The Annual Tribal Law Conference at the KU School of Law will be held this year in conjunction with the Four Tribes in Kansas’ Native Nations Law Symposium. Day one (Feb 11th) at KU Law. Day two (Feb. 12th) at Prairie Band Casino and Resort. Agenda and on-line registration here. Among the topics are tribal economic development, gaming, tribal court jurisdiction, probate reform and ethics in tribal government. Cherokee Nation tribal citizens Stacy Leeds, Mark Dodd, and Melody McCoy are among the speakers.
Archive for the ‘Tribal Courts’ Category
Tribal Law Conference in conjunction with Native Nations Law Symposium, Feb 11-12th, 2010
Tuesday, January 12th, 2010New Federal Lawsuit – Cherokee Nation v. Nash
Thursday, February 5th, 2009The Cherokee Nation has initiated a new lawsuit against a few freedmen individuals and the Secretary of Interior seeking a federal ruling on the citizenship question. The case is styled Cherokee Nation v. Nash (and others) and here’s the complaint that was filed in the Northern District. To summarize, the Cherokee Nation argues that the freedmen have no continuing federal right to tribal citizenship because the freedmen provisions of the Treaty of 1866 were abrogated by Congress when it passed the Five Tribes Act in 1906.
You may recognize the Defendant Nash as being the lead Plaintiff in the class action freedmen lawsuit that is currently pending in the Cherokee Nation judiciary. In Nash v. Cherokee Nation, the freedmen have filed a motion for summary judgment with respect to the 1866 Treaty. To summarize, the freedmen argue that the freedmen provisions of the Treaty of 1866 are still binding federal/tribal law.
You may also recall that there is another pending federal lawsuit on this issue in the DC district court. In that case, a group of freedmen initiated a lawsuit against the Department of the Interior and did not name the Cherokee Nation as a defendant. The Cherokee Nation was allowed to intervene in the lawsuit and the case was dismissed as against the Cherokee Nation government on sovereign immunity grounds. The case is, however proceeding on the merits, as against the Principal Chief and other tribal officers on the grounds that they are acting outside of their authority in violation of federal law, ie. the 1866 Treaty.
These three cases proceed simultaneously for now.
Cossey v. CNE – Sovereign Immunity Case from OK Supreme Court
Monday, January 26th, 2009There's been news reports over the last few days about a case out of the OK Supreme Court ruling that Cherokee Nation Enterprises (CN casinos) can be sued in state court by individuals who get hurt on CNE lands. It looks like a trend in the Oklahoma state courts to open the door to tort claims against tribal businesses. I blogged in 2008 about state court lawsuits against the Choctaw and Absentee-Shawnee lawsuits. Here's the court's opinion on the Cossey v. Cherokee Nation Enterprises case.
There are several disturbing statements from the Oklahoma Supreme Court in this decision.
The case involved a non-Indian who was injured at a CNE facility located on trust land. Although the individual went to the facility for gaming purposes, the OK Supreme Court held that there was no consensual relationship between the casino patron and the tribal business because the patron had not established a relationship with the tribe "through commercial dealings, contracts, leases or other arrangements." The Court noted, however, that the tribe and the state entered into a consensual relationship by virtue of the Gaming Compact, to which the individual patron was not a party.
Although the Gaming Compact contains a disclaimer that nothing in the compact shall alter "tribal, federal, and state civil adjudicatory or criminal jurisdiction," the Court stated that the Compact incorporated Oklahoma's Tort Claim Act and rather than specifying tribal or state court as the preferred forum, cases are to be filed in a "court of competent jurisdiction."
Two observations for tribes moving forward.
- This is exactly why all tribes need to pass a Tribal Tort Claims Act to deal with lawsuits against the tribal government and tribal businesses. The Choctaw case from 2008 is proof positive that a lack of tribal forum opens up the door for state intrusion. The Cherokee case is an example of what can happen when a tribe fails to provide plan for these type of lawsuits by adopting tribally specific tort claims legislation prior to entering a compact.
- Never enter into an agreement that does not specify the tribal court as the forum of choice.
Tribal Protection Order Forms
Friday, May 30th, 2008A new round of tribal court protective order forms are available on-line. These meet VAWA standards and are good examples to be used in other courts. Thanks to Sarah Deer (Muscogee (Creek) Nation) for her work.
Indian Law Case Before US Supreme Ct Today
Monday, April 14th, 2008The US Supreme Court is hearing oral arguments today on a case involving a tribal court decision. Given the track record for tribal court jurisdiction questions before the US Supreme Court, this one makes me very nervous.
Updated to add the quote of the day from the oral argument transcript, page 24:
Chief Justice Roberts: "One of the points you mentioned earlier is that this is an Indian corporation, and that’s a concept I don’t understand. If Justices Scalia and Alito form a corporation, is that an Italian corporation?" Laughter recorded in transcript.
Tribal Court Jurisdiction and Family Law
Sunday, March 23rd, 2008One of the open questions for tribal courts: does the tribe have jurisdiction over tribal children, even if the child is located outside the tribe’s Indian Country? In Indian Child Welfare cases, tribes retain at least concurrent jurisdiction. What happens in a standard custody dispute between mom and dad, when only one parent is a tribal citizen? The Navajo Nation Supreme Court recently issued a decision in Miles v. Chinle Family Court, a custody dispute between a Navajo parent and non-Navajo parent where the non-Navajo parent removed the child from the reservation. The Navajo Supreme Court ruled that the tribe retains jurisdiction over Navajo children no matter where they are physically located. The ruling was based, not on the PKPA or the UCCJA, but on Navajo tribal laws that tie jurisdiction to citizenship. It is refreshing to see a tribe define jurisdiction broadly. Too many tribes adopt a narrow view of their own jurisdiction and as a result, force their tribal citizens to resolve core family law issues in a foreign court. This approach amounts to a consensual erosion of tribal sovereignty. The Cherokee Nation rightfully exercises the power to marry a couple under tribal law, but the Council has not passed legislation for divorce or dissolution in tribal court. If the marriage breaks down, the parties are forced to go to Okahoma courts to resolve property distribution and child custody matters. Or, perhaps there’s an argument that the Cherokee District Court can hear this type of matter as a court of general jurisdiction?
Tribal Protection Orders Website
Monday, February 25th, 2008New website for domestic violence protection order information (for tribal and non-tribal entities). The website contains model tribal codes and suggested language. If your tribe has not addressed legislatively addressed this issue (and many have not), please put heat on your tribal council members to do so. Although there are federal laws to prevent the need to obtain both state and tribal protective orders, I am still amazed how often it happens in practice.
Tribal Oil and Gas Tax
Wednesday, February 20th, 2008The Kickapoo Tribe of Oklahoma imposes a severance tax on oil and gas extracted from trust lands, including the allotments of tribal members. The Western District (Okla.) Federal Court issued an order, (agreeing with a previous Tribal Supreme Court decision), that the tribal tax was a proper exercise of tribal sovereignty.
Federal Court Order here: Download federal_order_kickapoo_case.pdf
Tribal Court Decision here: Download vintage_kicksct.pdf