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Book Review: Broken Landscape: Indians, Indian Tribes, And The Constitution, Raymond Cross

Faculty Journal Articles & Other Writings

The author reviews Frank Pommersheim's book, Broken Landscape: Indians, Indian Tribes, and the Constitution. The author finds the book a deserving read because it recognizes that Indian law, when used thoughtfully and appropriately, can substantially assist the Indian peoples in their self-determination efforts. However, contrary to Pommersheim's suggestions in his introduction that Indian law's role is to ultimately free the Indian peoples from their dependency on the federal government, the author suggests that instead the Indian peoples themselves -- and not lawyers, courts, or legislatures -- must decide when, and if, they will choose to exit their present state …

Tribe V. Read Head, 2011c-4448-4450 (Blkft. Tr. Ct. App., Dec. 16, 2011), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court considered a petition for a Writ of Habeas Corpus and considered whether un-arraigned defendants can be held longer than 72 hours. The Court ruled that prolonged incarceration without proper court order violated the defendants due process rights. The Case is dismissed and the defendant is ordered released.

Flammond V. Lafara, 04-Ca-172 (Blkft. Tr. Ct. App., July 18, 2011), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court denied a motion for a rehearing. The Court reaffirmed that grounds for an appeal must be based on “some facts, material to the decision, or some question decisive of the case submitted by counsel, was overlooked by the Court, or that the decision, is in conflict with an express statute or controlling decision to which the attention of the Court was not directed ... " Blackfeet Law & Order Code, Ch. 11, Sec. 21.

Development's Victim Or Its Beneficiary?: The Impact Of Oil And Gas Development On The Fort Berthold Indian Reservation, Raymond Cross

Faculty Law Review Articles

This article assesses whether oil and gas development on the Fort Berthold Indian Reservation, given the critical geographic, legal, and socio-cultural differences which set it apart from the rest of North Dakota, will bring with it potentially devastating and unmanageable impacts that may overwhelm the tribal people of that reservation. The article seeks to fill an analytic gap in the existing oil and gas scholarship that has not, in the author's estimation, given sufficient regard to development's unique rights and impacts in Indian Country.

In Re Est. Of Sure Chief, No. 2009-P-20 (Blkft. Tr. Ct. App., Jul. 1, 2010)., Blackfeet Appellate Court

Court Decisions

Court of Appeals held that petitioner could not appeal the appointment of personal representative for her mother’s estate until she had exhausted her remedies at the Lower Court “with verification of how her rights have been violated.”

Have American Indians Been Written Out Of The Religious Freedom Restoration Act, Jessica M. Wiles

Montana Law Review

Written out of RFRA

In Re Evanson, No. 2009-J-033, 2009-Ap-06 (Blkft. Tr. Ct. App., Jun. 22, 2010)., Blackfeet Appellate Court

Court Decisions

The Court of Appeals upheld the lower court’s dismissal of a child custody case for lack of jurisdiction. The Court held that the Blackfeet Family Code limits the Court’s jurisdiction only to those children who reside on the Blackfeet Reservation, which Evanson did not.

In Re Mh, A Minor Child, 2009-Ap-05 (Blkft. Tr. Ct. App., June 16, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, in a custody petition filed by the grandmother, the Court determined that the lower court violated the grandmothers due process rights by not allowing the grandmother to present testimony, thus determining custody based on hearsay evidence. The case is remanded back to the lower court for a new hearing.

After Buffalo V. Burd, 2010-Ap-06 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court overturned the lower court’s reward of alimony, finding that Blackfeet Tribal Code does not have a law regarding alimony. The Court also dismissed a restraining order because there was nothing in the pleading to substantiate the need for a restraining order and the lower court did not hold a hearing regarding it.

In Re Marriage Of Blackman And Blackman, 2008-Ca-100 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court held that Blackfeet Law and Order Code, Chapter 11 only allows appeal from final judgment. Because no final judgment had been rendered by the lower court, the appeal was without merit.

Tribe V. Marceau, 2010-Ap-05 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In a brief order, the Blackfeet Tribal Court of Appeals held that the Tribe could not appeal the trial court judge’s verdict of not guilty due to lack of evidence. The Court cited to Chapter 11 Sec. 11-A of the Blackfeet Tribal Law and Order Code, which limits the circumstances in which the Tribe can appeal in a criminal case. Sec. 11-B, which outlines the circumstances when the Tribe can appeal in a criminal case, does not provide that the Tribe can appeal a not guilty verdict.

