Coverage of Oral Arguments at the Supreme Court for Dollar General

From The Atlantic: “Who Can Tribal Courts Try? The U.S. Supreme Court weighs which disputes America’s Indian tribal courts can adjudicate.”

From The New York Times: “Justices Weigh Power of Indian Tribal Courts in Civil Suits”

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:

Mazetti En Banc Petition

Santa Ynez et al Amicus Brief in Support of Petition

Pala Band et al Amicus Brief in Support of Petition

Rincon Mushroom Opposition

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:

CA9 Unpublished Opinion

Rincon Mushroom Opening Brief

Rincon Band Answering Brief

Rincon Band Motion to Take Judicial Notice

Rincon Mushroom Reply

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.