or grant a stay of enforcement. The bill would require the Judicial Council to prescribe a form for the notice of filing the application for recognition of the tribal court money judgment, as specified. The bill would require that this application be executed under penalty of perjury, which would expand the scope of the crime of perjury and thus impose a state-mandated local program. The bill would require the California Law Revision Commission to conduct a study of the standards for recognition of a tribal court or a foreign court judgment under the Tribal Court Civil Money Judgment Act and the Uniform Foreign-Country Money Judgments Recognition Act, and submit a report of its findings and recommendations to the Legislature and the Governor no later than January 1, 2017.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for
a specified reason.

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

August 24, 2014March 22, 2019Matthew L.M. Fletcher5 Comments

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

Hopi Seeks Pro Tem Judge

August 21, 2014August 21, 2014Matthew L.M. Fletcher

Here. And here.

Navajo SCT Rules that Navajo Courts Retain Jurisdiction over Navajo Children Residing Off-Reservation

August 20, 2014Matthew L.M. Fletcher

Here is the opinion in Nouri v. Crownpoint Family Court. The court’s syllabus:

The Supreme Court issues its Opinion and Order Denying Writ of Prohibition regarding competing child custody actions filed by parents in Navajo and state courts. Jurisdiction of the Navajo court over the child was challenged because the child who formerly resided in Fort Defiance now resides with her mother in Albuquerque. The Court affirms that the Nation has jurisdiction over Navajo children wherever they may reside, which arises from inherent sovereignty as acknowledged at 7 N.N.C. 253(B). The Court further affirms that the Álchíní Bi Beehaz’áannii Act is not the basis for jurisdiction over privately filed family actions in which parents are legally capable of making decisions for their children.

News Update in KBIC Judicial Crisis — Utilities Shut Off

August 15, 2014Matthew L.M. Fletcher

Here is the news article, “KBIC moves tribal court.”

ABA Individual Rights and Responsibilities Section Report Supporting ABA Recognition of Tribal Court Bar Membership

August 14, 2014Matthew L.M. Fletcher

Here:

2014_annual_irr_agenda and report

Chi-miigwetch to Mary Smith for spearheading this initiative.

NNABA Press Release about the ABA Amendment to Include Tribal Court Practitioners

August 13, 2014Kate Fort

WWW.NATIVEAMERICANBAR.ORG
For Immediate Release, August 12, 2014
Contact: Mary L. Smith (202) 236-0339

NNABA APPLAUDS THE HISTORIC VOTE OF THE AMERICAN
BAR ASSOCIATION HOUSE OF DELEGATES TO RECOGNIZE
TRIBAL COURT PRACTITIONERS AS FULL MEMBERS
PHOENIX—The National Native American Bar Association (NNABA) applauds the historic vote of the American Bar Association (ABA) House of Delegates to amend the ABA Constitution to permit tribal court practitioners to be full members of the ABA. This August 11, 2014 vote of the House of Delegates was unanimous.

“We commend the ABA for recognizing that there are three sovereign court systems in the United States (federal, state and tribal) and for amending its constitution to permit tribal court practitioners – who are not currently eligible to be ABA members – to become full members of the ABA,” said Mary Smith, NNABA president. “This constitutional amendment will – at long last – put tribal court bar admissions on equal footing with the bars of states, territories and possessions of the United States.”

The ABA has made significant strides towards inclusion but there was a glaring injustice that needed to be corrected – full membership for American citizens who happen to be licensed through a tribal court as opposed to a state, federal or territorial bar. Under previous policy, anyone licensed in a state, federal or territorial jurisdiction within the United States could join the ABA as a full member with all rights and responsibilities. That policy did not extend to those who are licensed through a tribal court of a federally recognized tribe. Thus, there was a class of persons who were denied the opportunity for full membership because they practiced solely in a tribal court. As a policy decision, the ABA had previously extended the opportunity for full membership to lawyers who practice in Guam, American Samoa, Puerto Rico and the Virgin Islands. The same inclusive policy now applies to individuals practicing before tribal courts within the United States.

Founded in 1973, NNABA serves as the national association for American Indian, Alaska Native, and Native Hawaiian attorneys, judges, law professors and law students. NNABA strives for justice and effective legal representation for all American indigenous peoples; fosters the development of Native American lawyers and judges; and addresses social, cultural and legal issues affecting American Indians, Alaska Natives, and Native Hawaiians.
For more information contact 480-727-0420 or visit http://www.nativeamericanbar.org.

Keweenaw Bay Judicial Crisis

August 13, 2014August 12, 2014Matthew L.M. Fletcher

Here is the new report, “Judges suspended by Tribal Council following KBIC civil lawsuit hearing.”

Note that the tribal judicial code treats the judiciary as a branch of government on par with the legislative and executive branches.

Second Edition — Tribal Healing to Wellness Courts: The Key Components

August 12, 2014Matthew L.M. Fletcher

Joseph Thomas Flies-Away, Carrie Garrow, and Pat Sekaquaptewa have published the second edition of Tribal Healing to Wellness Courts: The Key Components (PDF).