Tribe V. Pepion, 2010-J-308 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court found that the Tribe had repeatedly violated the rights of Pepion, a minor, and had not followed the Blackfeet Family Code. The Court voided any outstanding probation obligations of Pepion.

Anderson V. Campos, 2010-Ap-01 (Blkft. Tr. Ct. App., June 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court reaffirmed that pre-mature appeals, where the petitioner did not exhaust remedies at the lower court, will not be heard, absent extraordinary circumstances. If the lower court refuses petitioners' motion, then they have the opportunity for recourse through the appellate process.

Tribe V. Rides At The Door, 2009-Ap-14 (Blkft. Tr. Ct. App., May 26, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed a criminal prosecution for lack of Speedy Trial after the Tribal Court Chief Clerks Office twice failed to convene a jury and the 180-day presumption of Speedy Trial elapsed. The Clerk spoke to the Defendant and erroneously informed them that the trial was reset. The Defendant failed to appear. No jury trial was subsequently convened. (See also Tribe v. Mad Plume, 93-AP-08 (Blkft. Tr. Ct. App., May 20, 1993); Tribe v. Mancha, 91-AP-03 (Blkft. Tr. Ct. App., Aug. 29, 1991))

Tribe V. Gobert, 2009-C-1143 (Blkft. Tr. Ct. App., May 19, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court granted a motion to dismiss for lack of evidence. The Defendant claimed his right to due process was denied under the Blackfeet Laws and Order Code. The Court found that the Tribe failed to respond to the Defendant’s appeal.

Keeping The American Indian Rancher On The Land: A Socio-Legal Analysis Of The Rise And The Demise Of American Indian Ranching On The Northern Great Plains, Raymond Cross

Faculty Law Review Articles

This article evaluates the phenomenon of Indian ranching from its rise in the late nineteenth century to its potential demise in the early years of the twenty-first century. The article examines the many intertwined factors -- political, economic, cultural, ecological, and spiritual -- that account for Indian ranching's rise, as well as its impending demise. The article asserts that Indian ranching could well have become the Indian-civilizing strategy that helped bridge the vast socioeconomic gulf that existed, and still exists, between the Indian and non-Indian peoples of the northern Great Plains. The article concludes that Indian ranching's impending demise can …

In Re The Estate Of Avonne Goss, 2008 P 05, (Blkft. Tr. Ct. App., Nov. 4, 2009), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals the Court answered teh question to whether the “Bill of Sale” of a home from Avonne Goss to Robbin Goss, for the sum of $1, constituted a valid legal document. The Court determined that the home will remain in full ownership of Robbin Goss and the Bill of Sale for $1 was a valid legal document.

In Re The Estate Of Avonne Goss, 2008 P 05, (Blkft. Tr. Ct. App., Nov. 4, 2009), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals the Court answered the question to whether the “Bill of Sale” of a home from Avonne Goss to Robbin Goss, for the sum of $1, constituted a valid legal document. The Court determined that the home will remain in full ownership of Robbin Goss and the Bill of Sale for $1 was a valid legal document.

Goss V. Bird, Et. Al., 2008-Ca-129 2 (Blkft. Tr. Ct. App., May 14, 2009), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court declined to proceed with an appeal until the lower court holds a hearing to determine Defendants self-insurance claim in a Motion for Summary Judgement. The Court noted that the lower court failed to address the issue of self-insurance and remanded the case back to the lower court to make that determination, prior to accepting the case in an appellate court.

L. Kaline V. J. Kaline, 2007-Ca-126 (Blkft. Tr. Ct. App., Sept. 29, 2008), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court determined that the lower court did not err in the distribution of property when the court relied on property lists supplied by both the Plaintiff and Defendant, and after neither party objected to the property settlement. If a divorce has an agreeable settlement prior to the divorce, the court will not see it as a default divorce. The Court maintains a lower court determination when it is found to be fair and equitable and will not grant a stay on execution of judgement.

A Non-Indian Entity Is Polluting Indian Waters: "Water" Your Rights To The Waters, And "Water" You Gonna Do About It?, Sean M. Hanlon

Montana Law Review

Indian Water Rights

Ridesatthedoor V. Morris, 2004-Ap-18 (Blkft. Tr. Ct. App., March 14, 2007), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court clarified that in a Cicil Action where the petitioner fails to answer the appeal, and the time limit has long since expired, the case may be dismissed.

