tribal courts

Grant Christensen on Tribal Court Civil Jurisdiction

Matthew L.M. Fletcher

Grant Christensen has posted, “Creating Brightline Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property,” on SSRN (abstract only). It is forthcoming in the American Indian Law Review.

Here is the abstract:

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties – tribal, state, and federal – are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed into federal courts. I offer this piece to propose a new and novel solution; that tribal courts be extended civil jurisdiction in a piecemeal process that vests absolute tribal court jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most common jurisdictional questions, tribal court jurisdiction over non-Indians in cases of trespass to land, and argues that a bright-line rule favoring tribal court jurisdiction in this instance is legally mandated, will pragmatically conserve judicial resources, and recognizes the broad tribal sovereignty recently reaffirmed by Congress.

Journal of Court Innovation Special Issue on Tribal Justice

Matthew L.M. Fletcher

ARTICLES

Full Faith and Credit and Cooperation Between State and Tribal Courts: Catching Up to the Law
By Paul Stenzel | PDF

Treaties, Tribal Courts, and Jurisdiction: The Treaty of Canandaigua and the Six Nations’ Sovereign Right to Exercise Criminal Jurisdiction
By Carrie E. Garrow | PDF

21st Century Indians: The Dilemma of Healing
By Carey N. Vicenti | PDF

The State of Pretrial Release Decision-Making in Tribal Jurisdictions: Closing the Knowledge Gap By John Clark | PDF

Tribal Probation: An Overview for Tribal Court Judges
By Kimberly A. Cobb and Tracy G. Mullins | PDF

INTERVIEWS

Introduction Reflections on Tribal Justice: Conversations with Native American Judges | PDF

Abby Abinanti, Chief Judge, Yurok Tribal Court, Klamath, California, and California  Superior Court Commissioner | PDF

P.J. Herne, Chief Judge, St. Regis Mohawk Tribal Court, Akwesasne, N.Y. | PDF

B.J. Jones, Tribal Court Judge and Director, Tribal Judicial Institute at the University of North Dakota School of Law | PDF

Continue reading →

Blackfeet Tribe Amicus Brief in State Court Probate Jurisdiction Case

Matthew L.M. Fletcher

The case is captioned In re Estate of Big Spring (Mont. S. Ct.). Here is the brief: Blackfeet Amicus Brief.

An excerpt from the brief:

This case comes before this Court on the appeal of the Appellants from the decision of the Ninth Judicial District of Glacier County which ruled against a Motion to Dismiss by the Appellants based on the lack of subject matter jurisdiction over the estate of William Big Spring, II, an enrolled member of the Blackfeet Tribe, who, at the time of his death was a resident of the Blackfeet Reservation and whose estate consisted of both trust and fee land solely within the exterior boundaries of the Blackfeet Reservation. The District Court stated that there was concurrent jurisdiction over this property and that the District Court was therefore the proper forum for the probate of this Indian-owned fee land.

Appellants argue that the State District Court is without jurisdiction over the probates of resident enrolled members of the Blackfeet Tribe. Appellants further state that the probate of the trust land of such persons is vested in the Administrative Courts of the United States and that the probate of the fee land is vested, exclusively in the Blackfeet Tribal Court. That is also the view of the Blackfeet Tribe as seen in this Amicus Brief.

LVD Appellate Decision(s) Ordering Release of LVD Council

Matthew L.M. Fletcher

Note the dates of the orders (Sept. 9 and Sept. 11), and the actual release of the council (Sept. 11): Order Granting Habeas Corpus.

Forthcoming Scholarship on Indian Law Preemption

Matthew L.M. Fletcher

Jackie Gardina has posted “Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts,” forthcoming in the American Indian Law Review. [Also available at BEPRESS.]

Here is the abstract:

This article contends that state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Instead Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges: if a tribe has legislative jurisdiction over the dispute, tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create laws and have those laws applied to disputes over which they have jurisdiction. This article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice of law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice of law rules provides limited protection to a tribe’s sovereignty interest. To the extent that the state’s choice of law rules can be bypassed, they should be.

