Here:
m37079-partial-wd-m36975-and-clarification-trbl-jurisdiction-over-ak-native-allotments-2124.pdfDownload
tribal civil jurisdiction
Coverage of Oral Arguments at the Supreme Court for Dollar General
Phil Tinker on Tribal Authority to Regulate Nonmember Conduct in Indian Country
Phil Tinker has posted his paper, “In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country,” forthcoming in the September 2014 issue of the Tulsa Law Review.
Here is the abstract:
Violence in Indian Country is epidemic. Tribal governments, which ostensibly have primary responsibility for keeping the peace within their territory, are hampered by restrictive federal laws that prohibit Tribes from exercising criminal authority over non-Indians. This is so even where those non-Indian lawbreakers live on the reservation and commit acts of violence against tribal members. Instead, the federal government is responsible for investigating and prosecuting most on-reservation crime. This irrational system is the product an archaic federal policies dating back to the 19th century that have never been adequate to protect Indian communities.
Agenda for Harvard Law School Tribal Courts Symposium — This Thursday and Friday
Tribal Courts and the Federal System
Cambridge, MA
November 8th and 9th, 2012
Tribal Courts and Criminal Law: Assessing the Work of the Tribal Law and Order Commission
November 8, 2012
8:30–8:45 am Introductions and Overview of Conference
Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law
School, and Professor of Law, University of Washington School of Law
Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School
8:45–9:30 am Introducing the Work of the Tribal Law and Order Commission (TLOC)
Commission Chairman Troy Eid
9:30–11:30 am Improving Criminal Law Enforcement in Indian Country
Professor Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Honorable Theresa Pouley, Tulalip Tribal Court and TLOC Commissioner; Kristen Carpenter, Professor, University of Colorado School of Law
What are the major issues that arise in adjudication of crimes covered by the Major Crimes Act and Indian Country Crimes Act? What is the relationship between tribal and state authorities in jurisdictions where Congress has authorized state criminal jurisdiction within Indian country? Who is an Indian for federal criminal jurisdiction purposes?
11:30 am–12:15 pm Break
12:15–1:45 pm Lunch and Keynote Address
Honorable Kevin Washburn, Assistant Secretary for Indian Affairs, U.S. Department of the Interior
2:00–3:30 pm Tribal Criminal Jurisdiction: Theory and Practice
Angela Riley, Professor of Law, UCLA; Professor Ron Whitener, University of Washington Public Defense Clinic; Anita Fineday, Annie E. Casey Foundation (former White Earth Tribal Judge)
What are the major jurisdictional issues that tribal courts confront? How do tribal courts approach sentencing alternatives? What should be the long-term plan for strengthening tribal courts? What is being done to provide defense for indigent defendants?
3:30–3:45 pm Break
3:45–5:00 pm Intergovernmental Cooperation Among Tribes, States, and the United States
Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law School and Professor of Law, University of Washington School of Law; Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Wenona Singel, Associate Professor of Law, Michigan State University
What are the legal and practical relationships between federal, state, and tribal courts and law enforcement officials in the area of criminal law? What are the opportunities for retrocession at the state level to return criminal jurisdiction to Indian tribes and the federal government? How can cooperative public safety agreements be a solution to jurisdictional complications in Indian Country?
Tribal Civil Jurisdiction and Sources of Tribal Law
November 9
8:30–8:45 am Introductions and Overview of Day 2
Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law
School, and Professor of Law, University of Washington School of Law
Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School
8:45–9:45 am Tribal Civil Jurisdiction
Judge William C. Canby, Jr., Ninth Circuit Court of Appeals
9:45–10:15 am Break
10:15–11:45 am Tribal Civil Law Development
Judge Michael Petoskey, Pokagon Band of Potawatomi Indians; Professor Matthew Fletcher, Michigan State School of Law; Julie Kane, General Counsel, Nez Perce Tribe; Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School
How do tribal courts approach the task of developing common law? To what extent do they focus on tribal norms and to what extent do they borrow from state or federal law? How do tribal courts understand their relationship to tribal councils or other legislative bodies? How do tribal courts relate to tribal executives?
11:45 am–12:00 pm Break
12:00–1:30 pm Lunch and Closing Address
Honorable Hilary Tompkins, Solicitor, U.S. Department of the Interior, Washington, D.C., The Importance of Tribal Courts in the Federal System
Ninth Circuit Panel Agrees to Re-Hear Rincon Mushroom Tribal Court Exhaustion Case
Here is that order, along with the unpublished opinion ordering a stay of the trial court case.
The petition stage materials:
Santa Ynez et al Amicus Brief in Support of Petition
Pala Band et al Amicus Brief in Support of Petition
Mazzetti Request to Take Judicial Notice
Rincon Mushroom Opposition to Judicial Notice Request
Panel materials are here.
Trial court materials are here.
Ninth Circuit Finds No Colorable Tribal Jurisdiction over Rincon Mushroom
Here are the materials in Rincon Mushroom Corp. v. Mazzetti:
Rincon Band Motion to Take Judicial Notice
Rincon Mushroom Motion to Take Judicial Notice
Lower court materials here.
An excerpt from the Ninth Circuit opinion:
The Tribe argues that the non-member fee land at issue could potentially contaminate the Tribe’s water supply, or exacerbate a future fire that might damage the Rincon Casino. However, these possibilities do not fall within Montana’s second exception, which requires actual actions that have significantly impacted the tribe. Compare id. at 341 (“The sale of formerly Indian-owned fee land to a third party . . . cannot fairly be called ‘catastrophic’ for tribal self-government. . . .”) (citation omitted); and Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997) (ruling that tribal court jurisdiction over tort suits is not “needed to preserve the right of reservation Indians to make their own laws and be ruled by them”) (citation and internal quotation marks omitted), with Elliott, 566 F.3d at 844, 849-50 (holding that the tribal court had colorable jurisdiction where a non-Indian started a forest fire on reservation land).
To hold that the potential threats of harm presented on this record give rise to tribal jurisdiction under Montana’s second exception would allow the exception to swallow the rule; any property within the Rincon Reservation faces similar potential threats. See Plains Commerce, 554 U.S. at 330. Because the potential threats did not create a plausible basis for tribal court jurisdiction, the district court erred when it dismissed RMCA’s Complaint for failure to exhaust tribal remedies. See Elliott, 566 F.3d at 848.
Compare that language to the lower court’s description of the same allegation:
Defendants have submitted evidence indicating that conduct on Plaintiff’s property “pose direct threats to the Tribe’s groundwater resources.” (Minjares Decl. ¶ 29, Doc. # 52). Defendants also have submitted evidence that “[c]onditions on the Subject Property during the [2007] Poomacha Fire contributed to the spread of wildfire from that property to Tribal lands across the street on which the Casino is located.” (Mazzetti Decl. ¶ 15, Doc. # 17-2). Although Plaintiff disputes this evidence, Defendants have shown that conduct on Plaintiff’s property plausibly could threaten the Tribe’s groundwater resources and could contribute to the spread of wildfires on the reservation. This showing is sufficient to require exhaustion, given the relief requested by the first two counts of the Complaint.
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