Native American Law Blog

Lawsuits against casinos can be heard in state courts as well as federal or tribal courts.

The Oklahoma Supreme Court has held that under the state compact agreement currently in place, a tort claimant can chose to file a lawsuit in the tribal court or state court, even though the claim arose on tribal land. The court's decision came in two separate cases, in which plaintiff's alleged that they were injured at Choctaw Casino at Pocola.  The decision was based on the language in the state gaming compact in which the tribe consented to lawsuits against its casinos brought in "courts of competent jurisdiction"  on a limited basis, with respect to tort claims.  The issue then became, what is meant by "a court of competent jurisdiction." Plaintiff's argued that that meant a tribal court or a state court and said it was important in his client's case because "at the time these compacts were negotiated, the Choctaw Nation did not have a tribal court with jurisdiction” and the "Choctaws did not obtain that jurisdiction until a few weeks before the Court of Civil Appeals hearing in [this] case."

In its decision the court noted that the tribe, on the other hand, argued that "exclusive jurisdiction over Indian-country arising torts was vested in the tribal courts at the time the compact was executed, the compact preserved the tribal court’s exclusive jurisdiction, and therefore, the consent to suit in a court of competent jurisdiction in the compact is consent to suit in trial court only.” Although the District Court agreed with the tribe holding that only federal courts and tribal courts have jurisdiiction over tribes, the Oklahoma Supreme Court disagreed, stating  “We hold that Oklahoma district courts are ‘courts of competent jurisdiction’ as that phrase is used in the Model Tribal Gaming Compact,” the majority said. “Nothing in this opinion should be taken as a holding that a tribal court is not a ‘court of competent jurisdiction’ or should be taken as eliminating the tribal court as a forum available to a tort claimant if the claimant chooses to file suit in tribal court.”

 

This decision therefore, allows a tort claimant to chose whether to file suit in a federal, tribal, or state court. Attorney's for the tribe have not discussed how they will proceed, but have said that they "are not done by a long shot."

 

You can read the entire article on The Journal Record.

ddg.

 

 

Audio and Video from Native American Law Seminar Series

Our colleagues at Foster Pepper, a private law firm headquartered in the US Northwest, do a lot of work in the field, and recently conducted a series of seminars on Native American Law.  They've also put up downloadable audio and video files of the sessions.  You can find them on their webpage HERE.

Here's their list of what's available......

PODCAST - AUDIO
(Audio files are in .mp3 format and require an Audio player or you can listen via iTunes.)

• Listen to Current Legal Events in Indian Country
  Greg Guedel | Foster Pepper PLLC, Seattle
• Listen to Litigation Update
  Tom Schlosser | Morisset Schlosser & Jozwiak, Seattle
• Listen to Tribal Trust Fund Cases
  Melody McCoy | Native American Rights Fund, Boulder, Colorado
• Listen to Making Indian Civil Rights and Tribal Sovereignty Synonymous
  Rob Roy Smith | Ater Wynne LLP, Seattle
• Listen to Duwamish Tribe and other recognition cases
  Scott Wheat | Crowell Law Offices, Kirkland
  Judith Shapiro | Co-counsel, Duwamish Tribe
  Cecile Hanson | Chairwoman, Duwamish Tribe
• Listen to Policy issues in Indian Country with the Obama Administration
  Diana Bob | National Congress of American Indians, Washington, D.C.
• Listen to Found Money — or How to Leverage Tax Credits in Indian Country
  Jeff Nave | Foster Pepper PLLC, Spokane
• Listen to Juvenile Justice in Indian Country
  Diana Bob | National Congress of American Indians, Washington, D.C.
• Listen to Tribal Rights in Education Nationally and in Your State
  Melody McCoy | Native American Rights Fund, Boulder, Colorado
• Listen to Tribal Tax Planning for Construction and Other Projects After Barona v. Yee
  Christine Masse | Miller Nash, Seattle
  Anthony Broadman | Williams Kastner, Seattle
• Listen to The Ethics of litigation in Tribal Court involving pro se litigatants
  Michelle Demmert | Tulalip Tribes, Ron Whitener, Chehalis Tribal Court Judge/Director, University of Washington School of Law Tribal Court Public Defense Clinic
  Tom Christie | Office of the Reservation Attorney, Confederated Tribes of the Colville Reservation, Collville

Listen to all the audio files and subscribe to the RSS feed.

