tribal law

South Dakota Tribal-State Court Reciprocity Court Rule Adopted by Standing Rock

Matthew L.M. Fletcher

From the Rapid City Journal (H/T Indianz):

The Standing Rock Sioux Tribal Court will now recognize judgments made in state court and other tribal courts.

“In exchange, South Dakota’s Unified Judicial System will recognize and honor judgments made in Standing Rock Sioux Tribal Court.

Tribal Rule 23, which allows the Standing Rock court to recognize court rulings from other jurisdictions, was adopted by the tribal court and signed by tribal Chairman Ron His Horse Is Thunder.

Because of Rule 23, South Dakota courts are now authorized under state statute to recognize Standing Rock court orders and judgments.

“It is the first tribe that has actually notified us that they have court rule in place that has been signed by the chairman of the tribe and by the court,” said Judith Roberts, legal counsel for the Unified Judicial System.

Fletcher: On Black Freedmen

Matthew L.M. Fletcher

My newly revised paper, now titled “On Black Freedmen,” should be up on SSRN in the next few days. The paper will be part of Justice Unveiled: African American Culture and Legal Discourse (Lovalerie King & Richard Schur, eds.).

From the Abstract:

            In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap – and conflict – with those of African Americans. The recent Cherokee Nation of Oklahoma’s vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships – the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law—all established as a reaction to Black-White racism –– expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.

 

Village of Pender v. Parker — tribal court exhaustion case

Matthew L.M. Fletcher6 Comments

Recently, a federal judge in Nebraska stayed a federal claim that the Omaha tribe has no authority to require on-reservation, non-Indian liquor vendors to obtain a tribal license to sell liquor.

The judge noted that this appears to be a question of first impression (“While the briefing has been excellent, neither side has given me a case that is squarely on point regarding whether exhaustion is required in these circumstances. As a result, I must read the ‘tea leaves.'”), but correctly stayed the case until the tribal court had a chance to opine on the jurisdiction questions.

The 2nd amended complaint is here: Complaint

The tribal motion to dismiss is here: Motion to Dismiss

The opposition is here: Opposition to Motion to Dismiss

The reply is here: Reply Brief

The court’s stay order and opinion is here: DCT Order Denying Motion to Dismiss

Felix Cohen’s “On the Drafting of Tribal Constitutions”

Matthew L.M. Fletcher

On the Drafting of Tribal Constitutions

By David E. Wilkins, Felix S. Cohen, Lindsay G. Robertson

A newly discovered document sheds light on Indian self-governance Felix Cohen (1907–1953) was a leading architect of the Indian New Deal and steadfast champion of American Indian rights. Appointed to the Department of the Interior in 1933, he helped draft the Indian Reorganization Act (1934) and chaired a committee charged with assisting tribes in organizing their governments. His “Basic Memorandum on Drafting of Tribal Constitutions,” submitted in November 1934, provided practical guidelines for that effort.

Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.

On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.

David E. Wilkins is Professor of American Indian Studies and Adjunct Professor of Political Science, Law, and American Studies at the University of Minnesota, Twin Cities, and coauthor of Uneven Ground: American Indian Sovereignty and Federal Law. Lindsay G. Robertson, Professor of Law at the University of Oklahoma, is the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous People of Their Lands.

University of Oklahoma Press

Grand Traverse Band Tribal Common Law

Matthew L.M. Fletcher

The Tribal Law Journal has posted this attempt to summarize the common law decisions of the Grand Traverse Band tribal courts. Miigwetch to Zeke Fletcher for writing the introduction. And to Zeke and John Petoskey for offering comments and guidance on the article.