Briefs on PI and TRO in Glacier County Regional Port Authority v. Esau, et al.

Port Authority’s Motion for a Preliminary Injunction and TRO:

On February 10, the Blackfeet Nation filed a Response in Support of the Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order:

Brief in Response:

The Blackfeet Nation intervened in the case, arguing that the State of Montana does not have the authority to enforce state law on the Reservation.

Blackfeet Nation granted intervention in Glacier County Regional Port Authority v. Laurie Esau

This case is about whether the Montana Human Rights Bureau can enforce state law on Blackfeet Nation land. Here is the brief in support of the motion to intervene.

And here is the order granting intervention.

More on the case here.

Noojimo’iwewin: A VAWA and ICWA Training



Join this free training

August 1-2, 2019

at the Bay Mills Resort & Casino in Brimley, MI

A multi-disciplinary training geared toward child welfare and domestic violence advocates to implement effective service and advocacy strategies in cases involving child welfare, domestic violence, or both.

Register here and check out the Facebook event page.

Featured trainers include Hon. Jocelyn Fabry, Chief Judge, Sault Ste. Marie Tribe of Chippewa Indians; Rachel Carr, Executive Director, Uniting Three Fires Against Violence; Hon. Ron Whitener, Chief Judge, The Tulalip Tribes; Kate Fort, Director, Indian Law Clinic, Michigan State University Law, Indigenous Law Program; Lenny Hayes, Executive Director, Tate Topa Consulting, LLC and more. For a complete list of trainers visit the event page.

Brought to you by Bay Mills Indian Community and the OJS Tribal Justice Support.

Noojimo’iwewin – healing others, healing of the heart and mind as well as illness.

Complaint in Pawnee Nation lawsuit for Earthquake Damage caused by Wastewater Injection

Here is the complaint filed in the Pawnee Nation Tribal Court in Pawnee Nation of Oklahoma v. Eagle Road Oil LLC, et al.

On Friday, March 3, the Pawnee Nation sued 27 companies that operate wastewater disposal wells used in fracking operations in and near Pawnee, Oklahoma.  The complaint alleges that the actions of the defendants have contributed to earthquakes and resulting damage to the Pawnee Nation of Oklahoma, and it includes claims based on strict liability, negligence, private nuisance, and trespass. The Tribe seeks compensatory and punitive damages.

Pawnee Nation sues several oil and gas companies in Tribal Court for quake damage

We noted last November that the Pawnee Nation sued the Dept. of Interior in federal district court to challenge the approval of federal oil and gas leases on tribal lands here.

Today, several news agencies here, here, and here report that the Pawnee Nation has sued 27 oil and gas companies in the Pawnee Nation Tribal Court for damage caused by earthquakes.  Earthquakes have been associated with wastewater injection practices used in conjunction with hydraulic frackingLast September, the Pawnee Nation suffered damage to historic buildings due to a 5.6 magnitude earthquake.

We’ll post a copy of the complaint as soon as it becomes available.


North Dakota SCT Issues Ruling on Tribal Jurisdiction

Here is the opinion in Fredericks v. Fredericks. An excerpt:

Lyndon Fredericks appeals, and Bole Resources, LLC, and others (“Bole defendants”) cross-appeal from a judgment declaring the district court had subject-matter jurisdiction over the action, reforming a quit claim mineral deed, quieting title in the mineral interests in Paul Fredericks, and ordering Lyndon Fredericks to pay the Bole defendants damages plus interest and their attorney fees. Because we conclude the district court correctly ruled it had subject-matter jurisdiction, its findings of fact are not clearly erroneous, and it did not abuse its discretion, we affirm.

Briefs here:

Appellant Brief

Appellee Brief

Appellee Brief

Reply Brief

Cross Deputization for Pokagon Band of Potawatomi and County Officers

Link to South Bend Tribune article here.


In the meantime, the deal will allow tribal police officers to enforce Indiana laws in St. Joseph County, including on the 1700 acres of Pokagon land near North Liberty and the 166 acres between Prairie Avenue, Locust Road and the St. Joseph Valley Parkway.

“With the Pokagon Band restoring the tribal village here in South Bend, we thought it was our duty to work with St. Joseph County to enhance public safety in this area,” said tribal Chairman John Warren.

Three Tribes Approved for VAWA Jurisdictional Pilot Project

Press release here (pdf) and here.

Details here.

WASHINGTON – Three American Indian tribes – the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon – will be the first in the nation to exercise special criminal jurisdiction over certain crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under a pilot project authorized by the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).

Tribal Police Jurisdiction Decision from NY

People v. Herne

It could be a bad law school exam–a tribal member is arrested by tribal police on land currently subject to an ongoing land claim and the state court finds no jurisdiction. Solve for X.

(X being the New York state statute the court incorrectly claims established the St. Regis police force. Which the court holds gives the tribal police jurisdiction only ON the reservation, not in the Triangle.)

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

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.