tribal courts

Book Announcement: Raymond Austin’s “Navajo Courts and Navajo Common Law”

Matthew L.M. Fletcher3 Comments

Former Navajo Nation Supreme Court Justice Raymond D. Austin just published his incredible work, “Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance” with the University of Minnesota Press.

Here is the blurb from the Press’s website:

The only book on the world’s largest tribal court system and Navajo common law

The Navajo Nation court system is the largest and most established tribal legal system in the world. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

A justice on the Navajo Nation Supreme Court for sixteen years, Justice Raymond D. Austin has been deeply involved in the movement to develop tribal courts and tribal law as effective means of modern self-government. He has written foundational opinions that have established Navajo common law and, throughout his legal career, has recognized the benefit of tribal customs and traditions as tools of restorative justice.

In Navajo Courts and Navajo Common Law, Justice Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

Continue reading →

MSU NALSA Tribal Court Event TOMORROW (Veterans Day)

Matthew L.M. Fletcher1 Comment

09-STU-18 NALSA Poster

New Scholarship on Same-Sex Marriage in Indian Country

Matthew L.M. Fletcher

Mark Strasser has posted “Tribal Marriages, Same-Sex Unions, and the Interstate Recognition Conundrum” on Berkeley Electronic Press (article here).

The abstract:

When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.

New Paper on Federal and State Court Recognition of Tribal Court Convictions

Matthew L.M. Fletcher1 Comment

My new paper, “Sovereign Comity: Factors in Recognizing Tribal Court Convictions in State and Federal Courts,” forthcoming in Court Review is available for download on SSRN here.

Here is the abstract:

State and federal courts increasingly are being confronted with prosecutors moving the court to consider prior convictions in American Indian tribal courts during the sentencing phase, and sometimes earlier. If the conviction being introduced occurred in state or federal court, the instant court would be obligated to give full faith and credit to that conviction. But if the prior conviction occurred in a tribal court, state and federal courts are often confronted with unforeseen complexities. This paper is intended to parse through much of the political baggage associated with recognizing tribal court convictions. To be frank, the law is unsettled, leaving little guidance for state and federal judges in these cases, while at the same time granting enormous discretion to judges on the questions involved. The first part of this paper will provide a quick overview of the constitutional status of Indian tribes and tribal courts, as well providing a basic but sufficient introduction to relevant principles of federal Indian law. The second part will offer a summary of criminal jurisdiction in Indian Country and, in particular, what role tribes play – and how well they play it. The third part offers a short description of the key cases in the field, as well as relevant federal and state statutes, and state court rules. It also offers a short normative argument on the question of what state and federal court judges who are confronted with prior tribal court convictions should look for in these cases, especially where the defendants convicted in tribal court are not represented by counsel.

Samantha Moppett on Incorporating Tribal Justice Systems into the Legal Research and Writing Curriculum

Matthew L.M. Fletcher2 Comments

Samantha Moppett has posted “Acknowledging America’s First Sovereign: Incorporating Tribal Justice Systems into the Legal Research and Writing Curriculum” on SSRN. Haven’t read this yet, but it is a very important subject!

The abstract:

Marie Setian (“Marie”) drove to Foxwoods Resort Casino in Ledyard, Connecticut, with her husband and another couple for a day of gambling, dining, and entertainment. After gambling for a little while, the couples went to the Festival Buffet. At the buffet’s seafood station, Mary placed some shrimp on her plate. As she walked to the international station, her left foot slipped on something and she fell to the floor. As a result of the fall, Marie experienced soreness, swelling, and discomfort in her knee. Eventually, she underwent surgery and participated in extensive physical therapy. Her knee will never be the same again.

Marie contacted an attorney because she wanted to sue Foxwoods for the actual damages and pain and suffering that she sustained as a result of the slip and fall. Accordingly, the attorney filed a claim in the Connecticut trial court on behalf of Marie. Although it would appear the attorney acted competently and professionally, the state trial court dismissed Marie’s claim.

