tribal court

News Coverage of Wisconsin Oneida Proposal to Expand Tribal Court Jurisdiction

Matthew L.M. Fletcher

From the Green Bay Press Gazette, via Pechanga:

A legislative proposal to revamp the Oneida judicial system and define its authority is part of a larger trend among Native American tribes across the country to establish their own law enforcement and judicial systems.

* * *

The authority and jurisdiction of modern tribal courts is complex.

Wisconsin is one of six states where a 1953 federal measure called Public Law 280 gave criminal jurisdiction over tribal areas to the states from the federal government, and also allowed state courts jurisdiction over civil matters on reservations.

The law was a product of the termination era — a period in the 1950s and ’60s when the federal government severed relationships with many tribes, said Matthew Fletcher, a professor and director of the Indigenous Law and Policy Center at Michigan State University.

However, Congress didn’t appropriate any money to these states to increase the law enforcement necessary to enforce the jurisdiction, leading local officials to often ignore problems on reservations, Fletcher said.

When federal Native American policy shifted toward self-determination, giving tribes more control over their governance, tribes began developing their own law enforcement systems and courts. As they did, questions arose about jurisdiction.

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QEP (Questar) Federal Court Challenge to Tribal Banishment

Matthew L.M. Fletcher1 Comment

Here are the materials so far in QEP v. Ute Indian Tribe (D. Utah):

QEP v. Ute Indian Tribe Complaint

QEP Motion for TRO

Ute Motion to Dismiss

Eighth Circuit Upholds Tribal Court Jurisdiction over Nonmember in Sac and Fox Leadership Dispute

Matthew L.M. Fletcher4 Comments

Here are the materials in Attorney’s Process and Investigation Services v. Sac and Fox Tribe:

APIS v. Sac and Fox Tribe opinion

APIS Brief

Sac and Fox Brief

APIS Reply Brief

Ninth Circuit Affirms Conviction and Rejects Efforts to Inquire into Tribal Court Judge’s “Neutral[ity] and Detach[ment]”

Matthew L.M. Fletcher

Here are the materials in United States v. Wahtomy, out of the Shoshone-Bannock reservation:

US v Wahtomy CA9 Opinion

Wahtomy Brief

US Brief in Wahtomy

An excerpt:

With regard to whether Judge Coby was “neutral and detached,” Wahtomy failed to proffer any description of Judge Coby’s testimony beyond stating that Judge Coby was his former wife’s daughter. He did not proffer even basic details of the relationship that were within his personal knowledge, such as whether Wahtomy and Judge Coby were personally acquainted or the extent and frequency of their interaction. He did not proffer any specific evidence of bias, nor why the relationship might have made Judge Coby biased against him in his case. Wahtomy also sought to inquire into Judge Coby’s relationship to law enforcement, but made no showing of any basis for so inquiring. Speculation based on the fact of a relationship or relationships alone is not sufficient to make out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose on an Indian reservation of several thousand people, where the likelihood that the on-call tribal judge has a relationship to the subject of a requested warrant is greater than in a more populous jurisdiction. In the absence of concrete evidence of partiality, we have expressed wariness to “disqualify small-town judges on demand” unless the appearance of partiality is “extreme.” Id.

Wahtomy also failed to proffer evidence of why Judge Coby might not have been competent to determine whether probable cause existed. Laypersons may properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983). Wahtomy acknowledged that he had no specific basis to question Judge Coby’s competency to make a “nontechnical, common-sense judgment[]” as to whether law enforcement had demonstrated probable cause. Id. In the absence of an appropriate proffer, the district court properly declined to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.

Judge Rawlinson concurred, but apparently refused to join this unpublished memorandum opinion.

Briefs in Miccosukee Decision on Enforcement of a Tribal Court Judgment in 11th Circuit

Matthew L.M. Fletcher

Here:

Initial Brief appellant

Answer brief Appellee

Reply brief

Earlier posting with opinion here.

Eleventh Circuit Holds that Indian Tribes Cannot Sue to Enforce Tribal Court Judgment against Parties Located in the Same State

Matthew L.M. Fletcher3 Comments

Baffling.

Here is the opinion in Miccosukee Tribe v. Kraus-Anderson Constr. Co.: 11th Circuit Opinion

And here is the Tribe’s complaint, which includes the 166-page tribal court opinion as an attachment: Miccosukee Complaint w Tribal Court Decision

Here is the court’s summary of the case:

In 2004, Kraus-Anderson Construction Company (“Kraus-Anderson”) sued the Miccosukee Tribe of Indians of Florida (the “Tribe”) for breach of contract in the Miccosukee Tribal Court. The Tribe denied liability and counterclaimed, alleging that Kraus-Anderson was the breaching party. Following a trial on the merits, the Tribal Court denied Kraus-Anderson’s claims and, finding for the Tribe on its counterclaim, awarded the Tribe a judgment of $1.65 million. Kraus-Anderson petitioned the Tribe’s Business Council for leave to appeal the judgment to the Tribe’s General Council, which acts as the Tribal Court of Appeals. The Council denied Kraus-Anderson’s petition.

