tribal courts

Walking on Common Ground — New Publications on Tribal Courts & PL 280

Matthew L.M. Fletcher1 Comment

Promising Strategies: Tribal State Court Relations
Tribal courts and state courts interact across an array of issues, including child welfare, cross jurisdictional enforcement of domestic violence orders of protection, and civil commitments. Since the early 1990s, initiatives by judges’ organizations within both judicial systems have focused on an agenda of greater mutual understanding and cooperative action. This publication spotlights some of the most successful strategies within these initiatives. Click here to read full document.

Promising Strategies: Public Law 280
In PL 280 jurisdictions, the concurrent jurisdiction of state and tribal courts over criminal prosecutions and civil actions arising in Indian Country creates many interactions and complications. Tribal and state authorities encounter one another across an array of issues, including government-to-government recognition, concurrent jurisdiction, cross-jurisdictional enforcement of domestic violence orders of protection, cross-deputization, and civil commitments. Tensions and misunderstandings have been common features of tribal and state policing relations in the past, sometimes erupting in jurisdictional conflicts. This publication highlights unique ways in which tribal and state jurisdictions have entered into collaborations to overcome barriers to effective justice provision. Click here to read full document.

Thlopthlocco Tribal Town to Appeal Sovereignty Dispute with Muscogee (Creek) Nation to Tenth Circuit

Matthew L.M. Fletcher

News coverage here.

Lower court materials here.

Fletcher Talk at Univ. of Toronto Law Faculty Today

Matthew L.M. Fletcher

Here.

The title of my lunch talk is “American Indian Tribal Courts: A Primer for Canadians.”

Rough day in Toronto today, but they’re tough here. A view of the shoe museum across from my hotel:

Toronto 2013

 

Federal Court Dismisses Thlopthlocco Tribal Town v. Stidham et al.

Matthew L.M. Fletcher5 Comments

Here are the materials in Thlopthlocco Tribal Town v. Stidham (N.D. Okla.), a case involving the authority of the Muscogee (Creek) Nation courts’ authority to hear internal government disputes of the Thlopthlocco Tribal Town:

DCT Order Granting Stidham Motion

Stidham Motion to Dismiss

Exh. 1 Thlopthlocco Tribal Town v. Anderson Complaint

Exh. 2 Thlopthlocco Tribal Town App for Interlocutory Appeal

Exh. 3 Thlopthlocco Tribal Town App for Mandamus

Exh. 4 Defendants Cross Claim

Exh. 5 Thlopthlocco Tribal Town Conditional Motion to Dismiss

Thlopthlocco Tribal Town Motion for PI

Thlopthlocco Tribal Town Response to Motion to Dismiss

Stidham Response to Motion for PI

Thlopthlocco Tribal Town Reply

Stidham Reply

 

Agenda for Harvard Law School Tribal Courts Symposium — This Thursday and Friday

Matthew L.M. Fletcher

Tribal Courts and the Federal System

Cambridge, MA

November 8th and 9th, 2012

Tribal Courts and Criminal Law: Assessing the Work of the Tribal Law and Order Commission

November 8, 2012

8:30–8:45 am              Introductions and Overview of Conference

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:30 am              Introducing the Work of the Tribal Law and Order Commission (TLOC)

Commission Chairman Troy Eid

9:30–11:30 am                        Improving Criminal Law Enforcement in Indian Country

Professor Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Honorable Theresa Pouley, Tulalip Tribal Court and TLOC Commissioner; Kristen Carpenter, Professor, University of Colorado School of Law

What are the major issues that arise in adjudication of crimes covered by the Major Crimes Act and Indian Country Crimes Act?  What is the relationship between tribal and state authorities in jurisdictions where Congress has authorized state criminal jurisdiction within Indian country?  Who is an Indian for federal criminal jurisdiction purposes?

11:30 am–12:15 pm    Break

12:15–1:45 pm                        Lunch and Keynote Address

Honorable Kevin Washburn, Assistant Secretary for Indian Affairs, U.S. Department of the Interior

2:00–3:30 pm              Tribal Criminal Jurisdiction:  Theory and Practice

Angela Riley, Professor of Law, UCLA; Professor Ron Whitener, University of Washington Public Defense Clinic; Anita Fineday, Annie E. Casey Foundation (former White Earth Tribal Judge)

What are the major jurisdictional issues that tribal courts confront?  How do tribal courts approach sentencing alternatives?  What should be the long-term plan for strengthening tribal courts?  What is being done to provide defense for indigent defendants?

