Native American Law Blog

Conference/CLE in Minnesota

We like to pass these along.....

!!!!!!!!!! INDIAN LAW CLE ANNOUNCEMENT !!!!!!!!!! 

Please join us in beautiful northern Minnesota for an American Indian Law CLE on June 17th 

and 18th 2010, at the Northern Lights Casino in Walker, Minnesota. The CLE will offer at least 

12 CLE credits at an amazing price - $210.00 for two days also includes lunch each day and a 

dinner banquet on Thursday June 17th. 

A $25.00 early bird discount applies for a paid 2 day registration received on or before June 4, 

2010. Members of the Minnesota American Indian Bar Association (MAIBA) who register for 2 

days will receive a $50.00 discount. Please note there are rates for non-attorneys as well. A 

limited block of rooms have been reserved at the Northern Lights Casino Hotel at outstanding 

prices. 

What is the course title? 

Demystifying Public Law 280, the Indian Child Welfare Act and Everything Else You Want to 

Know About Indian Law but Were Afraid to Ask. 

When and Where? 

June 17th and 18th at the Northern Lights Casino located at 6800 Y Frontage Road Northwest, 

Walker, MN 56484. 

Telephone: 218-547-2744. 

www.northernlightscasino.com 

How many credits? 

At least 12 CLE credits will be applied for. 

Who are the sponsors? 

Anishanabe Legal Services; 

Regional Native Public Defender Corporation; 

The Legal Department of the Leech Lake Band of Ojibwe; and 

Minnesota American Indian Bar Association. 

Who should attend? 

Attorneys with an interest in American Indian Law, County Attorneys, Public Defenders, 

Assistant United States Attorneys, Assistant Attorney Generals, 

Judges (Tribal, State and Federal), Legal Aid Attorneys, Legal Assistants, Tribal Council 

Members, Tribal Administrators and Staff, non Attorney 

Elected Officials, and Students. Please contact us if you are interested and you do not fit any of 

the categories. 

How can I register?

See attached registration form - CLE Registration Form.doc 

What courses will be offered? 

The planned curriculum is as follows: 

Anishanabe Treaty Rights Panel; 

Disparate Impact on Native Individuals and Communities within the Criminal Justice System; 

A View from the Bench: Five Years into the Leech Lake Band and Cass County Joint Powers 

Agreement; 

Indian Child Welfare Act of 1978, History, Context and Controversy; 

Tribal Court vs. State Court Jurisdiction: Famil y Law Matters and Child Protection Cases; 

Defending a Federal Case in Indian Country; 

New Wave Tribal Economic Development: Tribal LLCs; 

Re-emerging Indigenous Economic Systems: Indian Cigarettes - The Minnesota Story; 

Native Land Project: A Strategy for Reforming Federal Indian Law; 

American Indian Law Basics Panel; 

The Impact of NLRB v. Bois Forte, a Recent Federal Decision that Limits Tribal Sovereignty; 

Practice Pointers for Practicing in Federal Court: 10 Things the Clerk's Office Thinks You 

Should Know; and 

Public Law 280 Update: Davis v. Minnesota and State Authority Over "Non-Member" Indians. 

Watch for the conference brochure. At least 12 CLE credits will be applied for. 

What is the cost? 

$210 - Two day attorney or judge rate (includes meals). 

$160 - MAIBA member (included meals). 

$ 25 - Earl y bird discount applies to 2-day paid registrations received on or before June 4th. 

$105 - One day attorney/judge rate (includes meals served that day), please note MAIBA and 

Earl y bird discounts do not apply. 

$100 - One or Two day non-attorney rate (includes meals), please note MAIBA and Early bird 

discounts do not apply. 

$ 60 - Student rate, Please note that MAIBA and Early bird discounts do not apply. 

Where can I stay? 

We recommend that you book a room at the Northern Lights Casino Hotel. A limited block of 

rooms has been reserved on a first come, first serve basis 

at outstanding room rates. Additionally, a tribal member discount may apply. 

