tribal law

New Scholarship on Tribal Customs and Land Use

Matthew L.M. Fletcher

John C. Hoelle has published his interesting paper, “Re-Evaluating Tribal Customs of Land Use Rights,” in the University of Colorado Law Review, available on SSRN.

Here is the abstract:

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure – the use right – and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo-American system of unqualified, absolute ownership in land. The Comment also argues that tribal customs of land use rights may help preserve Indian cultural identity by cultivating core, non-economic values of tribal peoples. The Comment concludes by addressing some of the challenges tribes will likely face in attempting to more broadly rely on their customs of land use rights in the new millennium, while also remarking on some current and important opportunities for the re-integration of tribal customs in tribal land law.

Opposition to the Anti-Sharia Law Movement

Matthew L.M. Fletcher

Here is the ICT article.

And resolutions from the National Native American Bar Association and the Coalition of Bar Associations of Color:

NNABA Resolution 2011-4

CBAC_2011_Resolution on the Law of International Law or the L

Broadman on Tribal Libel Laws

Matthew L.M. Fletcher

From ICT:

People slander each other everywhere—without regard for territorial boundaries. But the legal treatment of such speech differs drastically depending on whether tribal or non-tribal laws apply. Tribal courts sometimes treat reputational torts like slander and libel, structurally, like their non-tribal counterparts, generally requiring proof of fault, falsity and harm. For instance, in many ways the Little River Band of Ottawa Indians defamation statute mirrors the standards of proof and structure of non-tribal defamation. (“Protection Against Defamation Act of 2006,” PDF) On the other hand, at least one tribal court has recognized a traditional cause of action for defamation under tribal law, complete with novel privileges and standards. As media interests increasingly collide with tribal governmental and commercial interests, tribal laws on expression will be tested. The results, as shown in a recent case from the Ho-Chunk Nation courts, will test the ongoing viability of defamation law in Indian country.

Libel and slander are curious species of lawsuits since they involve a person writing or speaking his mind. In non-tribal courts, plaintiffs who are public figures face a high burden of proof. But because U.S. Constitutional standards are not imported into tribal defamation law, speech laws take on very different shapes in Indian country. In 2008, an ordinance passed and quickly rescinded by the Tribal Business Counsel of the Chippewa Cree of Rocky Boy’s Reservation in Montana made it a crime to defame a tribal official. And last month, a Ho-Chunk Nation Trial Court applied a tribal military veteran’s privilege that, as it is recognized, existed nowhere besides Ho-Chunk.

In a careful treatment of tribal-specific defamation law, the Ho-Chunk Trial Court recently held inGardner v. Littlejohn that a “veteran privilege” existed, protecting certain defamation defendants from liability (see the opinion at the invaluable Turtle Talk—“Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions”—edited by the Indigenous Law and Policy Center at Michigan State University College of Law). The court noted that although it “does not exist in any other jurisdiction,” the Ho-Chunk veteran privilege resembles that possessed by legislators, which shields certain legislative speech.

The suit stemmed from an Indian military veteran’s criticism of a tribal health department employee and an incorrect statement that the plaintiff had been terminated from employment. Typically, public officials suing their defamers must prove knowing or reckless falsehood. InGardner, had such a rule been applied and had defendants simply negligently defamed the plaintiff, no liability would exist.

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Student Comment in Colorado Law Review re: Tribal Law and Land Use

Matthew L.M. Fletcher

John C. Hoelle has published “Re-Evaluating Tribal Customs of Land Use Rights” in the University of Colorado Law Review.

Here is the abstract:

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today.  Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context?  This Comment examines one traditional form of indigenous land tenure—the use right—and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs.  The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo-American system of unqualified, absolute ownership in land.  The Comment also argues that tribal customs of land use rights may help preserve Indian cultural identity by cultivating core, non-economic values of tribal peoples.  The Comment concludes by addressing some of the challenges tribes will likely face in attempting to more broadly rely on their customs of land use rights in the new millennium, while also remarking on some current and important opportunities for the re-integration of tribal customs in tribal land law.

