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Volume 15: 2014-2015

Faculty Advisor

Professor Scott Taylor

Managing Editor

Eric Abeita

Professional Article Editors

Sophie Asher
Heidi Todacheene

Citation Editors

Sarah Armstrong
Paul Onuska

Social Media Editor

Sarah Armstrong

Student Staff

Javier Amaya, Monique Chavez, Christopher Dodd, Rachel Felix, Michael Gay, Christopher Jaramillo, EJ John, Christine Jordan, Kathryn Lash, Jeremy Martin, Concetta Tsosie, Diego Urbina, Erica Valdez, April Wilkinson

Articles

The Seminole Way: The Path to the 2011 Reestablishment of the Seminole Nation of Oklahoma Tribal Court System

John Haney

This article will examine the Seminole Nation of Oklahoma’s path from the federal dismantling of the Seminole Nation tribal court system upon the statehood of Oklahoma in 1906 to the Seminole Nation’s reestablishment of its tribal court system in 2011. This article will also explore the Seminole Nation’s methods of integrating tribal tradition and custom into the Seminole tribal court system, and will also present the many challenges that exist in developing an efficient and sustainable tribal justice system. The article will demonstrate that the Seminole Nation’s persisting determination to reestablish its judicial authority stems from the desire to maximize sovereign authority by having a government that not only makes and enforces laws, but that makes and enforces laws the Seminole way. Ultimately, this article may serve as a resource for other tribes who wish to establish their own tribal court system.

She Saves Us from Monsters: The Navajo Creation Story and Modern Tribal Justice

Heidi J. Todacheene

The goal of this paper is to attempt to provide a general social and political framework of the Navajo tribe using the creation story and journey narrative. This will provide a comprehensive insight into the history and modern functioning of the tribe for someone who may not understand traditional Navajo thought. Modern legal cases have been integrated into this paper to demonstrate how Navajo courts use and preserve traditional concepts in current legal analysis. This paper will try to convey a traditional Navajo perspective whose ideology is deeply rooted in the creation story and illustrated through the Holy Beings, especially Changing Woman. This will provide context and background to modern issues disfavoring Navajo women within the tribal system that we see today.

A Framework for Understanding Tribal Courts and the Application of Fundamental Law: Through the Voices of Scholars in the Field of Tribal Justice

April L. Wilkinson

Through an examination of scholarly articles, this paper examines traditional tribal justice systems set in tribal communities in an effort to establish a framework for understanding tribal courts and the unique challenges they face. The research presented describes a spectrum of traditional aspects within tribal courts, and analyzes the impact that changing social dynamics have had on the tribal court construct.

A rigorous review of available research concerning traditional tribal courts showed scholars repeatedly arguing that traditional law, also called fundamental law, which existed before Western style courts, exists beyond the tribal court setting and is fundamental to a tribal member’s way of living and engaging the world. As a result, this paper draws four important conclusions. First, the concept of justice in indigenous communities is shaped by fundamental law. Second, through the application of fundamental law, a traditional tribal court expresses a sovereign tribal nation’s definition of justice, and reflects the values of a tribal nation. Third, the traditional tribal court model offers an opportunity to craft indigenous jurisprudence that serves to protect and sustain tribal justice concepts and customary life ways. Finally, the design of a tribal traditional justice system and the use of fundamental law create unique opportunities for traditional tribal courts to influence the court systems of other sovereigns.

Fond Du Lac Band of Lake Superior Chippewa v. Frans: An Examination of State Taxation of Off-Reservation, Out-of-State Tribal Member Income

Christopher A. Dodd

This article analyzes the propriety of state taxation of tribal members’ out-of-state, off-reservation income through a critical examination of Fond du Lac Band of Lac Superior Band of Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011). The article argues that Judge Murphy’s dissent in the case provided the correct analysis—that state taxation of out-of-state, off-reservation tribal member income is improper when the tribal member resides on tribal land and the only nexus between the state and the taxed income is the tribal member’s state citizenship. The article explains that by granting citizenship to tribal members with the Indian Citizenship Act of 1924, Congress “decoupled” Indians’ citizenship from their subjection to taxation, such that a tribal member’s state citizenship is an insufficient basis for imposing taxation on the member’s out-of-state income. Finally, the article addresses the impacts that Fond du Lac will have on tribal affairs if the opinion is left uncorrected by future cases.