tribal courts

Sen. Akaka Introduces SAVE Native Women Act

Matthew L.M. Fletcher1 Comment

SENATOR DANIEL K. AKAKA INTRODUCES BILL TO PROTECT NATIVE WOMEN AGAINST DOMESTIC VIOLENCE AND SEXUAL ASSAULT
The Stand Against Violence and Empower Native Women (SAVE Native Women) Act would empower Tribes to prosecute violent crimes and improve prevention programs

WASHINGTON, D.C. – U.S. Senate Indian Affairs Committee Chairman Daniel K. Akaka (D-Hawaii) today introduced S.1763, the Stand Against Violence and Empower Native Women (SAVE Native Women) Act. The bill would provide Indian Country with jurisdiction over non-Indians who commit crimes on Indian lands, improve the Native programs under the Violence Against Women Act (VAWA), and improve data gathering programs to better understand and respond to sex trafficking of Native women.

Senators Al Franken (D-Minnesota), Tom Udall (D-New Mexico), Daniel K. Inouye (D-Hawaii), Mark Begich (D-Alaska), Patty Murray (D-Washington), TimJohnson (D-South Dakota), Jeff Bingaman (D- New Mexico), Jon Tester (D-Montana) and Max Baucus (D-Montana) are cosponsors of the bill.

“According to a study by the Department of Justice, two-in-five women in Native communities will suffer domestic violence, and one-in-three will be sexually assaulted in their lifetime. To make matters worse, four out of five perpetrators of these crimes are non-Indian, and cannot be prosecuted by tribal governments. This has contributed to a growing sense of lawlessness on Indian reservations and a perpetuation of victimization of Native women,” said Senator Akaka.

“American Indian women suffer disproportionately from domestic violence and sexual assault, and the Violence Against Women Act must be updated to more effectively address their unique needs,” said Senator Franken.

“This legislation works to ensure services are available to survivors of assault in native communities, repair a fragmented criminal justice system, and give tribes more power to prosecute those who are committing such heinous crimes against women,” said Senator Udall.

“By strengthening tribal jurisdiction we are empowering our Native communities with the tools they need to fight back against instances of violence,” said Senator Begich.

“We cannot let the next generation of young Native women grow up as their mothers have-in unbearable situations that threaten their security, stability, and even their lives,” said Senator Akaka.

“With the introduction of this legislation, the sponsors are sending a clear message that Congress intends to build on the incredible momentum of VAWA to ensure that the epidemic of violence against Native women will end in our lifetime,” said Sarah Deer, Amnesty International’s Native American and Alaska Native Advisory Council Member.

“Senator Akaka’s SAVE Native Women Act has the potential to restore safety and justice for American Indian and Alaska Native women. It offers American Indian tribes the opportunity to increase life-saving protections for women living within tribal jurisdiction,” said Terri Henry, Co-chair of the National Congress of American Indians (NCAI) Task Force on Violence Against Women.

“This is an epidemic. It is unacceptable. And, we must stand against it,” said Senator Akaka. “I am committed to working with the co-sponsors, tribal leaders, NCAI and others who diligently work to protect at-risk Native women, to pass this much needed legislation.”

Senator Akaka’s floor statement introducing the bill today is available here:
http://akaka.senate.gov/statements-and-speeches.cfm?method=releases.view&id=28f371bf-c01f-4ea5-a42b-72359ea839e7

Audio file of Senator Akaka’s comments are available here:
http://demradio.senate.gov/actualities/akaka/103111_AKAKA_1_RADIO.mp3

Opposition to the Anti-Sharia Law Movement

Matthew L.M. Fletcher

Here is the ICT article.

And resolutions from the National Native American Bar Association and the Coalition of Bar Associations of Color:

NNABA Resolution 2011-4

CBAC_2011_Resolution on the Law of International Law or the L

Indian Country Complies with Child Support Requirements — California Possibly Only Exception

Matthew L.M. Fletcher3 Comments

There has been much bad-mouthing of Indian country in the last week about the failure of some tribes to comply with child support requirements. Indianz’ first headline today is “Getting child support from Indian men almost ‘impossible.’”

California, more likely than not, is an outlier (assuming these reports are true). Federal law, 28 U.S.C. § 1738B (Child Support Orders Act), requires tribes and states to give full faith and credit to child support orders. But perhaps the problem in California is a lack of tribal courts — relatively few tribes there utilize a tribal judicial system.

Michigan tribes comply. One tribe in Michigan recently reported that it has disbursed over $1.5 million to state courts in accordance with the child support law. Another tribe (the Grand Traverse Band) requires per capita gaming payments to be used to satisfy child support obligations first (18 GTB Code § 1609), a fairly typical provision for gaming tribes with RAOs. My suspicion is that the vast majority of tribes around the country comply — there are perhaps as many as 300 tribes with a functioning court system out there.

California tribes should get on board. These news items make all of Indian country look bad.

Wisconsin Supreme Court Narrowly Reaffirms Discretionary Transfer Statute (Former Teague Protocol)

Matthew L.M. Fletcher

Here is that order, with a 3-judge dissent: 7-11B.

