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10th Circuit Reinstates Prosecution in Eagle Killing Case May 11, 2008

Posted by rezjudicata in 10th Circuit, Federal Circuits.
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United States v. Friday, No. 06-8093 (10th Cir. May 8, 2008)

Issue(s): Religious Freedom Restoration Act > Substantial Burdens >> Compelling Interests; Bald and Golden Eagle Protection Act > Permit System >> Least Restrictive Means

The Bald & Golden Eagle Protection Act criminalizes taking eagles without a permit. Through an obscure procedure, members of federally recognized tribes can apply for a permit to take an eagle for religious purposes. Friday, a Sun Dance sponsor, shot a bald eagle for the ceremony without obtaining a permit. So the government prosecuted him. But does the Eagle Act unlawfully burden Friday’s free exercise under the Religious Freedom Restoration Act?

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Navajo Supreme Court Rules Incarceration of Children for Disorderly Conduct Illegal April 27, 2008

Posted by rezjudicata in Navajo Supreme Court, Tribal Courts.
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In re N.B., No. SC-CV-03-08 (Nav. Sup. Ct. Apr. 16, 2008)

Issue(s): Navajo Law > Habeas Corpus; Navajo Law > Juvenile Justice >> Dispositions >>> Incarceration; Navajo Law > Fundamental Law >> Diné bi beenehaz’áanii

After the Family Court adjudicated N.B. a delinquent for disorderly conduct, it placed him on suspended probation. N.B., however, failed to comply with the court’s conditions. In response, the court revoked N.B.’s probation and jailed him. If under Navajo law the court could not imprison an adult for disorderly conduct, could the court imprison N.B. for the same offense?

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Plains Commerce Oral Argument: Impressions April 15, 2008

Posted by rezjudicata in SCOTUS.
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Turtle Talk and Legal Times have written interesting first impressions of oral argument. We’ll see if we can add anything here.

What we learned from oral argument, which all-in-all went better than expected for tribal interests:

1) The Court’s two newest members, Roberts and Alito, hold narrow opinions of tribal sovereignty. The Chief Justice and Alito took the lead in peppering the Long Family’s attorney with questions and hypotheticals mostly designed to point out general problems with tribal jurisdiction over nonmembers. To this end, Roberts made thinly veiled reference to tribal legal research obstacles and how a bank could know it dealt with an ‘Indian’ corporation. And Alito even attempted to rehabilitate the Bank’s argument after it withered under attack from Scalia, Souter, and Ginsburg. But even so, neither Justice managed to drive a convincing wedge between ‘Montana 1′ and the facts in this case.

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Plains Commerce Oral Argument: Transcripts April 14, 2008

Posted by rezjudicata in SCOTUS.
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The U.S. Supreme Court held oral argument today in the Plains Commerce case. Audio is not yet available, but here is the 59-page transcript.

Analysis to follow.

Eighth Circuit Rejects Tribal Court Jurisdiction over Auto Crash Suit April 6, 2008

Posted by rezjudicata in 8th Circuit, Federal Circuits.
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Nord v. Kelly, No. 07-1564 (8th Cir. Apr. 4, 2008)

Issue(s): Tribal Courts > Civil Jurisdiction >> Non-members >>> Strate

While hauling timber off of the Red Lake Reservation under a contract with the Tribe, Nord collided with Kelly. The accident occurred inside the Reservation, but on a state highway. Kelly sued Nord in the Red Lake Tribal Court. The Tribe purportedly granted the State a right-of-way for the road and the State maintains the road. If Nord is not a member of the tribe, could the tribal court exercise jurisdiction over Kelly’s suit?

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Cherokee Supreme Court Rejects Council Members’ Claims for Legal Fees March 28, 2008

Posted by rezjudicata in Cherokee Supreme Court, Tribal Courts.
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Cherokee Nation v. O’Leary, SC-2006-13 (Cher. Sup. Ct. Jan. 22, 2008)

Issue(s): Cherokee Law > Council Legal Fees >> Reimbursement; Cherokee Constitutional Law > Separation of Powers >> Council Members >>> Enumerated Authorities

After discovering suspected wrongdoing by the Principal Chief and several executives, seven Cherokee Tribal Council members (Appellants) hired lawyers to pursue legal action. Appellants sued the Chief and others “on behalf of the Nation,” but without formal approval of the tribal council as a whole. Appellants then requested that the Cherokee Nation cover the Appellants’ legal costs. Is the Nation obligated to recoup Appellants’ legal expenses?

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Ninth Circuit Says HUD Breached No Actionable Trust Duty Concerning Blackfeet Housing March 27, 2008

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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Marceau v. Blackfeet Housing Authority, No. 04-35210, (9th Cir. March 19, 2008)

Issue(s): Tribal Immunity > Waiver; Federal Courts > Comity >> Tribal Court Exhaustion; Trust Relationship > Causes of Action >> Mitchell Doctrine; Administrative Law > APA Claims >> Required Agency Actions

In 1977, the Blackfeet Tribe created the Blackfeet Housing Authority to take advantage of HUD block grants. Adopting HUD-authored regulations and using HUD money, the Authority built 153 homes. According to Marceau, HUD directed the Authority to use chemical-laden wooden foundations for the home. As a result, many of the homes’ inhabitants became seriously ill and many of the homes became uninhabitable. Did the Authority enjoy immunity from suit as a tribal entity? If not, did the plaintiff’s need to exhaust their tribal court remedies? Did plaintiffs have a cause of action against HUD for violating a trust responsibility? And could plaintiffs state a claim against HUD based on the APA?

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Navajo Supreme Court Upholds Family Court’s Jurisdiction over Non-resident Navajo Children March 21, 2008

Posted by rezjudicata in Navajo Supreme Court, Tribal Courts.
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Miles v. Chinle Family Court, No. SC-CV-04-08 (Nav. Sup. Ct. Feb. 21, 2008)

Issue(s): Jurisdiction > Subject Matter Jurisdiction >> Custody >>> Non-resident Members; Navajo Law > Due Process >> Notice Requirements

After his relationship with the Mother failed, Miles took their daughter and left the Navajo Nation. Sometime later, the Family Court granted the Mother’s motions for immediate custody and writ of habeas corpus. The Mother, however, never successfully served Miles. While the daughter is a member of the Nation, Miles is not. Did the Family Court have jurisdiction over the Mother’s motions? If so, the court violate Miles’s due process rights by issuing the custody orders without notice to Miles?

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New Mexico Supreme Court Says Road Separating Pueblos Not “Indian Country” February 29, 2008

Posted by rezjudicata in State Courts.
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State v. Quintana, No, 29,909 (N.M. Jan. 25, 2008)

Issue(s): State Jurisdiction > Crimes >> Indian Country; Indian Country > Definitions >> Venetie Test

If not within the exterior boundaries of a reservation, land is “Indian Country” only if it qualifies as a “dependent Indian community.” New Mexico charged Quintana with several crimes stemming from a car accident that occurred on State Road 16. The road acts as the boundary between the Cochiti and Santo Domingo Pueblos and is the only northern access to Cochiti Pueblo. Is the road “Indian Country” for purposes of state criminal jurisdiction?

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2/22 Conference Update: Carcieri v. Kempthorne – Cert Granted February 25, 2008

Posted by rezjudicata in SCOTUS.
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The Supreme Court has granted certiorari to Carcieri v. Kempthorne. The Court’s review will be limited to Questions 1 and 2 of the petition. These are:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934; and

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

Though SCOTUSblog correctly predicted this grant, it erroneously identified the issue as clarification of “the federal government’s power to take land for the benefit of Indian tribes that are not officially recognized.”