On the Minnesota SCT Rule 10 Proposed Revisions on Recognizing Tribal Court Orders and Judgments

Link: Proposed Rule 10

The Minnesota Tribal Court State Court forum is petitioning the Minnesota Supreme Court for a new and improved rule on the recognition of tribal court judgments in state courts, known as Rule 10 of the Minnesota General Rules of Practice. The existing rule was adopted in 2003, and it fell far short of what advocates sought at the time. At the time, Professor Washburn was critical of the outcome as not being sufficiently respectful of tribal court judgments. In this article, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2935279, Washburn and Chloe Thompson explained that the rule was far less respectful than Arizona’s equivalent rule and speculated as to why Minnesota’s rule would be less respectful than Arizona’s. Washburn characterized Rule 10 as providing wide discretion and little guidance to Minnesota District Courts. According to a letter submitted on the rule, Professor Washburn finds the new proposed Rule 10 to be much improved and believes that it addresses most of the concerns about the previous rule. He urges the Minnesota Supreme Court to adopt the improved rule.
The comment period closes today. The next step is consideration of the petition by the Minnesota Supreme Court Advisory Committee on General Rules of Practice. A public hearing on the petition will be held by the advisory committee on March 31, 2017 at the Minnesota Judicial Center.

Motion for TRO Rejected in Northern Arapaho Tribe v. LaCounte

Here are the materials in Northern Arapaho Tribe v. LaCounte (D. Mont.):

115 NAT Motion for TRO

123 Federal Response

127 Reply

147 DCT Order Denying Motion for TRO

An excerpt:

Negotiations concerning the operation of the two courts are ongoing. Interactions between the courts are, and will be, varied, continual, and context-specific. An order from the Court would prove an undesirable and perhaps unwieldy solution, particularly as opposed to a protocol negotiated by the parties. The Court especially is not the proper arbiter for the dispute while the parties continue to negotiate an MOU. An MOU would provide a set protocol that the Court could evaluate. The addition of an MOU to the factual record would aid the Court in coming to a more accurate, useful resolution to the issues presented.

Alaska Civil Diversion Agreement with Anvik Tribe in Alaska

The agreement allows for law enforcement officers in Alaska to refer certain misdemeanor crimes and offenses to participating tribal courts for restorative justice sentencing. It’s the first of its kind agreement in Alaska and the Anvik tribe located in Anvik, AK became the first tribe to enter into this agreement with the State. Please let me know if you would like additional information. Thanks!

The following link is to an article in the local Fairbanks, AK newspaper regarding the Civil Diversion Agreement.

http://www.newsminer.com/news/local_news/anvik-tribal-government-able-to-rule-on-low-level-village/article_072cdd02-dafc-11e6-820d-035b3c84695c.html

The following link is to the Civil Diversion Agreement itself on the State of Alaska’s website.

http://law.alaska.gov/pdf/press/170110-CivilDiversionAgreement.pdf

Tulalip Tribal Court Holds State Immune to Suit in Tribal Court

Here is the opinion in Shopbell v. State of Washington Dept. of Fish and Wildlife:

shopbell-opinion

We posted materials on this case here.

Wisconsin Disretionary Transfer Rule to be Indefinitely Extended

According to Larry Nesper:

The Supreme Court of Wisconsin today, June 21, in an administrative hearing, voted to indefinitely extend the Discretionary Transfer Rule permitting state court judges to transfer cases to tribal court on their own authority.  It had been scheduled for review after five years. The rule has been most extensively used by the Oneida Nation which has transferred 1400 child support cases in the last several years out of county courts and into tribal court.  The order will be out by the end of the term this summer.

Comments on this rule going back to 2007 are here.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Sault Tribe RFP for Appellate Judge

REQUEST FOR PROPOSALS  

The Sault Ste. Marie Tribe of Chippewa Indians seeks qualified licensed attorneys and/or non-attorneys for the position of Appellate Judge in the Sault Ste. Marie Chippewa Tribal Appellate Court.  The Appellate Court has the following vacancies to fill:

  • Licensed attorney positions –(active & reserve)
  • Elder position (active & reserve)

The Appellate Court meets monthly.  Oral argument is held in Sault Ste. Marie, MI.

Appeals filed vary from year to year, but typically can be anywhere from 1 – 4 per year.

These positions include a $200 per month stipend (if not employed by the tribe).   Licensed attorney positions are also paid at the rate of $150 per hour with a maximum billing of $5,000 per year.

Qualifications for Licensed Attorney positions include:

  • Must be a member of the Sault Ste. Marie Tribe of Chippewa Indians
  • Must be a member in good standing with the State Bar of Michigan

Qualifications for Elder (attorney or non-Attorney) position include:

  • Must be a member of the Sault Ste. Marie Tribe of Chippewa Indians
  • Must be age 60 or older
  • If an attorney, must be a member in good standing with the State Bar of Michigan

To further be considered for these positions, Applicants should be able to demonstrate that they have:

  • Substantial education and experience working with Tribal, State and Federal law
  • Extensive knowledge in juvenile, criminal and child welfare proceedings
  • Knowledge and understanding of the history and traditions of the Sault Tribe

A letter of interest, resume, and application should be submitted to:

Sault Ste. Marie Chippewa Tribal Court Continue reading

Ed Gehres Dollar General Post-Argument Analysis

Here is “Argument analysis: Is tribal court civil jurisdiction over non-Indians truly a constitutional issue, or one of settled precedent?”

The best line (from a very good analysis):

The outcome of this case is tough to call after the argument. It looks to be a case that may be decided on a tight vote. But one thing is absolutely certain. Regardless of the outcome, sophisticated tribes and businesses will spend increasing amounts of energy at the bargaining table fashioning partnerships where consents to applicable law and forum are clear and express.