AP Story in the Seattle Times
State of Washington Legislature Considers Retrocession Bill
AP Story in the Seattle Times
tribal jurisdiction
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.
Alaska Court Reaffirms Tribe’s Inherent Jurisdiction Over Child Support Orders
The first part of the article from SitNews:
The Superior Court for the State of Alaska, First Judicial District at Juneau, issued a decision with significant implications for tribal courts throughout Alaska in Central Council of Tlingit and Haida Indian Tribes of Alaska v. State of Alaska Child Support Services Division. The Court’s order on October 25, 2011, reaffirms the Tribe’s inherent jurisdiction to handle the full range of family law issues affecting its citizens, including the particular issue of child support for the benefit of tribal children.
The Tlingit and Haida Indian Tribes of Alaska’s Press Release can be found here.
The order can be found here.
ILPC Cross Deputization Occasional Paper
We’ve posted a new Occasional Paper on our Occasional Paper website. The paper, Criminal Jurisdiction in Indian Country: The Solution of Cross Deputization, was primarily written by second and third year law students in our Indigenous Law and Policy Center class. They researched and analyzed both issues of criminal jurisdiction and cross deputization agreements with a focus on Michigan and Michigan tribes.
MacArthur v. San Juan County Coda
A memorandum acknowledging all of the issues federal courts have created regarding tribal jurisdiction on tribal lands, and tribal jurisdiction over non-members. However, in the court’s opinion, the judge demonstrates the fundamental problem with arguing for tribal jurisdiction over non-members in federal courts at this point:
As this court previously explained, at least where tribal authority over non-Indians is concerned, the Supreme Court discarded the elegant simplicity of Cohen’s analysis in favor of an amorphous legal standard that finds its source not in treaty or statute, but in abstract notions of intergovernmental dependency and subservience.
. . .
That plaintiffs counsel fundamentally disagrees with the Supreme Court’s reading of the pertinent treaties and statutes does not deprive the Court’s case law of its binding precedential effect upon the lower federal courts, including the Tenth Circuit and this court. Nor may we overrule or simply ignore what the Supreme Court has said.
. . .
The plaintiffs may well dispute the rule and reasoning of the Supreme Court’s “pathmarking case, Montana v. United States, 450 U.S. 544, 564-65, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981),” and the later cases that follow Montana, such as Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), and most recently, Plains Commerce Bank. 7 A number of scholars have penned incisive critiques of the Court’s implied diminishment of tribal civil and criminal jurisdiction over non-Indians. 8 In this case, plaintiffs’ counsel has made a credible showing that members of Congress and the Supreme Court may not be on the same page as far as the role and powers of Indian tribal courts are concerned, 9 and counsel appears entirely correct in asserting that “nothing Congress or the Executive have done [has] limited Navajo Court authority over anyone, Indian or non-Indian, [*32] for injurious acts occurring within the Navajo Nation[‘s] exterior borders.” (Pltfs’ Obj. at 22.) Nor have the plaintiffs strayed far afield in arguing the importance of giving effect to Navajo tort law as a vital aspect of tribal self-government. See, e.g., Smith v. Salish Kootenai College, 434 F.3d 1127, 1140 (9th Cir. 2006) (en banc) (“The Tribes’ system of tort is an important means by which the Tribes regulate the domestic and commercial relations of its members.”). And an argument may well be made that whatever its merits in its own context, Montana‘s rule and reasoning should find no application at all to the differing historical and legal context of the Navajo Nation and its reservation. 10
But [emphasis added] having made the strategic choice to pursue enforcement of the Navajo court orders in federal court before the tribal court proceedings had been fully concluded, plaintiffs Singer, Riggs and Dickson raised the “federal question” of the extent of tribal jurisdiction over the non-Indian defendants in a federal forum, short-circuiting the usual exhaustion of Navajo tribal remedies, including review by the Navajo Supreme Court. 11 Having been raised in this forum, the jurisdictional question was ultimately decided by the court of appeals, with an outcome that was adverse to the plaintiffs.
The rest of our MacArthur v. San Juan County materials can be found here. The opinion here indicates some of the frustration on both sides regarding the Supreme Court’s recent legacy of federal Indian law cases. MacArthur v. San Juan County, U.S. District Court
Legal Times Coverage of the Plains Commerce Bank Argument
From the Legal Times (H/T Indianz):
The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction — across the Atlantic to southern Europe.
The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs.
Patrice Kunesh on ICWA: “Borders Beyond Borders”
Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.
Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”
Abstract:
2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.
This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.
Turtle Talk 