A Restatement of the Law of the Little (2019)
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A Restatement of the Law of the Little
Traverse Bay Bands of Odawa
Indians, 2019 Volume
Raymond A. Mensah 1
Benjamin M. Cornelius 2
Hanna L. Rutkowski 3
1
Law Clerk, Little Traverse Bay Bands of Odawa Indians (LTBB) Tribal Court, 2012-2015;
Graduate of Tulane University School of Law (JD).
2
Summer Law Clerk, LTBB Tribal Court, 2018; Student at University of Michigan Law School.
3
Summer Law Clerk, LTBB Tribal Court, 2019; Student at University of Michigan Law School;
Drafter of the 2019 Volume, which consolidates and builds on the work done for the 2015 and
2018 volumes by previous Law Clerks Raymond A. Mensah and Benjamin M. Cornelius.
i
I. Introduction to the Restatement
BACKGROUND taken from the 2015 Restatement4
The Little Traverse Bay Bands of Odawa Indians (“LTBB” or “Tribe”) is a federally-recognized
American Indian tribe of Odawa Indians located primarily in the Great Lakes region of the State
of Michigan. 5 Most of the Tribe’s more than 4,000 enrolled citizens reside in the State’s
Charlevoix and Emmet Counties.6 The Tribe is one of several federally-recognized and distinct
Odawa political entities located within the territorial boundaries of Michigan; others include the
Little River Band of Ottawa Indians and the Grand Traverse Band of Ottawa and Chippewa
Indians, located on ceded lands in present-day Manistee, Michigan and Peshawbestown,
Michigan, respectively.
Like many other American Indian peoples and tribes in what is now the United States, the LTBB
have been the subject of government-sponsored removal and discriminatory education efforts. 7
These efforts resulted early on in many Odawak being removed from their homelands—often
being relocated to the southern United States—and, in more recent history, in Odawa children
being removed from their families to obtain a western education and upbringing. 8
Apart from imposing removal and discriminatory education practices on the Odawak, the United
States has also failed to faithfully enforce the spirit and text of its 1855 Treaty with the Odawa,
specifically declining to recognize the Tribe for over 150 years. 9 Over the past 150 years,
however, the Tribe has made great strides to regaining its sovereignty, with these efforts
culminating in the Federal government reaffirming its government-to-government relationship
with the Tribe in 1994.10
4
Restatement of the Law of the Little Traverse Bay Bands of Odawa Indians (2015).
5
A Tribal History and Timeline of the Little Traverse Bay Bands of Odawa Indians 1 (2011).
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.; See Renee A. Cramer, Cash, Color and Colonialism: The Politics of Tribal
Acknowledgement 44 (2005). Little Traverse Bay Bands of Odawa Indians and Little River Band
of Ottawa Indians Act, 25 USC § 1300k et seq.
ii
While the Tribe recognizes that its efforts to regain sovereignty are expensive, Tribal leaders and
elders have nonetheless aggressively moved to provide resources for their fellow citizens. Of
these efforts, the Tribal Judicial system is a good example of the level of dedication that the
Tribe puts into providing resources to Tribal citizens. Established in its current form under the
Tribe’s 2005 Constitution as one of three separate branches of government, the Tribal Judicial
system is comprised of a Tribal Court, which is a court of general jurisdiction overseen by the
Tribe’s Chief Judge and Associate Judge; an Appellate Court, on which three appellate justices
sit; and other lower courts that the Tribal Council may establish. 11 The Tribal Judicial system is
charged with interpreting and applying the laws of the Tribe, which gives the Tribal courts the
ability to significantly impact the lives of Tribal citizens. 12 This impact is seen daily in matters
and cases ranging from general quality of life issues to complex contractual disputes to substance
abuse and child welfare matters.
This Restatement of the Law of the Little Traverse Bay Bands of Odawa Indians is part of a
continuing effort to provide resources and information to Tribal Citizens and others who rely on
the Tribal government, including non-Tribal attorneys litigating cases and others, whether
American Indians or not, utilizing the LTBB Judicial system.
I hope that this restatement will serve to improve, through increased knowledge of the Tribe’s
law and custom, collaboration and cooperation between the Tribe and the state and local
governments that often work with the Tribe.
METHODS
This restatement was compiled following extensive research of the Tribe’s Appellate Court
decisions effective under the 2005 Tribal Constitution as well as opinions issued by the Tribal
Court before that time until the present. Consistent with other restatement projects, the Appellate
Court and Tribal Court decisions were reviewed for their legal conclusions, including
conclusions that expand the Tribal Judiciary’s and Tribal citizenry’s understanding and
application of codified law. Special care was taken to identify and account for conflicting legal
conclusions as a means of presenting the Appellate Court’s and Tribal Court’s clearest
interpretations of the law. It should be noted, however, that this project serves as a restatement of
the Tribe’s law, and includes interpretations of statutory and constitutional law by the Appellate
Court and Tribal Court. This restatement does not represent an exhaustive listing of the law
applicable to the Tribe, and persons reviewing the restatement should always check the relevant
11
LTBB Const. art. IX, § A(1)–(3).
12
LTBB Const. art. VI, § C.
iii
Tribal law, including statutes codified in the Tribal Code,13 for legal provisions and theories not
noted by the Appellate Court and Tribal Court, but that which may still be pertinent to an issue at
hand.
While this project has key similarities to traditional restatement projects, there are key
differences that must be discussed. Specifically, unlike other restatement projects, which may
cover one subject matter rather exhaustively—for instance, the Restatement (Second) of Torts—
this restatement of the law covers multiple subject areas, acknowledging the many and varied
legal realities present in the LTBB system of law. Such an extensive inclusion of various legal
principles is possible, in part, due to the relatively young history of the LTBB since its
government-to-government relationship with the United States was reaffirmed in 1994. As the
LTBB continues to grow and develop its law, further restatement projects may very well cover
single areas of the law in more narrowly-focused editions.
Those reviewing the restatement project will note that, in addition to the various legal subject
areas covered in the project, care is taken to assist the reader in better understanding the meaning
of legal principles and how they apply in the real world. As such, subsections of the restatement
may contain comments and, where appropriate, illustrations of why and how certain legal
principles apply. Some comments restate the rational for adopting certain legal principles as
articulated by LTBB courts, while others may additionally or separately discuss practical
implications of the adoption of certain legal principles. Illustrations provide basic examples,
which should not be accepted as certain outcomes for potential cases heard in LTBB courts—
though some illustrations follow cited actual cases heard in LTBB courts rather closely—of how
the legal principles at issue have or may be applied in LTBB courts. Still, not every subsection
contains comments and or illustrations as they may not require them in order for readers to
understand the legal principles within and how they apply.
It is my hope that this project continues to be regularly updated to reflect the ongoing
development of LTBB law.
13 The Little Traverse Bay Bands of Odawa Indians Tribal Code may be found online at
http://www.ltbbodawa-nsn.gov/TribalCode.pdf.
iv
2019 ORGANIZATIONAL NOTE
This version of the Restatement adopts an organizational scheme which categorizes rules
alongside similar legal principles, rather than by the context in which they appear. For example,
a principle related to counting time in election appeals is listed in Court Procedure rather than
Election Law, even if that is the only context in which it has been applied. Only those rules
which are categorically context-dependent – such as a rule governing the scope of the Election
Board’s discretion – are placed in topic-oriented sections. This macro-organizational scheme is
designed for ease of reference, but comes with an important caveat: This Restatement takes no
position on whether the court will apply the rule similarly in different contexts. Readers are
encouraged to take careful note of the Commentary and Case Citations for more information
about the source and previous applications of each rule.
v
II. Table of Contents
I. Introduction to the Restatement................................................................................................... ii
II. Table of Contents ...................................................................................................................... vi
III. A Restatement of the Law of the Little Traverse Bay Bands of Odawa Indians ...................... 1
§ 1 Sources of Authority ............................................................................................................. 1
§ 1.01 Incorporating Traditional Values into Tribal Court Decisions..................................... 1
§ 1.02 The Role of Justice and Fairness in Traditional Practice ............................................. 1
§ 1.03 Precedential Value of Appellate Court Decisions ........................................................ 2
§ 1.04 Effect of Foreign Law on Tribal Court Decisions ........................................................ 3
§ 2 Jurisdiction ............................................................................................................................ 4
§ 2.01 Due Process Protections for Non-Residents, Generally ............................................... 4
§ 2.02 Personal Jurisdiction ..................................................................................................... 5
§ 2.02[A] Personal Jurisdiction over Non-Residents, Minimum Contacts Test .................. 5
§ 2.02[B] Personal Jurisdiction over Non-Residents, Reasonableness Requirement .......... 6
§ 2.03 Subject Matter Jurisdiction ........................................................................................... 6
§ 2.03[A] Subject Matter Jurisdiction over Non-Members, Generally ............................... 6
§ 2.03[B] Subject Matter Jurisdiction over Non-Members, Outside Scope of
Duties/Authority .................................................................................................................. 7
§ 2.04 Dismissal for Lack of Subject Matter Jurisdiction, Obligation to Compile Record..... 8
§ 2.05 Failure to File within Time Limit Set by Statute .......................................................... 9
§ 3 Sovereign Immunity ............................................................................................................ 10
§ 3.01 Tribal Sovereign Immunity, Generally....................................................................... 10
§ 3.02 Waiver of Sovereign Immunity, Burden of Proof ...................................................... 12
§ 3.03 Statutory Waiver of Sovereign Immunity, Limits of Waiver ..................................... 12
§ 3.03[A] Statutory Waiver of Sovereign Immunity, Time Limitation ............................. 12
§ 3.03[B] Statutory Waiver of Sovereign Immunity, Party Identity Limitation................ 13
§ 3.04 Waiver of Sovereign Immunity, Constitutional/Statutory Authorization as a
Threshold Issue ...................................................................................................................... 13
vi
§ 3.05 Sovereign Immunity for Employees Acting Within the Scope of Their Duties and
Authority................................................................................................................................ 15
§ 3.05[A] Sovereign Immunity for Employees Acting Within the Scope of Their Duties
and Authority, Generally ................................................................................................... 15
§ 3.05[B] Sovereign Immunity for Employees Acting Within the Scope of Their Duties
and Authority, Discretionary Duties .................................................................................. 16
§ 3.05[C] Sovereign Immunity for Employees Acting Within the Scope of Their Duties
and Authority, Mistake ...................................................................................................... 17
§ 3.05[D] Employees Acting Outside the Scope of Duties and Authority, Scope of Relief
............................................................................................................................................ 17
§ 4 Court Procedure................................................................................................................... 18
§ 4.01 Pleading Requirements, Request for Relief................................................................ 18
§ 4.02 Burden of Proof for Summary Disposition................................................................. 19
§ 4.03 Standard of Proof for Civil Cases ............................................................................... 20
§ 4.04 Improper Service of Process ....................................................................................... 21
§ 4.05 Failure to Prosecute in a Timely Manner ................................................................... 22
§ 4.06 Definition of Calendar Year ....................................................................................... 23
§ 4.07 Interpretation of Deadlines ......................................................................................... 24
§ 4.07[A] Interpretation of Deadlines, Counting Days ...................................................... 24
§ 4.07[B] Interpretation of Deadlines, Meaning of “no less than” .................................... 25
§ 4.07[C] Interpretation of Deadlines, Equitable Tolling .................................................. 26
§ 4.07[D] Interpretation of Deadlines, Docket Management Guidelines .......................... 27
§ 4.08 Settlements.................................................................................................................. 27
§ 4.08[A] Settlements, Authority to Enter Settlement Agreements................................... 27
§ 4.08[B] Settlements, Effect on Prior Contractual Obligations ....................................... 28
§ 4.08[C] Settlements, Calculating Interest ....................................................................... 29
§ 4.09 Effect of Nolo Contendere Plea .................................................................................. 31
§ 5 Fairness and Justice in LTBB Courts .................................................................................. 32
§ 5.01 Judicial Disqualification or Recusal ........................................................................... 32
§ 5.01[A] Standards for Judicial Disqualification or Recusal ........................................... 32
§ 5.01[B] Removal of Tribal Court Judge on Showing of Lack of Impartiality ............... 32
vii
§ 5.02 Duty of Candor ........................................................................................................... 32
§ 5.02[A] Duty to the Court ............................................................................................... 32
§ 5.02[B] Breach of Duty of Candor ................................................................................. 32
§ 5.03 Contempt of Court ...................................................................................................... 34
§ 5.03[A] Contempt of Court, Civil Contempt .................................................................. 34
§ 5.03[B] Contempt of Court, Criminal Contempt ............................................................ 36
§ 5.04 Fee Shifting................................................................................................................. 37
§ 6 Appellate Procedure ............................................................................................................ 38
§ 6.01 When an Appeal is Properly Before the Court ........................................................... 38
§ 6.02 Intervention in a Legal Action Before the Appellate Court ....................................... 39
§ 6.03 Equitable Waiver of Timeliness Requirement............................................................ 39
§ 6.04 Bar on Requests for Reconsideration ......................................................................... 39
§ 6.05 Standard of Appellate Review .................................................................................... 40
§ 6.05[A] Standard of Review, Factual Omissions............................................................ 40
§ 6.05[B] Standard of Review, Witness Credibility .......................................................... 40
§ 7 Constitutional Law .............................................................................................................. 41
§ 7.01 Pleading Requirements for Constitutional Claims ..................................................... 41
§ 7.02 Due Process ................................................................................................................ 41
§ 7.03 Due Process Applied, Evictions ................................................................................. 42
§ 7.03[A] Proof of Service, Notice of Evictions................................................................ 42
§ 7.03[B] Failure to Properly Notice ................................................................................. 42
§ 7.04 Powers of Tribal Council............................................................................................ 43
§ 7.04[A] Powers of Tribal Council Generally.................................................................. 43
§ 7.04[B] Powers of Tribal Council to Bind Executive Branch ........................................ 44
§ 7.05 Prohibition on Ballot Initiatives for Appropriations and Budgeting .......................... 44
§ 7.06 Authority for Adopting Membership Law.................................................................. 45
§ 7.07 Constitutional Avoidance ........................................................................................... 47
§ 7.08 Conflict of Laws, Supremacy ..................................................................................... 48
§ 7.09 Textual Interpretation, Plain Meaning ........................................................................ 49
viii
§ 8 Administrative Law ............................................................................................................. 50
§ 8.01 Deference to Agency Actions ..................................................................................... 50
§ 8.02 Reasonable Reliance on Inaccurate Statements Made by LTBB Officials ................ 50
§ 8.02[A] Inaccurate Statements Made by Officials Do Not Have the Force of Law ....... 50
§ 8.02[B] Remedy for Detrimental Reliance ..................................................................... 51
§ 8.03 Administrative Remedies and Exhaustion .................................................................. 51
§ 9 Elections .............................................................................................................................. 52
§ 9.01 Tribal Council Oversight of Elections ........................................................................ 52
§ 9.02 Authority of the Tribal Election Board....................................................................... 53
§ 9.03 Citizen Claims Against the Election Board; Election Challenges.............................. 54
§ 9.03[A] Citizen Claims Against the Election Board, Generally ..................................... 54
§ 9.03[B] Citizen Claims Against the Election Board, Impact on Election Outcome ....... 55
§ 9.04 Election Rules and Regulations .................................................................................. 56
§ 9.04[A] No Amendment to Rules or Regulations During an Election ........................... 56
§ 9.04[B] Discretion to Act when Rules and Regulations are Silent ................................. 56
§ 10 Gaming .............................................................................................................................. 57
§ 10.01 Compliance with Regulations, Reasonable Notice................................................... 57
§ 10.02 Gaming Fines ............................................................................................................ 57
§ 10.03 Authority to Suspend Licenses ................................................................................. 58
§ 10.04 Remedial Scheme for Gaming Employees ............................................................... 59
§ 11 Family Law ....................................................................................................................... 59
§ 11.01 Divorce, Due Process ............................................................................................... 59
§ 11.01[A] Divorce, Due Process Requirements ............................................................... 59
§ 11.01[B] Divorce, Ex-Parte Proceedings ........................................................................ 60
§ 11.02 Divorce, Equitable Division of Property and Debts ................................................. 61
§ 11.03 Parental Rights Termination, Best Interests ............................................................. 62
§ 11.04 Parental Rights Termination, Due Process ............................................................... 63
§ 11.05 Guardianship, Jurisdiction Based on Residency....................................................... 63
§ 12 Torts .................................................................................................................................. 64
ix
§ 12.01 Premises Liability ..................................................................................................... 64
§ 12.01[A] Premises Liability, Limit to Hidden Dangers.................................................. 64
§ 12.01[B] Premises Liability, No Breach with Reasonable Efforts to Mitigate Danger .. 65
§ 12.02 Intentional Infliction of Emotional Distress ............................................................. 66
x
III. A Restatement of the Law of the Little Traverse Bay Bands of Odawa Indians
§ 1 Sources of Authority
§ 1.01 Incorporating Traditional Values into Tribal Court Decisions
When deciding cases before it, the Court may take into account not only written decisions,
statutes, and procedures, but traditional Odawa values as well.