Justice Roggensack’s dissent repeats her earlier dissent, and seems to focus on this major point:

I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.

She repeats this paragraph at the end of the dissent. And more:

Prior to the creation of Wis. Stat. § 801.54, all litigants who satisfied the statutory provisions for jurisdiction in Wisconsin courts had a statutory right to avail themselves of the Wisconsin court system. See Wis. Stat. § 801.04. Wisconsin’s open courthouse doors provide a significant, substantive right for tribal members as well as nonmembers. However, since § 801.54 has become effective, the courthouse doors of Wisconsin have been closed to some litigants, both tribal members and nonmembers.

Oddly, she seems to see no import of the “discretionary” aspect of the transfer rule, or the fact that the rule rightfully gives credence, for the first time in Wisconsin, to the property rights of tribes and tribal members.

Discretionary transfers, as far as I can tell, so far, are Indian child welfare cases mostly. There has been one tort/contract case to have reached the Wisconsin Court of Appeals. Other than Justice Roggensack, and likely people just generally opposed to Indian tribes, no one has a constitutional complaint.  Would like to hear more if there is any useful material to digest.

Nonmember-on-Nonmember Torts in Indian Country

Matthew L.M. Fletcher3 Comments

Reading this morning about the terrible events at the Muckleshoot casino, am reminded about a case I included as a note in American Indian Tribal Law, Barbosa v. Mashantucket Pequot Gaming Enterprise,  4 Mash.Rep. 269 (2005). The Supreme Court’s decision in Montana and its progeny make it hard for tribal courts to assert civil jurisdiction over nonmembers. What about a case like Barbosa, where the plaintiff — a Foxwoods customer who was beaten savagely by other customers who drunkenly mistook him for Saddam Hussein in the years after 9/11 (you can’t make these facts up) — failed in his suit against Foxwoods, but attackers never showed up to defend themselves in tribal court (they were from New Hampshire).

Absent Montana etc., it would be relatively easy for Barbosa to enforce his judgment in New Hampshire. But the Supreme Court’s concern about nonmember defendants has also undermined the ability of nonmember plaintiffs to seek justice as well. Barbosa can’t really go to Connecticut or New Hampshire courts, and there’s no federal subject matter jurisdiction. So he’s stuck being saddled in the same boat as Indian tribes.

DOJ Proposes Legislation to Combat Violence against Indian Women

Matthew L.M. Fletcher2 Comments

Here:

Justice Department Legislative Proposal on Violence Against Native Women

Book Review of Atwood’s “Children, Tribes, and States”

Matthew L.M. Fletcher2 Comments

Here, from the Law & Politics Book Review (h/t to Legal History Blog). An excerpt:

In CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Barbara Ann Atwood provides a thorough and compelling discussion of US statutory law, case law and policy, and their effects upon American Indian tribal law, policy and culture in general, and specifically their dual application to American Indian children. In this well-researched treatise, Atwood painstakingly documents and analyzes over 200 years of US federal and state child welfare policy and procedure regulating the custody placement and adoption of the American Indian child.

Professor Atwood has been publishing scholarly legal articles in the subject-matter area of American Indian family law and policy for over 20 years. Although she has included portions of her prior works in this book, the articles are in substantially revised form – this book is far from a mere “re-hash” or compilation of her prior work.

From the book’s first sentence in the “Introduction” – “When sovereigns compete to determine the interests of children, fundamental questions of power and legitimacy inevitably arise” –Atwood sets the clear tone of the book. She confirms an underlying premise that “American law should respect the distinct worldviews held by Indian tribes and their richly diverse approaches to community, family, parenting, child welfare, and adoption [which are all divergent from US norms].” Early on, Atwood states that the Indian Child Welfare Act of 1978 “compels respect for Native culture within the United States.” Thereby she signals her plan to provide a well-documented critique of US federal, state and American Indian tribal child welfare law and policy. From chapter to chapter, this goal is met.

 

Cookson’s Empirical Analysis of the Location of Indian Casinos (and Commentary)

Matthew L.M. Fletcher

J. Anthony Cookson has published “Institutions and Casinos on American Indian Reservations: An Empirical Analysis of the Location of Indian Casinos” in the Journal of Law & Economics. Here is the abstract:

This paper empirically investigates the institutional determinants of whether a tribal government invests in a casino. I find that the presence of Indian casinos is strongly related to plausibly exogenous variation in reservations’ legal and political institutions. Tribal governments that can negotiate gaming compacts with multiple state governments, because tribal lands span state borders, had more than twice the estimated probability (.77 versus .32) of operating an Indian casino in 1999. Tribal governments of reservations where contracts are adjudicated in state courts, rather than tribal courts, have more than twice the estimated probability (.76 versus .34) of investing in an Indian casino, ceteris paribus. These findings suggest that states’ political pressures and predictable judiciaries affect incentives to invest in casinos. This study contributes, more generally, to the empirical literature on the effects of institutions by providing new evidence that low-cost contracting is important for taking advantage of substantial investment opportunities.

“Ceteris paribus” by the way means “all things being equal.”

