tribal courts

Drug Testing in Indian Country

Matthew L.M. Fletcher

As a former in-house attorney for four different tribes, I’ve seen several proposals to require tribal employees to be subject to random drug testing. I’ve always been against the idea because, in my experience, it creates an adversarial employment relationship. I even wrote one of my first articles about this question, “The Drug War Against Tribal Government Employees: Adopting the Ways of the Conqueror,” published in the Columbia Human Rights Law Review.

Part of my objection to drug testing tribal government employees is that there is no justification for testing employees — unless the government finds a serious problem of substance abuse amongst employees. And in the tribal governments I worked with, I saw nothing of the sort. If anything, the people working for tribal government were the cleanest, soberest, hardest-working people in the community. They would have to be or else they’d be replaced by someone better. My sensitivity favoring tribal employees is heightened by the fact that many tribal people not employed by the government tend to criticize (often unreasonably) tribal employees. Tribal council people know this — and to curry favor with their constituents, all too often join in the chorus. Drug testing proposals are often nothing more than political scheming. Politics does not justify intrusion into employee privacy.

Another part of my objection, not really stated in my article, is that the tribal government leaders that pushed so hard for drug testing never voted to apply it to themselves. This isn’t always the case, but it sometimes is.

I’ve not absolutist about this — if there is an established problem with employee substance abuse, then I see a justification for drug testing. I don’t like it, but since so many tribal communities are afflicted with substance abuse, if it is apparent that tribal employees are as well, then I see the argument. But like I said above, I doubt this is ever the situation.

To be fair to tribes that do drug test, there is a possibility that federal funds come with the requirement that employees be drug tested, but I think there’s a strong argument (and some authority) that those provisions are not meant to be applied to tribal governments. Moreover, I’m not aware of the government shutting down a federally-funded tribal government service because there was no drug testing of tribal employees. [Let me know if there has been.] That would be the equivalent, in my view, of the US eliminating the trust responsibility over drug testing, an outcome I doubt any federal court would agree with.

So I’m confounded a little by the news item (H/T Indianz) that the Oglala Sioux tribal council is bickering over drug testing for tribal council members. Like many tribes, OST already (apparently) subjects its employees to drug testing. And now that one of the council members has been indicted on a federal drug charge, the council is finally going to drug test its own. Several (as many as six) council members refuse to take the test.

I’ve been waiting since I wrote my article and before for a thoroughly reasoned tribal court decision tackling this subject. Maybe this could be it….

Patrice Kunesh on ICWA: “Borders Beyond Borders”

Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.

WSJ Article on Civil Suits in Tribal Courts

Matthew L.M. Fletcher1 Comment

At this link is an article about a lawsuit filed against the Desert Diamond Casino in Tucson, Arizona. The non-Indian plaintiffs originally sued in state court, but the Tohono O’odham Nation hadn’t waived its immunity for state court cases — but it had in tribal court. The tribal court case is ongoing.

As is typical for recent national news reports featuring Indian Country, the article is overwhelmingly unfavorable to Indian Country — and deeply unfair, if not wholly biased. This is unfortunate. In large part, the WSJ’s reporting is excellent (it’s editorial page is what I usually find myself shuddering over). [Thanks to Trent Crable for pointing the article out to me.]

Here are some excerpts and my responses:

But when Mr. Filer went to sue the casino in state court in Tucson, he quickly learned that the textbook on civil litigation doesn’t apply on tribal land, or to tribal entities. Under federal law, tribes are considered sovereign nations and are immune from most lawsuits. The Desert Diamond Casino where the driver, Douglas Levitski, got drunk, is on the San Miguel Reservation of the Tohono O’odham nation.

So even though the accident itself involved no tribal members and took place off the reservation, Mr. Filer’s state civil suit seeking $2 million in damages from the tribal-owned casino was rejected. Arizona’s appeals court upheld the decision. “This conclusion, we hasten to add, may be unsatisfactory to some and arguably divorced from the realities of the modern world,” wrote Judge John Pelander in the opinion.

Sovereign immunity shouldn’t be such a surprise to anyone — especially a lawyer working out of Tucson, Arizona who’s failure to seek tribal remedies in the first instance borders on malpractice, in my view. Both the States and the Federal Government have been dodging suits from individuals and entities (including Indian tribes) for the entire history of American law — the first Amendment to the Constitution codified state sovereign immunity, for example. Some states never waived immunity for well over 150 years. And keep in mind, as the article writer admits later, the T.O. Nation waived its immunity in tribal court. Not only is there a waiver here, but there is a fundamental flaw in the writer’s logic. Why would the State of Arizona, for example, agree to be sued in New Mexico or California courts? Or why would the US agree to be sued in Canada?

 Mr. Filer moved his claim to tribal court and is waiting for a hearing. But he and his lawyer are nervous about the outcome, even though their case appears to be strong.

 I’m no tort lawyer, but I’m suspicious. It is extremely difficult to prove as a matter of fact that the dramshop owner was liable under state law. And I am all but certain that the business people operating the Desert Diamond Casino would be more forthcoming with a settlement if the case really was “strong.” And doesn’t the WSJ’s editors usually complain about the explosion of tort claims in state courts? Ironic.

 More than a century’s worth of conflicting federal laws and judicial precedents have left the tribal legal system in tatters. Tribal authorities pursuing criminal cases face tough restrictions, have little say in meting out sentences and have virtually no authority in prosecuting non-Indians who commit crimes on reservations.

I don’t see the relevance of the Supreme Court ruling eliminating tribal criminal jurisdiction over non-Indians whatsoever. This is a civil case. The notion that tribal courts are in “tatters” because they don’t have criminal jurisdiction over some people is a classic non sequitur. Finally, this is a broad generalization that doesn’t stand up to reality. I doubt the T.O. tribal courts are in tatters. And there are stories cropping in places like Mashantucket Pequot where non-Indians and their lawyers would rather sue each other  over non-tribal matters in tribal courts — because they’re faster and more efficient.

Of the nation’s 560 federally recognized tribes, only 275 have court systems. If the case can even be heard, tribes often sharply limit potential damages. And tribes often have close links to businesses that might be sued — especially casinos. Such connections would be considered a conflict of interest in a regular U.S. court.

“You try the case in front of a judge who is picked by the tribe,” says Stephen Embry, a Connecticut Attorney and past president of the Workers Injury and Law Advocacy Group. “What you normally would like to have is a judge who is not being paid by the guy you’re suing,” he says. Federal and state judges who hear cases against the government are also government employees, but the conflicts tend to be less glaring than in the small tribal communities.

There is some weight to this argument, but again it depends heavily on broad generalizations. Is there a conflict at T.O.? We don’t know from this article. Most, if not all, tribes and tribal courts have conflict of interest rules. And there’s no comparison to “regular U.S. court[s]” — just see Cheney v. District Court and Justice Scalia’s incredibly arrogant refusal to recuse himself after going duck hunting with the Veep. Or check out Toobin and Greenberg’s recent books on the Supreme Court, how close-knit the people are who decide who becomes a Supreme Court Justice, argues Supreme Court cases, and then eventually become S. Ct. Justices and federal judges.

Grand Traverse Band Tribal Common Law

Matthew L.M. Fletcher

The Tribal Law Journal has posted this attempt to summarize the common law decisions of the Grand Traverse Band tribal courts. Miigwetch to Zeke Fletcher for writing the introduction. And to Zeke and John Petoskey for offering comments and guidance on the article.