______________________________
Comment:
1. See Comment 1 to Section 4.06, infra.
______________________________
Case Citations:
1. Carey v. Victories Casino, No. A-005-0507 (LTBB Ct. App. May 5, 2008).
2. Blanz v. Odawa Casino Resort, No. C-136-1011 (LTBB Tribal Ct. Aug. 2, 2012).
§ 1.02 The Role of Justice and Fairness in Traditional Practice
Following traditional Odawa culture and practice, maintaining justice and preserving fairness are
of paramount importance to the Tribe.
______________________________
Comment:
1. See Comment 1 to Section 4.06, infra.
______________________________
Illustration:
1
1. X slips and falls while patronizing Odawa Casino Buffett. In an action against the LTBB
for which sovereign immunity is not a bar, X seeks unspecified damages from the Tribe.
It is uncontested that X’s injuries are the result, in part, of his own negligence. Under the
theory of contributory negligence as adopted by some jurisdictions, a plaintiff may not
recover from a defendant where a plaintiff’s injuries are due, in part, to the plaintiff’s
own negligence. Comparative negligence, on the other hand, merely reduces the amount
of damages a plaintiff can recover in a suit based on the degree to which the plaintiff’s
own negligence contributed to the plaintiff’s injury. As LTBB codified law is silent on
the matter, attorneys for the LTBB request that the Court adopt as common law of the
Tribe the theory of contributory negligence, and, based on the plaintiff’s negligence in
this case, bar recovery. Attorneys for X seek an adoption of the comparative negligence
doctrine by the Court. Upon a review by the Court of LTBB traditional law on conflict
resolution, the Court determines that the doctrine of contributory negligence is
inconsistent with traditional Tribal values of ensuring justice. Accordingly, the Court, in
keeping with traditional LTBB values of justice, rejects the doctrine of contributory
negligence and adopts the doctrine comparative negligence as Tribal common law.
______________________________
Case Citations:
1. Northern Anesthesia Providers, Inc. v. Welles, No. FC-233-0812 (LTBB Tribal Ct. July
23, 2013).
2. Blanz v. Odawa Casino Resort, No. C-136-1011 (LTBB Tribal Ct. Aug. 2, 2012).
§ 1.03 Precedential Value of Appellate Court Decisions
The Appellate Court’s determination of a legal issue is binding on the Tribal Court, and is
binding on the Appellate Court when the Appellate Court is faced with a subsequent appeal
given the same case and substantially the same facts.
______________________________
Case Citation:
1. Carey v. Espinosa, No. A-011-1008 (LTBB Ct. App. May 2, 2011).
2
§ 1.04 Effect of Foreign Law on Tribal Court Decisions
Although not binding on the Court, the law and opinions of other jurisdictions can serve as
persuasive authority.
______________________________
Comment:
1. This rule recognizes that LTBB courts, as they currently exist following the Tribe’s
government-to-government relationship with the Federal government being reaffirmed in
1994, are still developing the common law of the Tribe. During this period, neither the
Judicial branch, through the adoption of common law and interpretation of statutory law,
nor the Executive and Legislative branches, through adoption of statutory provisions,
have accounted for every matter and factual pattern that may come before the courts. By
looking to other jurisdictions that have already developed and interpreted laws on issues
that the Tribe has not, LTBB courts are able to incorporate legal principles that are not
inconsistent with the LTBB Constitution or values without reinventing the wheel. The
Tribe maintains its sovereignty through this process as it is not required by the Federal
government as a general matter to adopt particular foreign legal principles.
______________________________
Illustration:
1. X files a suit against Y for breach of contract. Although Y has admitted its liability for
breach of contract, the parties disagree over which interest rate should apply for damages
or over whether one should apply at all; the contract, which is the result of a court
settlement, is silent on an interest rate. Tribal statutory and common law is silent on the
issue. After deciding that interest for damages is a common expectation for breach of
contract cases, and acknowledging that Tribal law is silent on the issue, the Court looks
to foreign law—in this case, Michigan law—to determine whether foreign law contains
guidance on the matter that is not inconsistent with Tribal law and values. Although the
Court is not required to adopt foreign law, the Court, persuaded that the foreign law is
fair and not inconsistent with Tribal law and values, chooses to adopt the foreign law as
Tribal common law.
______________________________
Case Citations:
1. Blanz v. Odawa Casino Resort, No. C-136-1011 (LTBB Tribal Ct. Aug. 2, 2012).
3
2. Northern Anesthesia Providers, Inc. v. Welles, No. FC-233-0812 (LTBB Tribal Ct. July
23, 2013).
3. Target Nat'l Bank v. Kiogima, No. FC-246-1213 (LTBB Tribal Ct. Dec. 30, 2013).
4. Northern Shores Loan Fund, Inc. v. Lah Lah's Preloved Clothing Boutique, No. C-1960414 (LTBB Tribal Ct. July 1, 2014) (citing Chelsea Inv. Grp. LLC v. Chelsea, 792
N.W.2d 781, 789 (Mich. Ct. App. 2010)); MCL 600.6013(8); and Babcock v. Diebolt,
2009 WL 6430839 (Mich. Cir. Ct. 2009).
§ 2 Jurisdiction
§ 2.01 Due Process Protections for Non-Residents, Generally
Regardless of any statutory grant of jurisdiction, read together, the jurisdictional components and
due process clause of the LTBB Constitution imply a substantive due process protection against
the exercise of personal jurisdiction over non-members when to exercise such jurisdiction would
be fundamentally unfair.
______________________________
Comment:
1. The LTBB Constitution recognizes the inherent sovereignty of LTBB, granting the Tribe
jurisdiction over “all territory set forth in Section (A) of this Article and to any and all
persons or activities therein.” 14 However, the Constitution also contains a substantive due
process protection, and the Court has interpreted this as protecting individuals from the
exercise of Tribal jurisdiction where that exercise would be fundamentally unfair.
______________________________
Illustration:
1. See Illustration 1 to Section 2.02[A], supra.
______________________________
Case Citations:
14
LTBB Const. art. IV, § B.
4
1. Moore v. Serva, No. A-031-1215 (LTBB Ct. App. Feb. 15, 2017).
§ 2.02 Personal Jurisdiction
§ 2.02[A] Personal Jurisdiction over Non-Residents, Minimum Contacts Test
In order for LTBB to exercise personal jurisdiction over a non-resident, the defendant must have
minimum contacts with LTBB:
1. The defendant must purposely avail him or herself of the privilege of acting in the
jurisdiction of LTBB or causing a consequence in the jurisdiction of LTBB;
2. The cause of action must arise from the defendant’s activities in the jurisdiction of
LTBB; and
3. The acts of the defendant or consequences caused by the defendant must have a
substantial enough connection with LTBB to make exercise of jurisdiction over the
defendant reasonable.
______________________________
Comment:
1. After determining that the Court could not exercise jurisdiction over a non-resident when
to do so would be fundamentally unfair, see Comment 1 to Section 2.02, the Court turned
to the issue of the test. Finding similarity between the due process protections offered by
the LTBB and U.S. Constitutions, the Court chose to adopt the minimum contacts test
from federal common law.
______________________________
Illustration:
1. X is a non-resident mother involved in a custody dispute with Y, a resident father.
Employing the minimum contacts test, if the Court finds, after proper fact-finding
procedures, that the mother purposely availed herself of the privileges of acting within
LTBB during her previous residence, conceived and temporarily reared the child in the
jurisdiction of LTBB (providing the connection required for the second component), and
the connection was substantial enough, the Court may exercise personal jurisdiction over
the mother.
______________________________
5
Case Citations:
1. Moore v. Serva, No. A-031-1215 (LTBB Ct. App. Feb. 15, 2017).
§ 2.02[B] Personal Jurisdiction over Non-Residents, Reasonableness Requirement
There is a further implied reasonableness requirement in the minimum contacts test. In
determining whether it would be fundamentally unfair to exercise personal jurisdiction, the
Tribal Court should consider:
1.
2.
3.
4.
The burden on the defendant
The interests of LTBB
The plaintiff’s interest in obtaining relief
The inter-jurisdictional judicial system’s interest in obtaining the most efficient resolution
of controversies
5. The shared interest of the several sovereign entities in furthering fundamental substantive
social policies
______________________________
Comment:
1. In the further interest of fundamental fairness, see § 2.01, the Court should weigh
whether or not it would be reasonable to exercise personal jurisdiction over a nonresident, considering the above factors. This rule reflects the range of factors which
impact fundamental fairness and the complexity of the multi-jurisdictional legal system.
______________________________
Case Citations:
1. Moore v. Serva, No. A-031-1215 (LTBB Ct. App. Feb. 15, 2017).
§ 2.03 Subject Matter Jurisdiction
§ 2.03[A] Subject Matter Jurisdiction over Non-Members, Generally
LTBB’s subject matter jurisdiction over non-members has been limited to cases where:
6
1. The defendant has entered into a consensual relationship with the tribe or its members,
through commercial dealings, contracts, leases, or other arrangements, and the case has a
sufficient nexus to the parties’ consensual relationship; or
2. The conduct in question occurred on fee lands within the jurisdiction of LTBB, and the
conduct threatens or has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.
______________________________
Comment:
1. The U.S. Supreme Court severely limited Tribal jurisdiction over non-Indians in
Montana v. United States, holding that the “exercise of tribal power beyond what is
necessary to protect tribal self-government or to control internal relations is inconsistent
with the dependent status of the tribes, and so cannot survive without express
congressional delegation.” 15 The Montana Court then provided the two avenues to
jurisdiction listed above. Later cases extended these restrictions from their initial
application in regulatory matters to include judicial matters as well as. 16 Faced with a
decision about whether to extend Tribal subject matter jurisdiction over a non-member,
the Court should apply the Montana test.
______________________________
Case Citations:
1. Moore v. Serva, No. A-031-1215 (LTBB Ct. App. Feb. 15, 2017).
§ 2.03[B] Subject Matter Jurisdiction over Non-Members, Outside Scope of Duties/Authority
Where an LTBB employee who is non-Indian acts outside the scope of their duties and authority,
the court does not have jurisdiction for those acts under the Montana doctrine, and the issue of
sovereign immunity becomes irrelevant.
______________________________
15
Montana v. U.S., 540 U.S. 544, 565-66 (1981).
16
See Strate v. A-1 Contractors, 520 U.S. 438 (1997).
7
Comment:
1. Part 1 of the Montana test allows for the exercise of jurisdiction over non-members when
they have entered into a consensual relationship with the tribe or its members, through
commercial dealings, contracts, leases, or other arrangements, and the case has a
sufficient nexus to the parties’ consensual relationship. If a party acts outside of the scope
of their duties and authority under the contract, the actions cannot be said to have a
sufficient nexus to the parties’ consensual relationship, and the issue of sovereign
immunity is not reached as the Tribe does not have subject-matter jurisdiction.
______________________________
Illustration:
1. X, a non-member, is engaged with LTBB to provide health services to Tribal members. X
acts outside of the scope of their duties and authority and provides prescription drugs to
Y, a tribal member, without a prescription. Y suffers injury and files suit against X in
Tribal Court. Because the actions in question were outside the scope of the consensual
relationship between X and the Tribe, the Tribal Court does not have subject matter
jurisdiction to hear the case and must dismiss.
______________________________
Case Citations:
1. Lyons v. Holland, No. A-034-1117 (LTBB Ct. App. Mar. 13, 2019).
§ 2.04 Dismissal for Lack of Subject Matter Jurisdiction, Obligation to Compile Record
The Court may not dispose of a case before it until all parties have been served and provided an
opportunity to answer and compile a record.
______________________________
Comment:
1. Prior to the Appellate Court’s clarification on this issue, it was an open question whether
LTBB courts could, on their own accord, dismiss a case before them for a lack of subject
matter jurisdiction. The LTBB Rules of Civil Procedure are silent on this point, only
addressing the fact that parties may seek dismissal of a case for a lack of subject matter
8
jurisdiction, among other reasons. 17 In clarifying acceptable practice under similar
circumstances, however, the Appellate Court did not foreclose the possibility of LTBB
courts, acting on their own accord, dismissing matters before them for a lack of subject
matter jurisdiction. Yet, in what the Appellate Court referred to as a “minimum”
requirement of constitutional due process, it is clear that LTBB courts must allow parties
to be served and provide them with an opportunity to answer, regardless of whether a
petition is, on its face, deficient for a lack of subject matter jurisdiction.
