tribal courts

Fletcher: “A Unifying Theory of Tribal Civil Jurisdiction”

Matthew L.M. Fletcher

Please see “A Unifying Theory of Tribal Civil Jurisdiction” on SSRN. Here is the abstract:

This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.

I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.

Substantive comments welcome.

Fletcher Paper on “Tribal Justice Systems”

Matthew L.M. Fletcher

I drafted a paper titled “Tribal Justice Systems” for the Allegheny College Undergraduate Conference “Democracy Realized? The Legacies of the Civil Rights Movement” and posted it on SSRN. You can download here.

Here is the abstract:

This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).

United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.

This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.

The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.

In case one wonders, “Representing Justice” by Judith Resnik and Dennis Curtis influenced the paper.

 

Illinois Law Review Student Note on Uncounseled Tribal Court Convictions and ICRA

Matthew L.M. Fletcher

The University of Illinois law Review has published “Uncounseled Tribal Court Convictions: The Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act.”

Here is the abstract:

Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration of more than one year. State and federal courts require the opportunity of representation for all defendants in criminal proceedings. This discrepancy between the rights afforded in tribal courts and in state and federal courts lead to unique legal issues for Native American defendants indicted in federal court after being convicted without counsel in a tribal court.
Native Americans prosecuted under federal re-peat-offender statues could be exposed to harsher penalties based on prior uncounseled tribal con-victions. Thus, even if a Native American lacked representation in tribal court, those convictions might be used as predicate offenses for the purposes of federal repeat-offender laws. Different approaches to this issue are presented from the Eighth, Ninth, and Tenth Circuits. This Note ad-dresses the reasoning of each Circuit and offers a Recommendation that balances tribal sovereignty concerns, Sixth Amendment ramifications, and justice implications for both victims and defendants in the tribal court system.

Fletcher on the Michigan v. Bay Mills Case

Matthew L.M. Fletcher2 Comments

Here is (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community (PDF), published in the Yale Law Journal Online.

The abstract:

Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately, the Court could hand Bay Mills a victory by affirming the tribe’s immunity, effectively precluding judicial review of the tribe’s casino project. In this Essay, Professor Matthew L.M. Fletcher argues that neither choice is preferable to a third option that would both advance tribal self-determination and hold tribes accountable to outsiders. The Court could condition tribal immunity in federal or state court on whether the tribe has solved the no-forum problem by providing a tribal forum for the resolution of important disputes.

Legal Services Corp. Proposed Rule on Restrictions on Criminal Representation

Matthew L.M. Fletcher

Here. Comment period expires Dec. 4, 2013.

The summary:

This proposed rule updates the Legal Services Corporation (LSC 
or Corporation) regulation on legal assistance with respect to criminal 
proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the 
LSC Act to authorize LSC funds to be used for representation of persons 
charged with criminal offenses in tribal courts. This proposed rule 
will bring the regulations into alignment with the amended LSC Act. The 
proposed rule will also revise the conditions under which LSC 
recipients can accept or decline tribal court appointments to represent 
defendants in criminal proceedings.

Oklahoma SCT Overrules Bittle v. Bahe

Matthew L.M. Fletcher2 Comments

Here is the opinion in Sheffer v. Buffalo Run Casino.

From the court’s syllabus:

Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when their 18-wheeler tractor trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Plaintiffs sued Carolina Forge on theories of respondeat superior and negligent entrustment. They also sued the Buffalo Run Casino, the Peoria Tribe of Indians of Oklahoma, and PTE, Inc. for dram-shop liability. The trial court granted summary judgment in favor of Carolina Forge, finding as a matter of law Carolina Forge was not liable for its employees’ actions under a theory of respondeat superior and did not negligently entrust the rental vehicle to its employees. The trial court also dismissed, sua sponte, the Buffalo Run Casino, PTE, Inc., and the Peoria Tribe of Indians of Oklahoma, determining that injunctions issued by the Honorable Lee R. West in the Western District of Oklahoma in Case No. 10-CV-00050-W and Case No. 10-CV-01339-W, prohibited suit for any tort claims against a tribe or a tribal entity. Plaintiffs appealed both orders, and we retained the appeals. In Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544, we reversed the trial court’s grant of summary judgment to Carolina Forge and found issues of material fact precluded summary judgment on both the respondeat superior and negligent entrustment claims. In the present case, we find the Peoria Tribe is immune from suit in state court for compact-based tort claims because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. We also hold that because Congress has not expressly abrogated tribal immunity from private, state court dram-shop claims and because the Peoria Tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from dram-shop liability in state court. The trial court’s dismissal of the Peoria Tribe and its entities is affirmed.

 

Alex Pearl on Maximizing Welfare and Efficiency Through Informal Norms in Indian Law

Matthew L.M. Fletcher

M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.

Here is the abstract:

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.

This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.

White House Blog Post on VAWA 2013 and Indian Health

Matthew L.M. Fletcher

Here.

An excerpt:

Because of the successful 2013 Reauthorization of the Violence Against Women Act, which President Obama signed into law on March 7, 2013, tribal courts and law enforcement will soon be able to exercise the sovereign power to investigate, prosecute, convict, and sentence those who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, regardless of the defendant’s Indian or non-Indian status. The tribal provisions of this landmark legislation were originally proposed by the Department of Justice in 2011 to address alarming rates of violence against native women.  We believe today, as we did then, that this is not only constitutionally sound law, but it is also a moral prerogative and an essential tool to ensure that non-Indian men who assault Indian women are held accountable for their crimes.

New Paper on the Availability of Tribal Law

Matthew L.M. Fletcher1 Comment

Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:

This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.

Commentaries by Fletcher and Richotte on Proposed White Earth Constitution

Matthew L.M. Fletcher

Available in Anishinaabeg Today, the White Earth Band tribal newspaper. Check out page 2 for the commentaries.