tribal criminal jurisdiction

Opposition Letter to Title IX of VAWA Reauthorization from Federal Defenders (and Commentary)

Matthew L.M. Fletcher3 Comments

Here:

NACDL and NAFD VAWA Letter 4 23 12

I find it odd that there’s such a heavy reliance on the testimony from the 1960s in the years leading to the passage of the Indian Civil Rights Act in this letter. Barbara Creel’s work is much more formidable and persuasive, probably because it’s not such a direct assault on all tribal courts using such broad (and now largely inaccurate) generalizations. Later this week, I’ll be presenting a paper about the 1977-79 NAICJA study on tribal courts where David Getches pointed out the direct analogy between tribal and rural justices systems — that analogy is still present, with all its plusses and minuses. I am persuaded that that’s a much more direct analysis (see also here). Most tribal courts aren’t going to be like federal courts; neither are magistrates and JOPs in rural New York or Iowa or Arizona.

Tova Indritz’s efforts to criticize the Tribal Law and Order Act a few years back are in this hearing:

TLO House Judiciary Hearing (Dec 2009)

Informational Handouts on Tribal Govt. Provisions of VAWA Reauthorization

Matthew L.M. Fletcher

Here:

VAWA protections for suspects of abuse (04-17-12)

VAWA Combat DV Locally

Letter from Law Professors: “Constitutionality of Tribal Government Provisions in VAWA Reauthorization”

Matthew L.M. Fletcher1 Comment

Here:

VAWA Letter from Law Professors – Tribal Provisions

Francis, Leeds, Organick, and Jefferson Exum on Concurrent Criminal Jurisdiction in Kansas

Matthew L.M. Fletcher

John J. Francis, [Dean] Stacy L. Leeds, Aliza Organick, and Jelani Jefferson Exum have published “Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction in Kansas” in the University of Kansas Law Review.

 

DOJ Proposes Legislation to Combat Violence against Indian Women

Matthew L.M. Fletcher2 Comments

Here:

Justice Department Legislative Proposal on Violence Against Native Women

Saginaw Chippewa Briefs Struck in Reservation Boundary Case as Not Being Timely

Matthew L.M. Fletcher

Here is the order: DCT Order Striking Sag Chip Briefs

The remaining materials are here.

Cross-Motions for Summary Judgment in Saginaw Chippewa Reservation Boundaries Case

Matthew L.M. Fletcher

Here it comes — the case is captioned Saginaw Chippewa Indian Tribe v. Granholm (E.D. Mich.):

Federal Motion for Partial Summary Judgment

Michigan Motion for Partial Summary Judgment

Federal Response to State Motion for Summary Judgment

Michigan Response to Federal Motion for Summary Judgment

SCIT Response to Federal Motion

SCIT Response to State Motion

Federal Reply

Michigan Reply

Previous posts:

Materials on the Expert Witnesses

Materials on the “Rosebud Sioux” defenses

Materials on the laches defenses

Complaint

Idaho Federal Court Declines to Issue Order to Tribal Court in Criminal Case

Matthew L.M. Fletcher

In Chippewa v. Shoshone-Bannock Tribes Fort Hall Indian Reservation (D. Idaho), the court held that it has no jurisdiction to issue a writ of mandamus to a tribal court — Chippewa DCT Order

An excerpt:

Lara, Wheeler,  and Enas clearly illustrate that tribal courts and courts of the United States each have separate jurisdiction to prosecute offenses against their respective sovereigns. A federal court does not have jurisdiction over a tribal court prosecution. Furthermore, a tribal court is not an inferior court to the federal court. Therefore, the Court cannot issue a writ of mandamus directing the Tribal Court to either act on Chippewa’s motions or run three Tribal sentences concurrently with the now expired federal sentence.

Although the Court has not located any cases specifically holding that a federal court cannot issue a writ of mandamus to a Tribal Court, it is clear by analogy to cases addressing the issue in the context of state courts that it cannot. See, e.g., Craigo v. Hey, 624 F.Supp. 414, 416 (S.D.W.Va. 1985) (declining to issue a writ of mandamus finding that the Court had no original jurisdiction over a matter filed in state court and because it did not sit “as an appellate or supervisory tribunal” for the state court). See also Harris v. Department of Corrections, 426 F.Supp. 350 (D.C.Okl. 1977) (same; federal district courts do not sit to review actions taken in state court and do not have jurisdiction to compel a state or its officers to perform any duty owned to a plaintiff under state law). Accordingly, Chippewa’s Petition shall be dismissed.

Talk at Columbia Law School re: DV in Indian Country

Matthew L.M. Fletcher

I’ll be presenting my paper “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty” at Columbia Law School today, on the gracious invitation of the Columbia NALSA and Domestic Violence Project.

Sarah Deer on Decolonizing Rape Law

Matthew L.M. Fletcher1 Comment

Sarah Deer has published her excellent paper “Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty” in the Wicaso Sa Review. (Deer Decolonizing Rape Law)

Here is an excerpt:

The question I raise is–should the tribal government itself respond to such crimes? If yes, how–and what might a Native feminist analysis have to offer in addressing this crisis?

Many people will argue that such crimes are too serious to be handled by contemporary tribal justice systems. (3) Given the numerous legal and financial limitations faced by tribal court systems, they might say, tribal governments must simply rely on the federal (or state) system to prosecute and sentence such rapists. However, this over-reliance on foreign governmental systems has often been to the detriment of Native women. Today, Native women suffer the highest per capita rates of sexual violence in the United States. (4) Conservative estimates suggest that more than one of three Native women in America will be raped during their lifetime. (5) Rape was once extremely rare in tribal communities. (6) Arguably, the imposition of colonial systems of power and control has resulted in Native women being the most victimized group of people in the United States.7 Moreover, statistics indicate that most perpetrators of rape against Native women are white. (8) As a result of a 1978 U.S. Supreme Court decision, tribal governments have been denied their authority to criminally prosecute non-Indian perpetrators.