tribal court exhaustion doctrine – Page 14

Split Ninth Circuit Panel Dismisses Uncounseled ICRA Habeas Claim for Failure to Exhaust Tribal Remedies

December 8, 2014December 8, 2014Matthew L.M. Fletcher2 Comments

Here are the materials in Alvarez v. Tracy:

Alvarez v. Tracy (9th 2014)

From the court’s syllabus:

The panel affirmed the district court’s denial of a habeas corpus petition brought pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in which Fortino Alvarez challenged convictions and sentences imposed by the Gila River Indian Community tribal court.
The panel declined to exercise jurisdiction over Alvarez’s claims and affirmed the denial of the habeas petition because Alvarez failed to exhaust his claims by bringing them first to the tribal courts, and did not demonstrate that unavailability or futility of direct appeal excuses the exhaustion requirement or that the Community’s appeals process did not comply with the ICRA.

Although the Community failed to raise Alvarez’s lack of direct appeal in its motion to dismiss, the panel considered the defense under Wood v. Milyard, 132 S. Ct. 1826 (2012), and Granberry v. Greer, 481 U.S. 129 (1987), and concluded that the strong comity and judicial efficiency interests at stake warrant federal abstention.

Dissenting, Judge Kozinski wrote that the majority does not live up to its solemn responsibility to appear impartial, when it forgives the Community, which was represented by counsel, for failing to raise an exhaustion defense in district court or on appeal, but holds Alvarez to his single oversight of failing, while unrepresented before the Community court, to raise his jury trial and confrontation claims by way of a direct appeal. On the merits, Judge Kozinski would find that the Community violated Alvarez’s right to a jury trial under ICRA by failing to inform him that he needed to request a jury, a structural error fatally undermining the conviction.

Judge Kozinski added:

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.

Federal Court Orders Exhaustion of Tribal Remedies in Suit against Penobscot Corporation

December 1, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Rassi v. Federal Program Intergrators LLC (D. Me.):

An excerpt:

I conclude that the sovereign immunity of the Penobscot Indian Nation does extend to FPI, but that FPI waived its immunity by adopting the “sue and be sued clause” in § 12.07 of its Operating Agreement, as required by 13 C.F.R. § 124.109(c)(1) in order for FPI to participate I the § 8(a) program. Nevertheless, I conclude that the tribal exhaustion doctrine applies to this case. The case is ORDERED STAYED with regard to FPI pending a determination by the tribal court as to its jurisdiction, and if necessary, an adjudication of the case on its merits. After the tribal court has ruled on the issue of its jurisdiction, and, if necessary, adjudicated the case on the merits, either party may return to this court and request that the stay be lifted. It is further ORDERED that all claims against PINE are DISMISSED, without prejudice.

Utility Company Sues to Be Excused from Exhausting Tribal Remedies at Blackfeet

October 20, 2014Matthew L.M. Fletcher

Here is the complaint in Glacier Electric Coop. Inc. v. Gervais (D. Mont.):

1 Complaint

1-2 Tribal Court Complaint

From the complaint:

The Tribal Court plainly lacks jurisdiction over the Lawsuit because the Tribal Court, and Blackfeet Tribe, lack subject matter and personal jurisdiction over Plaintiffs.

From the tribal court complaint:

A public utility may not use its privileged position, in conjunction with the demand, which it has created, as a weapon to control rates by threatening to discontinue that part of its service, if it does not receive the rate demanded.

Cert Stage Briefs in Dollar General v. Mississippi Choctaw

September 10, 2014December 19, 2014Matthew L.M. Fletcher3 Comments

Here:

Dollar General Cert Petition

Mississippi Choctaw Cert Opposition

Dollar General Reply

Mississippi Choctaw Supplemental Brief

En banc petition materials here.

CA5 Order Denying Dolgencorp En Banc Petition

Panel materials here.

Lower court decision and materials here.

Tenth Circuit Finds Federal Question in Thlopthlocco Tribal Town v. Stidham, Orders Tribal Court Exhaustion

September 3, 2014Matthew L.M. Fletcher2 Comments

Here is the opinion in Thlopthlocco Tribal Town v. Stidham. An excerpt:

The Thlopthlocco Tribal Town is a federally recognized Indian tribe in Oklahoma. An election dispute arose about which individuals were properly elected or appointed to govern the Thlopthlocco people. Seeking to resolve that dispute, the Tribal Town filed suit in the tribal court of the Muscogee (Creek) Nation and, accordingly, voluntarily submitted to that court’s jurisdiction.

The Tribal Town subsequently concluded it did not want to maintain its suit in tribal court and dismissed its claims. But the defendant in that suit had, by that time, filed cross-claims. Arguing that the Tribal Town’s sovereign immunity waiver did not cover proceedings on the cross-claims, the Tribal Town attempted to escape Muscogee court jurisdiction, but, in various decisions, several judges and justices of the Muscogee courts held that they may exercise jurisdiction over the Tribal Town without its consent.

