tribal courts

Empirical Research on Tribal Courts and Customary Law Posted on SSRN

Matthew L.M. Fletcher

My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).

Here’s the abstract:

This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.

Fort on ICWA and Michigan Tribal-State Court Comity

Matthew L.M. Fletcher

“A Review of the Indian Child Welfare Act, M.C.R. 2.615, and Tribal Court Jurisdiction in Michigan Family Law Cases,” by Kathyrn Fort.

From the Michigan Child Welfare Law Journal [scroll to page 11].

Cooter and Fikentscher on Tribal Codes

Matthew L.M. Fletcher

Robert Cooter and Wolfgang Fikentscher have just published “American Indian Law Codes: Pragmatic Law and Tribal Identity” in the American Journal of Comparative Law. Here is the abstract:

The United States has recognized the power of American Indian tribes to make laws at least since 1934. Most tribes, however, did not write down many of their laws until the 1960s. Written laws have subsequently accumulated in well-organized codes, but scholars have not previously researched them. Using written materials and interviews with tribal officials, we describe the scope, motivation, and interpretation of tribal codes. With respect to scope, we found nine main types of codes that cover almost all fields of law over which tribes have jurisdiction. Few tribes have all nine types of codes. Tribes have internal and external motivations for codifying. Internal motivations include preserving culture, maintaining social order, and encouraging economic development. Financial incentives and demands for transparency supply outside motivation. Tribal officials interpret codes pragmatically, which resembles interpretation of codes in continental Europe. Finally, we note that law and justice sometimes require state or federal courts to use a tribal code to decide a case, but they seldom do so, which undermines tribal power and identity.

KU Tribal Law and Governance Conference Agenda

Matthew L.M. Fletcher

Kansas’s Tribal Law and Government Center is hosting the 2008 conference on Feb. 1, 2008. Speakers include Lance Morgan, Howard Valantra, Phil Frickey, Stacy Leeds, Angelique EagleWoman, Taylor Keen, Russ Brien, and others. Looks like a great field! H/T Legal Scholarship Blog:

The agenda is here.

Call for Papers: American U. Law College — Tribal Courts

Matthew L.M. Fletcher

For details, see the call at For the Seventh Generation Blog, or contact Ezra Rosser.

Unfortunately, we can’t make it because we’ll be at the PIELC at Oregon Law School.

WSJ Article on Tribal Judges

Matthew L.M. Fletcher

Thanks to Mike McBride and June Mamagona Fletcher, you can download the entire article here without having to register with the Journal:

Wall Street Journal Article on Tribal Judges and Federal Indian Law

Nesper on LDF Tribal Court Adjudication of Hunting and Fishing Case

Matthew L.M. Fletcher

Here’s an interesting article about the Lac du Flambeau tribal court and its hunting and fishing jurisprudence by Larry Nesper, author of the Walleye War, a history of the Wisconsin fish wars.

Nesper, Negotiating Jurisprudence in Tribal Court and the Emergence of a Tribal State

Article on Tribal Court Authority to Subpoena BIA Officers

Matthew L.M. Fletcher

From the The Glacier Reporter:

A new system of law enforcement introduced, includes prevention

By John McGill
Wednesday, November 28, 2007 10:26 AM MST

The fact that Bureau of Indian Affairs police officers serving in Blackfeet Country cannot be compelled to appear in Blackfeet Tribal Court by tribal judges, according to a recent U.S. Solicitor General’s opinion, was one of the more interesting tidbits garnered at Monday’s law and order meeting held at Tribal Headquarters. Steve Juneau of Lamar Associates emceed the meeting, which outlined plans adopted by the Blackfeet Tribe for reassuming control of law enforcement and creating a Department of Public Safety that would “provide leadership separate from political changes in tribal government,” Juneau said.

Continue reading →

OST Drug Testing Update — Tribal Court Vacates Drug Test Ordinance

Matthew L.M. Fletcher

From the Rapid City Journal (H/T Indianz):

Members of the Oglala Sioux Tribal Council who were suspended for not taking a drug test have been reinstated, after a tribal judge struck down the requirement.

In October, the tribal council passed a resolution requiring members and other elected officials to take a “hair follicle” drug test.

The ordinance was in response to the arrest in New Mexico of Councilman Don Garnier, who faces a federal charge of possession of marijuana with intent to distribute it.

Tribal Judge Lisa Adams earlier this month upheld the test for council members but struck down the requirement for the tribe’s treasurer.

On Nov. 7, a motion to rescind the drug-test requirement order failed by a vote of 12-2 of the tribal council.

Last week, however, Judge Adams killed the measure “in its entirety for vagueness,” according to documents faxed to the Rapid City Journal from the office of Oglala Sioux Tribe President John Steele.

At least 11 tribal officials took the hair-follicle test, as did Steele.

Two council members refused, arguing the council had no authority to pass the ordinance.

Three council members took a urinalysis test for drugs instead.

One council member’s test was canceled when the machine malfunctioned, and another couldn’t take the test because his hair was too short.

Garnier, who refused the test, remains suspended pending the outcome of charges against him.

It was unclear how many council members had actually been suspended for failing to take the test, but the question apparently is moot.

