Here.
The CRS report at issue is here.
The law professor letter (spearheaded by Sarah Deer) is here.
tribal courts
Fletcher on NAICJA/Getches’ “Indian Courts and the Future”
I posted my University of Colorado Law Review symposium paper, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited.” Here is the abstract:
This paper comes out of the University of Colorado Law Review’s symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches’ framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. The paper focuses on the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and the equal protection of the law for individuals under tribal government authority is uniquely tied to the legal infrastructure available to the courts. Congress tried to provide the basic framework in the Indian Civil Rights Act, and many of the most successful tribal justice systems have borrowed from ICRA or developed their own indigenous structure to guarantee due process and equal protection. I argue that ICRA is declining in importance as Indian tribes domesticate federal constitutional guarantees by adopting their own structures to guarantee fundamental fairness.
The Colorado Law Library recently archived Indian Courts and the Future and its two appendices (here and here). Check them out. The Indian law portion of the symposium is here.
Michigan Indian Legal Services Winter 2011-2012 Newsletter
Here:
MILS_Newsletter_Winter_2011-2012_Edition
Interesting articles on Jay Treaty border crossings and right to counsel in tribal courts. Oh, and MSU ILPC alum Erin McCormick.
Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction
Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.
Here is Paul’s abstract:
The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.
The Pundit: Enforcing State Child Support Orders in Tribal Courts in Michigan
A publication of the State Court Administrative Office (SCAO), The Pundit is primarily for those working on child support issues, including Friend of the Court. The editors asked for an article detailing how tribal courts recognize foreign (state) court child support orders. All of the information came from inquiries to the tribal courts in Michigan. The article includes detailed contact information for the tribes as well.
The publication is here. (PDF)
Fletcher on Free Speech and Tribal Law
My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.
Here is the abstract:
Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.
In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?
Idaho Law School Indian Law Conference on Tribal Courts
Looks like a great program!
Agenda here.
TLIP Launches Enhanced Walking on Common Ground Website
The Tribal Law and Policy Institute is pleased to announce the launch of the enhanced & updated Walking on Common Ground web resource at: http://www.walkingoncommonground.org/.
We are planning to mirror much of the tribal and state information through the enhanced www.NRC4Tribes.org website that we are developing.
The primary focus of the website is:
- Identify and develop resources concerning tribal/state court collaboration & promising practices
- Identify and develop resources concerning Public Law 280 tribal/state court collaboration & promising practices
- Subject areas include: courts, law enforcement, detention, child welfare, and multi-agency agreements
Features of the website include:
- Tribal-State agreements by topic
- Tribal-Federal Collaborations
- Promising Practices stories and quotes
- Resources on the TLOA
- Interactive searchable map of agreements
- Listing of all federally recognized tribes, tribal websites and counties, by state
- Jurisdictional information
Upcoming features include:
- Tribal-State Court Promising Strategies Publication
- Public Law 280 Promising Strategies Publication
- Additional tribal-state collaborations in the area of Detention and Child Welfare
- Additional tribal-federal collaborations
Send us your examples of collaborations to highlight! Contact Heather Valdez Singleton for more information: heather@tlpi.org; 323-650-5667
This website was funded under the support of the Bureau of Justice Assistance, USDOJ.
N.C. Appellate Court Affirms Transfer of Civil Claims against Tribal Casino to Tribal Court
Here are the materials in Carden v. Owle Construction:
Owle Construction Appellee Brief
On Tribal Courts and the Navajo Bond Offering
Here is news analysis of the Navajo bond offering (AK previously posted about this last week). An excerpt:
S&P’s Jacob says the Navajo offering is unusual because tribes traditionally have borrowed directly from banks or sold bonds backed by gaming revenue. There are $5.3 billion of Native American bonds outstanding, according to a Bloomberg analysis.
The Navajo bonds will be sold to institutional investors in a private placement as soon as year-end and will include both taxable and tax-exempt debt, says Goe, the bond counsel.
The Navajos intend to seek investors willing to settle disputes in tribal courts, a first for a bond issue, Goe says. Clarkson says the requirement “would be a reaffirmation of the legitimacy of tribal courts – this time from the financial market.”
Yet it may also make the issue harder to sell. Lyle Fitterer, who helps oversee $26 billion of municipal bonds at Wells Capital Management in Menomonee Falls, Wis., says the tribal-court stipulation “is one more hurdle in terms of investing in a deal like this” and could lead to the Navajos paying higher rates.
Mike Lettig, executive vice president for Native American financial services and agriculture at Cleveland’s KeyBank, hopes the Navajo issue will be “a start for tribal governments to enter the public finance markets routinely.”
KeyBank’s KeyBanc Capital Markets unit will handle the placement.
Would love to be a fly on the wall in those discussions about tribal courts. Lenders routinely demand a higher rate from tribes in these deals when the deal involves tribal court jurisdiction. Why? Especially at Navajo, where tribal law is published online, the Navajo Reporter, and in West’s Navajo Nation Code (also online). I am sure the lenders’ discussions about tribal courts will be double-coded; that is, they’ll do everything they can not to offensive, while perhaps being insulting all along.
Turtle Talk 
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