Please inquire at: 

Northern Lights Casino and Hotel

6800 Y Frontage Road Northwest 

Walker, MN 56484 

Telephone: 218-547-2744 

www.northernlightscasino.com 

Who can I contact for more information? 

Jodi Drews, 612-596-1805; jodi.drews@co.hennepin.mn.us 

Reid Raymond, 612-348-9893; reid.raymond@co.hennepin.mn.us 

How do I become a member of the Minnesota American Indian Bar Association? 

Please go to the MAIBA website at www.maiba.org and download an application form. 

See you there!

twp

Finally!?!? Florida governor signs Seminole gambling pact

You can read the full story in the Miami Herald HERE.  Governor Crist has signed a gambling compact with the Seminole Tribe giving them exclusive rights to operate Vegas-style gambling outside of South Florida....for which the State of Florida will get millions (and later maybe a billion) of dollars a  year.

Of course, it still has to be approved by the feds......

twp

Followup - Some members of Lumbee Tribe want chairman to reject pact with consultant firm

Looks like the controversial change of course by the Lumbees in seeking federal recognition is creating some divisions within the tribe.  A number of tribal members are asking tribal leadership to reject the agreement.  See the full story HERE in the Fayetteville Observer.

twp

State can't foreclose on tribal property

On appeal, the Oneida Nation convinced a federal court to rule that NY State couldn't foreclose on the tribe's land in order to collect taxes, based on the tribe's sovereign immunity.

You can read the news story HERE, or the decision HERE.

twp

Could there be an American Indian replacement for Stevens?

Justice John Paul Stevens’ retirement was announced on the second day of the Fed Bar's Indian Law Conference. During that same announcement, it was also announced that John Echohawk, director of the Native American Rights Fund, was on Obama’s short list of potential nominees. However, an article published by Indian Country Today casts doubt upon the nomination. Thankfully, both NARF and the National Native American Bar Association are pushing for a Native candidate by making their case to the White House. Read the about the need and efforts in the entire article here.

-CMD

Followup - Havasupai Tribe settles lawsuit over blood samples

From the AP story:

"An Arizona Indian tribe settled lawsuits alleging university scientists misused blood samples meant for diabetes research to study schizophrenia, inbreeding and ancient population migration, officials said Wednesday.

The Havasupai claimed that Arizona State University conducted the additional research without permission, invading tribal members' privacy, betraying the tribe's trust and misrepresenting what researchers had done with blood samples and subsequent research results.

The settlement, which includes a lump $700,000 payment to the 41 plaintiffs, was approved Tuesday by the Legislature's Joint Legislative Budget Committee.

"We're very pleased with the amount of the settlement," said attorney Stephen Hanlon, who represents the tribe. "It's a significant monetary settlement in a case in which no physical harm is claimed."

ASU also will return the blood samples to the tribe and help build a new health clinic and high school on the isolated village that lies deep in a gorge off the Grand Canyon."

You can find the full story HERE.

twp

Indian Pueblo Cultural Center Clarification Act

On Wednesday, April 21, 2010 at 10:00:00 a.m. the Committee on Natural Resources will hold a full committee leg hearing on H.R. 4445, H.R. 1554 And H.R. 2340

The Indian Pueblo Cultural Center Clarification Act's (H.R. 4445) purpose is to amend Public Law 95–232 to repeal a restriction on treating as Indian country certain lands held in trust for Indian pueblos in New Mexico. It will repeal of restriction on treating as Indian Country certain lands held in trust for Indian pueblos in NM. “Public Law 95–232 is amended in the first section in subsection (b) by striking ‘‘However, such property shall not be ‘Indian country’ as defined in section 1151 of title 18, United States Code.’”’

 

You can access the Indian Pueblo Cultural Center's website here and a brief article on this on Indianz.com here.

-CMD

Lumbee Tribe almost literally rolls the dice in a gamble for federal recognition

Wow.  This story is just a little mind-boggling to those who practice in the Native American law field.  (And thanks to our colleagues on the TurtleTalk blog for the pointer to the story, too).