______________________________
Case Citation:
1. LaCroix v. Snyder, No. A-024-1014 (LTBB Ct. App. Dec. 12, 2014).
§ 2.05 Failure to File within Time Limit Set by Statute
Failure to file a claim within the limit set by a statutory cause of action should result in dismissal
of the case for lack of jurisdiction.
______________________________
Illustration:
1. X files suit against officials from the LTBB Gaming Enterprise Board, arguing that they
failed to follow the procedures required in the Contracting Statute. The statute provides
for suits by private parties, but only if they are filed within 180 days of the alleged
violation. X files her claim after the deadline. The Tribal Court dismisses X’s claim for
lack of jurisdiction.
______________________________
Case Citations:
1. Shananaquet v. LTBB Gaming Bd., No. C-229-0318 (LTBB Tribal Ct. June 27, 2018).
17
Little Traverse Bay Bands of Odawa Indians Rules of Civil Procedure, available at
http://www.ltbbodawa-nsn.gov/Tribal%20Court/civilrules%20(addition%20of%204-21-11).pdf.
9
§ 3 Sovereign Immunity
§ 3.01 Tribal Sovereign Immunity, Generally
Sovereign immunity is a threshold issue that must be determined before any Tribal court can
review the merits of the parties’ arguments.
Unless expressly waived by Tribal Council, or abrogated by the Congress of the United States,
sovereign immunity is an absolute bar to lawsuits against the Tribe. However, Tribal members
have a right to due process through administrative hearings.
Waivers of sovereign immunity must be strictly construed in deference to Tribal Council’s
determination about the scope of the waiver. The court may not overrule the Constitutional grant
of sovereign immunity even where traditional Odawa values favor adjudication.
______________________________
Comment:
1. Sovereign immunity is a legal doctrine that establishes that a sovereign entity, in this case
the LTBB, can do no wrong and is immune from suit. The doctrine, as adopted by the
LTBB, is a Western legal concept. Under United States case law, the Supreme Court has
held numerous times that tribal sovereign immunity exists as an inherent part of tribal
sovereignty that was not divested by treaties between tribes and the United States. 18 This
legal framework has given tribal governments, including the LTBB, a powerful tool with
which to engage in the intricacies of governance without interference from unauthorized
parties, thereby maintaining some semblance of traditional tribal sovereignty.
2. Tribal sovereign immunity, and indeed ultimate tribal sovereignty, however, is severely
limited in that Congress, in addition to tribal governments themselves, may unilaterally
abrogate it, thereby exposing tribal governments to suit. Moreover, in a further sign of the
erosion of traditional tribal sovereignty, tribal sovereign immunity is never a bar to legal
actions taken in which the United States is a party nor does it prevent lawsuits against
tribal officials in their official capacities. 19 Functionally, however, tribal sovereign
immunity has an extensive reach, preventing lawsuits against tribes, unless such
18
See, eg, Michigan v. Bay Mills Indian Cmty., 134 S.CT. 2024 (2014).
19
Id.
10
immunity is otherwise waived by the tribe itself or abrogated by Congress, in both tribal
courts as well as Federal and state courts. 20
______________________________
Illustrations:
1. X, an employee of the LTBB, brings suit against the LTBB, alleging negligent upkeep of
gaming appliances that have resulted in X being severely injured. X seeks unspecified
monetary damages. Neither the LTBB nor Congress has waived tribal sovereign
immunity in such an instance. Accordingly, as a threshold matter, the Court must dismiss
the case for lack of subject matter jurisdiction.
2. X, an employee of the LTBB, brings suit against the LTBB, alleging negligent upkeep of
Tribal gaming appliances that have resulted in X being severely injured. X seeks
unspecified monetary damages. While the LTBB has not waived sovereign immunity in
this instance, Congress, in an express abrogation of tribal sovereign immunity, has
enacted legislation allowing plaintiffs to maintain actions against tribal governments
under similar circumstances and to seek up to $50,000.00 in damages. Under the
circumstances, the LTBB may not use the defense of sovereign immunity to have the
lawsuit dismissed.
______________________________
Case and Statutory Citations:
1. Carey v. Victories Casino, No. A-004-0606 (LTBB Ct. App. Mar. 27, 2007).
2. LTBB v. Harrington, No. A-008-1007 (LTBB Ct. App. May 18, 2009).
3. Carey v. Victories Casino, No. C-062-1005 (LTBB Tribal Ct. April 20, 2006).
4. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
5. McGraw v. Estate of Colby, No. A-030-0115 (LTBB Ct. App. Sept. 6, 2017).
6. LTBB Gaming Regulatory Comm’n v. Roberts, No. A-018-0811 (LTBB Ct. App. Dec.
20, 2012)
20
Id.
11
7. LTBB Const. art. XVIII, §§ A, B.
§ 3.02 Waiver of Sovereign Immunity, Burden of Proof
The burden for establishing a waiver of sovereign immunity is on the petitioner.
______________________________
Case Citations:
1. Harrington v. LTBB Election Bd., No. C-086-0310 (LTBB Tribal Ct. April 23, 2010).
§ 3.03 Statutory Waiver of Sovereign Immunity, Limits of Waiver
§ 3.03[A] Statutory Waiver of Sovereign Immunity, Time Limitation
Where an LTBB statute waives sovereign immunity for certain specified claims filed in advance
of a deadline, and claims are filed late, this deprives the court of subject matter jurisdiction to
hear the case. Equitable tolling does not apply.
______________________________
Comment:
1. This rule balances the traditional values that favor adjudication against the need to strictly
construe limited waivers of sovereign immunity provided by statute. The Court defers to
Tribal Council to enact a more expansive waiver should it choose to do so.
______________________________
Illustration:
1. X files suit against Y, an entity of LTBB, under the Fair Employment Statute, which
waives immunity for 180 days following the incident that is the source of the claim. X
files suit on day 200, as she was not aware of the 180 day rule. The Court should dismiss
the claim for lack of jurisdiction.
______________________________
Case Citations:
12
1. McGraw v. Estate of Colby, No. A-030-0115 (LTBB Ct. App. Sept. 6, 2017).
§ 3.03[B] Statutory Waiver of Sovereign Immunity, Party Identity Limitation
When a statute waives sovereign immunity for certain government officials or entities, that
waiver applies strictly to only those parties specified in the statute.
______________________________
Comment:
1. See Comment 1 to Section 3.03[A]
______________________________
Illustration:
1. X, an LTBB private citizen, files a claim against the LTBB Gaming Enterprise Board and
various officials in their official capacities, alleging violations of the LTBB Contracting
Statute. The Contracting Statute waives immunity for “officials” who enter contracts
without following the statutory process. Because the Gaming Enterprise Board is not
itself an “official,” the court should dismiss the case with respect to the Board.
______________________________
Case Citations:
1. Shananaquet v. LTBB Gaming Bd., No. C-229-0318 (LTBB Tribal Ct. June 27, 2018).
§ 3.04 Waiver of Sovereign Immunity, Constitutional/Statutory Authorization as a Threshold
Issue
Employees and officials of the Tribe acting within the scope of their duties or authority shall be
immune from suit, except as otherwise waived by Tribal law.
Actions taken by Tribal employees and officials under the authority of an unconstitutional law or
without constitutional or statutory authority are outside of the employees’ and officials’ scope of
duties and authority, and subject the employees and officials to suit.
For the purposes of determining whether sovereign immunity is a jurisdictional bar to claims
against Tribal employees and officials, the Tribal Court must make a threshold determination
concerning whether the allegations of the complaint demonstrate that it is sufficiently likely that
13
the complained of actions were made under color of authority of an unconstitutional law or
without constitutional or statutory authorization.
______________________________
Comment:
1. This rule establishes a formal and orderly process for overcoming the jurisdictional bar
imposed by sovereign immunity as applied to LTBB officials and employees acting
outside of the scope of their duties and authority. Prior to the establishment of this
principle, there was not a clear and concise test for Tribal courts to initially determine
whether certain alleged actions were outside of LTBB officials and employees scope of
duty and authority. Such a reality also meant that some parties appearing before Tribal
courts lacked clarity on what to argue and present to the courts as a means of overcoming
the jurisdictional bar inherent in the LTBB’s sovereign immunity. This was particularly
true for parties who were not represented by legal counsel and who, subsequently, had
little guidance on the subject. Even with this principle, however, it is still unclear to what
extent, outside of the formal legal process, that LTBB officials have inherent supervisory
authority to direct certain employees under them in a manner that creates official duties
and authority within the employees.
______________________________
Illustration:
1. Tribal Council is empowered by the LTBB Constitution to allocate funds, but must do so
within the formal legislative process which allows the Tribal Chairperson an opportunity
to approve or veto the proposed allocation. Tribal Council begins allocating funds by
simple motion, thus depriving the Tribal Chairperson of their constitutional role in the
legislative process. The Tribal Chairperson files suit against Tribal Council alleging that
the allocation of funds by simple motion is unconstitutional. The LTBB court should
make a threshold determination of whether it is sufficiently likely that the allegations
constitute actions without constitutional authority. If so, sovereign immunity does not
serve as a jurisdictional bar to the claims by the Tribal Chairperson.
______________________________
Case Citations:
1. Carey v. Espinosa, No. A-011-1008 (LTBB Ct. App. May 2, 2011).
2. See LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. C-1200411 (LTBB Tribal Ct. Nov. 22, 2012).
3. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
14
4. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
5. Lyons v. Holland, No. A-034-1117 (LTBB Ct. App. Mar. 13, 2019).
§ 3.05 Sovereign Immunity for Employees Acting Within the Scope of Their Duties and
Authority
§ 3.05[A] Sovereign Immunity for Employees Acting Within the Scope of Their Duties and
Authority, Generally
When deciding whether an employee or official’s conduct is within the scope of their duties or
authority, the Court looks to whether or not the type of action is within the employee or official’s
scope of duties and authority in the abstract, not to the alleged circumstances of a particular
action.
Absent an additional statutory waiver, LTBB employees acting within the scope of their duties
and authority retain sovereign immunity in both their official and personal capacities for those
actions.
______________________________
Comment:
1. The choice to focus on the scope of the employee’s duties and authority in the abstract
reflects the rationale that sovereign immunity is designed to allow government officials to
exercise discretionary functions without fear of legal repercussions when they reach the
wrong decision. Focusing on the specific actions of employees in the case at issue would
undermine this goal.
______________________________
Illustration:
1. X is an employee of Odawa Casino Resort, which is regulated by the Gaming Regulatory
Commission. Exercising her discretionary powers, Y suspends X’s license when he
pleads guilty to a civil infraction. The regulations provide that licenses can be suspended
when the employee has pled guilty or no contest to a criminal offense. Because Y was
acting within the scope of her discretionary powers, the court does not evaluate whether
or not she made the correct decision.
______________________________
15
Case Citations:
1. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
2. Lyons v. Holland, No. A-034-1117 (LTBB Ct. App. Mar. 13, 2019).
3. Carey v. Espinosa, No. A-011-1008 (LTBB Ct. App. May 2, 2011).
§ 3.05[B] Sovereign Immunity for Employees Acting Within the Scope of Their Duties and
Authority, Discretionary Duties
Discretionary duties, such as the ethical obligation state-licensed mental health counselors have
to use discretion in determining whether to report threats to authorities, fall within the purview of
sovereign immunity, even if the reporting itself is not mandatory.
______________________________
Comment:
1. See Comment 1 to Section 3.05[A]. Mental health professionals are bound by ethical
obligations to engage in discretionary reporting when they receive information that
individuals may present a threat to themselves or others. Protecting this discretion is
consistent with the aims of sovereign immunity.
______________________________
Illustration:
1. X, a mental health professional working for LTBB, receives information from Y that her
former boyfriend, Z, made repeated threats against a public official. Exercising her
professional discretion, X reports the threats to the police who conduct an investigation.
In a suit filed by Z against X, alleging defamation, the Court should dismiss the claims on
sovereign immunity grounds.
______________________________
Case Citations:
1. Lyons v. Holland, No. A-034-1117 (LTBB Ct. App. Mar. 13, 2019).
16
§ 3.05[C] Sovereign Immunity for Employees Acting Within the Scope of Their Duties and
Authority, Mistake
Employees do not act outside of the scope of their duties and authority when they operate under
a valid law yet reach a mistaken conclusion in the exercise of their discretionary functions.
______________________________
Comment:
1. See Comment 1 to Section 3.05[A].
______________________________
Illustration:
1. See Illustration 1 to Section 3.05[A]
______________________________
Case Citations:
1. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
§ 3.05[D] Employees Acting Outside the Scope of Duties and Authority, Scope of Relief
Unless otherwise explicitly authorized by Tribal Council or otherwise applicable law, suits
against the Tribe or employees and officials acting outside of the scope of their duties and
authority shall be limited to injunctive, not monetary, relief.
______________________________
Comment:
1. This rule recognizes that, as a matter of LTBB constitutional law, waivers of sovereign
immunity against the Tribe or employees and officials acting outside of the scope of their
duties and authority are designed to protect individual rights and to protect against
constitutional abuses. Monetary damages are not necessary to protect individual rights as
well as protect individuals against abuses; indeed, monetary relief would go beyond what
is necessary to protect individual rights and, instead, serves to compensate injured parties.
17
Therefore, only Tribal Council, or the Congress of the United States, may waive the
LTBB’s sovereign immunity to provide for monetary damages.
______________________________
Illustration:
1. X was terminated by the LTBB Law Enforcement Department and claims that the statute
authorizing his termination was unconstitutionally enacted. Apart from seeking a
permanent injunction against the Tribal Chairperson from enforcing the statute in
question, X seeks damages for pain and suffering and wrongful termination under unadopted common law principles; neither Tribal Council nor Congress have explicitly
waived the LTBB’s sovereign immunity for monetary damages for suits of this nature.
The LTBB Court makes a threshold determination that sovereign immunity does not
serve as a jurisdictional bar for the suit against the Tribal Chairperson, who is an LTBB
official. On the other hand, however, the LTBB Court is required to dismiss the portion
of the complaint seeking monetary damages on sovereign immunity grounds.
______________________________
Case Citations:
1. See LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. C-1200411 (LTBB Tribal Ct. Nov. 22, 2012).
2. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
§ 4 Court Procedure
§ 4.01 Pleading Requirements, Request for Relief
In determining whether a civil complaint meets the pleading requirements established by RCP
VIII, the Court will not “guess” what relief plaintiffs are requesting.
