Grant Christensen on ICRA and Banishment

Grant Christensen has posted “Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity,” forthcoming in the William & Mary Bill of Rights Journal.

The syllabus:

Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.

Revised: Penobscot Nation RFP for Constitution and Code Drafting

Here (PDF). The description:

This request for proposal (RFP) is to contract for legal drafting services to be provided for the Penobscot Nation, a federally recognized Indian tribe, for the period of December 1, 2016 to September 30, 2017.  Services to be provided will include assisting the Penobscot Nation Constitution Committee to draft its Constitution in time to be considered for adoption at the Nation’s June 2017 General Meeting (legislative body). Following the drafting of the Constitution, drafting of a code governing the operations of the Penobscot Nation Judicial System, comprised of the trial-level Tribal Court and the Court of Appeals will be undertaken.

TLPI Code Resource: Drafting or Revising Tribal Juvenile Justice Codes

The Tribal Law and Policy Institute (TLPI) is pleased to announce a new Tribal Legal Code Resource publication – A Guide for Drafting or Revising Tribal Juvenile Delinquency and Status Offense Laws – which is the most recent addition to TLPI’s Tribal Legal Code Resource series. This resource was developed with support from both the U.S. Department of Justice Bureau of Justice Assistance (BJA) and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) Tribal Youth Program Training and Technical Assistance Center. Please note that the June 2015 version – available through TLPI’s Tribal Court Clearinghouse – includes an interactive version with extensive internal and external links and downloadable PDF format.

Elizabeth Warner on Tribal Environmental Law

Elizabeth Warner has posted “Examining Tribal Environmental Law” on SSRN. Here is the abstract:

Federal environmental law recently celebrated its 40th birthday and much has been said about it in the past four decades. Today, however, little is said about the role the third sovereign, tribal nations, plays in the development of environmental law. Although some scholarship exists regarding the development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This article fills that vacuum by taking a first look at how tribal environmental law has developed and exploring the laws of one tribal nation that has enacted several environmental laws. The article also begins the discussion of what may be normative practices in the development of tribal environmental law.

Where the federal government has not pre-empted them, tribes may develop their own tribal environmental laws. The time has never been better for an examination of tribal environmental laws. From a historical perspective, Indian country has been the location of substantial environmental contamination. Today, Indian country possesses a substantial potential for natural resource development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), may spur development of tribal environmental laws. To take advantage of “streamlined” development provisions under both the TERA provisions and HEARTH Act, tribes must develop certain environmental review provisions. These factors in combination with the fact that the environment plays an important cultural and spiritual role for many tribal communities mean that now is an optimum time to consider tribal environmental law.

To start this important discussion on existing tribal environmental law, the article begins in Part II with an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. Next, in Part III, the article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. The article next describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted. This portion of the article concludes that a significant number of federally recognized tribes have no publically available tribal environmental laws. In light of this finding, Part V examines the existing laws of one tribal nation, the Navajo Nation, which has actively developed its tribal environmental laws. Moreover, Part V also begins the discussion of what may be norms for the development of tribal environmental law in the future. In this regard, this article establishes the foundation for the development of a robust examination of tribal environmental law.

New Paper on the Availability of Tribal Law

Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:

This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.

ABA Journal Article on Ethics Codes in Tribal Jurisdictions

Thanks to M.O. for pointing this out.

From the ABAJ:

One of the notable trends in the legal ethics field over the past several years has been a gradual movement toward more uniformity in the substance and application of professional conduct rules.

There is little, if any, expectation that the states will fall into complete lockstep on how they apply ethics principles for lawyers and judges, or how they structure their disciplinary systems. But the ABA’s Model Rules of Professional Conduct and Model Code of Judicial Conduct have served as starting points for efforts to bring more uniformity to the field. The Model Rules, for instance, have been adopted in some form by every state except California.

But in Indian country — the lands occupied by more than 600 tribes recognized by the U.S. government as sovereign entities — that trend hasn’t caught on. And experts say it is unlikely that there will be much uniformity any time soon in the way that tribal courts address ethics and discipline issues for lawyers and judges.

“Tribes are all over the place on this,” says B.J. Jones, director of the Tribal Judicial Institute in the Northern Plains Indian Law Center at the University of North Dakota in Grand Forks. “A lot of them do use the ABA Model Rules,” says Jones, who serves as chief judge for the Sisseton-Wahpeton Oyate and chief justice for the Turtle Mountain Band of Chippewa Indians, and is admitted to practice in a number of tribal courts. But, he says, “It’s hard to gauge what the most prevailing form of discipline is.”

The somewhat random pattern of ethics rules for lawyers and judges in Indian country reflects the nature of general rules and procedures in tribal courts, says W. Gregory Guedel, who chairs the Native American Concerns Committee in the ABA Section of Individual Rights and Responsibilities, and other practitioners in the field.

“The thing that makes it both interesting, complex and a little maddening at times is that every tribe’s system is different,” says Guedel, chairs the Native American Legal Services Group at Foster Pepper in Seattle. “Some tribes have extremely well-developed legal codes and court procedures that are as intricate and broad as any non-tribal system. Other jurisdictions have just adopted the federal code or whatever is available because they won’t have the resources.”

Tribal jurisdictions vary greatly, says Paul Stenzel, an attorney in Shorewood, Wis., outside Milwaukee, who represents a number of tribes. “Some are handling a complete range of topics and cases that you would see in a state court, almost, with the exception of major felonies,” he says. “Smaller ones are doing very narrow dockets, maybe only hunting and fishing violations, maybe only adoptions or family law. And there’s everything in between.”


Increasingly, there are good reasons for tribal courts to firm up conduct codes for lawyers and judges, and to identify ethics issues on which a more uniform approach might be beneficial.

Some of that impetus should come from passage of the Tribal Law and Order Act of 2010 (PDF), which President Barack Obama signed into law on July 29. The act gives tribal courts and police more authority to deal with crimes committed in Indian country, and promises more federal money to help bolster tribal justice systems.

“The act gave a lot of people the thought that, ‘Let’s not stop there. Let’s continue and see what else we need to do,’ ” says Guedel. “There’s a lot of discussion in general about it.”

Economic considerations are another reason for tribal courts to take a harder look at their ethics rules for lawyers and judges. As some tribes have gained wealth — often in the form of casino revenue — their financial operations have become more complex and their commercial dealings with outside entities have grown.

“Private businesses are very afraid of the notion of a tribal court,” Guedel says. “Tribes have recognized that impression and have been trying to say, ‘This is a legitimate system. This is not just a kangaroo court.’ The adoption of the model codes in wide usage, which people understand inside and outside the tribal context, would be helpful in that regard. You would have a level playing field. A business that’s considering doing business with a particular tribe would say, ‘At least we’ve got an understandable way to resolve our differences.’ ”

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