North Dakota Supreme Court

Petitioners Request Out-of-State Lawyers Be Allowed to Represent Protesters

Sarah M Donnelly1 Comment

Link: The Bismarck Tribune article by Caroline Grueskin

Download(PDF):

The unprecedented arrests at Standing Rock overextended available defense attorneys. Defendants are worried their civil rights are at risk and are asking the courts to allow out-of-state attorneys to defend them.

Excerpts of Tilton’s testimony, by topic:

On the reluctance of in-state attorneys:

[M]any licensed North Dakota criminal defense attorneys feel conflicted in taking these cases, either because the attorneys have close relations with law enforcement folk who are undertaking the arrests, or because the attorneys have personal interests in the pipeline construction industry, some of them directly with the DAPL. Other licensed North Dakota criminal defense attorneys have been reticent to take anti-DAPL protesters as clients because they live far distant from the South Central District courts where the cases will be tried. Some criminal defense attorneys have already maxed out their public defender contract allotments. Others have undertaken representation of one or a few DAPL protesters and are not interested in taking on more…

I have also personally talked with multiple persons charged as defendants in these anti-pipeline protests who have expressed extreme dissatisfaction with assigned attorneys given to them through the Indigent Defense Commission. Multiple defendants have complained that some public defender-assigned attorneys have been unwilling to take their phone calls, have not called them back, and have seemed uninterested in doing a thorough investigation of the factual circumstances of the arrests.

On the current caseload:

… I count 113 defendants as having requested an appointed attorney from the Indigent Defense office, but having been turned down.

… I count 40 individuals who are listed in the column “Returned Mail,” meaning that letters to them have been returned to the clerk’s office for some reason. All but 9 of these defendants also have “None” entered in the “Attorney” column, meaning that some of all of the remaining 31 people will not be getting notices from the court of from counsel.

[A]s of December 2, 2016, 264 defendants will be appearing pro se unless means are developed to provide them access to counsel.

On the cost:

In those discussions [with the North Dakota Commission on Legal Counsel for Indigents (CLCI)] I have learned that none of the $17 million in emergency funding sought by the governor has been attributed to the increased need for legal defense resources to guarantee the right to counsel for indigent defendants. Similarly, it appears none of the additional funds has been attributed to supplementing the already-stressed court personnel.

North Dakota SCT Issues Ruling on Tribal Jurisdiction

Matthew L.M. Fletcher

Here is the opinion in Fredericks v. Fredericks. An excerpt:

Lyndon Fredericks appeals, and Bole Resources, LLC, and others (“Bole defendants”) cross-appeal from a judgment declaring the district court had subject-matter jurisdiction over the action, reforming a quit claim mineral deed, quieting title in the mineral interests in Paul Fredericks, and ordering Lyndon Fredericks to pay the Bole defendants damages plus interest and their attorney fees. Because we conclude the district court correctly ruled it had subject-matter jurisdiction, its findings of fact are not clearly erroneous, and it did not abuse its discretion, we affirm.

Briefs here:

Appellant Brief

Appellee Brief

Appellee Brief

Reply Brief

N.D. SCT Asserts Jurisdiction over Pipeline Lien on Fort Berthold Reservation

Matthew L.M. Fletcher

Here is the opinion in Arrow Midstream Holdings LLC v. 3 Bears Construction.

Appellant brief

Appellee brief

Reply brief

Odd result and seems to be overly formalist, given that the dispute arose on trust land, and the defendant is a state-chartered corporation owned by tribal members.

North Dakota SCT Reprimands Former Oglala Sioux Tribal Counsel for Making False Statement about Tribal Judge

Matthew L.M. Fletcher

Here.

North Dakota SCT Holds State and Tribal Courts Enjoy Concurrent Jurisdiction over Child Support Matters…

Matthew L.M. Fletcher

… where one parent lives on and the other lives off the reservation. 

Here is the opinion in Lavallie v. Lavallie.

Briefs:

Appellee

Reply



North Dakota ICWA Eligibility Case

Kate Fort2 Comments

Here.

[¶46] The ICWA director of the Round Valley Indian Tribes explained the father’s relationship with the tribe:

[The father] and his children are eligible for enrollment with the Round Valley Indian Tribes.
When the children were removed from the care of the parents [the father] was not an enrolled member with the Round Valley Indian Tribes, ICWA did not apply.
[The father] is still not an enrolled member with the Round Valley Indian Tribes, ICWA does not apply.
. . . .
This is the parent(s) responsibility to apply for enrollment with the Round Valley Indian Tribes during open enrollment.

