Supreme Court – Page 107

Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction

April 15, 2012April 15, 2012Matthew L.M. Fletcher

Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.

Here is Paul’s abstract:

The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.

Sam Deloria on Indian Law in the Supreme Court

April 9, 2012April 9, 2012Matthew L.M. Fletcher1 Comment

Here. The first part of this article is coverage of the American Indian Law Center’s “First Thirteen” event. Sam’s commentary is below:

But the judges are not so clearly divided pro and con Indian cases either, as is seen in the recent Jicarilla 8-1 vote, which resulted in protection of privileged communications between trust administrators and the government, so it could be a long wait. And long-time Indian policy analyst Sam Deloria (Standing Rock Sioux), is not content to wait, and argues for a new approach.

Deloria, who currently heads the American Indian Graduate Center and served as director of the American Indian Law Center since the 1970s, shepherding many future attorneys through the Pre-Law Summer Institute, declared, “It’s not going to do us any good to keep constantly complaining that they’re not accepting our arguments. And, I think it would make much better sense to think very deeply about what it is that seems to be troubling them, and I think what troubles them is, what we want.

“It’s not that they don’t understand Indian law, it’s that the version of Indian law that we keep urging on them unsuccessfully, they don’t buy it. And one of the reasons they don’t buy it is they don’t see clearly what the outlines are of tribal powers that we’re talking about and because they’re afraid of what lawyers call ‘the slippery slope’– that if they let these guys do this, then what’s next?

“They’re very skeptical about going along with tribal claims because they just don’t understand what it is we’re talking about – I’d think we’d be much better off trying to depict to the court a workable set of governmental relationships that include tribal, state and federal and how that actually would work in practice—they don’t know the situation of tribal governments on the ground and so, they have misgivings. Well, let’s find out what their misgivings are, and address those, instead of just coming back every time quoting cases from the 1830s, or cases from the 1950’s and early 60’s, let’s go back and see what their problem is and try to address their problem.”

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Reply Brief in Support of Cert in Beaulieu v. Minnesota

April 6, 2012Matthew L.M. Fletcher

Here:

Beaulieu Cert Reply

Amicus Brief to Which NCAI Signed On To in SCt Case Challenging Arizona’s Immigration Law

April 5, 2012Matthew L.M. Fletcher

Here:

NCAI Brief in Arizona v US

Lower court materials, and Tohono O’odham Nation’s Ninth Circuit amicus brief.

Cert Petition in Comenout v. Washington — Tax Case

March 28, 2012March 28, 2012Matthew L.M. Fletcher

Here.

Here are the questions presented:

1. Did the court below err by holding that the State of Washington has jurisdiction to charge a state cigarette tax crime against a Quinault Indian and other Indians allegedly selling untaxed cigarettes at the Quinault Indian’s trust allotment located outside the Quinault Indian Reservation boundaries?

2. Did the court below err in refusing to apply the federal law definition of Indian country, 18 U.S.C. § 1151(c)?

3. Did the court below err in holding that the State of Washington, an optional Public Law 280 state, had state tax crime criminal jurisdiction of enrolled Indians on trust lands?

4. Did the court below err in holding that Washington law, Wash.Rev.Code 37.12.010 through 060, was exempt from the Quinault Tribe’s retrocession of state jurisdiction?