Fletcher Paper on “Tribal Justice Systems”

I drafted a paper titled “Tribal Justice Systems” for the Allegheny College Undergraduate Conference “Democracy Realized? The Legacies of the Civil Rights Movement” and posted it on SSRN. You can download here.

Here is the abstract:

This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).

United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.

This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.

The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.

In case one wonders, “Representing Justice” by Judith Resnik and Dennis Curtis influenced the paper.


Op/Ed on Bay Mills Case by Nottawaseppi Huron Potawatomi & Saginaw Chippewa Chairmen

Bids for Limitless Off-Reservation Casinos Turns into Tragic Supreme Court Showdown
Indian Country is all too familiar with the perils of taking cases before the U.S. Supreme Court.  Even under the best legal circumstances, the high court has repeatedly handed down staggering losses that impact the most sacred issues to Indian Country.  That is why we are so concerned about a recent case the Supreme Court has decided to review that could severely limit tribal sovereignty for all of Indian Country.
The case is Michigan vs. Bay Mills Indian Community which originated in late 2010 when the Bay Mills Tribe opened an off-reservation casino in Vanderbilt, Michigan, about 125 miles south of its reservation without proper approvals from federal and state governments.  The Bay Mills Tribe, and its sister tribe Sault Ste. Marie, have argued in federal court that the Michigan Indian Land Claims Settlement Act of 1997 allows them to buy land anywhere in the United States to build a casino, so long as the land was purchased with land claim settlement trust funds.  The two tribes assert they are not restricted by geography or quantity of casinos. 
Both tribes have pursued federal litigation despite the fact that both the National Indian Gaming Commission and the Department of the Interior issued separate legal opinions concluding that Bay Mills claims are completely without merit. 
The U.S. Supreme Court granted review of the Bay Mills case after the 6th Circuit Court of Appeals sided with the Tribe’s assertion that sovereign immunity prevents the State of Michigan from suing to close an illegal off-reservation casino.  While we believe the State had the ability to close the casino under state law, Michigan’s Attorney General felt the need to seek relief from the Supreme Court since no federal entity would step in and close the illegal Vanderbilt casino.  We think it is safe to assume the Supreme Court did not grant review to affirm the lower court ruling.
All the Michigan gaming compacts contain a provision which states that no tribe shall pursue off-reservation gaming unless there is a written agreement between all the state’s federally recognized tribes to share in the revenue.  In March, a federal district court judge ruled that this provision is legally binding on all Michigan tribes – putting both the Sault Tribe and Bay Mills in violation of the compact.
Now, the Bay Mills case presents two questions to the Supreme Court; whether federal courts have jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands, and whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.  Given the Court’s recent decisions, we are deeply concerned the Court will cut away at the sacred doctrine of tribal sovereign immunity. 
Off-reservation gaming has already created a strong backlash from Congress.  It is unfortunate that some tribes who seek to build casinos far from their reservations are willing to risk the inherent sovereign rights of all tribes.  Once again, Indian Country finds itself before the Supreme Court in a case that should have never been considered in the first place. 
Homer A. Mandoka, Chairman
Nottawaseppi Huron Band of Potawatomi
Dennis V. Kequom, Chief
Saginaw Chippewa Indian Tribe

Update in Sault Tribe Lansing Casino Proposal — Update to the Update

The City transferred the land to the Sault Tribe (here). Nothing all that terribly exciting — a chance to show off before the cameras.

In anticipation of today’s 11AM press conference at the Lansing Center (Casino Project Moves Forward – ADVISORY), casino opponents have issued the following preemptive comments:

Attribute the following statement to James Nye, coalition spokesman, for the Saginaw Chippewa Indian Tribe and Nottawaseppi Huron Band of Potawatomi:

“For over a decade, the Sault Ste. Marie Tribe has unsuccessfully pursued off-reservation casinos hundreds of miles from its reservation. These efforts have been rejected by the U.S. Congress, the State of Michigan, and the U.S. Department of Interior.

“People should not be fooled; this latest effort to build a casino in Lansing is just another loser. The Sault Tribe has argued that under the Michigan Indian Land Claims Settlement Act it can build a casino anywhere in the United States. That conflicts with federal law, and it violates the Tribe’s state gaming compact.

“We will continue to aggressively fight this ill-conceived casino at the federal and state level, and in the courts. We are very confident that this effort will fail just like the Tribe’s past efforts.”