There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.
Memorandum Opinion and Order
Watso v. Jacobson here
Americans for Tribal Court Equality here
“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.
The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.
Here is the opinion in Tillich v. Bruce.
Don Bruce, Vinier Davis, and Linda Davis (“Defendants”) appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court’s denial of the Defendants’ request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.
Here is the complaint in Avery v. Henry (E.D. Mich.):
Judith Royster has posted “Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands,” published in the Arizona Law Review. PDF SSRN
Here is the abstract:
In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes’ territories. Initially, the Court confined itself to hobbling tribes’ inherent sovereign authority over non-tribal members only on non-Indian (“fee”) lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian (“trust”) lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian lands is not clear, however, and lower federal courts are struggling to interpret it. The primary issue is whether Hicksintended the Montana approach to extend to all nonmembers on trust lands or whether the decision in Hicks is confined to its particular set of facts. That uncertainty could lead to further inroads on the inherent sovereign authority of tribes.
The Court in Montana, however, recognized a second approach to tribal authority over nonmembers on trust land: the tribal treaty right of use and occupation. Although the Court held that those treaty rights are extinguished on fee lands, it agreed that the rights survive on trust lands. This Article argues that the treaty rights argument—that Indian tribes have rights to govern nonmembers on trust lands recognized by treaty and treaty-equivalent—must be resurrected. If inherent tribal authority over nonmembers on trust lands is under increasing judicial attack, tribes may assert their treaty right to govern as a path to ensure their sovereignty on Indian lands.
Here is today’s order list.
The Dollar General v. Mississippi Band of Choctaw Indians cert petition was scheduled for the Court’s Conference last Friday. The Court took no action on the petition. That could mean many things or nothing. It could mean the Court is taking one last look before granting the petition. It could mean the Court is looking at denying the petition but one or more Justices has asked the rest of the Court to wait, or for time to write a dissent on the denial of the cert petition. The fact that the United States has recommended a denial strongly weighs against a grant, but the fact that the Court did not immediately denies cert somewhat mitigates the government’s position. We’ll see in next week or the coming weeks.
The cert stage briefs can be accessed here.
Here are the materials in Town of Browning v. Sharp (D. Mont.):
71 Sharp 12b1 Motion to Dismiss
73 Sharp 12b6 Motion to Dismiss
75 Sharp 12b7 Motion to Dismiss
95 Town Response to 71
96 Town Response to 73
97 Town Response to 75
115 Sharp Reply in Support of 75
156 Magistrate Recommendation
162 DCT Order
No adequate alternative forum exists to address the Town of Browning’s ex Parte Young action. The Blackfeet Tribal Court appears to represent an adequate alternative forum, however, to address the ongoing dispute between the Blackfeet Tribe and the Town of Browning. Indeed, in the Blackfeet Tribal Court, the Town of Browning can litigate against the Blackfeet Tribe directly rather than through an ex Parte Young action. Further, the Town of Browning appears to have moderated its position regarding the relief that it seeks. (Doc. 159). The Town of Browning appears to seek some reasonable compensation from the Blackfeet Tribe for use of the Town of Browning’s water main to deliver water to utility customers. The Town of Browning can seek and obtain this relief as a counterclaim in the breach of contract claim currently pending in the Blackfeet Tribal Court. Although the Town of Browning has challenged the Blackfeet Tribal Court’s jurisdiction over it on the grounds of sovereign immunity, the existence of a contract between the parties appears to confer jurisdiction on the Blackfeet Tribal Court. Montana v. United States, 450 U.S. 544, 565 (1981). An alternative forum exists for the Town of Browning to obtain the relief it seeks.
After weighing the factors listed in Rule 19(b), this Court has determined that this case should not proceed in the absence of the Blackfeet Tribe, a required party. The potential prejudice to the Blackfeet Tribe far outweighs the harm to the Town of Browning. The Blackfeet Tribal Court represents an alternative forum for the Town of Browning to address its underlying dispute with the Blackfeet Tribe.
Materials on the preliminary injunction stage of this litigation are here.
Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:
We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.
The Alaska Law Review has published “Advancing Tribal Court Jurisdiction in Alaska.”
Here is the abstract:
Extensive case law already exists in Alaska on the jurisdiction of tribal courts over domestic relations cases, with one of the seminal cases—John v. Baker—establishing that Alaska tribes have jurisdiction even in the absence of Indian country. A common assumption, though, is that Alaska tribes do not have jurisdiction over criminal offenses. This Article argues that both under the logic of John v. Baker and the development of Indian law in the Lower 48, Alaska tribes already possess inherent jurisdiction over criminal offenses within their Native villages. With the gamut of social challenges facing Alaska Natives in rural Alaska, tribes need to be empowered to exercise this jurisdiction.
Here are the materials in Amerind Risk Management Co. v. Blackfeet Housing (D. N.M.):
18 Blackfeet Motion to Dismiss
36 DCT Order
THIS MATTER comes before the Court upon a Motion to Dismiss for Failure to State a Claim, filed on March 23, 2015 by Blackfeet Housing and Blackfeet Limited Partnerships (―Blackfeet Housing‖ or ―Defendants‖), #1-#4 (Doc. 17). Having reviewed the parties‘ briefs and applicable law, the Court finds that Defendants‘ motion is well-taken on the grounds that the Court lacks subject matter jurisdiction over this case, but denies the motion with regard to the other grounds for dismissal raised by Defendants