Nevada v. Hicks – Turtle Talk

The first is that the federal government’s persuasive oomph (with the OSG as the so-called “Tenth Justice”) loses a ton of force when siding with tribal interests. No big surprise to me there. But it must be a little strange for the Justices to see the United States so vehemently demanding to be let off the hook for their breaches of trust toward Indian tribes in Tohono O’odham and Jicarilla and almost in the same breath ask for the Court to review Indian land claims dismissals. The government’s filings before the Court in Indian affairs are two-sided, even a little schizophrenic.

Second, Justice Ginsburg seems to be stepping in Justice Stevens’ role as the the most senior Justice with an interest in limiting the damage to tribal interests in the Supreme Court. And like Justice Stevens, she wrote some negative opinions against tribal interests. But her earlier opinions appear to have swaths of broad dicta that lower courts and the Supreme Court are now leaping at in order to reject more recent tribal claims. I’m thinking of her opinion in Strate, which technically applied only to non-Indian lands on reservation, which Justice Scalia attempted to expand to Indian lands in Hicks; and also now her opinion in Sherrill, which was ostensibly about taxation immunities but now applies broadly (at least in the Second Circuit) to all tribal land claims. Both times she appears to be trying to reel in the Court in applying her dicta in earlier cases, and both times unsuccessfully.

Also, Justice Sotomayor backs up her statement about Indian law being a focus for her.

Old News But Judge Ludington Formally Approves Saginaw Chippewa Reservation Boundaries Settlement

December 21, 2010Matthew L.M. Fletcher

Here is the order: DCT Order Approving Settlement.

Of note, the court addressed Michigan AG Cox’s objection relating to Nevada v. Hicks, in which the AG argued that the establishment of a “Tribal Enclave” violated Hicks:

The Attorney General next objects to any limitations on the ability of state police officers to enter the “Tribal Enclave” for law enforcement purposes. The Tribal Enclave is a small parcel within the Isabella Reservation, which includes land owned by the Tribe and viewed by the Tribe as essential to its sovereignty. State police can enter the Tribal Enclave only if they are responding to an emergency call, in “fresh pursuit” of a suspect, or with authorization from the Tribal Police. The Attorney General contends that the restrictions are inconsistent with Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). In Hicks, the Supreme Court held that a tribal court’s jurisdiction is limited with respect to non-Indian actors, even as to events that took place within Indian country and on land owned by a tribe. Id.at 358-60. Accordingly, a tribal member cannot sue a state game warden in tribal court for executing a search warrant within Indian country where the game warden was seeking evidence of a crime that occurred outside Indian country.

The procedures described in the law enforcement agreement are consistent with Hicks and the interests of the public. The agreement does not limit the authority of the state police to enforce state law within the Tribal Enclave. Rather, it simply requires that the state police officers follow certain procedures before entering the Tribal Enclave. The state police will still be able to execute state-issued search warrants within the Tribal Enclave after obtaining authorization from the Tribal Police. In the event of an emergency, however, pre-authorization is not required. The agreement is a compromise that enables the Tribe to retain a higher degree of sovereignty within the Tribal Enclave without sacrificing public safety. Accordingly, the Attorney General’s second objection is also reasonably addressed by the settling parties.

Empirical Research on Tribal Courts and Customary Law Posted on SSRN

March 6, 2008Matthew L.M. Fletcher

My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).

Here’s the abstract:

This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.

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