sovereignty

The U.S. Supreme Court heard oral arguments last week on whether Puerto Rico has the legal authority to try two gun dealers for allegedly illegal firearm sales after they plead guilty in federal court, USA Today's Richard Wolf reports.

The Obama administration has taken the position that Puerto Rico, as a U.S. territory, can't do so. But the Puerto Rico constitution gives the territory autonomous self-government.

A majority of the justices appeared to side with Puerto Rico during the oral arguments, Wolf reports.

The California Indian Law Association has filed a Freedom of Information Act lawsuit to get more information about an alleged "confession of error" by former acting U.S. Solicitor General Neal Katya that his office made misrepresentations to the U.S. Supreme Court in American Indian law cases, The Legal Times' Tony Mauro reports. Katyal made his remarks in a video for the Federal Bar Association's annual Indian law conference in 2011.

According to the association's complaint, Katyal made a "'confession of error' for the solicitor general's role in two Supreme Court cases that were setbacks for tribal sovereignty: United States v. Sandoval, a 1913 decision that limited tribal property rights in New Mexico, and the 1955 ruling in Tee-Hit-Ton Indians v. United States, which rejected an Alaskan tribe's Fifth Amendment claim seeking compensation for timber taken on tribal lands," Mauro reports.

A confession of error could undermine those precedents, which have been cited hundreds of times in federal court, Mauro also reports.
 

Foreign Affairs' Timothy William Waters suggests that--now that the Palestinian Authority has joined the International Criminal Court and the ICC has acknowledged that Palestine accepts its jurisdiction--there could be trouble for the ICC if it prosecutes a case against Israeli forces operating in the West Bank and Gaza. Israel argues that Palestine is not a state, and the "ICC is a weak institution; prosecuting Israel could prove fatal," Waters writes. On the other hand, avoiding the pursuit of a legitimate case against Israel would make the weak institution irrelevant, especially because ICC has only prosecuted cases in Africa so far, Waters further wrties.

Waters also notes that now that Palestine's citizens can be tried for their own violations: "Standing trial for war crimes is a funny way to prove you’re a state, but if Hamas keeps firing rockets at Israel, Palestinians may get their day in court."

The Otoe-Missouria Tribal Nation is suing the Connecticut Department of Banking over the agency's efforts to curb the payday loans the tribe offers over the Internet, The Connecticut Law Tribune's Jay Stapleton reports. The tribe argues Connecticut's administrative enforcement action to stop its payday-loan businesses violates its tribal sovereignty. The tribe's lending companies charge up to 700 percent.

The U.S. Court of Appeals for the Second Circuit ruled against tribal immunity in a similar lawsuit.

The Penobscot and Passamaquoddy tribes are seeking the power to try domestic violence cases involving non-tribal members, the Portland Press Herald's Colin Woodard reports. The plan is setting up a dispute over the scope of tribal authority in Maine.

A 2013 federal law expanded the authority for tribes to try domestic violence crimes involving non-tribal members so long as tribal courts meet federal constitutional standards and provide legal counsel. A bill has been introduced in Maine to align that state's law with the 2013 amendment to the Violence Against Women Act as well as to give the Penobscots expanded criminal jurisdiction for offenses that involve sentences up to three years.

The Maine Attorney General's Office argues that federal law does not apply to Maine tribes because "the Maine Settlement Act of 1980, which says that no federal Indian law is applicable within Maine if it 'affects or pre-empts the civil, criminal or regulatory jurisdiction of the State of Maine' unless Congress explicitly specifies it is to apply to the Maine tribes," Woodard reports.

Tribal leaders counter that the bill would enable to them to better protect women abused by their non-American Indian intimate partners.

Alaska Native tribes will now be able to prosecute domestic violence crimes committed against American Indians by non-Natives, The Washington Post's Sari Horwitz reports. A previous amendment to the Violence Against Women Act gave jurisdiction to tribal courts to prosecute domestic violence crimes and address the lack of legal protection that Native women have from assailants, but Sen. Lisa Murkowski (R-Alaska) added an exemption for Alaska Native tribes. Murkowski supported the rollback of the exemption.

A sharply divided New York Court of Appeals ruled that a golf course owned by the Seneca Indian Nation doesn't have sovereign immunity shielding it from lawsuits, according to an AP report. The builder of the golf course, which is close to Niagara Falls, has sued over money it says it is owed on the course's construction contract. The majority held that the corporate entity, a wholly owned subsidiary that owns the golf course, is not immune from suit because it can't bind tribal money and the Senecas don't own the golf course land. The dissent said there was no rational basis to distinguish the subsidiary from its corporate parent, which is an arm of the tribe and does have immunity.

Last month, the United Nations General Assembly approved a document to strengthen the rights of indigenous peoples around the world as part of a meeting of international leaders. However, Steven Newcomb, writing for Indian Country Today Media Network, says that it is clear that American Indian tribes are not being recognized as sovereign nations by the United Nations or by the United States: "What the United States government is supporting in the United Nations is an international recognition of the United States’ imposed 'domestic dependent nation' status for our Originally Free Nations, a status premised on the Doctrine of Christian Discovery and Domination. The U.S. is fully supportive of that 'domesticated' and 'tribal' status being recognized in the United Nations because it serves to validate in the international arena the centuries-old, 'under-the-thumb' system of US domination and Original Nation subjection, which is typically called U.S. federal Indian law and policy."

The Ninth Circuit has ruled that past criminal convictions in American Indian courts can't count as proof of a defendant's criminal history if defendants weren't guaranteed the right to an attorney, The Guardian reports. Michael Bryant Jr. was convicted of domestic assault in Northern Cheyenne Tribal Court but didn't have an attorney. While the Eighth and Tenth Circuits have found that tribal convictions aren't governed by the American Constitution, the Ninth Circuit has ruled that Bryant's conviction wasn't legal because the Sixth Amendment guarantees the right to an attorney.

The U.S. Court of Appeals for the Second Circuit has ruled that New York's top financial regulator can tackle online lending businesses run by two American Indian tribes in Oklahoma and Michigan, the New York Times reports: "In their lawsuit, the tribes — the Otoe Missouria Tribe in Red Rock, Okla., and the Lac Vieux Desert Bank of Lake Superior Chippewa Indians in Watersmeet, Mich. — argued that their sovereign status shielded them from the reach of New York State. The appeals court disagreed, outlining in a 33-page opinion that the borrowers reside in New York and received the loans, 'certainly without traveling to the reservation.”'