tribal courts

Fletcher on “Race and American Indian Tribal Nationhood” — UPDATED

Matthew L.M. Fletcher

“Race and American Indian Tribal Nationhood” is available for download here. [The paper is there now, sorry.]

Here is the abstract:

Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.

Constructive feedback welcome.

Michigan Indian Law Day Agenda (UPDATED) — April 2

Matthew L.M. Fletcher

University of Michigan NALSA

2010 Indian Law Day Schedule

Looking Inward: Tribal Governance

Blessing

1:00 – 1:10

Joseph Brave-Heart

Keynote Speaker

1:10 -1:40

Frank Ettawageshik

Former Tribal Chairman, Little Traverse Bay

Bands of Odawa Indians

Tribal Constitutions

1:45 – 2:25

Allie Maldonado, Assistant General Counsel,

Little Traverse Bay Bands of Odawa Indians

Mike Phelan, Office of the General Counsel

Pokagon Band Potawatomi Indians

Tribal Courts

2:30 – 3:10

Prof. Matthew Fletcher, Michigan State University College of Law

Amy Kullenberg, Pokagon Band of Potawatomi Indians

Break/Refreshments

3:10 – 3:25

Tribal Economic Diversification

3:25 – 4:05

Zeke Fletcher, Associate, Rosette & Associates

Prof. Matthew Fletcher, Michigan State University College of Law

Recent and Important Tribal Court Decisions on Tribal Constitutional Law

Matthew L.M. Fletcher

The first is from the Muscogee (Creek) Tribal Court — Ellis v. Bristow Muscogee Indian Community.

FinalJudgment&Order-CV09-33

The court there held that the Muscogee national government has substantial control over the gaming facilities located at each of the six tribal communities named as defendants.

The second is from the Hopi Court of Appeals — In the Matter of Village Authority to Remove Tribal Council Representatives.

Hopi Appellate Court Ruling – Bacavi Cert. Question

There, the court held that the Hopi villages retain authority to remove their elected tribal council members.

Sisseton Tribal Council Passes Resolution Attempting to Reverse Tribal Appellate Court on 11-Part Tribal Business Entity Immunity

Matthew L.M. Fletcher

Here’s an interesting development that may have some impact on the Colorado v. Cash Advance case.

The Sisseton tribal council enacted the following resolution designed to “fix” the Northern Plains Intertribal Court of Appeals decision raised by the Colorado AG in the supplemental pleading referred to here.

Sisseton Resolution

Beth Kronk on Judicial Ethics

Matthew L.M. Fletcher

From ICT via Pechanga:

MAYETTA, Kan. – Appearances are everything in small communities. This is especially true in Indian country, where close family, social and work relationships may appear to compromise the integrity of tribal judicial systems.

Elizabeth A. Kronk, assistant professor of law at theUniversity of Montana School of Law, urges tribes to adopt a code of ethics for their tribal justices and elected officers, not only as an exercise in sovereignty, but also to avoid even the perception of impropriety.

“Our communities are small, and we know everybody,” said Kronk, who spoke on ethical considerations for tribal courts, practice and governance at the 10th Annual Native Nations Law Symposium, Feb. 12, at Prairie Band Casino & Resort on the Potawatomi reservation.

Kronk presented excerpts from the National Tribal Judicial Center’s Sample Code of Judicial Conduct and theABA’s 2007 Model Code of Judicial Conduct to discuss the appearance of impropriety, the definition of who a judge is, disqualification, extrajudicial activities, ex parte communication, and the integrity and independence of the tribal judiciary.

Continue reading →

Where to Find Tribal Court Decisions

Matthew L.M. Fletcher

Here is a great webpage by the Univ. of Washington law library detailing how to find tribal court decisions from a multitude of tribal courts:

Tribal Court Decisions: Sources.

28 U.S.C. 1362 Doesn’t Waive Tribal Sovereign Immunity

Matthew L.M. Fletcher

Well, someone was bound to try it. 🙂

Turner v. McGee (N.D. Okla.)

An excerpt:

Petitioner, a member of the Kiowa Tribe, has brought this pro se action seeking injunctive relief against four administrative law judges employed by the Bureau of Indian Affairs. Respondents as administrative law judges preside over cases brought before the Court of Indian Offenses for the Kiowa Tribe. Petitioner seeks injunctive relief relative to decisions rendered by respondents while acting in their official capacities as administrative law judges.
Indian tribal governments, such as the Kiowa Tribe, enjoy immunity from suit the same as any other sovereign power. Tribal governments are subject to suit only where suit has been expressly authorized by Congress or the tribe has waived its immunity. * * *

Eastern Band Cherokee Judge Saunooke Article on Diversity on Federal Bench

Matthew L.M. Fletcher

Here, in the ABA’s Judges’ Journal, from Mike McBride: Saunooke Article

Here are other articles from the same issue re: judicial diversity:

Right arrow An Interview with Justice Ruth Bader Ginsburg
By Suzanne Reynolds

Right arrow Racial and Gender Diversity on State Courts: An AJS Study
By Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield

Right arrow A Bench That Looks Like America: Diversity Among Appointed State Court Judges
By Ciara Torres-Spelliscy

New Scholarship on Tribal Jurisdiction and Intertribal and Intratribal Common Law

Matthew L.M. Fletcher

Jesse Sixkiller has published, “Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank,” in the Arizona Journal of International and Comparative Law.

Here is an excerpt from the conclusion:

Today, as this Note has demonstrated, there remains a clear divide between state and tribal civil jurisdiction powers. While states have come to enjoy a form of civil jurisdiction that can reach beyond their boundaries regardless of state citizenship, tribes remain confined to specific lands within their territory when it comes to jurisdiction over nonmembers.341 It has become more evident that the reasons are based on fairness to the nonmember parties, particularly to non-Indians.342 That stigma of unfairness must be addressed in order to ensure that jurisdiction over nonmembers is not similarly compromised on tribal lands, and possibly to enlarge tribal jurisdiction on nonmember fee lands.
Continue reading →

House Judiciary Subcommittee Hearing on the Tribal Law and Order Act — Prepared Statements

Matthew L.M. Fletcher

Here:

Witness List

Panel I
Hon. Herseth Sandlin
U.S. House of Representatives
At-Large, SD
Panel II
Hon. Tom Perrelli
Associate Attorney General
Washington, DC
Panel III
Marcus Levings
Great Plains Area Vice-President
Native American Justice Committee
New Town, ND
Tova Indritz
Chair
National Association of Criminal Defense Lawyers
Native American Justice Committee
Albuquerque, NM
Scott Burns
Executive Director
National District Attorneys Association
Alexandria, VA
Barbara Creel
Associate Professor
Southwest Indian Law Clinic
University of New Mexico School of Law
Albuquerque, NM