PODCAST - VIDEO
(Video files are in .m4v format and require QuickTime.)

• Watch Current Legal Events in Indian Country
  Greg Guedel | Foster Pepper PLLC, Seattle
• Watch Litigation Update
  Tom Schlosser | Morisset Schlosser & Jozwiak, Seattle
• Watch Tribal Trust Fund Cases
  Melody McCoy | Native American Rights Fund, Boulder, Colorado
• Watch Making Indian Civil Rights and Tribal Sovereignty Synonymous
  Rob Roy Smith | Ater Wynne LLP, Seattle
• Watch Duwamish Tribe and other recognition cases
  Scott Wheat | Crowell Law Offices, Kirkland
  Judith Shapiro | Co-counsel, Duwamish Tribe
  Cecile Hanson | Chairwoman, Duwamish Tribe
• Watch Policy issues in Indian Country with the Obama Administration
  Diana Bob | National Congress of American Indians, Washington, D.C.
• Watch Found Money — or How to Leverage Tax Credits in Indian Country
  Jeff Nave | Foster Pepper PLLC, Spokane
• Watch Juvenile Justice in Indian Country
  Diana Bob | National Congress of American Indians, Washington, D.C.
• Watch Tribal Rights in Education Nationally and in Your State
  Melody McCoy | Native American Rights Fund, Boulder, Colorado
• Watch Tribal Tax Planning for Construction and Other Projects After Barona v. Yee
  Christine Masse | Miller Nash, Seattle
  Anthony Broadman | Williams Kastner, Seattle
• Watch The Ethics of litigation in Tribal Court involving pro se litigatants
  Michelle Demmert | Tulalip Tribes, Ron Whitener, Chehalis Tribal Court Judge/Director, University of Washington School of Law Tribal Court Public Defense Clinic
  Tom Christie | Office of the Reservation Attorney, Confederated Tribes of the Colville Reservation, Collville

1st Annual Tribal Courts Conference: Strengthening Tribal Courts

The first annual Tribal Courts Conference will be held on August 6-7 at the Sheraton Bloomington Hotel, in Minneapolis, MN.  According to the Tribal Judicial Institute, this conference will include sessions on court planning, court administration as well as panel discussions on a variety of topics relevant to the tribal judiciary including case law updates.

Some topics to be covered are: 

Child Support Enforcement; Recent Developments in Domestic Violence Laws (Firearms disqualification- Provisions of the VAWA);  How to Develop a Strategic Plan for Tribal Courts;  Recent Developments in Tribal Criminal Jurisdiction and Juvenile Delinquency;   Achieving Full Faith and Credit through the Law and through Comity; The Importance of Court Orders in Child Welfare Cases; Ethical Considerations for Tribal Courts; Developing Codes and Policies; Learning from Traditional Dispute Resolution Methodology

Registration information is available on the University of North Dakota website.

ddg 

 

Hot off the presses (well, off the Internet) - Judge refuses to reinstate Ward Churchill

Ward Churchill, fake Indian and former professor of ethnic studies at University of Colorado won his lawsuit over being improperly fired, but the judge on the case has refused to order his reinstatement to the teaching position.  See the story HERE on Newsmax.com.

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Tribal leaders shocked and disappointed at Obama administration's opposition to release of declinations

A major concern of many tribal advocates is the number of criminal cases federal prosecutors decline  to prosecute in Indian Country. In an effort to address that concern, the Tribal Law and Order Act of 2009 contains a provision which would require the Department of Justice, who by law is responsible for all serious Indian country crimes, to report the number of crimes they decline to prosecute. 

