tribal courts

Tribal Immunity, Tribal Court Jurisdiction, and Separation of Powers

Matthew L.M. Fletcher1 Comment

There are two active cases out there involving Florida tribes that raise interesting questions relating to tribal courts and tribal immunity in federal and state courts. The two cases, Miccosukee Tribe v. Kraus-Anderson Constr. (which is currently pending before the Supreme Court — an invitation brief from the OSG may be forthcoming soon), and last week’s district court decision in Contour Spa at Hard Rock v. Seminole Tribe (see today’s post here).

It is our understanding that both tribes have unusual government structures (unusual by federal and state standards, and to most but not all tribes) in which the tribal legislature serves as the appellate court of final resort for the tribal judiciary. This is less common, we think, than it once was in Indian country, but a goodly number of tribes retain this structure. Many tribes in Michigan, by contrast, have very clear constitutional boundaries between the tribal political branches and the tribal courts, and the Harvard Project strongly recommends an independent judiciary as part of its prescription for solid economic growth in Indian country.

Tribes can and should establish whatever governmental structure they believe fits best for their communities, but there may be consequences to the tribal council-as-appellate court structure for tribes that have large commercial operations. Miccosukee, for example, is trying to enforce a tribal court judgment in federal court, and their tribal court judgment creditor is vehemently arguing that tribal jurisdiction is not viable because the tribal appellate court — the tribal council — is an interested party in the underlying suit. [That case likely will turn on whether the federal court had subject matter jurisdiction over the contract claim, however.] But if the Miccosukee Tribe or other tribes try to enforce tribal court judgments in state or federal courts, it could be very difficult to persuade a foreign court to enforce a judgment ultimately controlled by the tribal council.

Such bad government structure “facts” almost made terrible law in the Contour Spa case, where the district court gave a great deal of credence to the Tenth Circuit’s maligned Dry Creek Lodge exception (this exception allows federal courts to review tribal government action under the Indian Civil Rights Act under certain circumstances, such as the lack of a tribal court forum). Other than the actual Dry Creek Lodge case (which was “bad facts make bad law” exemplified), no other court has adopted it. And outside of the Tenth Circuit, few (if any) courts have even invoked it to see if it was worth adopting. But last week, in large part because the tribal legislature sits as the tribal court at Seminole (according to the opinion), the district court invoked Dry Creek Lodge and applied the facts of the Contour Spa contract breach claim to it. While the court did not, in the end, apply the “exception,” likely because the non-tribal party didn’t attempt to resolve the dispute in “tribal court,” the mere fact that it was willing to take the Dry Creek Lodge exception seriously is worth contemplating.

Two commercially successful tribes with no independent tribal judiciary. While nothing disastrous has occurred yet, there are commercial costs associated with this government structure. Maybe for these tribes, those costs are worth paying. But they should be taken seriously.

GAO Report on Tribal Justice Systems

Matthew L.M. Fletcher

Here is the report, and the highlights.

The description:

The Department of Justice (DOJ) reports from the latest available data that from 1992 to 2001 American Indians experienced violent crimes at more than twice the national rate. The Department of the Interior (DOI) and DOJ provide support to federally recognized tribes to address tribal justice issues. Upon request, GAO analyzed (1) the challenges facing tribes in adjudicating Indian country crimes and what federal efforts exist to help address these challenges and (2) the extent to which DOI and DOJ have collaborated with each other to support tribal justice systems. To do so, GAO interviewed tribal justice officials at 12 tribes in four states and reviewed laws, including the Tribal Law and Order Act of 2010, to identify federal efforts to assist tribes. GAO selected these tribes based on court structure, among other factors. Although the results cannot be generalized, they provided useful perspectives about the challenges various tribes face in adjudicating crime in Indian country. GAO also compared DOI and DOJ’s efforts against practices that can help enhance and sustain collaboration among federal agencies and standards for internal control in the federal government.

