Here, the Eighth Circuit affirmed the DCT opinion rejecting the jurisdiction of the Red Lake Band of Chippewa Indians tribal court over a tort claim arising out of an auto wreck on a state highway within the reservation. Judge Murphy concurred in a separate opinion, noting the distinction between the Red Lake Reservation, which has never been ceded, and the reservation of the Mandad, Hidatsa, and Arikara Nation, where the Strate case arose.
Here are the materials:
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.
“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].
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.
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:
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.
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
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
From the The Glacier Reporter:
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.
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.
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