Federal Court Materials in Ute Banishment Case

Here are the materials so far in Chegup v. Ute Indian Tribal Court of the Uintah and Ouray Reservation (D. Utah):

2-complaint.pdf

20-motion-for-immediate-release.pdf

46-tribe-motion-to-dismiss.pdf

47-response-to-mtd.pdf

53-reply-in-support-of-motion-for-release.pdf

54-reply-in-support-of-mtd.pdf

73-motion-for-atty-fees.pdf

77-response-to-motion-for-atty-fees.pdf

79-reply-in-support-of-motion-for-atty-fees.pdf

82-motion-to-intervene.pdf

83-dct-order-denying-intervention.pdf

Federal Court Dismisses Banishee’s Suit against Alaska Tribe

Here are the materials in Oertwich v. Traditional Village of Togiak (D. Alaska):

1 Complaint

9 State Motion to Dismiss

13 City Motion to Dismiss

22 Tribe Motion to Dismiss

31 Opposition to 22

38 Tribe Reply in Support of 22

40 DCt Order Granting 22

Grant Christensen on ICRA and Banishment

Grant Christensen has posted “Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity,” forthcoming in the William & Mary Bill of Rights Journal.

The syllabus:

Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.

Article on the use of banishment in the rural Alaska Native village of Tanana

After the recent shooting deaths of two Alaska state troopers, the village of Tanana has turned to banishment as a way of protecting the community. The use of banishment is very controversial, raising a host of legal questions, but the circumstances of this village demonstrate how few options community members feel that they have under current jurisdictional conditions.

Full article here.

The Tanana Village Council, the Athabascan Indian tribal authority in the village of 250, is taking steps to expel two men whose actions contributed to the homicides and who have threatened other community members, council Chairman Curtis Sommer said.

“This is the only way we have to remove individuals who are — how do we say it? — who are dangerous to members of the community,” Sommer said.

The action is infrequent in Alaska, and when it is used, some question whether a tribal entity has the right to limit access to a community otherwise governed by state law. Those who are banished rarely contest the action publicly, and it isn’t clear if banished residents go on to cause problems in other communities because no one tracks them. . . . 

The state can’t afford to pay for law enforcement in small villages like this but they also refuse to let tribes have full authority over law enforcement, beyond an unarmed public safety officer, Kendall-Miller said. State troopers are flown in to deal with violence, but they can sometimes take days to arrive. . . .

Sommer concedes banishment is a “slippery slope.”

“It’s got to be very significant circumstances that would warrant this, either violent assaults or murder,” he said. “At what point do we draw the line on this? I do not know. I do know it’s not going to be used frivolously just to get back at someone.”

The village council will ask the state to enforce banishments. The Alaska Department of Law said it would carefully evaluate a banishment order. Kendall-Miller has seen unofficial support in the past.

“We have seen state police officers that have attempted to accommodate the tribal council’s blue ticket orders by helping to prevent individuals from coming back,” Kendall-Miller said. “It has been an informal arrangement that was done out of necessity.”

“If they do not enforce it, we will enforce it ourselves. We will get a group of men together and go to that person and tell him to leave and to not come back.”

H/T to SW.

Two New Tribal Court Opinions from Turtle Mountain and Mille Lacs

The first, Mille Lacs Band of Ojibwe Indians v. Williams, involves a facial challenge to the tribal exclusion ordinance:

williams appeal decision

The second, Davis v. Poitra, consolidated with Malaterre v. Belcourt School Dist. No. 7, involves tribal court jurisdiction over claims brought against the school district:

Davis v. Belcourt School District

Federal Court Dismisses “Habeas” Claim against Pechanga Band

Here is the opinion in Liska v. Macarro, where a non-enrolled Pechanga man tried to enter the reservation, was turned away, and sued in federal court (S.D. Cal.) on a habeas theory — Liska v Macarro DCT Order

The materials:

Liska Complaint (Habeas)

Pechanga Motion to Dismiss

Liska Response Brief

Pechanga Reply Brief

David Wilkins on Tribal Disenrollment and Banishment

David Wilkins has published “Exiling One’s Kin: Banishment and Disenrollment in Indian Country” in Western Legal History. This excellent piece describes banishment and membership laws from traditional law through the early 20th century and into the modern era of tribal banishment and disenrollment.

Saginaw Chippewa Banishments

From the Mt. Pleasant Morning Sun:

Tribe banishes four

The Saginaw Chippewa Indian Tribe has begun using a very old method of dealing with problems in a new way: invoking the ancient tribal practice of banishing troublemakers from tribal lands.

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