The Tribal Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers, seeking to enjoin the Muscogee courts’ exercise of jurisdiction. The district court dismissed the case, finding that the federal courts lacked subject matter jurisdiction, the defendants were entitled to sovereign immunity, the Tribal Town had failed to join indispensable parties, and the Tribal Town had failed to exhaust its remedies in tribal court. We conclude, however, that the Tribal Town has presented a federal question and that the other claims do not require dismissal. But we agree the Tribal Town should exhaust its remedies in tribal court while its federal court action is abated.

Here are the briefs:

Thlopthlocco Opening Brief

Stidham Brief

Thlopthlocco Reply Brief

Lower court materials here.

Cert Opposition Brief in Dollar General v. Mississippi Choctaw Tribal Court Jurisdiction Matter

August 26, 2014Matthew L.M. Fletcher

Here:

Mississippi Choctaw Cert Opposition

Cert petition here.

Federal Court Orders Tribal Court Exhaustion in Caddo Leadership Dispute

August 11, 2014Matthew L.M. Fletcher2 Comments

Here are the new materials in Caddo Nation of Oklahoma v. Court of Indian Offenses for the Anadarko Agengy (W.D. Okla.):

18 CIO Motion to Dismiss

21 Edwards Response

22 CIO Reply

24 DCT Order

We posted on an earlier stage of this matter, with the complaint here, and the federal court’s denial of a motion for a TRO here.

NARF Press Release on Parks v. Simmonds

July 19, 2014July 19, 2014Matthew L.M. Fletcher

Here:

Friday, July 18, 2014

Alaska Supreme Court affirms full faith and credit to tribal court orders in Simmonds v. Parks decision

This morning, the Alaska Supreme Court issued its opinion in Simmonds v. Parks. The Court ruled the Minto Tribal Court’s order terminating Mr. Parks’ parental rights was entitled to full faith and credit and remanded the matter back to the superior court to be dismissed. Today’s decision ends the long-running case and reaffirms the respect owed to tribal courts when deciding issues that concern tribal children.

Background:

In June 2008, the Minto Tribal Court took emergency custody of an infant girl. After numerous hearings in which the parents participated, the Minto Tribal Court terminated the parental rights of the girl’s mother and father, Mr. Parks, and granted permanent custody of the child to the Simmonds who are relatives of the child’s mother. Mr. Parks did not appeal the decision in the Minto Tribal Court, but instead filed a series of lawsuits in federal and state court claiming, among other things, that the tribal court has no jurisdiction over him and that the Minto Tribal Court’s traditional practices and procedures violated his right to due process. Based on these arguments, Mr. Parks claimed that the tribal court termination order was not entitled to full faith and credit under the Indian Child Welfare Act (ICWA). The Simmonds argued that the termination order is entitled to full faith and credit, and they moved to dismiss the state court action, but this motion was denied by the superior court in November 2010.

The Simmonds petitioned the Alaska Supreme Court for review. The petition was granted, and the case was remanded to the superior court for it to make specific factual findings and legal conclusions. The superior court issued findings and concluded in part that tribal courts may not have jurisdiction over nonmembers and also suggested that the Minto Tribal Court’s traditional practices and procedures violated Mr. Parks’s right to due process. The Simmonds filed another petition for review with the Alaska Supreme Court asking that numerous aspects of this decision be reversed.

The State of Alaska intervened in the case and argued vigorously against the Minto Tribal Court’s jurisdiction and the use of the Tribal Court’s traditional law and processes. Attorney General Geraghty himself published an opinion piece on the case. These actions are consistent with the State’s 2004 Renkes Opinion and subsequent lawsuits in which the State has refused to recognize the authority of tribal courts over member children, including State v. Native Village of Tanana, Kaltag Tribal Council v. Jackson, and the ongoing State v. Central Council of Tlingit & Haida Indian Tribes of Alaska.

The Alaska Supreme Court’s Decision:

In its opinion today, the Alaska Supreme Court affirmed that the Minto Tribal Court’s decision is entitled to full faith and credit by Alaska courts. The Court affirmed that the Minto Tribal Court’s judgment on the custody of the child implicates interests that are at the core of tribal sovereignty and self-determination, and the Court rejected the State’s jurisdictional arguments to the contrary. In addition, the Court’s opinion is notable because it adopts the longstanding exhaustion of tribal remedies doctrine, which requires litigants to make use of tribal appellate courts before challenging tribal court decisions in federal or state courts.

NARF Staff Attorney Erin Dougherty described the Court’s analysis of full faith and credit and the tribal exhaustion doctrine as “a direct rebuke of the State of Alaska’s arguments, which sought to treat the decisions of tribal courts differently simply because they are Tribes. These arguments have no foundation in federal law and do a great disservice to the relationships between Tribes and the State of Alaska.” NARF Staff Attorney Natalie Landreth agreed, noting that “the Court’s decision today is entirely consistent with federal and state law.”

In this case, the Native Village of Minto did what it and the 228 other Tribes in Alaska have done since time immemorial—protect and care for their member children in times of need. The Native American Rights Fund calls on Governor Sean Parnell and Attorney General Geraghty to cease the State’s repeated efforts to oppose tribal courts and instead, work with Tribes to better protect all of Alaska’s children.