Challenge to Crow Tribal Court Jurisdiction Dismissed on Exhaustion Grounds

Matthew L.M. Fletcher

Here are the materials in Switzer v. Dust (D. Mont.):

Switzer Magistrate Report

Switzer DCT Order

Fletcher on American Indian Tribes and Constitutional Authority

Matthew L.M. Fletcher

Please check out my Consent and Resistance: The Modern Struggle between American Indian Tribes and the United States on SSRN. Here is the abstract:

    After a few years of late 19th century confusion, the United States Supreme Court held definitively in 1898 that the United States Constitution does not bind Indian tribes. Indian tribes were not invited to the Constitutional Convention. Indian tribes never ratified the Constitution (nor were they asked). The Constitution places Indian tribes and foreign nations in the same category of governments that, by definition, were not American.

    And yet in the 21st century, it is well understood that Indian tribes are a part – somehow – of the American Constitutional structure. Justice O’Connor wrote that Indian tribes are the “third sovereign.” It remains hornbook law that the Constitution does not bind Indian tribes, but the three branches of the federal each purport to maintain plenary control over critical aspects of Indian tribes, citing to admittedly dubious authority.

    The book project will parse through that history into the modern era, and highlight areas in which federal government control over Indian affairs no longer makes sense. Using aspects of consent theory to generate separate theories of tribal and individual Indian consent, I propose a new way of viewing Indian affairs, in which Indian tribes and individual Indians strategically exercise resistance to federal law as a means of vesting Indian tribes and Indian people in the American constitutional structure.

I will be presenting this idea at the 3rd National People of Color Legal Scholarship Conference (Sept. 9-12) at Seton Hall law school, on a panel with fellow Indian law scholars Bob Miller, Ray Austin, and Kate Fort.

Key Bank Consents to Navajo Court Jurisdiction in Lending Agreement

Matthew L.M. Fletcher

From the Navajo Times:

* * *

Shirley pointed to an unprecedented $60 million loan agreement with Cleveland-based Key Bank to fund construction of justice complexes in Crownpoint and Tuba City.

Shirley signed the agreement, which had previously been endorsed by the council, with KeyBank on June 24. This marks the first time that the tribe has made this kind of arrangement with a bank and assigned tax revenues to pay for it.

“This signing comes six years after discussions first began and fulfills our vision to see these needed facilities built on Navajoland to combat the rising crime rates,” Shirley said.

He noted that the bank had agreed to respect the tribe’s sovereignty, including a pledge to use the tribal courts in case of a dispute.

Shirley said KeyBank agreed to the provision after doing its own evaluation of tribal court rulings.

“KeyBank took the time to conduct research and determined that our Navajo legal system is strong and stable,” he said.

About 20 years ago, a similar study was done and determined that in cases involving a dispute between the tribe and an outside entity, the Navajo Nation Supreme Court ruled for the Navajo side in all but one instance. In the one case won by a non-Navajo plaintiff, the company was never able to collect the money it was owed.

Key Bank officials, however, determined that the decisions in the tribal court system went about half the time to the tribe and the other half to the non-Navajo entity.

Continue reading →

Eastern Shawnee Tribe Also Awarded Injunction against Oklahoma Courts in Gaming Compact Disputes

Matthew L.M. Fletcher

Here is the opinion: Eastern Shawnee Tribe v. State of Oklahoma.

The Tribe’s motion for summary J and its complaint were posted earlier today here.

Choctaw and Chickasaw Nations Win Injunction against Oklahoma Courts for Accepting Jurisdiction over Claims under their Gaming Compact

Matthew L.M. Fletcher

Here is the order in Choctaw Nation and Chickasaw Nation v. State of Oklahoma (W.D. Okla.): choctawchickasaworder.

If you’ll recall, the Oklahoma Supreme Court in a series of cases held that state courts were “courts of competent jurisdiction” to take jurisdiction over tort claims brought under a Class III gaming compact approved by Oklahoma voters and, later, several Oklahoma tribes.

Oklahoma tribes (with the State consenting) then invoked the arbitration provision of the compacts, arguing the Supreme Court had violated the terms of the compact. They were successful.

This federal suit followed. Very interesting case.