VAWA tribal jurisdictional provisions

Who Won American Indian Law and Policy, 2014, Second Round, Bracket 2 of 4

Matthew L.M. Fletcher

Now we move on to the Category 2 quarterfinals.

#1 Indian Child Welfare Act v. #9 Indian country voting rights

The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?

This one is an old-fashioned clash of civil rights.

#4 Indian gaming v. #5 Intra-tribal disputes

Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.

Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.

#2 Tribal sovereign immunity v. #7 American Indian education

Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.

Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.

#3 VAWA v. #6 Tribal court exhaustion

VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.

Who Won Indian Law and Policy in 2014? First Round Bracket — 4 of 8

Matthew L.M. Fletcher3 Comments

Whew, losing steam. Maybe finish round 1 tomorrow.

Here’s the second half of the Category 2 bracket.

# 2 Tribal sovereign immunity

Big winner in the Supreme Court.And perhaps SCOTUS has had its fill by denying some petitions, here, here (filed out of time), and here, and here.

Some other good cases for tribes: no waiver in gaming compact (California), and Minnesota, immunity from state tax foreclosures, immunity from third party subpoenas in federal court litigation, immunity of tribally owned payday lenders, and immunity from simple contract claims.

Some where tribal interests lost: waiver through removal to federal court, waiver by virtue of not being sufficiently governmental, waiver by Congress in Bankruptcy Act, waiver by purchase of insurance, no immunity of tribal governmental organizations, and no immunity from tribal court exhaustion.

And no, Western Sky is not immune from suit.

v. 

# 15 Alternative energy

Solar power is controversial at Colorado River Indian Tribes, and wind energy at Osage. So quit messing with mineral estates and sacred sites, please!

# 7 American Indian education

2014 was the 60th year since Brown v. Board, and so Indian law programs are hosting conferences on Indian education (MSU, Kansas, and now Arizona State but that’s 2015). Dept. of Education did a listening tour. Cobell money. BIE reorganizing.

v.

# 10 Climate Change

Seems odd to seed this so low, but there’s no significant litigation out there pending (unless the Court grants cert in this), no administrative or legislative action. Depressing. There’s this:

Guidelines for Considering Traditional Knowledges in Climate Change Initiatives

UPDATE: Also, there’s this:

2014-12-24 FR CEQ NEPA draft climate effects guidance

# 3 Violence against Women Act

Good news in Alaska. Pascua going ahead full steam. Even Harvard paid attention. 2015 is when others can move ahead.

v.

# 14 Indian criminal sentencing

Sentencing disparities are prevalent. USSG is paying attention. CA8 Judge Bright believes this issue to be the biggest issue he faces.

# 6 Tribal court exhaustion

A solid year for tribal court exhaustion. Penobscot. Thlopthlocco Tribal Town. Caddo. Rosebud Sioux, twice.

v.

# 11 Tribal General Welfare Exclusion Act

Here.

News profile of History of VAWA and Alaska Natives

Matthew L.M. Fletcher

Al Jazeera has “Proponents fight for change so Alaska Natives covered by VAWA: Complicated history excludes Alaska Native women from Violence Against Women Act.”

NPR on the VAWA Tribal Jurisdictional Provisions

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

This Thursday, three Native American tribes are changing how they administer justice.

For almost four decades, a U.S. Supreme Court ruling has barred tribes from prosecuting non-American Indian defendants. But as part of last year’s re-authorization of the Violence Against Women Act, a new program now allows tribes to try some non-Indian defendants in domestic abuse cases.

It will be another year before the program expands to other eligible federally-recognized tribes around the country in March 2015. But the Department of Justice has selected three tribes to exercise this authority first, including the Pascua Yaqui Tribe of Arizona, the Confederated Tribes of the Umatilla Indian Reservation in Oregon, and the Tulalip Tribes, located north of Seattle.