For years, the Lumbee Tribe has been seeking federal recognition.  For years, our colleague and attorney Arlinda Locklear has worked the problem for free.  This year, it looked like it might finally happen, making it almost all the way through the US Congress.  Recognition would mean a lot of money for the tribe in federal assistance.

But now, the Tribal Council had dropped Ms. Locklear, and hired a Nevada GAMING consultant firm to take her place....which MAY indicate that the tribe's pledge to NOT build and develop a casino as part of the recognition process is off the table.

What effect will this have on the process?  No one can be sure at this point - but "here's the rub".....the contract with the consultant firm calls for penalties of $35 million against the tribe if the tribe doesn't agree with gambling once recognition is in place.  This is somewhere near the sum total of the tribe's current assets.

THAT'S rolling the dice, as far as we can tell.  Wow.

You can read the full story HERE in the Fayette Observer.

twp

U.S. Supreme Court Grants and Denies Two Cases Today

The U.S. Supreme Court agreed today to hear a trust law case involving the Tohono O’odham Nation of Arizona.

For more info check out the following websites: US Supreme Court, NARF’s Supreme Court Project, Article on Indianz.com. 

Additionally, today the U.S. Supreme Court declined to hear a trust management case involving Dakota descendants who said they were promised land in the late 1800s. For the news article on Indianz.com and links, click here.

-CMD

NARF 2009 Annual Report Now Available Online

Last Monday the Native American Rights Fund 2009 Annual Report was posted online. If you are interested in viewing it, click here.

-CMD

Robinson Rancheria's ejected members consider appealing disenrollment

ANY tribal disenrollment effort constitutes, at some point, a tragic story.  Some are worse than others.  This one is a bad one.  From the Lake County News:

 "After nearly a year and a half of filing appeals, writing letters and holding meetings with federal officials, last week dozens of local American Indians who had been disenrolled from Robinson Rancheria in Nice in December of 2008 began receiving certified letters from the Bureau of Indian Affairs.

While many of the ousted tribal members said they had been led to believe that the BIA was going to rule in their favor, the 11-page letter – with a stamped date of April 9 – was quite different.

“Based on the information provided, I have decided to affirm the Business Council's decision that you are not eligible to be a member of the Robinson Rancheria of Pomo Indians,” wrote BIA Acting Regional Director Dale Risling.

His letter concludes by stating that his decision is final for the BIA.

About 20 of the individuals hit with the disenrollment actions met on Friday in Nice to discuss what actions to take going forward.

They pledged to continue fighting and to seek an appeal, but one of their number, Wanda Quitiquit, noted, “We have to prepare ourselves for the true denial of our civil rights.”

Robinson Tribal Chair Tracey Avila did not return calls from Lake County News seeking comment, and directed her staff not to release to this publication a written press statement she sent to a local newspaper last week, instead suggesting that Lake County News could get the document from the newspaper.

In that statement, it was reported that 45 disenrollments had been upheld, but that number only accounts for appeals made to the BIA, according to documents submitted to the BIA by the tribe itself and obtained by Lake County News.

In fact, the names of another 22 people were removed from the tribal rolls in action taken in December 2008, according to those same documents."

You can read the full story HERE.

twp

Will there finally be a Seminole/Florida gaming compact?

Ask three months ago, and most would have said, "NO WAY!"

But now, it seems as if the tribe and the state are on the verge of actually reaching an agreement for a tribal-state gaming compact.  See the full story HERE.

twp

Book review.....passed along by a colleague

Ezra Rosser send us this note about a book review he's just had published...here's the abstract:

Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council is a brief article framed as a book review of RAYMOND D. AUSTIN, NAVAJO COURTS AND NAVAJO COMMON LAW: A TRADITION OF TRIBAL SELF-GOVERNANCE (2009). Raymond Austin is a former Justice of the Navajo Supreme Court and his book is an important contribution to Indian law and tribal law scholarship that should be of interest to general readers. Austin shows the origins of Navajo customary law norms and how the Navajo court system has incorporated those norms into Navajo common law. Although the majority of the article is dedicated to reviewing NAVAJO COURTS AND NAVAJO COMMON LAW, I also discuss the an ongoing tribal power struggle and the related effort of the Navajo Tribal Council to block the Navajo courts from using customary law.

