Federal Judge Rejects Ute Tribe’s Request for Injunction in Jurisdiction Fight with State

A federal judge on Monday rejected the Ute Indian Tribe’s “emergency” request for a preliminary injunction that would have blocked prosecutions of several tribal members charged in state court with offenses that allegedly occurred on tribal lands.

The tribe argued it faces “irreparable harm” if the state prosecutes them before U.S. District Judge Bruce Jenkins has a chance to rule on the merits of its jurisdictional dispute with Uintah and Duchesne counties. At issue is where exactly does tribal jurisdiction end and state jurisdiction begin in the “checkerboard” pattern of tribal trust lands in the Uinta Basin.

But the state has agreed to stay the criminal cases in question pending the outcome of this latest dispute, the judge found. The tribe was not satisfied and wanted assurances that the state would refrain from bringing new cases against its members.

“They are only willing to stay the existing cases. There are several thousand members. We don’t want this issue of the tribe’s boundaries litigated in state court without our knowledge. [When new cases are filed] they should be required to bring it to our attention,” argued the tribe’s lawyer Frances Bassett.

Article here.

In the judge’s frustration with the attorneys’ failure to agree on the issues to be resolved, he sequestered them in the jury room, giving them until 2:00 that day to “identify genuine issues” in the case. Here.

Yakama Settles Federal Suit with Counties and Out-of-State Jurisdictions over Unauthorized Raid on Tribal Lands

Here is the press release:


News coverage, where county attorney says “we’re sorry.”

Text from the Yakama press release:

The Confederated Tribes and Bands of the Yakama Nation have reached out-of-court settlements with Yakima County, Benton County, and local governments from Virginia and Mississippi, to resolve the Nation’s lawsuit against those governments for a February 16, 2011, dawn raid of Yakama Reservation trust lands.  Upon the first of two joint dismissal requests filed with the U.S. District Court, Judge Rosanna Peterson has already dismissed most of the claims between the parties.

“We are pleased and proud that governments from here in the Yakima Valley and Columbia River Basin, to as far away as the east coast, have all agreed to honor the Yakama Treaty of 1855,” said Yakama Nation Tribal Council Chairman Harry Smiskin.  “Each of them will seek our blessing before every again returning to Yakama lands.  They will also cooperate with our Tribal Police, Tribal Jail and Tribal Court to improve public safety on our reservation.”

Through Article II of the Yakama Treaty of 1855, the Yakama Reservation was set apart for the exclusive use and benefit of the Yakama Nation.  To that end, the Yakama Treaty makes clear that no “white man” shall be permitted to reside upon Yakama Indian Country without permission from the Yakama Nation.  The federal Treaty negotiators explained to the Yakama that Article II meant that no one would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent. 

In Article VIII of the Yakama Treaty, the United States and Yakama Nation set forth a process for delivering Yakama criminals or suspects who are in Yakama Indian Country to federal authorities.  Federal Treaty negotiators explained to the Yakama that Article VIII meant there would be a consultation process between the Head Chief or all of the Yakama Chiefs, and the United States relative to any Yakama alleged to have committed a wrong, before they might be delivered up to federal authorities.

In March 2011, the Yakama Nation sued federal law enforcement agencies and several local governments for violating these federal Treaty provisions when raiding a Yakama member-owned business on Yakama trust lands without providing any advance notice to Yakama authorities, and in turn barring Yakama Nation cops who arrived at the scene of the raid to help keep the peace. 

Since the spring of 2012, all of the parties to the litigation have engaged in a multi-track mediation process.  The Yakama Nation and Department of Justice defendants remain in settlement negotiations.

Suit materials are here, here, here, and here.


ICRA Habeas Challenge to Makah Banishment Order Dismissed

Here are the materials in Wilbur v. Makah Tribal Court (W.D. Wash.):

DCT Order Dismissing Wilbur Claims

Makah Motion to Dismiss

Wilbur Response

Makah Reply

ABA approves resolution to strengthen tribal jurisdiction

I heard from a listserv that the ABA has approved a resolution to strengthen tribal jurisdiction specifically over non-Indian perpetrators of domestic violence and that the resolution also urges that the reauthorization of VAWA include the tribal jurisdiction provisions.

While I was not able to find the text of the resolution on the ABA website, I did find this list of additional and late resolutions on the ABA site (see bottom of page): 2012_hod_annual_meeting_late_resolutions.authcheckdam

New Report on Anti-Indianism in the Skagit County, WA GOP

Here’s a new report from Borderlands Research and Education, based in Silverdale, WA: Anti-Indianism in Skagit County – 4-15-2012 Having practiced in Skagit County, it’s good to see this sort of sentiment, which I found to be fairly prevalent, brought to light. I mentioned the State Republican Party’s resolution requesting termination of tribal sovereignty, which this report addresses in considerable detail, in one of my articles. See 13 U. Pa. J. Const. L. 737 n.239 (2011).

Briefs in Yakama v. Holder

Here are the briefs relating to last week’s opinion posted here:

237 FILED – Memorandum in support of motion for TRO and PI

244 FILED – federal opposition to motion for tro

248 FILED – County Opposition to TRO

255 FILED – Reply in support of TRO (county)

256 FILED – Reply in support of TRO (fed)

Denial of TRO in Yakama Nation v. Holder


As the Court declines to enter a preliminary injunction on the grounds that unclear legal precedent preclude a finding of a likelihood of success on the merits and that public policy counsels against injunction, the Court does not reach the issues of irreparable harm and the balance of the equities. The Court notes, however, that this decision should not be seen as a comment on the ultimate merits of this case. Policies that counsel against the extraordinary remedy of a preliminary injunction may have no relevance to the ultimate questions of tribal and state sovereignty which are at issue in this case.

Additionally, the Court’s unwillingness to enter an injunction should not be construed as an invitation to the County to ignore the jurisdictional concerns raised by the Nation in the materials supporting this motion. It appears that the parties have the capacity to resolve many of their concerns by finding common ground through their shared interest in investigating and punishing crime. To that end, an agreement or memorandum of understanding respecting the jurisdictional authority of both parties could clarify what the County refers to as a “jurisdictional maze.”

Ann Tweedy on Unjustifiable Expectations

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.