In law schools across the country, law students are introduced to federalism and the organization of the United States government. This invariably includes, among other things, a discussion of the dual systems operated by the state and federal courts, an introduction to the jurisdiction of these courts, and the sources of authority that these courts can consider. Yet, this nearly universal introduction to the American judicial system is incomplete. Continue reading →

Wisconsin Supreme Court Amends Tribal Court Comity/Transfer Rule

Matthew L.M. Fletcher

From the Wisconsin Law Journal:

Postjudgment proceedings involving modifications to child support, custody, and placement will soon be transferable from Wisconsin circuit courts to tribal courts without a hearing.

Pursuant to Rule 801.54, adopted by the Wisconsin Supreme Court in 2008, and effective Jan. 1, 2009, courts have already had discretion to transfer any civil action if the court finds that concurrent jurisdiction is present.

But that rule requires notice and a hearing before transfer occurs.

At a May 1 administrative conference, the court adopted an amendment to the rule for family law cases that would dispense with a hearing if no party objects.

Continue reading →

Ezra Rosser on Tribal Customary Law

Matthew L.M. Fletcher

Ezra Rosser has posted “Customary Law: The Way Things Were, Codified” on SSRN. The Tribal Law Journal published the paper. Here is the abstract:

Frequently referred to as “customary law,” the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe’s judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place it has in relation to other sources of law from tribal statutes to state common-law. Furthermore, the differing treatment afforded customary law by separate tribal court systems in many ways is a reflection of the degrees of proof required by different courts to establish what is or is not a tribal custom.

Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law

Matthew L.M. Fletcher

Ann Tweedy has posted the abstract of her fine paper “Conceptions of Sex-Based Equal Protection under Tribal Law: Broad-Based Prohibitions Against Discrimination, Context-Specific Protections, and Sex-Based Distinctions” on SSRN. Here is the abstract:

This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington’s 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

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Business Law Today Feature on Indian Businesses and Tribal Courts

Matthew L.M. Fletcher

The ABA’s Business Law Today features several short articles on federal Indian law and business here. Links to the articles are below the fold.

Our mini-theme: Native America

Culture, Business and the Law

The law is a system that provides social cohesion while at the same time revealing much about our culture in a nation of many people and customs. In this issue, we celebrate the Native peoples of our nation, which include Native Americans, Alaska Natives, and Native Hawaiians.

Few of us have had the opportunity to develop a deep understanding of the people who have lived for centuries in the places we now call home. The articles in this issue are written by lawyers who are part of Native communities and provide unique insight into the interplay between America’s federal, state, and tribal laws.

One author grew up on a reservation, not having seen the ocean on the East or West Coast prior to earning admittance to one of the best, and most elite, undergraduate universities in the country. This author currently spends half the year near the Pacific Ocean and half the year on the reservation. Another author grew to adulthood before learning of the family’s Native culture and beginning a life-altering journey of discovery, which included going through traditional rituals to be formally admitted to the tribe.

While the articles focus on legal, procedural, and business issues implicated when dealing with Native peoples or their lands, they also provide some perspective on the incredible wealth of cultures in this country that is reflected in our legal system.

–Nicole Harris

San Francisco

Deal or no deal?
Understanding Indian Country transactions
By Gabriel S. Galanda and Anthony S. Broadman
Encouraging business with Indian tribes
A brief discussion of the tribal exhaustion doctrine
By Thomas Weathers
Tribal courts and alternative dispute resolution
Mediated settlements and arbitration awards in tribal court
By Pat Sekaquaptewa
Avoiding trouble in paradise
Understanding Hawai`i’s law and indigenous culture
D. Kapua`ala Sproat

Tribal Judicial Immunity in Federal Criminal Cases

Matthew L.M. Fletcher

In U.S. v. Wahtony, the District of Idaho held that a federal criminal defendant’s subpoena of a tribal judge’s background must be quashed on sovereign immunity grounds.

shoshone-bannock-motion-to-quash

wahtomy-response-brief

shoshone-bannock-reply-brief

us-v-wahtomy-dct-order