tribal court

Tribal Court Case Studies: Grand Ronde Case

Matthew L.M. Fletcher1 Comment

An interesting case (to me anyway) that has been winding its way through state, tribal, and now federal courts — a case involving an investment contract between the Grand Ronde Confederated Tribes and Strategic Wealth Management (and now its insurance company). In short, the deal between the two went bad and the parties ended up in state court, then before an arbitrator. The arbitrator ruled against the tribe, and awarded millions in attorney fees to SWM (but nothing else). The tribe refused to pay, arguing that it had not waived its immunity in relation to attorney fees, and SWM went to tribal court to enforce the arbitration award of attorney fees. The tribal court affirmed the tribe’s claim of immunity and now the case is in federal district court on a Montana 1 theory (huh?). Anyway, I wrote about this case as it went through the tribal court recently (here). And I personally know the two principals of SWM from my work at Pascua Yaqui a thousand years ago.

This may look like a tribe hiding behind sovereign immunity, but keep in mind that the Sizemore brothers (the SWM principals) prided themselves on being “experts” on federal Indian law (despite not being lawyers) and wrote the contract at issue. Moreover, the amount of atty fees awarded by the arbitrator was extraordinary (in the millions).

Contract with Strategic Wealth Management

State Court Order

AAA Decision

Tribal Court Order

Tribal Court of Appeals Opinion

Federal District Court Materials:

Federal Court Complaint

Plaintiff Motion for Summary Judgment

Defendant Motion for Summary Judgment

Plaintiff Response Brief

Defendant Response Brief

Plaintiff Reply Brief

Defendant Reply Brief

District Court Opinion

South Dakota Tribal-State Court Reciprocity Court Rule Adopted by Standing Rock

Matthew L.M. Fletcher

From the Rapid City Journal (H/T Indianz):

The Standing Rock Sioux Tribal Court will now recognize judgments made in state court and other tribal courts.

“In exchange, South Dakota’s Unified Judicial System will recognize and honor judgments made in Standing Rock Sioux Tribal Court.

Tribal Rule 23, which allows the Standing Rock court to recognize court rulings from other jurisdictions, was adopted by the tribal court and signed by tribal Chairman Ron His Horse Is Thunder.

Because of Rule 23, South Dakota courts are now authorized under state statute to recognize Standing Rock court orders and judgments.

“It is the first tribe that has actually notified us that they have court rule in place that has been signed by the chairman of the tribe and by the court,” said Judith Roberts, legal counsel for the Unified Judicial System.

Makah Whaling Prosecution in Both Tribal and Federal Courts

Matthew L.M. Fletcher

 

Makah tribal members seek postponement of federal trial for illegal whale hunt

By Lynda V. Mapes

Seattle Times staff reporter

 

Enlarge this photo

COURTESY US ATTORNEY’S OFFICE

This grey whale was illegally harpooned, shot and killed by five Makah tribal whalers.

 

 

Defense attorneys for Makah tribal members accused of illegally hunting a gray whale last September are seeking to postpone a federal trial at least until March so they have more time to prepare their case.

And despite Makah leaders’ earlier vows of swift tribal justice for the men, a trial in tribal court has been slowed because the tribal prosecutor has family and business ties to two of the accused.

The five whalers were indicted on violations of the Marine Mammal Protection Act by a grand jury in U.S. District Court in October. The misdemeanor charges could mean up to a year in jail and a $100,000 fine.

No date has been set for a trial yet, but the defense request for a delay means early March or even April, said Assistant U.S. Attorney Jim Oesterle.

“We would just as soon do this sooner than later,” Oesterle said. The five men harpooned and shot a gray whale in the Strait of Juan de Fuca Sept. 8. The tribe did not have a necessary waiver to hunt a whale under its treaty with the U.S. The case has hampered efforts by the tribe to get that waiver, and that makes tribal leaders eager to put the case behind them.

But Neah Bay is a small town, and the tribe needs to find someone other than its usual tribal prosecutor to try two of the defendants because she is related to one of them and had a family business relationship with the other.

Like many cases, this one may actually never see trial. Members of the Makah tribal council have been discussing the benefits of a settlement, in which a single plea agreement could be negotiated between the federal and tribal governments, said Micah McCarty, a tribal council member.

“I believe it would be better for the federal and tribal government to keep this from going to trial,” McCarty said. “We would lean favorably toward that, we have had discussions just recently among the council, and I think my colleagues would concur if this is a possibility. A trial could be turned into a media circus that we don’t want to be a part of.”

John Arum, an attorney for the Makah Nation, said such a discussion is premature. But he agreed taking the case to trial was not the best outcome for anyone.

“We are doing what we can to make it less likely that will happen,” Arum said. McCarty said the tribe remains committed to prosecution. “We have a sense of urgency in light of our reputation that we are a government that respects the rule of law,” he said.

Village of Pender v. Parker — tribal court exhaustion case

Matthew L.M. Fletcher6 Comments

Recently, a federal judge in Nebraska stayed a federal claim that the Omaha tribe has no authority to require on-reservation, non-Indian liquor vendors to obtain a tribal license to sell liquor.

The judge noted that this appears to be a question of first impression (“While the briefing has been excellent, neither side has given me a case that is squarely on point regarding whether exhaustion is required in these circumstances. As a result, I must read the ‘tea leaves.'”), but correctly stayed the case until the tribal court had a chance to opine on the jurisdiction questions.

The 2nd amended complaint is here: Complaint

The tribal motion to dismiss is here: Motion to Dismiss

The opposition is here: Opposition to Motion to Dismiss

The reply is here: Reply Brief

The court’s stay order and opinion is here: DCT Order Denying Motion to Dismiss

Tribal Exhaustion Doctrine & KBIC Tribal Court

Matthew L.M. Fletcher

Judge Quist in the Western District of Michigan recently remanded a tort claim back to tribal court in accordance with the tribal court exhaustion doctrine, as articulated in National Farmers Union and Iowa Mutual.

The case is called Michigan Property & Casualty Guaranty Association v. Foucault-Funke American Legion Post 444.

The motion to dismiss is here: Memorandum in Support of Motion

The response brief is here: Response Brief

Judge Quist’s opinion remanding the case to tribal court is here: Opinion

Indian Families and Peyote

Matthew L.M. Fletcher1 Comment

From the Leelanau Enterprise:  “Leelanau County Family Court Judge Joseph E. Deegan last week ordered that the parents of three children who are members of the Grand Traverse Band of Ottawa and Chippewa Indians must refrain from giving their children hallucinogenic peyote as part of Native American religious rituals.”

This appears to be an emerging issue in Michigan and perhaps elsewhere. Naturally, these cases arise when the families split and custody and visitation questions are decided in court. Interestingly, because there is relatively little trust land in Michigan, I would imagine that few (if any) of these cases are heard in tribal court. I wonder if the outcomes would be different.

Michigan Indian Day — Tribal Courts Panel

Matthew L.M. Fletcher

Prof. Wenona Singel has organized a panel of tribal court judges for this year’s Michigan Indian Day at MSU’s Kellogg Center (happening today!). The panel is titled, “Developing Tribal Courts in Harmony with Culture & Tradition.”

The panel includes the female judges sitting on the Little Traverse Bay Bands of Odawa Indians judiciary. The panel includes Chief Judge JoAnne Gasco (GTB), Associate Judge Jenny Kronk (SSM), and Appellate Justice Rita Shephard (LTBB). Prof. Singel is also the chief appellate justice and an LTBB member and she will be moderating this panel.