The 12 tribes GAO visited reported several challenges in adjudicating crimes in Indian country, but multiple federal efforts exist to help address some of these challenges. For example, tribes only have jurisdiction to prosecute crimes committed by Indian offenders in Indian country. Also, until the Tribal Law and Order Act of 2010 (the Act) was passed in July 2010, tribes could only sentence those found guilty to up to 1 year in jail per offense. Lacking further jurisdiction and sentencing authority, tribes rely on the U.S. Attorneys’ Offices (USAO) to prosecute crime in Indian country. Generally, the tribes GAO visited reported challenges in obtaining information on prosecutions from USAOs in a timely manner. For example, tribes reported they experienced delays in obtaining information when a USAO declines to prosecute a case; these delays may affect tribes’ ability to pursue prosecution in tribal court before their statute of limitations expires. USAOs are working with tribes to improve timely notification about declinations. DOI and the tribes GAO visited also reported overcrowding at tribal detention facilities. In some instances, tribes may have to contract with other detention facilities, which can be costly. Multiple federal efforts exist to help address these challenges. For example, the Act authorizes tribes to sentence convicted offenders for up to 3 years imprisonment under certain circumstances, and encourages DOJ to appoint tribal prosecutors to assist in prosecuting Indian country criminal matters in federal court. Federal efforts also include developing a pilot program to house, in federal prison, up to 100 Indian offenders convicted in tribal courts, given the shortage of tribal detention space. DOI, through its Bureau of Indian Affairs (BIA), and DOJ components have taken action to coordinate their efforts to support tribal court and tribal detention programs; however, the two agencies could enhance their coordination on tribal courts by strengthening their information sharing efforts. BIA and DOJ have begun to establish task forces designed to facilitate coordination on tribal court and tribal detention initiatives, but more focus has been given to coordination on tribal detention programs. For example, at the program level, BIA and DOJ have established procedures to share information when DOJ plans to construct tribal detention facilities. This helps ensure that BIA is prepared to assume responsibility to staff and operate tribal detention facilities that DOJ constructs and in turn minimizes potential waste. In contrast, BIA and DOJ have not implemented similar information sharing and coordination mechanisms for their shared activities to enhance the capacity of tribal courts to administer justice. For example, BIA has not shared information with DOJ about its assessments of tribal courts. Further, both agencies provide training and technical assistance to tribal courts; however, they are unaware as to whether there could be unnecessary duplication. Developing mechanisms to identify and share information related to tribal courts could yield potential benefits in terms of minimizing unnecessary duplication and leveraging the expertise and capacities that each agency brings. GAO recommends that the Secretary of the Interior and the Attorney General direct the relevant DOI and DOJ programs to develop mechanisms to identify and share information related to tribal courts. DOI and DOJ concurred with our recommendation.

 

ABA Journal Article on Ethics Codes in Tribal Jurisdictions

Matthew L.M. Fletcher

Thanks to M.O. for pointing this out.

From the ABAJ:

One of the notable trends in the legal ethics field over the past several years has been a gradual movement toward more uniformity in the substance and application of professional conduct rules.

There is little, if any, expectation that the states will fall into complete lockstep on how they apply ethics principles for lawyers and judges, or how they structure their disciplinary systems. But the ABA’s Model Rules of Professional Conduct and Model Code of Judicial Conduct have served as starting points for efforts to bring more uniformity to the field. The Model Rules, for instance, have been adopted in some form by every state except California.

But in Indian country — the lands occupied by more than 600 tribes recognized by the U.S. government as sovereign entities — that trend hasn’t caught on. And experts say it is unlikely that there will be much uniformity any time soon in the way that tribal courts address ethics and discipline issues for lawyers and judges.

“Tribes are all over the place on this,” says B.J. Jones, director of the Tribal Judicial Institute in the Northern Plains Indian Law Center at the University of North Dakota in Grand Forks. “A lot of them do use the ABA Model Rules,” says Jones, who serves as chief judge for the Sisseton-Wahpeton Oyate and chief justice for the Turtle Mountain Band of Chippewa Indians, and is admitted to practice in a number of tribal courts. But, he says, “It’s hard to gauge what the most prevailing form of discipline is.”

The somewhat random pattern of ethics rules for lawyers and judges in Indian country reflects the nature of general rules and procedures in tribal courts, says W. Gregory Guedel, who chairs the Native American Concerns Committee in the ABA Section of Individual Rights and Responsibilities, and other practitioners in the field.

“The thing that makes it both interesting, complex and a little maddening at times is that every tribe’s system is different,” says Guedel, chairs the Native American Legal Services Group at Foster Pepper in Seattle. “Some tribes have extremely well-developed legal codes and court procedures that are as intricate and broad as any non-tribal system. Other jurisdictions have just adopted the federal code or whatever is available because they won’t have the resources.”

Tribal jurisdictions vary greatly, says Paul Stenzel, an attorney in Shorewood, Wis., outside Milwaukee, who represents a number of tribes. “Some are handling a complete range of topics and cases that you would see in a state court, almost, with the exception of major felonies,” he says. “Smaller ones are doing very narrow dockets, maybe only hunting and fishing violations, maybe only adoptions or family law. And there’s everything in between.”

IMPETUS FOR CHANGE

Increasingly, there are good reasons for tribal courts to firm up conduct codes for lawyers and judges, and to identify ethics issues on which a more uniform approach might be beneficial.

Some of that impetus should come from passage of the Tribal Law and Order Act of 2010 (PDF), which President Barack Obama signed into law on July 29. The act gives tribal courts and police more authority to deal with crimes committed in Indian country, and promises more federal money to help bolster tribal justice systems.

“The act gave a lot of people the thought that, ‘Let’s not stop there. Let’s continue and see what else we need to do,’ ” says Guedel. “There’s a lot of discussion in general about it.”

Economic considerations are another reason for tribal courts to take a harder look at their ethics rules for lawyers and judges. As some tribes have gained wealth — often in the form of casino revenue — their financial operations have become more complex and their commercial dealings with outside entities have grown.

“Private businesses are very afraid of the notion of a tribal court,” Guedel says. “Tribes have recognized that impression and have been trying to say, ‘This is a legitimate system. This is not just a kangaroo court.’ The adoption of the model codes in wide usage, which people understand inside and outside the tribal context, would be helpful in that regard. You would have a level playing field. A business that’s considering doing business with a particular tribe would say, ‘At least we’ve got an understandable way to resolve our differences.’ ”

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Alaska Supreme Court Recognizes Inherent Authority of Native Village of Tanana’s Tribal Court in ICWA Matters

Matthew L.M. Fletcher

Here is the opinion in Alaska v. Native Village of Tanana.