Interestingly, this paper builds on Anderson et al. from a few years back suggesting that Indians living in PL280 states are richer because of state jurisdiction:

Building on Anderson and Parker (2008), this paper provides empirical evidence that Public Law 280 state court jurisdiction engenders Indian casino investment, which may itself lead to per capita income growth (see regression results in Anderson and Parker [2008], as well as Evans and Topoleski [2002]). Narrowing the scope of the response variable to a single important segment of the reservation economy enhances the validity of the estimates of my regressions. Instead of using broad measures of economic progress (for example, Anderson and Parker [2008] use per capita income) as the dependent variable, I use the presence of a casino investment by 1999.

But Carole Goldberg’s response to the Anderson paper (In Theory, In Practice: Judging State Jurisdiction in Indian Country, 81 University of Colorado Law Review 1027 (2010), sadly is not discussed in Cookson’s paper. Prof. Goldberg writes in one passage I find particularly important:

For purposes of empirical research, this statutory assignment of tribes to one category or another raises the possibility of selection bias. In other words, if Congress selected the mandatory states and their tribes because these tribes were the most assimilated or because they were otherwise the best positioned to achieve economic success, then that very selection would determine the outcome of higher per capita income and not whether the reservation was subject to state jurisdiction as opposed to tribal jurisdiction. There is, in fact, reason to believe that Congress chose tribes for inclusion and exclusion from Public Law 280 based on their inclination to participate in the market economy and to strive for economic success as measured by per capita income.

Ultimately, for me, it doesn’t seem to make any real sense to conclude that anything except location and economics markets force us to reach the conclusion PL280-state Indians are richer (or have greater casino investment opportunity) than non-PL280-state Indians. State jurisdiction is a red herring. If the states studied included South Dakota, North Dakota, and Montana (bad gaming markets) instead of California, Minnesota, and Wisconsin (better gaming markets), and the studies reached the same conclusion, then I’d be more persuaded.

If anyone wants the Cookson, Anderson & Parker, or Goldberg papers, let me know.

Broadman on Tribal Libel Laws

Matthew L.M. Fletcher

From ICT:

People slander each other everywhere—without regard for territorial boundaries. But the legal treatment of such speech differs drastically depending on whether tribal or non-tribal laws apply. Tribal courts sometimes treat reputational torts like slander and libel, structurally, like their non-tribal counterparts, generally requiring proof of fault, falsity and harm. For instance, in many ways the Little River Band of Ottawa Indians defamation statute mirrors the standards of proof and structure of non-tribal defamation. (“Protection Against Defamation Act of 2006,” PDF) On the other hand, at least one tribal court has recognized a traditional cause of action for defamation under tribal law, complete with novel privileges and standards. As media interests increasingly collide with tribal governmental and commercial interests, tribal laws on expression will be tested. The results, as shown in a recent case from the Ho-Chunk Nation courts, will test the ongoing viability of defamation law in Indian country.

Libel and slander are curious species of lawsuits since they involve a person writing or speaking his mind. In non-tribal courts, plaintiffs who are public figures face a high burden of proof. But because U.S. Constitutional standards are not imported into tribal defamation law, speech laws take on very different shapes in Indian country. In 2008, an ordinance passed and quickly rescinded by the Tribal Business Counsel of the Chippewa Cree of Rocky Boy’s Reservation in Montana made it a crime to defame a tribal official. And last month, a Ho-Chunk Nation Trial Court applied a tribal military veteran’s privilege that, as it is recognized, existed nowhere besides Ho-Chunk.

In a careful treatment of tribal-specific defamation law, the Ho-Chunk Trial Court recently held inGardner v. Littlejohn that a “veteran privilege” existed, protecting certain defamation defendants from liability (see the opinion at the invaluable Turtle Talk—“Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions”—edited by the Indigenous Law and Policy Center at Michigan State University College of Law). The court noted that although it “does not exist in any other jurisdiction,” the Ho-Chunk veteran privilege resembles that possessed by legislators, which shields certain legislative speech.

The suit stemmed from an Indian military veteran’s criticism of a tribal health department employee and an incorrect statement that the plaintiff had been terminated from employment. Typically, public officials suing their defamers must prove knowing or reckless falsehood. InGardner, had such a rule been applied and had defendants simply negligently defamed the plaintiff, no liability would exist.

Continue reading →

Federal Court Enjoins Muscogee Prosecution of Tribal Members for Theft

Matthew L.M. Fletcher3 Comments

Here are the materials in Fife v. Moore (E.D. Okla.):

20110422 Order

Fife PI Motion

Moore Motion to Dismiss

Fife Response

The court concluded that the Muscogee District Court had no jurisdiction to prosecute tribal members for theft against the tribal government because the crime did not occur in Indian country (which until recently would have been considered preposterous).

This case implicates two important issues (one at Muscogee and one involving many Oklahoma tribes). The first is the continuing dispute over the tribal district court at Muscogee (see our posts here and here). The other involves Indian Country in Oklahoma, the subject of a cert petition involving the Supreme Court (most recent post here).