Very important decision. Our prior commentary on this case is here.
Here are the materials:
Amerind v. Malaterre CA8 Opinion
Turtle Mountain Band of Chippewa Indians
Tribal Judge David Harding Walks On
From ICT:
PLUMMER, Idaho – David Lee Harding was widely known throughout Indian country, having served for 29 years in tribal courts in Idaho, Washington, Oregon, California and Alaska. He passed away Dec. 8, 2009 while playing in a father/son basketball game with his sons and numerous friends. He was 57 years old.
David was a member of the Turtle Mountain Band of Chippewa in North Dakota but grew up in the Willamette Valley of Oregon with two brothers and a sister. He was a fan of Paul Revere and the Raiders and started his own rock band in his early years. This led to working as a radio announcer and in later years to announcing at boxing matches at the Coeur d’Alene Casino as well as basketball games in Plummer and Spokane and he was a backup announcer for the Spokane Indians professional baseball team.
Former Coeur d’Alene Tribal Attorney Ray Givens tells of a night at the boxing matches when David was announcing. “One night I took my son, who was about 8 at the time, to a boxing match at the Coeur d’Alene Tribe’s Casino. We bought some 50/50 tickets as we went in, and I gave the stubs to Joe. Dave Harding was the ring announcer that night, and when the ring girl drew the ticket, we won. The scantily clad lady came down to where we were sitting and escorted Joe up to the ring. He was terrified. Dave smiled, looked down at me, and said over the mike, ‘Ray, under the tribe’s law, which you probably wrote, a minor can’t gamble here and 50/50 is gambling.’ Everyone, including me, had a good laugh at my expense. I went up to the ring, rescued my son and collected the prize from a still laughing Dave. His grace and humor was much appreciated.”
David graduated from the University of Oregon in 1975 where he was president of the Native American Student Union. He attended the University of Oregon School of Law, and later a summer session at the University of New Mexico School of Law and later yet attended the University of Idaho School of Law. Continue reading
Montana Supreme Court Decides ICWA Notice Case
The court held in In re J.J.L. that the trial court properly concluded that, in the adjudication of a child of a Turtle Mountain Band of Chippewa Indians who was not eligible for membership, ICWA does not apply.
Here are the materials:
Turtle Mountain Band Tribal Court Exhaustion Case
Here is the opinion in Auto Owners Insurance v. Azure (D. N.D.): Auto Owners Ins v Azure DCT Order.
An excerpt:
The Court finds the legal analysis and reasoning as set forth in Malaterre and Nielson is instructive. Auto Owners clearly had a consensual relationship with defendant Ken Davis when it issued a homeowner’s insurance policy to him. As a result, the first Montana exception applies and the tribal court retains jurisdiction over the conduct of Auto Owners. The Court further finds that Strate v. A-1 Contractors does not prevent tribal court exhaustion because in this dispute there is a colorable claim of tribal court jurisdiction such that exhaustion would not serve as a delay. Nielson, 2002 WL 417402, at *5. In accordance with the policies underlying the tribal exhaustion doctrine, the tribal court should be given the first opportunity to address the factual and legal issues presented. Exhaustion is “especially appropriate” to protect the operation of tribal government and avoid undermining the authority of the tribal court. See Bruce H. Lien Co. Three Affiliated Tribes, 93 F.3d 1412, 1420 (8th Cir. 1996).
Chaotic Land Dispute Case at Turtle Mountain Dismissed from Federal Court
Here is the district court opinion in Gustafson v. Poitra — Gustafson DCT Order
An excerpt:
There may have been an actual, ongoing case or controversy when this action was filed to determine whether the Turtle Mountain Tribal Court had jurisdiction to issue a temporary restraining order against Gustafson, the case did not remain alive once the Turtle Mountain Tribal Court set aside the temporary restraining order on April 28, 2009.
Tribal court materials:
Case to Watch — Amerind v. Malaterre
The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure–I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]
This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.
Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.
South Dakota Governor Urged to Nominate American Indian State SCT Justice
From the Sioux Fall Argus Leader (via How Appealing):
Judge Tony Portra of Aberdeen is one-eighth Turtle Mountain Chippewa.
There is no official data on the race or ethnicity of the 38 circuit judges in South Dakota, or the five members of the state’s Supreme Court, but it appears Portra is the only one with a minority background.
In a state where more than 8 percent of the citizens and 25 percent of the male prison population are Native American, many are watching as Gov. Mike Rounds prepares to appoint a new justice to the Supreme Court.
Tribal Court Jurisdiction over Tribal Insurers under the Montana Exceptions
The District of North Dakota, in Amerind Risk Management v. Malaterre, refused to the grant the insurance company’s motion for summary judgment on the grounds that the Turtle Mountain Tribal Court did not have jurisdiction over it under Montana v. United States. The Turtle Mountain tribal council had waived the Turtle Mountain Housing Authority’s sovereign immunity to the extent of insurance coverage, in accordance with tribal court precedent. Plaintiffs who were injured and killed in a house fire sued the insurance company in tribal court, which then asserted the Montana defense.
Here are the materials:
amerind-risk-mgmt-v-malaterre-tmac-opinion
amerind-motion-for-summary-judgment
UND “Fighting Sioux” Controversy at Frozen Four
From 9News:
DENVER – All four colleges brought fans from all over the country to watch the best hockey teams in the country. But only one brought with it a mascot deemed officially “hostile and abusive” by the NCAA.
“We are nothing more than mascot images (to them). We are not human beings,” said Franky Jackson, a former North Dakota resident and current member of the Sisseton-Wahpeton Dakota Sioux tribe.
The University of North Dakota athletic teams have been called the “Fighting Sioux” since the 1930s. Over the years, the logo has evolved but remained a feather-wearing, male warrior, which Jackson says is insulting.
“It belittles Native Americans,” said Jackson. “The high cheekbones, the protruding nose.”
Turtle Talk 