3:30–3:45 pm              Break

3:45–5:00 pm              Intergovernmental Cooperation Among Tribes, States, and the United States

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law School and Professor of Law, University of Washington School of Law; Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Wenona Singel, Associate Professor of Law, Michigan State University

What are the legal and practical relationships between federal, state, and tribal courts and law enforcement officials in the area of criminal law?  What are the opportunities for retrocession at the state level to return criminal jurisdiction to Indian tribes and the federal government?  How can cooperative public safety agreements be a solution to jurisdictional complications in Indian Country?

Tribal Civil Jurisdiction and Sources of Tribal Law

November 9

8:30–8:45 am              Introductions and Overview of Day 2

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:45 am              Tribal Civil Jurisdiction

Judge William C. Canby, Jr., Ninth Circuit Court of Appeals

9:45–10:15 am                        Break

10:15–11:45 am                      Tribal Civil Law Development

Judge Michael Petoskey, Pokagon Band of Potawatomi Indians; Professor Matthew Fletcher, Michigan State School of Law; Julie Kane, General Counsel, Nez Perce Tribe; Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

How do tribal courts approach the task of developing common law?  To what extent do they focus on tribal norms and to what extent do they borrow from state or federal law?  How do tribal courts understand their relationship to tribal councils or other legislative bodies?  How do tribal courts relate to tribal executives?

11:45 am–12:00 pm    Break

12:00–1:30 pm                        Lunch and Closing Address

Honorable Hilary Tompkins, Solicitor, U.S. Department of the Interior, Washington, D.C., The Importance of Tribal Courts in the Federal System

News Profile of Tulalip Tribal Judiciary

Matthew L.M. Fletcher

Here.

An excerpt:

Today, the judges that preside over the Tulalip Tribal Court are provided by the Northwest Intertribal Court System and aren’t tribal employees, Taylor said. The judges, Theresa Pouley and Gary Bass, both members of the Colville Confederated Tribes, have decades of legal and judicial experience.

Pouley, the Tulalips’ chief judge, is president of the Northwest Tribal Court Judges Association. She also formerly served on the board of directors for the National American Indian Court Judges Association. She’s provided testimony to the U.S. Senate Committee on Indian Affairs and last year was appointed to the federal Indian Law and Order Commission.

In remarks to the U.S. Senate in 2008, Pouley said, “No government has a greater stake in effective criminal justice system in Indian Country than the tribes themselves.”

The Tulalip Tribal Court’s expansion has been significant since 2001. That’s when the Tulalips successfully petitioned the state and federal governments to return law enforcement powers on the reservation to the tribes and federal authorities. The retrocession cleared the way for the Tulalips to create their own police force to oversee public safety on the reservation.

Fletcher Study on American Indian Legal Scholarship and the Courts

Matthew L.M. Fletcher

I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.

Here is the abstract for the appendices:

“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.

Ryan Dreveskracht on VAWA and the Objections to an Oliphant Fix

Matthew L.M. Fletcher

Ryan Dreveskracht has provided a draft of his paper, “House Republicans Add Insult to Native Womens’ Injury,” forthcoming in the University of Miami Race and Social Justice Law Review.

Here is the draft:

 

Aug_16_2012 VAWA Manuscript Submission

New Scholarship on Tribal Court Contempt Power over Nonmembers

Matthew L.M. Fletcher

The North Carolina Law Review has published “The Jurisdictional ‘Haze’: An Examination of Tribal Court Contempt Powers Over Non-Indians.”

Here is the abstract:

Recently, in the case of In re Russell, the Cherokee Tribal Court confronted the thorny issue of criminal contempt­. The court ruled that because all courts’ criminal contempt powers are inherent, they fall outside the scope of Oliphant. This Recent Development argues, however, that while imprecise facets of Oliphant and contempt law would make it appropriate for the Cherokee Tribal Court to claim power over summary criminal contempt prosecutions of non-Indians in some circumstances, the court’s blanket decree that criminal contempt is always within a tribal court’s jurisdiction runs counter to current law.

Part I presents the facts of the Cherokee Tribal Court’s order in In re Russell as the backdrop for a discussion of the interplay between contempt law and tribal court jurisdiction. Part II provides a brief overview of tribal criminal court jurisdiction under the Supreme Court’s ruling in Oliphant. Part III surveys the history of contempt law, explaining the sometimes subtle differences between the types of contempt proceedings and how they are jurisdictionally determinative in tribal courts. Part IV applies the principles of Oliphant and contempt law to In re Russell, explaining why the Cherokee Tribal Court stepped beyond its jurisdictional limitations in the case. Part IV concludes by setting forth ways in which tribal courts can, consistent with Oliphant, enforce their authority through their contempt powers.

We will post a PDF of the article once we get it. If, that is.

We do have the order that inspired this article, and it is here.

NYTs: South Africa Debates Tribal Courts

Matthew L.M. Fletcher

Here.