______________________________
Illustration:
1. X files a civil claim against Y in Tribal Court. The complaint outlines grievances X has
against Y but does not explain which law or rule establishes jurisdiction, what kind of
18
claim X is making (torts, defamation, etc), or what relief X desires from the Court. Rather
than attempt to fit X’s allegations to a cause of action, the Court dismisses the complaint
for failure to state a claim on which relief may be granted.
______________________________
Case Citations:
1. Munson v. Bernard, No. C-223-0716 (LTBB Tribal Ct. Aug. 16, 2016) (order dismissing
civil complaint).
§ 4.02 Burden of Proof for Summary Disposition
In a motion for Summary Disposition:
1. The court must consider the pleadings, affidavits, depositions, admissions, other
documentary evidence, and the inferences that can be drawn therefrom in the light most
favorable to the nonmoving party.
2. The initial burden is on the moving party to produce sufficient evidence to state a claim
on which relief can be granted. 21 The burden then shifts to the opposing party to establish
a genuine dispute of fact.
3. If the burden of proof at trial is on the non-moving party, they must go beyond the mere
allegations or denials in the pleadings and must set forth specific facts showing that a
genuine issue of material fact exists.
______________________________
Comment:
1. LTBBRCP XVII says that a court shall grant a motion for summary disposition “if it
appears that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” 22 The rule, however, does not articulate what
21
Or, if the defendant is the moving party, that there is no genuinely disputed fact which, if
resolved in favor of the plaintiff, would allow the plaintiff to make out a valid claim.
22
LTBBRCP XVII.
19
that legal standard should be. Finding that Rule XVII was nearly identical to the parallel
Michigan Court Rule, the court used Michigan case law to identify the legal standard.
______________________________
Illustration:
1. X, an LTBB citizen, files a civil complaint in Tribal Court against Y, another Tribal
Citizen who is X’s neighbor, on a claim of Trespass to Land. Y disputes that he ever
entered X’s property, but argues that if he did, he had consent from X to do so, and
therefore has an affirmative defense. Y moves for summary disposition, arguing that the
issue of consent was undisputed in the initial pleadings and that therefore the disputed
facts as to the trespass itself are not relevant to the outcome of the case. X, as the party
with the burden of proof at trial, must present specific facts showing a genuine dispute of
fact as to the lack of consent.
______________________________
Case Citations:
1. McGraw v. Estate of Colby, No. A-030-0115 (LTBB Ct. App. Sept. 6, 2017).
§ 4.03 Standard of Proof for Civil Cases
A plaintiff prevails in a civil suit if the plaintiff shows by a preponderance of the evidence that
the defendant has violated the statute or order of the Court.
______________________________
Comment:
1. When the Court adopted the preponderance of the evidence standard of proof in civil
cases, it maintained consistency with other jurisdictions on the issue. Prior to the
adoption of the standard, LTBB law did not set a general standard of proof in civil cases;
Tribal Council is free to do so, even to the extent that it means overriding the standard of
proof established by the Court. The adoption of the preponderance of the evidence
standard of proof in civil actions underscores the understanding that there should not be
an unreasonable bar to proving violations of law or court orders for which one is not
seeking punitive relief. This is in direct contrast to more demanding standards of proof,
20
such as beyond a reasonable doubt for criminal matters, which warrant a higher standard
of proof as one’s individual liberty is often at issue.
______________________________
Case Citations:
1. Swiss v. Emery, No. PPO-019-0612 (LTBB Tribal Ct. July 20, 2012).
2. LTBB Tribal Court v. Lopez, No. TR-017-0414 (Little Traverse Bay Bands of Odawa
Indians Tribal Ct. June 16, 2014).
3. Northern Shores Loan Fund, Inc. v. Lah Lah's Preloved Clothing Boutique, No. C-1960414 (LTBB Tribal Ct. July 1, 2014) (citing Chelsea Inv. Grp. LLC v. Chelsea, 792
N.W.2d 781, 789 (Mich. Ct. App. 2010)); MCL 600.6013(8); and Babcock v. Diebolt,
2009 WL 6430839 (Mich. Cir. Ct. 2009).
§ 4.04 Improper Service of Process
When process is not properly served, and part of the responsibility for the failure to properly
serve falls on the Court, the case is remanded with a second opportunity for the plaintiff to serve
process.
The Court, however, shall not dismiss a suit where the service of process is improper, but the
defendant received actual notice of suit.
______________________________
Comment:
1. This rule balances the equities between dismissing an action where proper service of
process has not been followed and allowing the suit to continue where an objecting party
has received actual notice of the suit. Any rule to the contrary would be raise questions of
basic fairness and would seem to go against the intent behind formal notice requirements,
which are in place to ensure that opposing parties are timely made aware of the other’s
filings with the Court so that they are able to offer a timely response and prepare for trial.
If one has received actual and timely notice of disputed filings, however, then the purpose
and intent of the court rules have been met, regardless of whether the notice has
conformed strictly to the requirements of the rules.
______________________________
Illustration:
21
1. LTBB Court Rules require that parties serve by first class mail on the opposing party any
filings made with the Court within 14 days of a hearing. When filing a motion and brief
to dismiss an action, X fails to adhere to the filing deadline and, in fact, fails to file the
motion and brief with the opposing counsel at all. Due to diligent investigation by
counsel for the opposing party (Y), Y receives actual notice and a copy of X’s motion
and brief within 14 days of the hearing on the motion. Because Y received actual notice
of X’s motion and brief within 14 days of the hearing on the motion and, thus, had
ample time to prepare to respond to the filing, the Court should overrule efforts by Y to
dismiss X’s motion and brief for failure to comply with court rules.
______________________________
Case Citations:
1. Carey v. Victories Casino, No. A-004-0606 (LTBB Ct. App. Mar. 27, 2007).
2. Carey v. Victories Casino, No. A-005-0507 (LTBB Ct. App. May 5, 2008).
§ 4.05 Failure to Prosecute in a Timely Manner
The Court has inherent authority to dismiss an action with prejudice if there has been a failure to
prosecute within a reasonable amount of time.
______________________________
Comment:
1. The courts of the LTBB have inherent authority to dismiss actions with prejudice where
there has been a failure to prosecute within a reasonable amount of time. This authority
addresses concerns over the ability of the courts to promote docket efficiency, as well as
to ensure that respondents’ due process rights are not violated. While the existing case
law outlining the failure to prosecute doctrine deals exclusively with civil matters, the
doctrine would seem to apply equally, if not more powerfully, to criminal matters in light
of the LTBB’s constitutional guarantee of a speedy trial in criminal cases. 23 In both civil
and criminal cases, however, it is not clear how much time would have to pass with a
failure to prosecute before the delay would lead to a dismissal of an action with prejudice
23
LTBB Const. art. II, § 6.
22
and, indeed, fixing such a cut-off point may be impractical due to the varied fact patterns
that arise in each case.
______________________________
Illustration:
1. X is a respondent to a suit brought against her by Y for fraudulent misrepresentation.
After 6 years with limited activity in the case, including over 4 consecutive years with no
activity, Y continues with her efforts against X in the civil matter. Due to Y’s prolonged
and lengthy period of inactivity in the case, the Court would be justified in dismissing
Y’s complaint with prejudice for failure to prosecute.
_______________________________
Case Citation:
1. LTBB v. Harrington, No. A-009-1007 (LTBB Ct. App. Apr. 23, 2009).
§ 4.06 Definition of Calendar Year
When the LTBB Constitution states that an event can happen only once in a calendar year, the
event cannot reoccur for another 365 days from the date of the event itself.
______________________________
Comment:
1. In defining the meaning of “calendar year” in the Tribe’s constitution, the LTBB
Appellate Court was faced with a choice of adopting the Gregorian understanding of
what constitutes a calendar year, which runs from January 1 to December 31, versus what
constitutes a calendar year in traditional Odawa culture, in which time is continuous.
Although the LTBB Constitution adopts some western values, it directs the different
branches of government to promote the preservation and realization of
“Anishinaabemowin and Anishinaabe culture,” 24 indicating that the Tribe’s traditional
values still have a special place in matters of constitutional interpretation. What is
24
LTBB Const. art. I, § B.
23
unclear, however, and an open matter of debate where not otherwise clarified, is the
extent and circumstances under which western values should replace Odawa traditions in
matters of constitutional interpretation. Note that this issue is possibly clearer for
interpretations of inferior LTBB statutes as the courts can look to recently compiled
legislative records to ascertain the intent of Tribal Council on the matter.
______________________________
Case Citation:
1. Harrington v. LTBB Election Bd., No. A-019-1011 (LTBB Indians Ct. App. Feb. 16,
2012).
§ 4.07 Interpretation of Deadlines
§ 4.07[A] Interpretation of Deadlines, Counting Days
When the LTBB Constitution, Waganakising Odawa Statutes, LTBBRCP, or other rules,
statutes, or regulations state a deadline to file an item with the LTBB Tribal Court is within a
certain number of days, the term “days” means calendar days. However, should the final day to
file fall on a Saturday, Sunday, holiday, or any other day the Tribal Court Offices are closed, the
final day is not counted, and the deadline is extended to the close of business on the next day that
the Tribal Court offices are open. For all other instances however, the word “days” without any
other descriptors means calendar days.
______________________________
Comment:
1. When the final day of a deadline to file set by Article XII, § F of the LTBB Constitution
fell on a day that the Tribal Court Offices were not open, the LTBB Appellate Court
ruled that the final day should not be counted within the limitations period, and the
deadline extended. Because the court was not accessible due to closure, the deadline to
file was extended to the next time the Court was accessible. Even though other means are
provided for the submission of materials without a physical presence being necessary,
because the Court was not physically accessible the deadline was extended to the next
time that it was. The Court also took into account that the intention of the statute was to
protect the interests of voters to challenge elections; the extension allowed this to happen,
without violating the competing need to give finality to the proceedings.
24
2. The above rule also applies outside of appealing election results. The LTBB Appellate
Court has applied the rule when parties file an appeal. In a case involving §7.401 of the
LTBB Appellate Procedures, when an appeal was turned in 35 days after the original
decision of the Tribal Court, outside of the 28 day deadline to file under the rule, the
LTBB Appellate Court cited the Kiogima case and applied its holding outside of an
election context, extending it to all filings of appeals. Even with the extended deadline,
the filing in question was ultimately deemed untimely, as the Tribal Court had been open
on the 28th day, as well as for several days afterwards.
______________________________
Illustration:
1. An LTBB election is scheduled and held on June 23rd, 2015. A losing candidate wishes
to challenge the result that was posted on that same day. They attempt to file their claim
on July 3rd, the tenth day from the end of the election. However, the Tribal Offices are
closed for the 4th of July holiday. Because the 10th day was a Saturday, Sunday, or
holiday, the filing deadline is extended to the first day the offices are open again, in this
case, Monday July 6th.
______________________________
Case Citations:
1. Kiogima v. LTBB Election Bd., No. A-025-1214 (LTBB Ct. App. Mar. 13, 2015).
2. LaCroix v Snyder, No. A-026-0415 (LTBB Ct. App. May 22, 2015).
§ 4.07[B] Interpretation of Deadlines, Meaning of “no less than”
When interpreting an election rule on deadlines, the phrase “no less than [x] days” implies the
ballots may be mailed any time before that deadline, rather than on the deadline date exactly.
______________________________
Illustration:
1. LTBB Election code says that election ballots must be mailed to all registered voters no
less than 30 days prior to the election. The Election Board mails the ballots 31 days prior
25
to the election and one of the candidates brings a challenge in LTBB Tribal Court. The
claim should fail as the phrase “no less than” implies that as long as the ballots are mailed
at least 30 days prior to the election, the Board has complied with the rule.
______________________________
Case Citations:
1. Gokee v. LTBB Election Bd., No. C-208-0515 (LTBB Tribal Ct. June 10, 2015).
§ 4.07[C] Interpretation of Deadlines, Equitable Tolling
Equitable tolling does not apply absent exceptional circumstances.
______________________________
Comment:
1. This rule reflects the principle that equitable tolling should not be available when the
Plaintiff’s own excusable neglect has caused the delay. Cases where equitable tolling has
been permitted outside of LTBB courts include where there was trickery or concealment
on the part of the opposing party, and where there was bureaucratic delay outside the
plaintiff’s control.
______________________________
Illustration:
1. X files a Fair Employment Statute (FES) claim against Y, arguing that Y altered the
terms of X’s employment contract impermissibly as a result of their romantic
relationship. The FES requires claims to be filed within 180 days, but X misses the
deadline because he is uniformed about the statute. There are no exceptional
circumstances so the court should dismiss the claim for lack of jurisdiction.
______________________________
Case Citations:
1. McGraw v. Estate of Colby, No. A-030-0115 (LTBB Ct. App. Sept. 6, 2017).
26
§ 4.07[D] Interpretation of Deadlines, Docket Management Guidelines
Rules concerning the length of time a court has to issue an order are designed to promote judicial
efficiency; failure to conform to these limits should not be construed as having any substantive
impact on the rules for appeal.
______________________________
Comment:
1. Time limits set on the amount of time a court has to issue an order are designed to
promote judicial efficiency. If a judge issues an order after such a deadline, the proper
remedy is review of judicial systems to improve efficiency, but the lateness does not
impact the procedural rules for appeal (e.g., time limits for appeal still apply).
______________________________
Illustration:
1. X is an attorney practicing in LTBB Tribal Court who is found to be in Civil Contempt.
The order following the contempt ruling is issued more than 45 days after the show-cause
hearing (after the deadline for issuing orders set out in the LTBB Rules of Civil
Procedure). X then files an appeal 200 days following the order, long after the 28-day
appeals period has expired. The Court rejects X’s argument that the lateness of the
contempt order excuses the lateness of the appeal.
______________________________
Case Citations:
1. Beck v. LTBB, No. A-028-0815 (LTBB Ct. App. Feb. 13, 2017).
§ 4.08 Settlements
§ 4.08[A] Settlements, Authority to Enter Settlement Agreements
Unless otherwise prohibited by law, parties to a dispute are free to negotiate and agree to terms
that will dissolve the dispute. The Court may, at the parties’ request, bind them to such terms in
the form of a settlement order, which may or may not be confidential.
______________________________
Comment:
27
1. This rule recognizes that members of the public are generally free to enter into contracts
with each other and that civil court actions are generally voluntary and continue only to
the extent that there is a will by parties to pursue a claim. The rule also has a practical
impact on the parties’ and Court resources. Specifically, should parties to a case decide to
settle a dispute and seek a settlement order disposing of the case, Court resources are
freed up and the parties have an opportunity to save time and money on litigation.
______________________________
Illustration:
1. X and Y have been engaged in an ongoing legal dispute involving breach of contract
claims. Through the original petition and subsequent counterclaim, both X and Y seek
hundreds of thousands of dollars in damages from the other. Before the Court has had the
opportunity to reach a decision in the case on the merits, X and Y, through their
attorneys, agree to settle out of court for an undisclosed amount of money. X and Y
subsequently bring their agreement to the Court for approval and request a settlement
order disposing of the case, which the Court grants.