You can find it HERE.

twp

Followup - Turmoil continues in Hopi government

Continuing disputes over who can and who can't legitimately serve in Hopi tribal offices have maintained a high level of uncertainty within the Hopi Nation.  The latest is that Hopi Rangers were asked by the Tribal Chairman to remove four officials who were allegedly placed on the Tribal Council illegally, and who refused to step down when requested.  (The Rangers took no action, and the Chairman recessed the Council Meeting).

You can see the full story HERE in the Navajo-Hopi Observer.

twp

FBA Indian Law Conference - Plenary 2B: The Power to Protect

Plenary 2B: The Power to Protect: Tribal Court Jurisdiction and Protective Orders

 

Jennifer Kaplan, Attorney-Advisor, Office on Violence Against Women, U.S. Department of Justice

 

Full Faith and Credit Given to Protection Orders

 

If consistent with the provisions of Section 2265(b) full faith and credit will be given to protection orders issued by a State, Indian tribe, or territorial court. See 18 U.S.C. § 2265. If it was issued by a State, Indian tribe or territory (the issuing state) consistent with Subsection (b) of Section 2265, it shall be accorded full faith and credit by the court of another State, Indian tribe or territory (enforcing state) and be enforced by the court and law enforcement personnel of the other State, Indian tribe or territory as if it were the order of the enforcing state or tribe.

 

In order to be consistent with subsection (b), the court must have jurisdiction over the parties and matter under the law of the State, Indian tribe, or territory. The person against whom the order is sought must have been given reasonable notice and opportunity to be heard to protect that person’s right to due process. “In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal, or territorial law, and in any event within reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.” Id. Additionally, Ms. Kaplan stated that the order must have been issued for the purpose of preventing violence or threatening acts or harassment against, sexual violence, contact or communication.

 

Regarding cross or counter petitions: This occurs when a victim files for a protection order and the abuser files against the victim stating that (s)he is the violent one, not him/her or they raise this in court and the judge throws their hands up in the air and says, “I’m issuing a stay away order for both of you. You are not to go near one another.” This is despite the fact that there is no credible evidence of abuse committed by the Petitioner/Victim.

 

Regarding full faith and credit for these, Section 2265(c) states, “A protection order issued by a State, tribal, or territorial court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if – (1) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or (2) a cross or counter petition has been filed and the court did not make specific findings that each part was entitled to an order.” Thus, as our presenter said, “Unless there was a petition to get one or finding of facts, no full faith or credit.”

 

Other things she brought up: A victim does not need to register prior to getting law enforcement to enforce it. If a victim has a copy of a valid order, (s)he just needs to have the court order in her hand to get the police/law enforcement to enforce it. Additionally, the act limits internet publication of orders; prevents disclosure of the victims location.

 

In case you are curious, Section 2665(e) states, “Tribal Court Jurisdiction. – For purposes of this section, a tribal court shall have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms, in matters arising within the authority of the tribe.” This ties into the second presenter.

 

____________________________________________________________________________________

 

 

Kelly Stoner, Director, Native American Legal Center, Oklahoma City Univ. College of Law

 

Jurisdictional Issues

 

Kelly Stoner specifically discussed Section 2665(e), Tribal Court Jurisdiction and what she and most view as a terrible opinion issued by Judge Burgess of the Federal District Court in the Western District of Washington at Tacoma. The case involved a husband, Daniel Martinez, who had an Order of Protection issued against him by the Suquamish Tribal Court to protect his wife, Helen Martinez.