And the materials:

Alaska Opening Brief

Tanana Brief

Alaska Reply Brief

Water Wheel v. LaRance Ninth Circuit Oral Argument Audio

Matthew L.M. Fletcher

Here.

Gabe Galanda on Arbitration and Indian Country Disputes

Matthew L.M. Fletcher

Gabriel Galanda has published, “Arbitration in Indian Country: Taking the Long View,” in the Dispute Resolution Journal.

Here is a pdf: Arbitration in Indian Country

Update in Muscogee Nation Upheaval

Matthew L.M. Fletcher1 Comment

Here is a press release issued today by the Muscogee National Council titled, “Bureau of Indian Affairs Fails to Investigate Allegations of Tribal and Federal Funds.”

MCN NationalCouncil Press Release 3_2_11

Tribal Court Trainings @ UNM Announcement

Matthew L.M. Fletcher

Tribal Court Training Programs offered by the University of New Mexico School of Law’s Southwest Indian Law Clinic and Institute of Public Law in collaboration with the American Indian Law Center, Inc. Funded by the BIA Office of Justice Services.

Flyer with more details here: Tribal.Court.Training-Registration Form.rev1

News Analysis of Arvo Mikkanen Nomination

Matthew L.M. Fletcher1 Comment

Here: Mikkanen Analysis

An excerpt:

While the Obama administration faces heat for avoiding customary process, Mikanen has several ardent defenders who have spoken out since his name surfaced a few days ago. One is Kirke Kickingbird, a lawyer and former professor at Oklahoma City University. In The Oklahoman today (Wednesday, February 9), Chickasaw Nation Lt. Gov. Jefferson Keel called Mikkanen “an outstanding attorney” who has “the background and experience” for the trial judge post.

Like many of his other defenders, Keel acknowledged there may have been what reporter Chris Casteel called “a breach of protocol” in the nomination. Lael Echo-Hawk, a member of the Pawnee Nation who is president of the National Native American Bar Association, also stated strong support for the nominee. Many observers note that there are no “enrolled Indians” (registered tribal members) serving on the federal bench.

Webber, who works at Ryan Whaley Coldiron Shandy, an Oklahoma City law firm, is passionate in support of Mikkanen, who worked under his supervision for three years in the 1990s. Webber was U.S. Attorney for two years in Oklahoma City. He delivered a strong defense of Mikannen in an interview with CapitolBeatOK. He said:

“I don’t see how anyone could question Arvo’s qualifications for the federal bench. He has a distinguished 25-year career as an Oklahoma lawyer. He started by clerking for two different federal judges. He worked in private practice at a well-known Oklahoma firm. He has represented the United States in both civil and criminal cases. In fact, Arvo has been an advocate in over 475 federal court cases. He has been recognized by the Oklahoma Bar Association for his ‘pro bono’ service and by the FBI for his prosecutorial skills — not many lawyers can say that.

“I personally worked with Arvo for seven years. … He was known throughout the Justice Department as an expert on federal criminal jurisdiction in Indian Country. He helped develop a memorandum of understanding between law enforcement and state, tribal, and federal government officials regarding the investigation of child abuse crimes in order to hold abuser accountable. He also started our district’s use of specially trained forensic interviewers and pediatricians in the process of interviewing preteen victims of sexual abuse. This process was designed to help obtain reliable testimony without further traumatizing the child. Arvo prosecuted some of the hardest cases brought to our office. Arvo prosecuted fairly and played by the rules.”

Like other observers, Webber acknowledges Mikkanen’s nomination was advanced outside of customary procedures. Webber, who worked for former U.S. Sen. David Boren, also a Democrat, took strong issue with assertions that Mikkanen is not qualified for the post. He told CapitolBeatOK:

“I know of no reason Arvo’s qualifications could be legitimately questioned. In fact, his qualifications are very much like those of another Oklahoman nominated to an even higher court, Tenth Circuit Judge Jerome Holmes. I also worked with Judge Holmes for seven years. He too served as a law clerk for two different federal judges, worked as a federal prosecutor, and practiced in a prestigious Oklahoma City law firm. Governor [Brad] Henry and I both wrote letters in support of the Holmes nomination and Senator Coburn put both letters in the Congressional Record the day Judge Holmes was confirmed. Now, however, Arvo is called unacceptable by the Senator within hours of his nomination? Arvo arguably has even stronger qualifications in one respect. He has actually been a judge, both at the trial level and at the appellate level, in tribal courts throughout Oklahoma.”

Incidentally, here are a list of opinions Mr. Mikkanen wrote while a tribal judge:

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Supreme Court CVSG’s Miccosukee Tribe v. Kraus-Anderson Construction

Matthew L.M. Fletcher4 Comments

Here is the order.

That’s the fourth (?!?!?!) recent CVSG on an Indian law cert petition.

Materials are here.