______________________________
Case Citations:
1. See, e.g., Northern Shores Loan Fund, Inc. v. Lah Lah's Preloved Clothing Boutique, No.
C-149-0912 (LTBB Tribal Ct. Oct. 10, 2012).
§ 4.08[B] Settlements, Effect on Prior Contractual Obligations
Unless otherwise prohibited by law or ordered by the Court, a binding settlement agreement shall
replace the terms and conditions of a previous contract at issue in a dispute between parties to a
suit.
______________________________
Comment:
1. This rule acknowledges that settlement agreements made to resolve litigation generally
serve as contracts that supersede and replace prior contractual obligations of parties to a
28
dispute. Assuming that all parties to a settlement have willingly accepted the terms of the
agreement, consideration for which was presumably, at a minimum, an agreement to
withdraw legal complaints, the requirements of contract have been met. Such a
conclusion, however, would be inappropriate where the settlement agreement stipulated
that a failure to adhere to the terms of the agreement would resurrect the former
contract(s) that was at issue in the initial litigation. Barring such terms or other legal
authorization, however, the initial contract is void and suits for violating the settlement
agreement must proceed under the settlement agreement rather than the original contract.
______________________________
Illustration:
1. X sued Y for breach of contract under a loan agreement where X loaned Y $12,000 and Y
agreed to repay X with regular monthly payments over 10 years at 12% interest per
annum. The contract also stated that, under any failure to make a timely payment as
agreed to in the contract, Y defaulted on the contract and X was authorized to take
immediate action in Tribal courts to collect on the outstanding balance with interest.
After making regular payments under the contract for some time, Y abruptly stopped
making payments, and X initiated court proceedings to collect on the outstanding debt
plus interest. Under undisputed calculations, Y’s outstanding debt plus interest owed to X
was in excess of $7,000. After weighing the likelihood of ever collecting on the
substantial outstanding debt against the cost for paying for attorneys to seek collection, X
and Y entered into a binding, Court-approved settlement agreement whereby Y agreed to
pay X $4,500 within one week to forever resolve the dispute. Unfortunately for X, Y
failed to follow through on his obligations under the settlement agreement. As a result, X
filed suit seeking repayment of $7,000+ under the initial contract. Reasoning that the
settlement agreement replaced the initial contract, the Court entered judgment in favor of
X, but under the terms of the settlement agreement, for an amount of $4,500 with interest
to accrue until the debt is satisfied.
______________________________
Case Citation:
1. Northern Shores Loan Fund, Inc. v. Lah Lah's Preloved Clothing Boutique, No. C-1490912 (LTBB Tribal Ct. Oct. 10, 2012).
§ 4.08[C] Settlements, Calculating Interest
Where the settlement order is silent as to applicable interest rate for awarding damages to the
injured party, the Court shall award interest under Michigan law for calculating interest rates for
29
money judgments. Under this practice, interest on a money judgment recovered in a civil action
is calculated at 6-month intervals from the date of the filing of the complaint at a rate of interest
equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes
during the 6 months immediately preceding July 1 and January 1. Interest awarded under this
formula shall continue to accrue from the date that the judgment is signed until the judgment is
rendered in full.
______________________________
Comment:
1. As a developing tribal government, the LTBB is still in the process of establishing areas
of common and statutory law that cover the range of incidents which impact the lives of
Tribal Citizens. When creating or expanding upon the law, however, Tribal authorities
must take care to ensure that any new legislation or legal principles are consistent with
the LTBB Constitution and tribal customs. Given that the LTBB did not initially establish
rules for calculating interest for damages awarded in money judgments where the
judgment is silent as to an interest rate, the Tribe looked to foreign law, specifically that
of Michigan, in adopting such a principle. Given the familiarity with Michigan law
among the peoples practicing in Tribal courts and the unique relationship the Tribe
maintains with the State, Tribal courts have often looked to Michigan law for guidance
on issues that Tribal law is silent on. Although the historic rate for calculating interest on
money judgments in Michigan has not been unjustly high by most standards, it remains
an open question whether future exorbitant rates would be unconscionable or violate
some other principle of Tribal law or custom. Under such a scenario, the Court would
have to determine whether to modify or maintain the current rate.
______________________________
Illustration:
1. X obtained a money judgment via settlement order against Y in the amount of $5,000; the
complaint was filed on December 1, 2013, and the order was entered on December 15,
2013. While the agreement was silent as to an interest rate, the order required Y to make
immediate payment to X, thereby making the inclusion of an interest rate unnecessary at
the time. Contrary to the terms of the order, however, Y failed to pay X until March 1,
2014. On July 1, 2013, the average interest rate paid at auctions of 5-year United States
treasury notes was 1%, with the rate increasing to 2% on January 1, 2014. Using the
formula that has been adopted as part of the Tribe’s common law, the interest rate for the
money judgment would be consistently 2% (1% + 1%), as only 3 months passed from the
time that the complaint was filed until the day that the judgment was satisfied. Given that
30
the formula calls for calculating interest at 6 month intervals from the date that the
complaint was filed using July 1 and January 1 interest rates, the interest rate calculation
would not be 3% (2% + 1%) unless and until payment on the judgment was delayed more
than 6 months after the complaint was filed, which would be June 1, 2014 at the January
1, 2014 interest rate calculation; even here, the increased interest rate would only apply to
the balance outstanding as of June 1. Assuming that there was further delay in satisfying
the judgment, the rate would not change again until 6 months after June 1, 2014.
______________________________
Case Citation:
1. Northern Shores Loan Fund, Inc. v. Lah Lah's Preloved Clothing Boutique, No. C-1960414 (LTBB Tribal Ct. July 1, 2014) (citing Chelsea Inv. Grp. LLC v. Chelsea, 792
N.W.2d 781, 789 (Mich. Ct. App. 2010)); MCL 600.6013(8); and Babcock v. Diebolt,
2009 WL 6430839 (Mich. Cir. Ct. 2009).
§ 4.09 Effect of Nolo Contendere Plea
A nolo contendere plea carries the weight of a conviction for the same offense where the relevant
court rules require the judge to hold a hearing to establish support for a finding that the defendant
is guilty of the offense to which the defendant is pleading.
______________________________
Comment:
1. In the case where a judge must make findings of fact that would support a guilty plea in
order for the defendant to plead nolo contendere, these facts support using treating the
nolo contendere plea as it if it is a conviction.
______________________________
Case Citation:
1. In re Kiogima, No. A-033-0716 (LTBB Ct. App. Mar. 31, 2017).
31
§ 5 Fairness and Justice in LTBB Courts
§ 5.01 Judicial Disqualification or Recusal
§ 5.01[A] Standards for Judicial Disqualification or Recusal
When a party seeks to disqualify a judge, disqualification or recusal is only appropriate in cases
where the judge’s impartiality might reasonably be questioned.
______________________________
Case Citation:
1. See, e.g., Carey v. Espinosa, No. A-011-1008 (LTBB Ct. App. May 2, 2011).
§ 5.01[B] Removal of Tribal Court Judge on Showing of Lack of Impartiality
Where serious questions of impartiality on a particular case exist for a Tribal Court judge, the
Appellate Court may remove the judge in question and transfer the case to another Tribal Court
judge.
______________________________
Case Citation:
1. TBA Credit Union v. Giem, No. A-010-0708 (LTBB Ct. App. June 17, 2009).
§ 5.02 Duty of Candor
§ 5.02[A] Duty to the Court
In addition to agreeing to abide by the laws and customs of the Tribe, attorneys and others
licensed to practice before the courts of the Tribe owe a duty of candor to the courts.
§ 5.02[B] Breach of Duty of Candor
Where attorneys or others licensed to practice before the courts of the Tribe breach their duty of
candor, the courts may, in the interest of justice, take appropriate action to remedy the breach.
32
______________________________
Comment:
1. These rules touch on the duties that individuals who are licensed to practice before LTBB
courts owe to the judicial system and process. Breach of these responsibilities and duties
raises different questions for LTBB courts exercising their inherent disciplinary authority,
depending on the identity of the practitioner in question. On the one hand, if an individual
licensed to practice before LTBB courts is a member of a federally-recognized Indian
tribe, LTBB courts may exercise criminal and civil jurisdiction over that individual
should he breach his duty owed to the courts. If, on the other hand, the attorney or
another licensed to practice before Tribal courts is not a member of a federallyrecognized tribe (and is not eligible for membership in a federally-recognized Indian
tribe), LTBB courts may only initiate civil proceedings against that individual if they
have entered into “consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements” or if they have engaged in
conduct that “threatens or has some direct effect on the political integrity, the economic
security, or the health and welfare of the tribe.”25 Criminal jurisdiction over non-Indians
is disallowed unless such authority is explicitly granted by Congress. 26 As a result, while
the duties owed by individuals licensed to practice in Tribal courts remain the same
regardless of their tribal affiliation, the courts’ authority to take corrective action against
them may be severely weakened depending on their lack of tribal affiliation.
2. Apart from the disciplinary procedures that provide a means for maintaining order and
the integrity of the judicial process, Tribal courts may amend judgments where an
incorrect decision was reached as a result of a party or their licensed representative’s
dishonesty before the courts. Tribal courts may take such corrective measures on their
own accord, particularly where the aggrieved party is not represented by counsel, in the
name of ensuring justice. Such authority is consistent with traditional Tribal
understanding of fairness and justice.
______________________________
25
Montana, 540 U.S. at 565-66.
26
See, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (noting that modern
government-to-government relationships between Indian tribes and the Federal government
divested Indian tribes of the authority to exercise criminal jurisdiction over non-Indians, unless
authorized to do so by Congress).
33
Illustration:
1. X is an attorney licensed to practice before Tribal courts but is a not a member of a
federally-recognized tribe. As part of X’s application for admission to the Tribal Bar, X
agreed to adhere to the laws of the Tribe and to show respect to the Tribal courts, which
includes a duty of candor. While representing his client, Z, in a suit against Y, who was
not represented by counsel, X lied to the court in an effort to achieve a favorable result
for Z. In the normal course of business, and after entering a verdict in favor of Z,
influenced in large part by X’s dishonesty, the Court discovers that X has been untruthful
on the central point. After the Court convenes a rehearing on its own accord, X’s
dishonesty is proven on the record. As a result of X’s established dishonesty, which led
the Court to issue an incorrect ruling, the Court amends its original order and enters
judgment in favor of Y. Additionally, the Court initiates contempt proceedings against X
for violating his duty of candor owed to the Court. Because X is not a member of a
federally-recognized Indian tribe, however, the Court may only initiate civil contempt
proceedings against X.
______________________________
Case Citations:
1. Northern Anesthesia Providers, Inc. v. Welles, No. FC-233-0812 (LTBB Tribal Ct. July
23, 2013).
2. People v. Beck, No. C-185-0713 (LTBB Tribal Ct. Dec. 29, 2014).
§ 5.03 Contempt of Court
§ 5.03[A] Contempt of Court, Civil Contempt
The Court may find an individual it has jurisdiction over to be in Civil Contempt of Court for
failure to comply with an order of the Court, if the individual’s act or omission was fully
contemptuous, or the act was preceded by a clear warning by the Court that the conduct in
question was improper. Proving guilt does not require proving willful state of mind in a
Negligent Civil Contempt case.
______________________________
Comment:
34
1. The LTBB’s law of civil contempt provides its courts with tools to regulate individual
conduct before the Court as well as compliance with Court orders generally. While
contempt proceedings may be initiated against any person that the Court has jurisdiction
over, United States Supreme Court precedent has limited the civil authority of Indian
tribes over non-Indians. Under Supreme Court jurisprudence, Indian tribes may only
exercise civil jurisdiction over non-Indians who enter into “consensual relationships with
the tribe or its members, through commercial dealing, contracts, leases, or other
arrangements” or where conduct by non-Indians “threatens or has some direct effect on
the political integrity, the economic security, or the health and welfare of the tribe.”27
Although the Supreme Court’s pronouncement, in theory, grants tribes expansive
authority over Indians and non-Indians alike, in practice the doctrine has eroded the
historic legal authority that Indian tribes had over outsiders conducting business within
their territories. 28
______________________________
Illustrations:
1. A member of a federally-recognized tribe appearing before the LTBB Court has been
instructed by the Court to refrain from engaging in certain specified conduct. Despite
clear warnings from the Court on the matter, however, the member engages in the
behavior anyway. As a result, the Court is authorized to hold the member in Civil
Contempt of Court.
2. A non-Indian attorney who has been admitted to practice law before LTBB courts, and as
such has agreed to follow the laws of the LTBB and to show respect to its courts and
legal process, is dishonest to the Court, thus violating the attorney’s duty of candor to the
tribunal. The attorney’s admission to practice before the Court, which serves as a
contractual obligation on the attorney to follow LTBB law and to respect the Court,
authorizes the Court to initiate Civil Contempt proceedings against the attorney.
27
Montana, 540 U.S. at 565-566.
28
See, e.g., Oliphant, 435 U.S. 191.
35
______________________________
Case and Statutory Citations:
1. LTBB Tribal Ct. v. Rodriguez, No. C-154-1112 (LTBB Tribal Ct. Dec. 6, 2012).
2. LTBB Tribal Ct. v. Lopez, No. TR-017-0414 (LTBB Tribal Ct. June 16, 2014).
3. People v. Beck, No. C-185-0713 (LTBB Tribal Ct. Dec. 29, 2014)
4. Zeeff v. Dillard, No. C-192-0214 (LTBB Tribal Ct. Aug. 1, 2018).
5. Waganakising Odawak Statute 2010-004, February 21, 2010, §§ V(A)(3)(7), V(B).
§ 5.03[B] Contempt of Court, Criminal Contempt
The Court may find an individual it has jurisdiction over in Criminal Contempt of Court where
the individual intentionally and unjustifiably disrupts, obstructs, or otherwise interferes with the
conduct of any proceeding of the Court, including disobedience or resistance to, or interference
with, any lawful summons, subpoena, process, order, rule, term of probation, sentence, decree, or
command of the Court, including failure to appear for a court date.
______________________________
Comment:
1. The LTBB’s law of Criminal Contempt provides its courts with tools to regulate
individual conduct before the Court as well as compliance with Court orders generally.
Consistent with the law of civil contempt, LTBB courts may initiate contempt
proceedings against any Indian under their jurisdiction. Unlike the law of Civil Contempt,
however, Tribal courts may not initiate criminal proceedings against non-Indians unless
explicitly authorized by Congress to do so. 29 The lack of criminal authority is a clear
limit on the Court’s ability to use deterrence in ensuring compliance with its orders by
non-Indian defendants or other non-Indians appearing before the Court.