North Dakota Supreme Court Decides Child Support Jurisdiction Case

Kate Fort

Here.

[¶15] B.B. argues that because custody has already been determined in the tribal court, the tribe has continuing and exclusive jurisdiction over paternity and support.

[¶16] We specifically held in Kelly, 2009 ND 20, ¶ 22, 759 N.W.2d 721, that custody can be bifurcated from other proceedings in marriage. “Thus, even if the district court determines that the reservation is the child’s home state and that the tribal court therefore has jurisdiction over child custody, the district court retains concurrent jurisdiction over the remaining incidents of the marriage and may choose to exercise that jurisdiction . . . .” Id. Although B.B. and A.T.H. never married, the bifurcation principle of Kelly nevertheless applies in this case because multiple parties and jurisdictions are involved and each has an interest in the outcome of the proceedings. We conclude that under Kelly, the paternity and support claims brought against B.B. in state court can be bifurcated from the custody action brought in Standing Rock Sioux Tribal Court.

[¶17] Recognizing that paternity and support claims are divisible from custody determinations, and in view of the factual similarities between this case and Doe, we conclude the state court has subject matter jurisdiction in this case.

N. Dakota SCT Rules in Favor of Tribal Jurisdiction in Utility Regulation Dispute

Matthew L.M. Fletcher1 Comment

Here is the opinion in North Central Electrical Coop., Inc. v. North Dakota Public Service Commission.

An excerpt:

North Central Electric Cooperative appeals from a district court judgment affirming a Public Service Commission order dismissing North Central’s complaint against Otter Tail Power Company after the Commission decided it did not have regulatory authority over Otter Tail’s extension of electric service to a facility owned by the Turtle Mountain Band of Chippewa Indians on tribal trust land within the Turtle Mountain Indian Reservation. North Central argues (1) the Commission’s decision is not in accordance with the law because the Commission has jurisdiction under North Dakota law and (2) the Commission’s findings are not supported by a preponderance of the evidence and do not sufficiently address North Central’s evidence. We affirm, concluding the Commission did not err in deciding it lacked authority to regulate the Tribe’s decision to have Otter Tail provide electric service to a tribal-owned facility on tribal-owned land within the reservation.

Briefs are here:

North Central Opening Brief

Turtle Mountain Brief

North Central Reply

N. Dakota SCT Briefs in State Utility Jurisdiction Case Involving Turtle Mountain

Matthew L.M. Fletcher1 Comment

Here are the briefs in North Dakota Electric Cooperative Inc. v. North Dakota Public Service Commission:

North Central Elec Coop Brief

N.D. Public Service Commission Brief

Otter Tail Power Co Brief

Turtle Mountain Brief

North Dakota SCt to Hear Aboriginal Rights Case Tomorrow

Matthew L.M. Fletcher1 Comment

Here is the website linking to the materials in State v. Delorme.

Here are the materials:

And a description of the issues from each party:

Appellant’s Statement of the Issues:
The district court erred when they denied the Appellant’s Motion to Dismiss due to lack of subject matter jurisdiction of the Court based on Appellant’s aboriginal usufructuary rights as guaranteed and preserved in the 1863 Treaty of Old Crossing.
The district court erred when they granted the State’s Motion in Limine concerning reference to any land in Eddy County where these offenses are alleged to have occurred as being part of an Indian reservation or Indian Country, that the Appellant was licensed by the tribe as a guide and outfitter.

Appellee’s Statement of the Issues:
Issue 1 Whether an outfitting license issued by the Spirit Lake Sioux Tribe to one of its members, which is then transferred to a non-member, precludes state jurisdiction over the non-member’s off-reservation outfitting activities?
Issue 2 Whether an aboriginal right to hunt can be a defense to a non-hunting charge?
Issue 3 Whether North Dakota will be the only jurisdiction to expand aboriginal hunting rights to include “ancillary,” non-hunting activities?
Issue 4 Whether the land on which the violations occurred constitutes either aboriginal land or Indian country?
Issue 5 Whether an 1863 treaty, which conveyed “all” Indian interests, preserved a right to hunt?
Issue 6 Whether any right to hunt established by the 1863 treaty terminated as a result of Indian Claims Commission proceedings and, if not, is the right enforceable through an Indian group that has not maintained a political identity and is the right subject to state regulation?