At the time the bill was first introduced late last year, leading federal prosecutors, including Gretchen Shappert, the chair of the Native American Issues Subcommittee at DOJ, and Diane Humetewa of Arizona, the first Native woman to serve as U.S. Attorney, questioned the need to provide such reports voicing their concern that the release of that data could possibly jeopardize criminal investigations. Many tribal advocates were hopeful that under the new adminstration, real changes would be made, starting with reporting declinations since those statistics have  been a "high priority for policymakers and advocates, who say it would pressure federal prosecutors to take more cases" and start to bring law and order to the reservations. That is why it came as such a shock to many tribal leaders last week, when Attorney General Tom Perrelli, the Justice Department's third in command, announced that the Obama administration would oppose that particular provision.

Former Colorado U.S. Attorney Troy Eid, a Bush appointee who has pushed for more vigorous prosecution of Indian Country cases, said "there was shock because the talking points weren't any different (from the Bush administration) and in fact it was worse, because the expectations were higher."

Sen. John Thune, a South Dakota Republican and member of the Senate Indian Affairs Committee, said this is just one of  several instances of mixed signals by the Obama administration when it comes to fighting reservation crime, and fears that because the administration is grappling with so many issues, that this is something that may fall through the cracks. He goes on to say "but I hope they decide to do something about this, because there is this pattern that has gone on from one administration to the next of benign neglect." 

You can read the full story HERE.

ddg

Native Americans CAN and SHOULD become lawyers

HERE is a terrific article on www.omaha.com about a trio of female Native American attorneys and how they got to and through law school and are successful in practice.

A possible significant change in the government of the Navajo Nation

From the Santa Fe New Mexican:  "Navajo voters have never had much of a say in how their modern government was shaped.

But that could soon change, after a tribal judge cleared the way for a special election on a restructuring that could change the balance of power on the sprawling reservation.

Navajo voters have never had a chance to tweak the government structure that was forced upon them some 85 years ago and reorganized under three branches without their consent. Observers says any change could bring a new sense of legitimacy to a government that long has been seen as remote to average Navajos.

"Maybe they (Navajos) will have a greater sense of ownership in the government than they now have," said Dale Mason, who teaches Navajo government at the University of New Mexico's Gallup branch."

See the full story HERE.

twp

Montana to build the first comprehensive website devoted to statewide Indian law.

The State Law Libray of Montana is in the process of building what it claims will be "the nation's first comprehensive Internet portal on statewide Indian law." They plan to have the site, which has been in the works for 2 years now, up and running by January. 

Judy Meadows, the State Law Librarian, has said that the site will include access and links to legal information from all American Indian reservations across Montana. According to the article on Reznetnews.org, "the information is expected to include tribal constitutions, charters, treaties, proclamations, articles of agreement, law and order codes, tribal council resolutions, trust records from the Bureau of Indian Affairs, appellate judicial decisions, fishing and hunting regulations, tribal histories, water and gaming compacts and interactive maps."

The portal will be maintained by the state law libray. 

You can read the entire article about the site on Reznetnews.org.

ddg

Save the date! FBA Annual Meeting and Convention

The Federal Bar Association's Annual Meeting and Convention will be held in Oklahoma City, Oklahoma, on September 10th through the 12th at The Skirvin Hilton.  

Some Indian Law topics to be discussed include criminal jurisdiction in Indian Country; Ogletree Panel; two sessions addressing issues and ethics for lawyers working with corporate and tribal general counsel; a session devoted to the delivery of veteran services in Indian Country; and a session titled "The Robert's Court on Indian Law." 

Also included is a session titled "The Oklahoma City Bombing Through the Eyes of Those Who Were Here" which will be held at the Museum Institute for the Prevention of Terrorism., which will be followed by tours of the Memorial and Memorial Museum.   

For more information, contact the FBA at (571) 481-9100 or visit www.fedbar.org.

ddg 

Obama administration: taking "top to bottom review" of gaming policy.