 

The facts are: Daniel and Helen were married with two children. Daniel is non-Indian and not a member of the Suquamish Tribe. Defendant Helen is Alaska Native and she and her children are enrolled members of the Native Village of Savoonga. She and her children are not members of the Suquamish Tribe. The family, at the time of the filing of the cases in Suquamish Tribal court lived on fee land owned by a non-Indian which was located within the Suquamish reservation.

 

The parties went through several court cases prior to Ms. Martinez filing for divorce in 2008. Daniel had filed for a protection order, Helen had filed for divorce (dismissed by stipulation), Helen then filed for a protection order on February 28, 2008. A temporary was issued and Daniel was served on March 27, 2008. He showed up and signed into court. It was issued against him and he was ordered not to go near Helen or the children until July 28, 2010. On March 4, 2009, Ms. Martinez filed for dissolution of marriage and custody of the children in Tribal Court and moved for temporary orders. Mr. Martinez responded by filing a parenting plan. The Court entered a temporary order on April 29, 2008 and a final hearing was set for February 27, 2009.

 

On May 14, 2008, Mr. Martinez’s counsel filed a notice of appearance in both matters and asserted the court lacked subject matter jurisdiction. The Tribal Court denied counsel’s written request for a copy of the record of the domestic violence protective order case on the basis that the case was closed. Then the complaint for declaratory and injunctive relief followed.

 

The Court then discussed subject matter jurisdiction, exhaustion of tribal remedies, appropriateness of tribal jurisdiction, legislative grant of jurisdiction (VAWA), inherent tribal authority, the consensual relationship exception and the political integrity, economic security, health or welfare exception.

The Court’s conclusion: “For the above stated reasons the Court finds the Plaintiff need not exhaust tribal remedies before challenging tribal jurisdiction in this Court. Jurisdiction is neither colorable or plausible. Jurisdiction over non-members of the Tribe domiciled on fee land is plainly lacking and exhaustion would only serve to delay the proceedings. Lacking jurisdiction, the underlying orders entered in by the Tribal Court are necessarily null and void. The parties may petition the appropriate state court to resolve their disputes.”

 

From NARF’s website: *Synopsis: (from the opinion) The Defendants assert that because Plaintiff has failed to exhaust tribal court remedies this Court lacks jurisdiction to determine whether the Suquamish Tribe has jurisdiction to enter an order of protection against Plaintiff and to act upon a dissolution petition filed by Defendant Helen Martinez. For the reasons stated below, this Court denies the motion to dismiss and finds that the Suquamish Tribe lacks jurisdiction to enter protective orders and act upon the dissolution petition regarding these non-members of the Suquamish Tribe.

 

I have not had time to research this case. It appears the Suquamish Tribe appealed, but I am unsure as to the status of the case/outcome.

 

This is a topic near and dear to my heart as I have a DV victim come through my door just about every other day.

 

-CMD

Another upcoming Indian Law conference announcement...

Please join us for the 3rd Annual American Indian Justice Conference in Tucson, AZ at the JW Marriot Starr Pass Tucson Resort and Spa.

The American Indian Justice Conference is offered to tribes across the nation as an opportunity to develop plans to enhance tribal systems while providing essential information on matters concerning court development, drug and alcohol abuse strategies and other relevant topic areas.

This year’s goals were established by building upon past conferences and responding to recommendations of BJA grantees.  These goals include:

Building strong and sustainable tribal justice systems by highlighting strategies.
Sharing details on tribal programs that have a positive impact in their community justice system.

Providing information to tribal justice system personnel on topics such as court planning and development, diversionary court programs, traditional dispute resolution, justice system responses to alcohol and substance abuse, and emerging issues that are relevant to tribal justice system development.

The conference will bring tribal community justice professionals/practitioners together with technical assistance providers to address multi-disciplinary and multi-jurisdictional approaches to the development of justice programs. 

For information on registration,
scholarships, and logistics click here.

I am extraordinarily pleased to announce....

......that the great and munificent Blog Co-Editor, Ms. Carolyn Drouin, Esq., has been notified that she has successfully passed the New Mexico Bar Examination (having already passed those of California and the Navajo Nation).