______________________________
29
See, e.g., Oliphant, 435 U.S. 191.
36
Illustrations:
1. A member of a federally-recognized tribe who is under the LTBB Court’s jurisdiction has
been ordered to comply with terms as established in an order of the Court. Following a
finding beyond a reasonable doubt that the member intentionally and unjustifiably
disregarded the Court’s order, the Court may hold the member in Criminal Contempt of
Court.
2. Tribal law enforcement officers arrest and charge with a crime an individual whom they
have reason to believe is a member of a federally-recognized tribe. Operating under the
same mistaken belief, the Tribal Prosecutor brings criminal charges against the offender
under tribal law. While before the Court, the offender intentionally and unjustifiably
disrupts the proceeding, and the Court initiates Criminal Contempt proceedings against
the individual. Before sentencing the individual on Criminal Contempt charges, however,
the Court discovers that the individual is not a member of a federally-recognized tribe.
Under such circumstances, the Court is obligated to dismiss the contempt proceedings
and the underlying criminal matter for want of jurisdiction over the individual.
______________________________
Case and Statutory Citations:
1. See, e.g., LTBB Tribal Ct. v. Shalifoe, CR-086-0812 (LTBB Tribal Ct. Aug. 2, 2012).
2. WOTC § 9.107, Criminal Contempt of Court.
§ 5.04 Fee Shifting
When citizens bring claims to enforce the laws of LTBB, fee shifting should not occur unless
there is evidence that the suit was filed in bad faith or for the purposes of harassment. Defendants
who have unclean hands should refrain from requesting attorney’s fees absent evidence of these
conditions.
______________________________
Comment:
1. LTBBRCP XXIII provides for the award of attorney’s fees when it “has been clearly and
convincingly shown that the case has been prosecuted in bad faith for purposes of
37
harassment only, and that there was no reasonable expectation of success on the part of
the affirmatively claiming party.” 30 When an LTBB citizen undertakes to protect the
Tribe by filing suit when they uncover violations of the law, the opposing party should
not request attorney’s fees absent clear evidence that satisfies LTBBRCP XXIII. This is
especially true when the defendants have unclean hands and prevail in the underlying
matter on procedural grounds.
______________________________
Illustration:
1. X, an LTBB citizen, discovers that the LTBB Gaming Board executed an employment
contract without following the procedures outlined in the Contracting Statute. However,
X files suit 280 days after the contract was executed, outside the time limit covered by
the limited waiver of sovereign immunity authorized by the statute. X’s complaint is
therefore dismissed due to lack of timeliness. The Gaming Board, despite admitting the
alleged violations, requested attorney’s fees. The Court denies the request.
______________________________
Case Citations:
1. Shananaquet v. LTBB Gaming Bd., No. C-229-0318 (LTBB Tribal Ct. June 27, 2018).
§ 6 Appellate Procedure
§ 6.01 When an Appeal is Properly Before the Court
The Appeals Court may only review that which has already occurred following a Tribal Court
hearing.
An appeal is properly brought before the Court if the judgment, order or decision of the Tribal
Court is final, the appeal involved an order denying an appellant’s motion for disqualification of
a justice, or the appeal involves an order affecting a substantial right or claim which disposes of
the matter as to that participant.
______________________________
Case Citation:
1. McFall v. Victories Casino, No. A-003-1203 (LTBB Ct. App. Dec. 12, 2005).
30
LTBBRCP XXIII.
38
§ 6.02 Intervention in a Legal Action Before the Appellate Court
Where an individual has sufficient basis for intervening in an appeal under LTBBRCP Rule
X(a), the individual also meets the requirement for standing to pursue an appeal.
______________________________
Case Citation:
1. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
§ 6.03 Equitable Waiver of Timeliness Requirement
The Appellate Court has discretion to equitably waive the requirement of timeliness for an
appeal when the appellant can show merit in the appeal and the lateness was not due to the
appellant’s (or their attorney’s) own negligence.
______________________________
Case and Statutory Citations:
1. Beck v. LTBB, No. A-028-0815 (LTBB Ct. App. Feb. 13, 2017).
§ 6.04 Bar on Requests for Reconsideration
Per LTBB Tribal Court Rule 7.504, no request of reconsideration of a final decision by the Tribal
Appellate Court will be permitted.
______________________________
Comment:
1. Rule 7.504 was amended to prohibit reconsideration of Appellate decisions in 2015.
______________________________
Citation:
1. LTBB Tribal Court Rule 7.504.
39
§ 6.05 Standard of Appellate Review
§ 6.05[A] Standard of Review, Factual Omissions
If the Tribal Court makes glaring omissions of fact that are clearly material to the matter or
which have the power to determine the case’s outcome, then the Appellate Court can reverse
findings.
______________________________
Comment:
1. This rule acknowledges, by setting a high standard, that trial courts are generally best
equipped to make findings of fact that the Appellate Court generally may not disturb.
Indeed, trial courts are in unique positions to guide the compilation of a trial record and
to judge witness credibility, etc. Where trial courts fail in their responsibility to
adequately compile a factual record that justifies their legal conclusions, however, the
Appellate Court’s deference to the trial courts’ factual record is, in the interest of justice,
lessened. Under such circumstances, the Appellate Court has generally declined to issue a
ruling on the merits, and has, instead, remanded cases back to the Tribal Court to make
appropriate findings of fact before issuing conclusions of law.
______________________________
Case Citations:
1. McFall v. Victories Casino, No. A-003-1203 (LTBB Ct. App. Dec. 12, 2005).
2. Northern Shores Loan Fund, Inc. v. Harbor Wear of Boyne, Inc., No. A-021-0312 (LTBB
Ct. App. Nov. 6, 2012).
§ 6.05[B] Standard of Review, Witness Credibility
The Appellate Court will defer to the Tribal Court’s conclusions regarding the oral testimony of
witnesses before the Court.
______________________________
Comment:
40
1. See Comment 1 to Section 6.05[A].
____________________________
Case Citations:
1. McFall v. Victories Casino, No. A-003-1203 (LTBB Ct. App. Feb. 9, 2011).
2. See Northern Shores Loan Fund, Inc. v. Harbor Wear of Boyne, Inc., No. A-021-0312
(LTBB Ct. App. Nov. 6, 2012).
§ 7 Constitutional Law
§ 7.01 Pleading Requirements for Constitutional Claims
In order for a constitutional individual rights claim to proceed, a plaintiff must assert that the
plaintiff’s case meets the specific parameters of the constitutional right in question.
______________________________
Case Citation:
1. Carey v. Victories Casino, No. A-004-0606 (LTBB Ct. App. Mar. 27, 2007).
§ 7.02 Due Process
The LTBB Constitution guarantees an individual’s right to due process of law.
In a case alleging a denial of due process of law, the plaintiff must establish that they are a
person, within the Tribe’s jurisdiction, who has been deprived of either a liberty or property
interest, and that they have been denied due process of law in connection with that deprivation.
______________________________
Case and Statutory Citations:
41
1. Carey v. Victories Casino, No. A-004-0606 (LTBB Ct. App. Mar. 27, 2007).
2. LaCroix v. Snyder, No. A-024-1014 (LTBB Ct. App. Dec. 12, 2014).
3. LTBB Const. art. II, § 8.
§ 7.03 Due Process Applied, Evictions
§ 7.03[A] Proof of Service, Notice of Evictions
Proof of service of a notice of an eviction may be made by affidavit or any adult person stating
that he or she has complied fully with the requirements of either of the methods of service.
§ 7.03[B] Failure to Properly Notice
Where a defendant is not properly noticed, the defendant cannot be found guilty of unlawful
detainer and cannot be evicted.
______________________________
Comment:
1. These rules address potential concerns that an eviction from Tribal property without
proper notice would violate the evicted individual’s due process rights. Notice and an
opportunity for an aggrieved party to be heard are crucial to the fairness and justice
aspects inherent in due process. While in this case, Tribal Council has adopted the notice
requirements in legislation, even in situations where due process requirements are not
incorporated into statute, Tribal courts are well-equipped and situated under the LTBB
Constitution to mandate such notice requirements. Developing LTBB case law waiving
sovereign immunity when officials act outside the scope and duties of their authority
(e.g., when they act pursuant to an unconstitutional law), suggests such legal actions
would not automatically be barred by the Tribe’s sovereign immunity. It remains unclear,
however, what the LTBB Constitution’s due process clause requires in terms of minimum
notice.
______________________________
Illustration:
42
1. X is a resident of Odawa Housing, which is owned and operated by the Tribe. X has
fallen one month behind in her rent. Under legislation passed by Tribal Council and
signed into law by the Tribal Chairperson, the Tribe’s Housing Department is authorized
to evict residents for a failure to timely pay rent, among other reasons. The legislation
requires the Tribe’s Housing Department to give notice at least 14 days before an eviction
hearing. Contrary to the statutory requirements, however, the Housing Department first
notices X of its intent to seek her eviction only 10 days prior to the hearing. X files a
motion to dismiss the action against her for failure to properly notice. Based on the
statutory definition, alone, the Court must grant X’s motion and the Tribal Housing
Department must properly notice X before moving forward.
______________________________
Case Citation:
1. LTBB Housing Dep’t v. King, No. C-128-0811 (LTBB Tribal Ct. Dec. 12, 2011).
§ 7.04 Powers of Tribal Council
§ 7.04[A] Powers of Tribal Council Generally
Tribal Council is empowered by the Constitution as the Tribe’s legislative body to make laws
and appropriate funds, among other responsibilities. In exercising its legislative duties, Tribal
Council is prohibited from making laws that are inconsistent with the Constitution and may not
exercise any powers not granted to it by the Constitution.
______________________________
Comment:
1. See Comment 1 to Section 9.02, infra.
______________________________
Illustration:
1. See Illustration 1 to Section 3.04.
______________________________
43
Case and Statutory Citations:
1. See, e.g., LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A022-1212 (LTBB Ct. App. July 9, 2014).
2. LTBB Const. art. VI, § C, art. VII, §§ D(1) and E.
§ 7.04[B] Powers of Tribal Council to Bind Executive Branch
Actions of the Tribal Council are only binding on the Executive Branch if they are properly
adopted through the legislative process.
______________________________
Comment:
1. See Comment 1 to Section 9.02, infra.
______________________________
Illustration:
1. See Illustration 1 to Section 3.04.
______________________________
Case Citation:
1. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
§ 7.05 Prohibition on Ballot Initiatives for Appropriations and Budgeting
Under the LTBB Constitution, statutes that entail appropriations or establish Tribal budgets may
not be enacted through Tribal Membership ballot initiative.
44
______________________________
Comment:
1. Under the LTBB Constitution, as drafted by the Tribal membership, it is the Tribal
Council’s exclusive role to appropriate Tribal Funds. Article XIV § (A)(1) of the LTBB
Constitution provides that the LTBB membership has the power to propose laws by
initiative. However, the initiative exemption in Article XIV § (A)(1) specifically
recognizes and reinforces the separation of membership’s power to propose legislation by
initiative from Tribal Council’s power to appropriate funds.
______________________________
Illustration:
1. Tribal Membership files a petition for a ballot initiative which provides for an increase of
per capita payments from $599.00, to $2,500. Tribal membership argues that the initiative
neither constitutes appropriations nor establishes a Tribal budget, but rather, that it
provides for separating certain gaming revenue by priority. Under the proposal, part of
the gaming revenue is set aside for per capita distribution, while the remainder is
available for use as determined by Tribal government. The court is not swayed by this
argument and rules against it, finding that separating funds in this manner is essentially
the same as budgeting and appropriating, and therefore may not be accomplished by
ballot initiative.
______________________________
Case Citations:
1. LTBB Tribal Council v. LTBB Election Bd., No. C-209-0715 (LTBB Tribal Ct. Aug. 25,
2015).
§ 7.06 Authority for Adopting Membership Law
The Court has no authority to adopt substantive provisions of law that relate to Tribal
membership; only Tribal Council, within the limits established by the Tribal Constitution, may
do so.
______________________________
45
Comment:
1. This rule respects the constitutional roles of the different branches of Tribal government.
Under this system, Tribal Council has the authority to adopt substantive provisions of law
that relate to Tribal membership, and it is not the role of the LTBB courts to evaluate the
wisdom of Tribal Council’s decisions. LTBB courts, however, do serve as a powerful
check on Tribal Council’s authority in this area, as they are empowered to determine
whether membership legislation runs afoul of the LTBB Constitution.
______________________________
Illustrations:
1. Tribal Council passes legislation amending the LTBB’s membership law, which affords
membership, in part, based on one’s relationship to an ancestor on the Durant Roll. Prior
to the new legislation being enacted, the law recognized a rebuttable presumption that
members listed on the Durant Roll were 4/4 Odawa; the LTBB Constitution mandates
that members have at least 1/4 Indian ancestry and trace to the historic villages of the
Odawak from the Little Traverse Bay area. Under the new legislation, however, Tribal
Council targeted certain townships, based on newly discovered information, and lowered
the presumptive blood quantum of members on the Durant Roll from these townships to
1/2 Odawa. The result of the legislative change was to revoke LTBB citizenship rights to
approximately one-third of the Tribe’s membership. LTBB courts must dismiss any
claims made by the affected members against the Tribal Councilors as they acted within
the scope of their constitutional authority and there is no judicially reviewable issue.
2. The LTBB Constitution requires that citizens of the Tribe be at least 1/4 North American
Indian or Alaska Native, among other requirements. Tribal Council passes legislation that
prohibits the Tribal Enrollment Department from processing membership applications of
individuals who have less than 1/2 North American Indian or Alaska Native blood
quantum. In an action against the Tribal Chairperson seeking to prevent enforcement of
the law, LTBB courts are empowered to strike down the statute and prevent the
Chairperson from enforcing this or any similar statute as it is inconsistent with the LTBB
Constitution. Such legislation should only be upheld if a constitutional amendment was
adopted increasing the blood quantum requirement for membership.
______________________________
Case Citation:
1. See, e.g., Startup v. LTBB, No. C-060-0705 (LTBB Tribal Ct. Sep. 30, 2006).
46
§ 7.07 Constitutional Avoidance
LTBB courts are not required to reach a decision on any constitutional issue raised in a case if
the case can be resolved in full by the application of an inferior Tribal statute.
______________________________
Comment:
1. This doctrine recognizes the importance and broad implications of LTBB courts
interpreting the Tribe’s Constitution compared with the more limited impact of
interpreting an inferior statute. If courts are able to rule on an issue as a matter of Tribal
statute, then the ruling applies only to cases arising under that statute, which Tribal
Council is free to modify or replace as part of the general legislative process. On the
other hand, if courts rule on an issue under the Tribe’s Constitution, the ruling has more
permanency and can only be modified by a future decision of the courts or by a
constitutional amendment. The doctrine shows a preference for limited rulings,
preserving a simpler avenue for the people and their representatives to shape the law.