If we get a pdf, we’ll post the paper too.

Navajo Council to Repeal Dine Fundamental Law?!?!

Matthew L.M. Fletcher

From the Navajo-Hopi Observer:

WINDOW ROCK, Ariz. – Last Thursday, the 21st Navajo Nation Council tabled a measure that would have repealed the Diné Fundamental Laws – a codified set of laws based on centuries-old Navajo traditional values and customs. The measure was tabled until the fall session with a vote of 48-21.

Council Delegate Raymond Joe (Tachee/Blue Gap/Whippoorwill) introduced the measure during the final day of the council’s summer session. He and others cited that these laws, which are primarily meant to govern the upbringing of Navajo youth and promote balance and harmony among Navajo people, are being abused and misinterpreted by Navajo lawmakers in order to promote their own political agendas.

The laws, codified in 2002, provide no guidance on how they should be used or applied.

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Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law

Matthew L.M. Fletcher

Ann Tweedy has posted the abstract of her fine paper “Conceptions of Sex-Based Equal Protection under Tribal Law: Broad-Based Prohibitions Against Discrimination, Context-Specific Protections, and Sex-Based Distinctions” on SSRN. Here is the abstract:

This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington’s 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

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Huron Nottawaseppi Gaming News — Profile of Laura Spurr

Matthew L.M. Fletcher

From the Western Michigan Business Review:

The Nottawaseppi Huron Band of the Potawatomi is planning to open its FireKeepers Casino east of Battle Creek next summer.

The process of getting the land into federal trust took years, and Laura Spurr was the calm public voice of the tribe throughout. She represented the tribe with a killer sense of humor and an encyclopedic command of data.

And she can’t be bullied.

What does a tribal chairman do?

“It’s kind of similar to city or township government. We have a five-member council, all elected by the tribe, then the council selects the chairman.

“Not all tribes do it that way. Some elect the chairman directly.”

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Saginaw Chippewa Repeals Union Ban

Matthew L.M. Fletcher

From the Morning Sun (H/T Sharon):

The Saginaw Chippewa Tribe has repealed the law that essentially outlawed unions among Tribal employees.

“The Tribal Council took this step because it found that it was in the best interests of the Tribe to withdraw its ordinance to accommodate other important interests and relationships,” according to a statement issued by the Tribal Council. “It also makes no sense to engage in expensive litigation over the ordinance when our employees have shown no interest in a union.”

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Coquille Tribe Recognizes Same Sex Marriages

Matthew L.M. Fletcher1 Comment

From OPB News (H/T Falmouth):

This May the Coquille Tribe on Oregon’s Southern Coast adopted a policy recognizing same-sex marriages.

It’s believed to be the first tribe in the country to do so.  As Andrew Theen reports, one tribal member and her partner plan to be legally married in Oregon next spring.

Kitzen and Jeni Branting have been together for over a decade.   They are domestic partners in the state of Washington where they live, and Jeni already changed her last name to Branting.

Since May Jeni has already been recognized as a tribal spouse.  She is eligible for the tribe’s healthcare benefits.

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Christine Zuni Cruz on Indigenous Law Scholarship and the Tribal Law Journal

Matthew L.M. Fletcher

Christine Zuni Cruz, EIC of the Tribal Law Journal, has published “Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country” in the Washburn Law Journal.

Here is an excerpt from the introduction:

This essay comments on the multi-layered experience of establishing an electronic law journal for the serious, scholarly treatment of the Indigenous (Chthonic) Legal Tradition and the law “of” Indigenous Peoples, as opposed to the nation-state law “concerning,” “about,” or “for” Indian tribes. It addresses the challenges to both the enterprise of seeking to write and publish about an oral legal tradition and its emerging modern, and written, offshoot in an electronic format, and of doing so in an academic and technological setting that contradicts and opposes the enterprise. It lays out the thought, the vision, the obstacles, and the concerns of the endeavor.