Congratulations, Partner!  :)

twp

Bloggin' from the FedBar........Plenary Session 3

Plenary 3 – Contemplating the Constitutional Status of Indian Tribes

Professor Frank Pommersheim, University of South Dakota School of Law – there is no constitutional guarantee concerning tribal sovereignty…so the recommendation is that there should be a constitutional amendment that affirmatively and clearly recognizes tribal sovereignty.  Then we would have something that we can actually rely upon.   E.g., the importance and dignity that the 11^th Amendment, as clearly recognized by the Supreme Court, gives to state sovereignty.  Tribal sovereignty should be accorded the same dignity and respect.

Recognition of tribal sovereignty has been outside of the Constitution….at the time of adoption, there was recognition of tribal sovereignty….trade between the former colonies and tribes was trade-based.  So even under the Articles of Confederation, one primary interest was who would get to regulate the trade with the Indian tribes.  See Article of Confederation #9, which places that with the federal government, just as the Constitution does. 

 

Professor Carole Goldberg, UCLA School of Law – Federal Indian Law is a failure in constitutional terms.  It is impossible to find a coherent and secure constitutional basis for the congressional and judicial plenary power.  The Constitution was never intended to incorporate tribes as governments in the US…it regarded them as outside.  And federal Indian law cannot do what the Constitution can’t…..and it’s not something that involves the participation of the tribes…instead, it constantly sacrifices tribal sovereignty.  What is needed is a new architecture to determine the place of the tribes in the United States.

            Possible problem – political feasibility.  Empathy and respect are in short supply in the political process today.  Ex:   The Tribal Law and Order Act is probably a non-starter in Congress, it seems, though it was an extremely modest proposal.

 

            The Canadian experience (she has been teaching a the Banff Center the past several summers) – there is a “deep dark Canada” that continues to administer the territories of most First Nations in Canada under the Indian Act.   There is a federal system of indigenous identity, that then directs each Indian Nation to elect a chief and counsel, with limited powers, who’s actions must be approved by the Canadian government.

 

Professor Rebecca Tsosie, Arizona State U. Sandra D O’Connor College of Law – approaches Prof. Pommersheim’s book from several approaches.  The thesis – that we really do, ultimately, constitutionalize the relationship between the US and the tribes.  This is the time – passage of the UN Declaration of the Rights of Indigenous Peoples shows the global challenge as well as the national challenge. 

            But is “constitutionalizing” the relationship the practical and prudent thing to do?  Independence is self-determination.  Consider what that will mean for Hawaii…

 

That the UN Declaration doesn’t give these peoples a right to secede………so on the theory that this is permanent, what are you really trying to do with self-determination?  Four models that seem to operate simultaneously.

            Inherent sovereignty – the pre-constitutional relationship of what it means to be a “domestic dependent nation.”  The flaw is the plenary power doctrine that came from that term.

            Self-administration model – the federal gov’t establishes the policy, tribes contract with them and carry out the plans/programs (a big chunk of US policy currently, even though co-joined with inherent sovereignty.

            Co-management/joint management model – accepting that the resources are divided up, but Indians have a right to them everywhere as an individual right….which is a huge problem.

            Participation in public government model – equal participatory rights in the nation-state, but also have their institutions at the tribal level.  Can a dependent tribe still be an independent nation?  This is a thread that runs through all of the cases…..and a lot of justices say that they simply can’t. 

We are in a time of transformation….and a time for a more equitable “platform” and the norms to get there must be inclusive of tribal norms as well as American law and constitutional law.