As we have reported earlier, New York Governor Patterson wrote to Interior Secretary Salazar, asking him "to undo a Bush administration policy that restricts taking off-reservation land into trust for gaming and prevents New York tribes from economic development." Patterson urged the Department to reverse the  “guidance memorandum” issued by his predecessor, Dirk Kempthorne, in January 2008. That memorandum cited  “commutability” as a new standard for denying off-reservation trust applications for gaming purposes – even though “commutability” does not appear anywhere in the federal regulations or procedures.

While no decison has been made yet,  Sen. Chuck Schumer (D-New York), called Larry EchoHawk,  the new head of the Bureau of Indian Affairs, this week, to discuss off-reservation casinos in the Catskills region of New York. As reported on Indianz.com, Schumer said that EchoHawk promised to review the land-into-trust process, taking a "top to bottom review" of gaming policy. Schumer went on to say " I hope that with a new administration we have a new way of thinking about applications that are finite, focused, appropriate for the region, and have strong community support." 

The Bush administration rejected two off-reservation casinos in the Catskills,

As promised, we will continue to follow this story. 

ddg

Nebraska Court: ICWA trumps State Law

A Nebraska county judge rejected a motionby the Ponca Tribe, for a child welfare specialist to intervene in a case involving two Ponca children.  The court ruled that a motion to intervene in state custody proceedings should have only been filed by a state licensed attorney, as required by state law.  The Nebraska Supreme Court, however, said that the Indian Child Welfare Act trumps state law. The Court specifically held "We conclude that tribal participation in state custody proceedings involving Indian children is essential to achieving the goals of ICWA." 

See the report HERE. 

ddg

Peter D'Errico, a respected Native American law attorney, comments on the theory behind Federal Indian Law

This is an interesting take on Federal Indian Law - how the basic premise behind ALL of it is flawed.  Here's a sample:

"Indian country needs to strip away the “pretense of conquest” and reveal the underlying reality of federal Indian law: a system designed to suppress sovereignty of Indian nations in keeping with a tradition of Papal Bulls and Christian political theology. Indian country needs lawyers not afraid to argue for indigenous sovereignty and against the “pretense of conquest through discovery.”

Echohawk demonstrated that NARF is not one of the challengers of pretense when he continued, “the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period.”

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law."

We're doubtful that anyone is going to get the US Supreme Court to overturn a couple of centuries worth of Indian law cases......but the whole notion is worthy of discussion and consideration (and stranger things have happened - see Brown v. Board of Education).

See the full editorial HERE on Indian Country Today.

twp

Decision by BIA head Echohawk puts Cherokee land-into-trust into doubt

The Tulsa World reports: 

BIA head's letter raises questions on rights

By CLIFTON ADCOCK World Staff Writer
Published: 6/26/2009  2:24 AM
Last Modified: 6/26/2009  3:26 AM

A decision by the new head of the Bureau of Indian Affairs puts the Tahlequah-based United Keetoowah Band of Cherokee Indians on equal jurisdictional footing with the Cherokee Nation and states that neither is the historical Cherokee tribe.

"The historical Cherokee Nation no longer exists as a distinct political entity," Larry EchoHawk wrote.

The decision has other implications, as well.

Unlike the Cherokee Nation, the UKB does not have any land in trust, although it has been fighting for that status. The decision by EchoHawk, obtained by the Tulsa World on Thursday, says the Keetoowahs and the Cherokee Nation have equal rights on land-trust issues.

EchoHawk's decision raises questions as to whether a recent U.S. Supreme Court decision prevents either tribe — and many other tribes — from putting land into trust status with the federal government.

See the full story HERE.

twp

Bureau of Indian Affairs to have "government to government" consultation with tribes to discuss Carcieri

Larry EchoHawk, head of the Bureau of Indian Affairs, has called upon tribal leaders to attend one of three 'consultation sessions' for the purposes of gaining their input as well as working together to "move forward." after the Carcieri decision. The consultations will take place on June 29 in Minneapolis, Minnesota; July 1 in Sacramento, California; and July 8 in Arlington, Virginia.

See Indianz.com for a link to EchoHawk's letter with specific times and locations of the meetings. 

ddg