Kraus-Anderson refused to satisfy the Tribal Court’s judgment, so the Tribe brought suit against Kraus-Anderson in the United States District Court for the Southern District of Florida to enforce it. As an affirmative defense, Kraus-Anderson alleged that, in denying its petition for leave to appeal the Tribal Court’s judgment, the Business Council denied it due process of law, thereby rendering the judgment void. On cross-motions for summary judgment, the district court, relying on principles of comity, held the judgment unenforceable and granted Kraus-Anderson summary judgment. The Tribe now appeals. We reverse and remand the case to the district court with the instruction that it dismiss the case for lack of subject matter jurisdiction.

I’m willing to bet a dollar that the real reason for the 11th Circuit’s decision is based entirely on the fact that the tribal council sits as the tribal appellate court.

If anyone has the appellate briefs, please send. 🙂

Oglala Sioux Tribe Ordered to Arbitration in Service Agreement Dispute with Alltel (AT&T)

Matthew L.M. Fletcher

Here are the materials in Alltel v. Oglala Sioux Tribe (D. S.D.):

Alltel Service Agreement

Tribal Court Order Denying Alltel Motion to Dismiss

Alltel Motion for PI

OST First Motion to Dismiss

OST Second Motion to Dismiss

DCT Order on Arbitration

Poaching Case to Reach Sault Tribe Tribal Court

Matthew L.M. Fletcher

From the Escanaba Daily Press vie Pechanga:

ESCANABA – Three members of the Sault Ste. Marie Tribe of Chippewa Indians, accused of illegal commercial fishing in Little Bay de Noc in 2009, will appear in tribal court this month, officials said.

Five tribal members and one Delta County man were arrested in early 2009 for allegedly illegally catching and selling walleye from Little Bay de Noc. The tribe has legal jurisdiction over the five tribal members, while Delta County has legal jurisdiction over the non-tribal member.

In March of this year, the tribe announced three of the accused tribal members were cited with approximately 100 civil infractions including illegally setting nets and selling thousands of pounds of walleye for profit.

The fish were allegedly being sold through a tribal commercial fishing operation consisting of two tribal members and a state-licensed wholesaler. Investigation continues regarding these three individuals who have not yet been officially charged.

According to Brenda Browning, a clerk at the tribal court in Sault Ste. Marie, the citations have been issued against the three tribal members accused of illegally poaching and selling walleye. Their pretrial hearings are scheduled in tribal court in mid-May. The court is not releasing their names because the case is in the pretrial phase, Browning explained Friday.

Browning also said these three cases are considered civil matters, which are being handled by Special Prosecutor Monica Lubiarz-Quigley.

When contacted Monday, Lubiarz-Quigley referred the Daily Press to the tribe’s general counselor, Thomas Dorwin. Dorwin did not return a call from the newspaper prior to press time.

The Daily Press also left a message with the tribe’s attorney, Aaron Schlehuber, on Monday.

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Ninth Circuit Affirms Tribal Court Conviction

Matthew L.M. Fletcher

The case is Eagle v. Yerington Paiute Tribe, and involves an interesting question: whether tribal prosecutors have to prove Indian status beyond a reasonable doubt. The answer appears to be no.

Opinion.

[Appellant opening brief unavailable.]

Yerington Paiute Brief

Eagle Reply Brief

Daniel Heath Justice on Queer Indians and the Cherokee Nation

Matthew L.M. Fletcher1 Comment

Daniel Heath Justice has published “Notes on a Theory of Anomaly” in GLQ: A Journal of Lesbian and Gay Studies (article here: Notes Toward a Theory of Anomaly.

Here is the abstract:

Recent laws against same-sex marriage in the Cherokee Nation provide the backdrop for this analysis of alternative models of Cherokee sexual diversity. Rather than seek identifiable historical precedent that is largely unavailable in the historical record and vehemently denied by the predominantly Baptist Cherokee majority, this essay argues instead for a modern queer Cherokee aesthetic that is both responsive to the contemporary experiences of gender- and sexuality-variant Cherokees and inspired by the late Mississippian category of “anomaly” as a queer-inclusive tribal model for belonging.