 

My comments – it simply isn’t practical to amend the Constitution and bring the several hundred tribes completely under its aegis with their total cooperation.  You’d have to pass a constitutional amendment to bring the tribes into the constitutional amendment process BEFORE you could pass a constitutional amendment bringing them into the Constitution.  Otherwise, you couldn't say you have their consent.  Sorry, but it's just not practical to think of getting TWO constitutional amendments past 2/3rds of the states and all of the tribes.

twp

Bloggin' from the FedBar........Plenary Session 2

Actually, there were sessions 2A and 2B (or not to be?)....these notes are from 2A:

Sovereign Immunity in Commercial Law

Professor Vicki Limas, of U. of Tulsa Law School – denying the existence of sovereign immunity is denying tribal sovereignty altogether.  The standard for avoiding tribal sovereign immunity is pretty high….takes a clear and unmistakable waiver by the tribe, or an unequivocally expressed, clear abrogation of it by Congress.  More lately, there can be an “indirect abrogation” of immunity when the federal courts determine that a “general” federal statute applies to tribes; e.g., the National Labor Relations Act, recently applied to tribes by some federal courts.

 

Padraic McCoy, of Tilden McCoy LLC – important to understand the context of tribal sovereignty in the commercial context through the two Supreme Court cases on point (the Oklahoma Tax Commission case and Kiowa case)…..it comes up all the time…..a core part of the transactional process as you’re dealing with tribes’ commercial endeavors.  One of the major issues to outside banks is how they can collect if a tribe defaults on a debt.  Security and enforcement are very critical issues to banks.  But one of the most important things we can do for the tribes it to protect their treasury….protect tribal resources.

Conley J. Schulte, of Fredericks, Peebles & Morgan LLP – Recent attempts to bring more judicial limits on tribal sovereign immunity….Colorado v. Cash Advance.  The argument is that while a tribe may have sovereign immunity, tribal governmental subdivisions may not enjoy that same immunity.  How do you determine if a subdivision is close enough to the tribal government to retain sovereign immunity?  Courts have come up with “factors” tests, e.g., the Colorado Appellate Court in the Cash Advance case developed an 11 factor test.  (This has been challenged in front of the Colorado Supreme Court, and a decision is currently pending).  The alternative is a bright-line rule that all courts should follow, and he hopes that they will.

Bloggin' from the FedBar........Plenary Session 1

Some notes on the first FedBar plenary session, “Federal Criminal Justice in Indian Country”………..here are summations of what the speakers' presentations:

 

Professor Creel of UNM Law School….as a former Federal Public Defender, she expressed great concern about the dissonance between the federal justice system and the tribal justice systems, particularly in the context of domestic violence cases.  There is a problem – the Indian Civil Rights Act doesn’t mandate attorney representation for tribal court criminal defendants, and there is rarely, if ever, the money for providing that representation.   But the federal courts won’t recognize/respect those cases for federal prosecutions….which can make a big difference if the federal court should be acknowledging prior convictions.

 

Jeff Davis, Assistant U.S. Attorney for the Western District of Michigan, had some interesting reflections on the topic, starting this this – crime and violence in Indian Country keeps increasing, to epidemic proportions, so we must be doing something wrong.  But it’s very difficult to change a bureaucracy to respond to such problems.  One good thing – there will be an increased number (33 new positions) of AUSAs specifically detailed to prosecute crimes in Indian Country

 

The Hon. Martha Vazquez, Chief Judge for the US District Court for the District of New Mexico has a lot of experience with cases from Indian Country.  They hear the cries from the tribes asking for more prosecutions of the crimes in Indian Country, especially the violent crimes..and know that too often, the local resources are insufficient for even the misdemeanor crimes, which are increasing and becoming overwhelming.  She noted a significant disparity in how crimes and criminals are treated in Indian Country as compared to outside……..and how rare a sentence to probation is if the case has emerged from Indian Country.  As a result of the fact that the federal, and not state, courts have jurisdiction over Indian Country, Indian defendants serve disproportionately long sentences compared to those defendants committing essentially the same crimes and tried in state courts.  Native Americans are not able to fully participate in the justice system at all levels, and that creates problems…..there need to be more Indian lawyers, probation officers, FBI agents, defenders, prosecutors, and judges.  Without full participation, the integrity of the system is at risk, because it will (is?) be perceived to simply be unfair to them.