Tribe V. Jackson, 2004-Ap-14 (Blkft. Tr. Ct. App., February 20, 2007), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court determined that the case has not met the timelines for appeal, and the Order of Judge Johnson (April 4, 2005) and Sentencing Order (May 27, 2005) are upheld. Further, the case was remanded back to the lower court to be dealt with. The court found that there was no appeal filed.

Tribe V. Wippert, Blackfeet Appellate Court

Court Decisions

In the Blackfeet tribal Court of Appeals, the Court reviewed whether the defendant’s rights were violated when the lower court sustained an objection by the prosecutor, denying defense counsel’s assertion that he had the right to review evidence prior to trial. In this case, the defendant did not appear for his initial trial setting and his defense counsel withdrew and transferred the case to another attorney. That attorney noticed that none of the discovery evidence was given to him, in the file, and only the underlying warrant was available to him. The Judge ordered a continuance, without motion, so the …

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

Tribe V. Roland, 2002 C-4874-4886 (Blkft. Tr. Ct. App., Dec. 6, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court reversed a lower court order which dismissed a case for lack of personal jurisdiction. The question before the Court was whether the Defendant was swept into the criminal jurisdiction of the Blackfeet tribe by reason of the “Duro-fix.” (See Duro v. Reina, 45 U.S. 676 (1990), §25 U.S.C. 1301(2), U.S. v. Lara, 541 U.S. 193 (2004), and Means v. Navajo Nation, 432 F.3d 924 (2005)).

The “Duro-fix” is an amendment to the Indian Civil Rights Act which confirmed that an Indian Tribe has “inherent power” to exercise criminal jurisdiction over all …

Augare V. Baker, 2004-Ca-275 (Blkft. Tr. Ct. App., Oct. 10, 2006), Blackfeet Appellate Court

Court Decisions

The Blackfeet Tribal Court of Appeals upheld the lower court’s opinion denying the defendant’s appeal that the lower court Judge heard nothing but hearsay and that he was unfairly represented. The plaintiff filed a civil complaint in the lower court stating the defendant owed him $6,875 in back rent, missing property, and odd jobs that the defendant promised to do. The Court of Appeals found that the defendant had every opportunity to seek counsel and failed to do so in a timely manner.

Laplante V. Winkowitsch, 05-Ap-08 (Blkft. Tr. Ct. App., Oct. 10, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court considering a dispute over the pasturing of cattle longer than the original contract terms. While the original two-month contract was in writing, both parties agree that a verbal contract, with terms, covered the next two months. Cattle was lost and Defendant countersued for the loss of cattle. On Appeal, the Court determined that the lower court judge should have recused himself because he briefly represented the plaintiff in this matter before becoming judge. The Findings of fact were not supported by substantial credible evidence, and the pro se plaintiff, who did …

In Re T.G. Jr., A Minor Child, 2006-Ap-01 (Blkft. Tr. Ct. App., May 5, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court denied a motion for appeal and remanded the case back to Family Court. The father of TG Jr., filed for a motion for appeal on January 17, 2006. The Court found that motion for appeal was premature under Chapter 11, Section 30 of the Blackfeet Law and Order Code of 1968 that reads, “A party aggrieved may appeal from a final judgment entered in an action or proceeding commenced in the Tribal Court.” Because no final judgment had been issued by the Blackfeet Family Court, the Blackfeet Tribal Court of Appeals …

In Re O’Neil, 06-Ap-15 (Blkft. Tr. Ct. App., April 15, 2006), Blackfeet Appellate Court

Court Decisions

• This matter stemmed from Jerry O’Neil’s appeal from an order of the Blackfeet Tribal Court barring him from practicing in the Tribal Court.  

• On February 23, 2006, Tribal Judge Johnson issued an order, sua sponte, requiring respondent to show cause why he should not be disbarred from practicing as an attorney/advocate in Blackfeet Tribal Court. O'Neil moved to quash the show cause order, and with a supporting memorandum attached a copy of his certificate of admission to practice and the relevant Blackfeet Law and Order Code that explains what attorneys must due when seeking admission to practice in Blackfeet Court. …

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