______________________________
Illustration:
1. X brings suit against the Tribal Chairperson, alleging that they have allocated nondispersed funds to a special arts project, in violation of both legislation prohibiting such
action and contrary to a constitutional provision preventing the Tribal Chairperson from
allocating non-dispersed funds without the approval of a super-majority of the Tribal
Council. If the Court is convinced by a reading of the statutory and constitutional
provisions at issue that the Tribal Chairperson is prohibited by both from taking the
complained-of action, it should adjudicate the issue by ruling on the statutory provision
alone. Under the constitutional avoidance doctrine, the Court, under the circumstances,
need not address the constitutional claim.
______________________________
Case Citations:
1. See In re J.C.W., No. A-014-0410 (LTBB Ct. App. Feb. 9, 2011).
2. In re J.C.W., No. A-015-0910 (LTBB Ct. App. Mar. 30, 2011).
47
§ 7.08 Conflict of Laws, Supremacy
When there are multiple possible interpretations of a subordinate text, and one interpretation
conflicts with a superior text (i.e., a statute conflicts with a constitutional provision or a
regulation conflicts with a statute), the court should read the subordinate text as consistent with
the superior text absent explicit statement to the contrary.
If it is not possible to reconcile the provisions, the provision in the superior text prevails.
______________________________
Comment:
1. This principle recognizes the supremacy of the LTBB Constitution over inferior laws
passed by Tribal Council, and the supremacy of statutes passed by the elected members
of Tribal Council over regulations created by agencies. Through such a legal framework,
the Tribal citizenry remain better protected against excesses of Tribal government that
threaten to violate rights enumerated and retained by the citizenry. It is important to note,
however, that Tribal sovereignty is limited by the United States Congress’ plenary
authority over tribal governments, which grants Congress significant authority over these
governments that cannot be limited by tribal constitutions. 31
2. Tribal Council, in passing legislation, and LTBB agencies, in creating regulations, are
presumed to act in accordance with superior laws.
______________________________
Illustration:
1. X brings suit against the LTBB Department of Human Services to prevent enforcement
of a statute that threatens her with termination of her parental rights, claiming that the
provisions of the statute violate her constitutional guarantee of due process. The evidence
at hand supports the Tribe’s position that X’s parental rights should be terminated under
the statute, but the court finds the statutory process to be in conflict with the LTBB
Constitution. Under the conflict of laws doctrine, the court should invalidate the statutory
31
Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505, 509
(1991).
48
provision as it contradicts the LTBB Constitution. The inferior statutory provisions must
give way to the supreme law of the Tribe.
2. X, an employee of Odawa Casino Resort (OCR), has his license suspended. X believes
the suspension was done improperly, and brings suit under a number of statutory
provisions, including the Fair Employment Statute. The gaming regulations provide for a
remedy related to suspensions, which OCR argues is exclusive, though the regulation is
not explicit on that matter. The court, declining to read the regulation in a way that
abrogates the statutory remedy, allows the statutory claims to go forward.
______________________________
Case and Statutory Citations:
1. Harrington v. LTBB Election Bd., No. A-019-1011 (LTBB Ct. App. Feb. 16, 2012).
2. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. C-120-0411
(LTBB Tribal Ct. Nov. 22, 2012).
3. LTBB Tribal Council Members: Belinda Bardwell et al. v. Harrington, No. A-022-1212
(LTBB Ct. App. July 9, 2014).
4. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
5. LTBB Const. art. VI, § E.
§ 7.09 Textual Interpretation, Plain Meaning
In the absence of a textual definition of terms provided for in codified law, the Court applies the
ordinary meaning to the terms.
______________________________
Case Citation:
1. LTBB Indians Gaming Regulatory Comm’n v. Roberts, No. A-018-0811 (LTBB Ct. App.
Dec. 20, 2012).
2. See LTBB Nat. Res. Dep’t v. Whittaker, No. H-075-1112 (LTBB Tribal Ct. April 8,
2013).
3. LTBB Nat. Res. Dep’t v. Houghton, No. H-085-0914 (LTBB Tribal Ct. Sep. 8, 2014).
49
§ 8 Administrative Law
§ 8.01 Deference to Agency Actions
The Court should give deference to agency actions, but only after concluding that an agency
acted within the scope of its lawful authority. Within the bounds of their statutory authority,
agencies generally have flexibility to determine how to achieve their regulatory obligations.
______________________________
Comment:
1. This rule recognizes that agencies, in exercising their lawful responsibilities, accumulate
expertise on certain subject matters that courts do not generally have. Thus, LTBB courts
will give great deference to agency decisions, particularly agency rulemaking. With such
a rule, it is important that LTBB agencies have some guiding principles as they conduct
their business; otherwise, in the name of giving deference, LTBB courts would invite
LTBB agencies to overstep their legal authority. This principle is not, however, absolute,
as an LTBB agency’s authority, as well as the power of LTBB courts to review agency
decisions, can be broadly or narrowly refined and defined by statute or the LTBB
Constitution.
______________________________
Case Citations:
1. LTBB v. Milligan, No. A-006-0707 (LTBB Ct. App. Oct. 1, 2008)
2. Gasco v. LTBB Indians Election Bd., No. A-017-0711 (LTBB Ct. App. Sep. 12, 2011).
3. See LTBB Indians Gaming Regulatory Comm’n v. Roberts, No. A-018-0811 (LTBB Ct.
App. Dec. 20, 2012).
4. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
§ 8.02 Reasonable Reliance on Inaccurate Statements Made by LTBB Officials
§ 8.02[A] Inaccurate Statements Made by Officials Do Not Have the Force of Law
50
In general, inaccurate statements made by Tribal officials cannot alter or excuse the application
of Tribal laws or constitutional provisions.
§ 8.02[B] Remedy for Detrimental Reliance
If an individual detrimentally relies upon the inaccurate statements of a government officer, the
Court must look at the complete context to ascertain whether the reliance was reasonable. If the
Court determines that the reliance was in fact reasonable, it must then determine the appropriate
remedy, which may or may not include giving effect to the statement made by the government
official.
______________________________
Comment:
1. The narrow exception provided in Part B allows the court to consider equitable relief
when an individual has reasonably relied to their detriment on inaccurate statements
made by LTBB officials. While the rule provides the basis for giving effect to the
statements in these limited circumstances, the court may or may not elect to do so.
2. There is a strong presumption that reliance is unreasonable when the official statement
conflicts with a constitutional or statutory provision. While such a rule may lead to harsh
results, it is nonetheless necessary to preserve the Tribe’s constitutional structure and rule
of law. Otherwise, LTBB officials would, in effect, be able to change the meaning of the
law unilaterally and outside of the scope of their authority.
______________________________
Case Citation:
1. Harrington v. LTBB Election Bd., No. A-019-1011 (LTBB Ct. App. Feb. 16, 2012).
§ 8.03 Administrative Remedies and Exhaustion
Plaintiffs in employment disputes generally are required to exhaust administrative remedies, such
as those provided in regulations or the LTBB employee handbook, before pursuing claims before
the Tribal Court. However, when the administrative remedies do not provide the relevant type of
review or relief, the claims in Tribal Court are not barred for failure to exhaust.
______________________________
51
Comment:
1. This rule has so far only been applied in the context of the Gaming Regulations.
2. In general, administrative remedies are valuable as they provide an avenue to address
many grievances without having to involve the parties in a protracted and expensive legal
dispute. This is the source of the general exhaustion requirement. However, it would be
futile for a plaintiff to pursue administrative remedies when the remedies available do not
address the harm claimed by the plaintiff. In these cases, it is inefficient to require the
plaintiff to exhaust and they may proceed directly to Tribal Court.
______________________________
Illustration:
1. X is an employee of the Odawa Casino Resort who had his license suspended and files a
claim in Tribal Court. The administrative appeals process available under the Gaming
Regulations only allows for appeals based on procedural error that resulted in significant
prejudice. The Court had in fact previously held that any additional review or remedy
was improper. X, however, is not asserting a procedural defect but that his license was
impermissibly suspended by the defendants in the first place. Because the Commission
cannot address the plaintiff’s grievances through the administrative remedies available,
an appeal would be futile and there is no exhaustion required before X can bring his
statutory claims.
______________________________
Case Citations:
1. LTBB v. Harrington, No. A-008-1007 (LTBB Ct. App. May 18, 2009).
2. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
§ 9 Elections
§ 9.01 Tribal Council Oversight of Elections
The Tribal Council has the authority to enact laws that govern elections that are not inconsistent
with the LTBB Constitution’s specific election requirements.
______________________________
Comment:
52
1. See Comment 1 to Section 9.02, infra.
______________________________
Case Citation:
Gasco v. LTBB Election Bd., No. A-017-0711 (LTBB Ct. App. Sep. 12, 2011).
§ 9.02 Authority of the Tribal Election Board
In exercising its power to conduct elections, the Tribal Election Board may direct and take part
in the operation and management of elections, and may develop rules and regulations for
elections.
In exercising its authority to enact rules and regulations governing elections, the Election Board
is limited to promulgating rules that fill in the gaps of relevant election law statutes and
constitutional provisions.
______________________________
Comment:
1. This interpretation clarifies the powers of Tribal Council and the Election Board, an
independent Tribal entity under the LTBB Constitution, in regulating elections. The
Election Board is tasked with conducting elections and adopting “rules and regulations
governing elections,” while Tribal Council, despite not having a specific enumerated
power to conduct elections, is tasked with making laws not “inconsistent” with the LTBB
Constitution. Given that Tribal Council has legislative authority over the affairs of the
LTBB and the Election Board is explicitly not granted any legislative authority, it
reasonably follows that the Election Board’s “rules and regulations” power does not
undercut Tribal Council’s legislative authority in Tribal election matters. This rule is
consistent with the general constitutional language that prevents LTBB government
branches from exercising powers granted to other LTBB government branches.
______________________________
Illustrations:
1. Tribal Council passes legislation that sets the date for the upcoming primary election. As
part of the legislation, Council mandates that the election be “rescheduled within a
reasonable amount of time if polling stations are closed due to inclement weather.”
53
Exercising its discretionary authority under the legislation, the Election Board
promulgates rules and regulations defining “reasonable time” to mean “no more than one
week after an inclement weather event has passed.” A devastating snow storm is forecast
to arrive on the night before the primary election, which prompts the Election Board to
postpone the election by four days. In a legal challenge by a candidate against the
Election Board’s authority to promulgate such rules and regulations, the Court dismisses
the complaint and holds that the Election Board’s actions are permitted as gap fillers that
clarify the legislation passed by Tribal Council.
2. Tribal election law clearly states that ballots may not be counted until three days
following an election in order to provide time for the return of absentee ballots. Despite
this statutory language, the Election Board promulgates and implements a rule allowing it
to count ballots one day after an election has concluded. In an action against the Election
Board, the Court should invalidate the rule, as it is inconsistent with the Board’s
constitutional authority to enact only rules that fill in gaps and clarify existing legislation.
Because the relevant ballot counting measures are clearly and unambiguously outlined in
statute, there are no gaps for the Election Board to fill in on this issue.
______________________________
Case and Statute Citations:
1. Gasco v. LTBB Election Bd., No. A-017-0711 (LTBB Ct. App. Sep. 12, 2011).
2. See WOS 2010-019, §§ XII(C)-(D), Tribal Elections and Election Board.
§ 9.03 Citizen Claims Against the Election Board; Election Challenges
§ 9.03[A] Citizen Claims Against the Election Board, Generally
To establish a claim against the Election Board or election process, a Tribal Citizen with
standing must show that any part of the election process was inconsistent with the Tribal
Constitution, Tribal Code, or Tribal Regulations.
The Elections section of the LTBB Constitution creates an implicit presumption that the Election
Board performed its duties as required. Challengers seeking a new election must allege facts with
sufficient specificity that the challenge is plausible on its face and not merely conceivable – in
particular, that the board failed to perform its duties as required and this failure impacted the
election results.
______________________________
Comment:
54
1. When the Election Board acts in a spontaneous ad hoc fashion that does not comport with
the scope of its authority, the Court shall decline to defer to the Board’s judgment.
2. See Comment 1 to Section 8.01.
______________________________
Case Citations:
1. Chingwa v. LTBB Indians Election Bd., No. C-158-0713 (LTBB Tribal Ct. July 22,
2013).
2. Gasco v. LTBB Election Bd., No. A-017-0711 (LTBB Ct. App. Sep. 12, 2011).
3. Okuly-Shananaquet v. LTBB Election Bd., No. C-226-0517 (LTBB Tribal Ct. May 30,
2017).
§ 9.03[B] Citizen Claims Against the Election Board, Impact on Election Outcome
In determining whether an error in the election process was harmless, the court considers
whether the error influenced the election outcome.
______________________________
Comment:
1. This rule balances the need for integrity in the election process with the reality that
ordering a new election is an extreme remedy which should only be employed when there
is evidence of an impact on the election outcome.
______________________________
Illustration:
1. The Election Board produces and mails a ballot where the candidate’s first name is
spelled incorrectly. The misspelling is phonetically identical to the correct spelling
(“John” vs. “Jon”). The Board becomes aware of the error and sends a revised ballot with
the correct spelling, giving voters the opportunity to use either version. There is no
evidence that voters were confused by the error and no sign of reduced turnout. As there
is no evidence of an impact on the election outcome, the Court is justified in declining to
order a new election.
55
______________________________
Case Citations:
1. Gokee v. LTBB Election Bd., No. C-208-0515 (LTBB Tribal Ct. June 10, 2015).
§ 9.04 Election Rules and Regulations
§ 9.04[A] No Amendment to Rules or Regulations During an Election
The Election Board may not amend current rules or regulations while an election is in progress.
However, a rule is not considered amended unless the existing framework is altered in some
way.
§ 9.04[B] Discretion to Act when Rules and Regulations are Silent
When the election rules and regulations are silent on how the Election Board should proceed
under the circumstances, the board may act as needed to resolve the issue, provided they do not
violate or amend the current rules and regulations for elections.
______________________________
Comment:
1. Tribal election regulations prohibit the Election Board from amending existing rules and
regulations while an election is in progress. However, the Election Board does retain the
power to address situations as they arise, and may act as they see fit when the existing
framework does not account for the current circumstances.
______________________________
Illustration:
1. The Election Board produces and mails a ballot where the candidate’s first name is
spelled incorrectly. The existing regulations do not provide for what the Board should do
in this situation, and the Board acts by sending a corrected ballot. As the solution is not
prohibited by the regulations or inconsistent with the existing framework, the Court finds
that no violation took place.