In a written memo to tribal council members, also faxed to the Journal, Steele said tribal officials suspended were reinstated with pay.

Drug Testing Update — OST Tribal Court Upholds Suspensions re: Drug Testing

Matthew L.M. Fletcher

I didn’t have to wait long on this question. The second article offers a little detail on the tribal judge’s ruling — of particular note was the ruling that the tribal treasurer could not be suspended because without her presence, tribal employees could not be paid. Suspending her would have created a “crisis.”

Here’s the first article:

http://www.kmeg14.com/Global/story.asp?S=7341842&nav=menu609_2_4

Judge upholds suspension of some tribal council members for refusing drug test

Associated Press – November 10, 2007 5:25 PM ET

RAPID CITY, S.D. (AP) – An Oglala Sioux tribal judge has upheld the suspensions of some tribal council members who reportedly refused to take a drug test.

It was not clear how many council members were suspended. Judge Lisa Adams listed six and possibly a seventh, but council members put the number at four or five.

After a daylong hearing, Adams said she thinks the tribal council can require drug tests of its members.

She did, however, reverse the suspension of tribal treasurer Crystal Eagle Elk. She says the tribe could not pay employees or provide vital assistance if the treasurer were suspended.

Supporters of the resolution say it was a response to federal charges in New Mexico against council member Don Garnier, who has been suspended pending the outcome of the case against him.

Adams says she expects her ruling will be appealed.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Here’s the second article:

http://www.rapidcityjournal.com/articles/2007/11/11/news/top/doc47351c175768f323461366.txt

Oglala Tribal Council suspends members refusing drug test

Judge Lisa Adams upholds council suspensions

By Bill Harlan, Journal staff Sunday, November 11, 2007

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The Oglala Sioux Tribal Council has suspended some members for refusing to take a drug test, and a tribal judge in Pine Ridge upheld the suspensions in a ruling Friday afternoon.

In the same ruling, Chief Judge Lisa Adams reversed the suspension of the tribe’s treasurer, Crystal Eagle Elk, saying the council did not have authority to suspend her.

“My ruling was really simple,” Adams said late Friday afternoon, after a court hearing that lasted all day. It was not clear Friday how many council members had been suspended for refusing the test. Adams’ list had six members, and possibly a seventh, but council members put the number at four or five.

It was clear, however, that Eagle Elk was not suspended. The judge said suspending her would have resulted in a “crisis” because the tribe would have been unable to pay employees or provide vital assistance.

Adams also struck down two parts of a resolution to suspend council members who refused the drug test. One of those provisions would have required publication of the results of the drug tests in newspapers. The other would have required members who failed tests to resign or be impeached.

“The problem is, the council abrogated its own rights,” Adams said.

Drug-test results should be private, Adams said, in part because they could expose council members to criminal prosecution.

Tribal Councilman Floyd Brings Plenty of Oglala, in the White Clay District of Pine Ridge Indian Reservation, introduced the original resolution Oct. 18.

It passed 10 to 3, Adams said, with five council members absent.

Brings Plenty said the measure was a response to federal charges in New Mexico against Councilman Don Garnier.

Garnier was a passenger in a car with 21 pounds of marijuana in the trunk, which authorities discovered during a routine traffic stop. Garnier was suspended pending the outcome of that case.

Brings Plenty said his resolution would demonstrate the council’s commitment to a drug-free reservation.

The measure requires council members and other elected tribal officials to take hair-follicle drug tests. Adams said an attorney for the tribe argued Friday that hair-follicle tests were more accurate than urine tests and could reveal drug use weeks or months before the test.

Brings Plenty said Oglala Sioux Tribe President John Steele ignored the council’s original resolution.

Steele was traveling this week, so Vice President William “Shorty” Brewer signed the order suspending the tribal members and the treasurer.

Tribal Councilman Tom Poor Bear, who was suspended, said he will fight the measure. “That violates our constitutional rights,” he said. “I was elected by the people of the Eagle Nest District.” Poor Bear said drug tests should be reserved for paramedics, law officers and others in similar positions.

Adams said six or seven council members had been suspended, but Kathy Janis of the Wounded Knee District, who was on Adams’ original list, said she not only took the drug test, she voted in favor of it. “If we want our employees to be drug free and take a hair-follicle test, why should we be exempt?” she said. Her name was on the original list in error, she said.

Garfield Little Dog Steele of the Wounded Knee District acknowledged he was suspended. He said his hair was too short for the test last month, but he did take a test this week and expected results Tuesday.

“I’m in favor of this,” Garfield Steele said. He voted for the drug tests, he said, and he said most people on the Pine Ridge reservation supported a drug-free council that “policed themselves.”

Garfield Steele and Janis said Austin Watkins of the Medicine Root District also would be removed from the list.

Other council members on Adams’ list were:

-Jim Meeks of the Eagle Nest District

-Kim Clausen of the LaCreek District

-Cora Whiting of the Medicine Root District

Janis said those three council members remained suspended, but the Rapid City Journal was unable to contact them Friday.

Adams said she believed the tribal council did have the authority to require drug tests of members. “The goal is to promote a drug-free council,” she said. “And if you test positive, you probably should step down.”

Adams expected her ruling to be appealed to the tribe’s three-member supreme court.