Fletcher on Tribal Customary Law and an Indigenous Canon of Construction

Check out “The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” on SSRN.


This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.

New Scholarship on Federal Restrictions on Tribal Customary Law

Concetta Tsosie de Haro has posted “Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts.” The paper was published in the Tribal Law Journal.

Here is the abstract:

This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.

NAICJA Final Panel, Incorporating Peacemaking Into State Courts

Peacemaking Panel

Judge Michael Petoskey, Judge Tim Connors, Judge Lorintha Umtuch

Sharing information on the formation of and experiences with the Washtenaw County Peacemaking Court.

Puyallup Prevails over IRS in Dispute over Levy Notice Seeking Per Capital Payments

Here are the materials in United States v. Puyallup Tribe of Indians (W.D. Wash.):

20 US Cross Motion for Summary J

21 Puyallup Cross Motion for Summary J

22 US Response

23 Puyallup Response

24 DCT Order Granting Tribe’s Motion

An excerpt:

The Government contends that, based on custom and practice, the per capita payments were fixed and determinable. The Government admits that “this is a matter of first impression” (Dkt. 22 at 16), and the Court declines to adopt the Government’s proposition that the rule that levies may attach to discretionary, yet customary payments. Just like there is no guarantee that a subsequent deposit will be made to a levied bank account, there is no guarantee that Turnipseed will receive another per capita payment. While the Tribe strives to provide for its members, it still makes a discretionary monthly decision whether it shall do so. Moreover, the fact that a payment is likely is the same as classifying a sale of personal property as likely. But, according to the regulations, a levy cannot attach until the individual has actually sold the item. Therefore, the Court concludes that the levies in question did not attach to Turnipseed’s per capita payments.

HCN Trial Court Asserts Jurisdiction over Contract Breach Claim with Non-Indian Company

Very interesting case, captioned Ho-Chunk Nation v. Money Centers of America, Inc.

An excerpt:

The Court has jurisdiction over the plaintiff‟s breach of contract claim as it arises under the customs and traditions of the Ho-Chunk Nation.  The HCN Trial Court first dealt with contract claims in Ho-Chunk Nation v. Ross Olsen, CV 99-81 (HCN Tr. Ct., Sept. 18, 2000).  This case involved a dispute over a “Purchase Agreement” for cigarettes.   Id. at 1.  The Court determined that “neither the HCN CONSTITUTION, nor the laws, statutes, codes, or ordinances of the Ho-Chunk Nation addressed the rights and responsibilities concomitant with the formation of a contract.”  Id. at 13.  Former Chief Trial Court Judge Mark Butterfield consulted the Ho-Chunk Nation Traditional Court as to whether Ho-Chunk “custom and tradition recognized agreements analogous to the modern day „contract.‟”

The Traditional Court held that “in the tradition and custom of the Ho-Chunk Nation, agreements between parties for the exchange of goods or services were recognized as binding.”  Id.  Therefore, the Court has subject matter jurisdiction over contract claims as they arise from custom and tradition.  The HCN Supreme Court has upheld and adopted this precedent, using the contract in question as the operative law for the Trial Court to apply.  See e.g., Marx Advertising Agency, Inc., v. Ho-Chunk Nation, SU 04-07 (HCN S. Ct., Apr. 29, 2005) (affirming the Trial Court‟s interpretation of a contract between the Ho-Chunk Nation and its advertising agency, Marx Advertising Agency, Inc.).

Federal Court Reverses IBIA in Tribal Customary Marriage Case

Very interesting recognition of tribal customary law.

The case is Senator v. United States (E.D. Wash.), and arose on the Yakama Indian Nation. Here are the materials:

Senator Motion for Summary Judgment

DOI Cross Motion for Summary J

Senator Reply Brief

Senator v US DCT Order

Ezra Rosser on Tribal Customary Law

Ezra Rosser has posted “Customary Law: The Way Things Were, Codified” on SSRN. The Tribal Law Journal published the paper. Here is the abstract:

Frequently referred to as “customary law,” the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe’s judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place it has in relation to other sources of law from tribal statutes to state common-law. Furthermore, the differing treatment afforded customary law by separate tribal court systems in many ways is a reflection of the degrees of proof required by different courts to establish what is or is not a tribal custom.

Fletcher on “Laughing Whitefish” and Tribal Customary Law

Matthew Fletcher posted “Laughing Whitefish: A Tale of Justice and Anishinaabe Custom” on SSRN. Here is the abstract:

Laughing Whitefish, a novel by Robert Traver, the pen name of former Michigan Supreme Court Justice John Voelker, is the fictionalized story of a case that reached the Michigan Supreme Court three times, culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). The petitioner, Charlotte Kobogum, an Ojibwe Indian from the Upper Peninsula of Michigan, brought suit to recover under a note issued to her father, Marji Gesick, by the mining company in the 1840s. The company had promised a share in the company because he had led them to one of the largest iron ore deposits in the country, the famed Jackson Mine. Despite the company’s defense that Mr. Gesick was a polygamist and therefore Ms. Kobogum could not be his legitimate heir, the Michigan Supreme Court held that state courts had no right to interfere with internal, domestic relations of reservation Indians, and upheld the claim. Justice Voelker’s tale is a powerful defense of the decision, and offers insights into why state courts should recognize the judgments of tribal courts even today.

book cover of   Laughing Whitefish   by  Robert Traver