______________________________
56
Case Citations:
1. Gokee v. LTBB Election Bd., No. C-208-0515 (LTBB Tribal Ct. June 10, 2015).
§ 10 Gaming
§ 10.01 Compliance with Regulations, Reasonable Notice
1. When an entity regulated by the LTBB Gaming Regulatory Commission has actual notice
and understanding of what is required to comply with the regulations and simply makes
an error, it is no defense that the regulations are inconsistent and confusing on their face.
______________________________
Illustration:
1. X, an entity regulated by the LTBB Gaming Regulatory Commission (GRC), commits a
technical violation of a provision in the Gaming Regulatory Statute, and is fined by the
GRC. X admits to the violation but argues that it should not be held responsible as the
statute and regulations involved are inconsistent and confusing. The Court agrees that the
statute and regulations are confusing, but finds that X knew what was required for
compliance, despite the confusing language, and simply made an error. The Court rejects
the defense of insufficient notice.
______________________________
Case Citations:
1. LTBB Gaming Regulatory Comm’n v. Odawa Casino Resort, No. GRL-009-1115 (LTBB
Tribal Ct. Jan. 7, 2016) (order following objection hearing).
§ 10.02 Gaming Fines
The LTBB Gaming Regulatory Commission can preemptively assess fines against Odawa
Casino Resort (OCR) to prevent running afoul of National Indian Gaming Commission (NIGC)
Regulations. Fines should be reduced if the totality of circumstances dictates that the penalty
imposed is not appropriate.
______________________________
57
Illustration:
1. X, an entity regulated by the LTBB Gaming Regulatory Commission (GRC), failed to
submit fee worksheets to the National Indian Gaming Commission, which could have
resulted in a fine of $1,104.09 from NIGC. GRC instead fines X $5,000 (the penalty
amount stipulated in GRC regulations) to correct the behavior, but also to keep Tribal
monies within the Tribe as opposed to being paid to a Federal Government body. The
Court finds that the primary purpose of the GRC fine is to keep the monies internal to
LTBB and reduces the fine to $1,104.09, the amount NIGC could have fined OCR had
the behavior not been timely corrected and properly punished.
______________________________
Case Citations:
1. LTBB Gaming Regulatory Comm’n v. Odawa Casino Resort, No. GRL-009-1115 (LTBB
Tribal Ct. Jan. 7, 2016) (order following objection hearing).
2. WOS 2011-005, Gaming Regulatory Commission Regulations (2011).
3. National Indian Gaming Commission, CFR Title 25, Ch. III A, 514 Fees.
§ 10.03 Authority to Suspend Licenses
Employees of the Gaming Regulatory Commission (GRC) are authorized to assist the
Commission in its regulatory powers, including the power to suspend licenses.
______________________________
Comment:
1. The GRC, including its staff, bears the power and the responsibility to ensure all key
employees and primary management officials are eligible and suitable for employment.
The statute establishing the GRC explicitly authorizes employees to assist in fulfilling the
required regulatory duties of the Commission. Allowing employees to take temporary
actions on pressing concerns allows the Commission to meet its regulatory duties in the
interim period before the full Commission can take final action.
______________________________
Case Citations:
1. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
58
§ 10.04 Remedial Scheme for Gaming Employees
The remedial scheme provided by the Gaming Regulations is not designed to be the exclusive
remedy for gaming employees.
______________________________
Comment:
1. The Gaming Regulations provide a specific and limited remedy of pay back for
employees who have had their licenses suspended. This is in contrast to the U.S. Civil
Service Reform Act, which provides a much more comprehensive system of remedies for
federal employees. Because of the limited remedy involved, the Court held that it was not
designed to be the exclusive remedy for gaming employees.
______________________________
Case Citations:
1. 1. Wemigwase v. Cook, No. A-032-0516 (LTBB Ct. App. Oct. 10, 2017).
§ 11 Family Law
§ 11.01 Divorce, Due Process
§ 11.01[A] Divorce, Due Process Requirements
In divorce proceedings, due process entitles both parties to notice and an opportunity to be heard.
However, there is no absolute right to testify in person, call witnesses, and cross-examine the
other party and witnesses. When one party is unable to appear before the court due to their own
uniquely restrictive circumstances, their written response can serve as their opportunity to be
heard.
______________________________
Comment:
1. In general, the opportunity to be heard encompassed in due process includes the ability to
appear before the court to testify, present evidence, and confront the evidence against
you. However, this right is not absolute and the court is not required to guarantee it in the
face of uniquely restrictive circumstances of one party. For example, the court is not
required to hold a hearing on the weekend when one party travels during the week for
work. This may be particularly true when the uniquely restrictive circumstances are not
59
limited to the date in question but are expected to persist for some time. In these cases,
the party’s written response can serve as their opportunity to be heard as long as it is fully
considered by the court.
2. In proceeding with a hearing without one party, the Court should make factual findings
regarding the reason for the party’s absence.
______________________________
Illustration:
1. X and Y are parties in a divorce proceeding, but Y is unable to appear at a pretrial
hearing due to his incarceration for domestic violence against X. Y has received notice
and has filed a detailed written response on the issues for disposition. Reasoning that Y
will not be able to appear before the court even at a rescheduled hearing, and wanting to
protect X from future victimization, the Court proceeds to hold a dispositional hearing,
relying on Y’s written responses.
______________________________
Case Citations:
1. Lyons v. Lee, No. A-029-1015 (LTBB Ct. App. Feb. 16, 2017).
§ 11.01[B] Divorce, Ex-Parte Proceedings
In divorce proceedings, the Tribal Court has discretion to hold an ex-parte dispositional hearing
on a date that was scheduled for a pretrial hearing when the equities of the case require quick
action and due process requirements have been satisfied.
______________________________
Comment:
1. See Comment 1 to Section 11.01[A].
2. When circumstances make it impracticable for one party to appear and other equities of
the case suggest it would be advantageous to resolve the case immediately – for example,
a need to prevent future victimization of a divorce petitioner who has experienced
domestic violence from the absent respondent – an ex parte dispositional hearing may be
appropriate. However, the respondent retains their due process rights, so the Court must
ensure these are satisfied before they proceed with the hearing.
______________________________
60
Illustration:
1. See Illustration 1 to Section 11.01[A].
______________________________
Case Citations:
1. Lyons v. Lee, No. A-029-1015 (LTBB Ct. App. Feb. 16, 2017).
§ 11.02 Divorce, Equitable Division of Property and Debts
In divorce proceedings, the Tribal Court is not bound by the laws in other jurisdictions regarding
division of property and debts; instead, equitable division must be “just” and “based in fairness
rather than legal technicalities.”
______________________________
Comment:
1. See Comment 1 to Section 1.04 (while LTBB courts may find authority from other
jurisdictions instructive or persuasive, they are not bound by it unless it has been adopted
by LTBB, either by statute or as common law).
______________________________
Illustration:
1. The LTBB statute governing division of property in divorce proceedings says that such
division must be “equitable,” but does not specify further definition of what equity
requires. The LTBB Tribal Court makes a division of property and debts which includes
$2,000 to compensate the petitioner for the respondent’s unpaid share of the household
rent. The respondent appeals the decision, arguing that Michigan law would not allow the
$2,000 payment. As the Court has not adopted Michigan law in this matter, the
respondent’s argument should fail.
______________________________
Case Citations:
1. Lyons v. Lee, No. A-029-1015 (LTBB Ct. App. Feb. 16, 2017).
61
§ 11.03 Parental Rights Termination, Best Interests
The provision in CPS §XXIV(A) that states “all efforts to avoid termination have failed and
termination is in the best interest of the child concerned and the tribe” expresses the Tribe’s
philosophy on termination and does not impose an independent legal requirement that that court
must find beyond a reasonable doubt.
The Tribal Court has exclusive discretion to determine whether termination is consistent with the
guiding philosophy that it should be used only as a last resort; this finding is not reviewable on
appeal.
______________________________
Comment:
1. This provision appears in the Purpose section of the Child Protection Statute. It follows
language stating “this Section shall be construed in a manner consistent with the
philosophy….” The Appellate Court interpreted this statutory language to serve as a
guide for the Tribal Court’s analysis, but not as an independent legal requirement. As a
result, any best interests analysis is not subject to the clearly erroneous standard of review
– full discretion is with the Tribal Court.
______________________________
Illustration:
1. Considering the evidence before it, the Tribal Court makes the factual findings required
for termination of X’s parental rights, and also finds that to do so is in the best interests of
the children involved and of LTBB. The Appellate Court agrees with the finding that
termination is permitted under the statute, but disagrees that it is in the best interests of
the children. Since full discretion on the best interests analysis sits with the Tribal Court,
the Appellate Court affirms the decision.
______________________________
Case Citations:
1. In re Kiogima, No. A-033-0716 (LTBB Indians Ct. App. Mar. 31, 2017).
62
§ 11.04 Parental Rights Termination, Due Process
Where there are independent grounds for termination as a matter of law (e.g., a prior felony
conviction), failure to allow the respondent to present testimony, admit evidence, or crossexamine witnesses on a second ground for termination does not constitute denial of due process.
______________________________
Comment:
1. The LTBB Child Protection Statute provides for termination in a number of different
circumstances. Some provisions require a fact-intensive analysis, such as a finding that
future abuse is likely to occur. Other provisions do not require extensive fact-finding,
such as that which allows for termination when the parent is convicted of a violent or
criminal sex crime. When the judge finds the latter provision is satisfied as a matter of
law, failure to provide an opportunity to be heard on the former provision is a harmless
error that does not constitute a denial of due process.
______________________________
Case Citations:
1. In re Kiogima, No. A-033-0716 (LTBB Ct. App. Mar. 31, 2017).
§ 11.05 Guardianship, Jurisdiction Based on Residency
The Tribal Court does not have jurisdiction to grant guardianship over an incapacitated adult
when the proposed ward does not reside on Tribal lands or intend to reside on Tribal lands in the
near future, even where they are a Tribal member.
______________________________
Comment:
1. Residency within the exterior boundaries of the LTBB Reservation or within Tribal Trust
Lands is required for jurisdiction by statute. 32
______________________________
Illustration:
32
WOS 2015-017, § IV.
63
1. X is an LTBB member petitioning for guardianship over her grandson Y, who is also an
LTBB member. However, Y does not live within the LTBB Reservation or Tribal Trust
Lands and is not expected to live there in the future. The Court dismisses the petition due
to lack of jurisdiction over Y.
______________________________
Case Citations:
1. In re Skippergosh, No. GA-010-0617 (LTBB Tribal Ct. July 12, 2017) (order of dismissal
after hearing on guardianship).
§ 12 Torts
§ 12.01 Premises Liability
§ 12.01[A] Premises Liability, Limit to Hidden Dangers
Owners and occupiers of land do not have a duty to protect Invitees from dangers that are not
hidden.
______________________________
Comment:
1. The LTBB Torts Statute (WOS 2014-012) provides that “Owners and occupiers of land
are liable to invitees that are injured because of a hidden condition on the land that the
occupier either knew existed or could have discovered with reasonable inspection.” 33
There is therefore no duty to protect invitees from conditions which are not hidden, and
plaintiff’s failure to prove that the condition was hidden should result in failure to satisfy
the duty element of the cause of action. In such a case, the Court need not reach the issue
of comparative negligence.
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Illustration:
1. X is on the premises of Y, a business owned and operated by LTBB. Another patron at Y
drops their beverage on the floor, but the spill is clearly visible from X’s viewpoint.
Despite this fact, X goes over to investigate the spill and falls, injuring her ankle. In a
33
WOS 2014-012, § IV(F)(4)(c).
64
premises liability case against Y, the court should grant judgment for Y based on the fact
that the spill was not hidden and the duty element is not satisfied. It need not engage in an
analysis of the comparative negligence of X and Y as it should not reach that issue.
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Case Citations:
1. Duynslager v. Odawa Casino Resort, No. C-210-0815 (LTBB Tribal Ct. May 10, 2016).
§ 12.01[B] Premises Liability, No Breach with Reasonable Efforts to Mitigate Danger
Owners and occupiers of land do not breach their duty of care when they make reasonable efforts
to eliminate or respond to dangerous conditions on their property.
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Comment:
1. LTBB’s premise’s liability statute does not create strict liability for owners and occupiers
of land. As long as the owner or occupier makes reasonable efforts to respond to
dangerous conditions, the breach element of the cause of action is not satisfied.
______________________________
Illustration:
1. X is on the premises of Y, a business owned and operated by LTBB. Another patron at Y
drops their beverage on the floor, creating a risk that other patrons may slip and fall. Staff
at Y notice the spill immediately and begin taking action to clean it up. While they are
retrieving the mop, X walks through the spill and falls, injuring her ankle. Y should
prevail in a premises liability suit filed by X, as staff responded reasonably to the
dangerous condition.
______________________________
Case Citations:
1. Duynslager v. Odawa Casino Resort, No. C-210-0815 (LTBB Tribal Ct. May 10, 2016).
65
§ 12.02 Intentional Infliction of Emotional Distress
In adjudicating Intentional Infliction of Emotional Distress (IIED) claims, the court does not
reach the issue of whether emotional distress was severe unless the outrageous conduct element
is satisfied.
The relationships that are listed in the statute – such as those between supervisors and employees
– are not per se outrageous, but meet the standard when they are accompanied by behavior that
“exceed[s] all bounds of decency” and is “utterly intolerable in a civilized community.”
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Comment:
1. The LTBB Torts Statute defines outrageous conduct as “conduct without just cause or
excuse and exceeds all bounds of decency. Such conduct can be proven by a showing of
continuous and repetitive conduct, conduct by a superior or someone in a supervisory
position . . . or any other conduct that a reasonable person would consider to be
outrageous.” 34 Reasoning that not all interactions between supervisors and their
employees should be classified as outrageous, the Court held that such conduct is only
outrageous when it also exceeds all bounds of decency. The fact that conduct occurred in
the context of a supervisory relationship may contribute to its outrageous character, but it
does not make it per se outrageous.
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Illustration:
1. X is Y’s supervisor and they engage in a consensual romantic relationship. However, X
begins pressuring Y to quit her job and in that context, yells at her. Y files suit, alleging
Intentional Infliction of Emotional Distress (IIED). Considering the totality of
circumstances, including the existence of the supervisory relationship, the Court finds the
conduct was not outrageous, and therefore dismisses the IIED claim.
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Case Citations:
1. McGraw v. Estate of Colby, No. A-030-0115 (LTBB Ct. App. Sept. 6, 2017).
34
WOS 2014-012, § IV(A)(4)(b)
66
67
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.