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The Hopi Tribal Courts Pat Sekaquaptewa

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The Hopi Tribal Courts Pat Sekaquaptewa

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    1. 4/29/2012 1 The Hopi Tribal Courts Pat Sekaquaptewa Photo from book Hopi by Susanne and Jake PagePhoto from book Hopi by Susanne and Jake Page

    2. 4/29/2012 2 Hopi Reservation Hopis consider themselves descendants of an ancient people - the Hisatsinom - who occupied a vast territory encompassing much of what is now northeastern Arizona. Hopi clan markings and the ruins of ancestral villages today mark the boundaries of traditional Hopi homelands. The older of Hopi's 12 villages are believed to be between 1,000 and 10,000 years old. The Hopi Reservation was formally created by Presidential Executive Order in 1882 encompassing a substantially lesser area of the total Hopi aboriginal claim (today the reservation comprises over 1.5 million acres). The Hopi justice system is a large tribal system with a very high, full-time caseload, serving 13,777 Hopis nationwide and a 6,946 service population on trust lands. The Hopi Reservation is also situated in the middle of the larger Navajo Reservation and the Hopi Tribal Courts also have criminal jurisdiction over any one of the 282,780 Navajo individuals that may commit crimes while passing through (see 2000 Census). Finally, the Hopi Courts have civil jurisdiction over any person, regardless of Indian status or race, in civil matters that arise on the reservation. The Hopi Tribe is a NON-GAMING tribe with limited, decreasing revenues. Hopis consider themselves descendants of an ancient people - the Hisatsinom - who occupied a vast territory encompassing much of what is now northeastern Arizona. Hopi clan markings and the ruins of ancestral villages today mark the boundaries of traditional Hopi homelands. The older of Hopi's 12 villages are believed to be between 1,000 and 10,000 years old. The Hopi Reservation was formally created by Presidential Executive Order in 1882 encompassing a substantially lesser area of the total Hopi aboriginal claim (today the reservation comprises over 1.5 million acres). The Hopi justice system is a large tribal system with a very high, full-time caseload, serving 13,777 Hopis nationwide and a 6,946 service population on trust lands. The Hopi Reservation is also situated in the middle of the larger Navajo Reservation and the Hopi Tribal Courts also have criminal jurisdiction over any one of the 282,780 Navajo individuals that may commit crimes while passing through (see 2000 Census). Finally, the Hopi Courts have civil jurisdiction over any person, regardless of Indian status or race, in civil matters that arise on the reservation. The Hopi Tribe is a NON-GAMING tribe with limited, decreasing revenues.

    3. 4/29/2012 3 Article III, Section 1

    4. 4/29/2012 4 Article III, Sections 3 & 4 Section 3 “Each village shall decide for itself how it shall be organized. Until a village shall decide to organize in another manner, it shall be considered as being under the traditional Hopi organization, and the Kikmongwi … shall be recognized as its Leader.” Section 4 “Any village … may adopt a Village Constitution ... A Constitution … shall be drawn up, and made known to all the voting members of such village, and a copy shall be given to the Superintendent of the Hopi jurisdiction. Upon the request of the Kikmongwi … or of 25% of the voting members [of the village], for an election on such Constitution, the Superintendent shall make sure that all members have had ample opportunity to study the proposed Constitution. He shall then call a special meeting of the voting members of such village, for the purpose of voting on the adoption of the proposed Constitution, and shall see that there is a fair vote [if less than half the voting members vote, a majority vote by them not effective].” Kavena v. Hopi Indian Tribal Court, 16 Ind. L. Rep. 6063 (Hopi Sup. Ct. 1989) Article III, Section 4 provides mechanism for village to adopt new constitution People’s Rights Committee of 1st Mesa petitioned for a proposed constitution Superintendent determined that they represented 25% of the voters -compared 269 valid signatures against # of people registered to vote in the last tribal chairman election (705) -scheduled a special election for Nov. 14, 1988 Walpi Hopi Sovereign Rights Committee -brought suit to block the election -claiming that 25% meant 25% of an accurate roll of village members eligible to vote in a village election such a list could only come from the Kikmongwi (est. 1000) Tribal Court ordered stay of election for 90 days held voting list invalid held that there was insufficient time for residents to study draft const. ordered SRC to draft proposed guidelines to determine voter qualifications and election procedures SRC -filed guidelines -filed voter’s list (1305 names) -asked tribal court to issue a final order enjoining elections denied Hopi Appellate Court -SRC requested stay of election granted until a future referendum election held following new procedures Here Hopi Const. procedures not followed Superintendent’s determination invalid -village membership ? residence -membership has a much deeper meaning maintenance of religious and cultural ties proper procedure for Superintendent ask Kikmongwi to provide list/his role to admit people to village challenges to list may be brought in tribal court granted permanent injunctionKavena v. Hopi Indian Tribal Court, 16 Ind. L. Rep. 6063 (Hopi Sup. Ct. 1989) Article III, Section 4 provides mechanism for village to adopt new constitution People’s Rights Committee of 1st Mesa petitioned for a proposed constitution Superintendent determined that they represented 25% of the voters -compared 269 valid signatures against # of people registered to vote in the last tribal chairman election (705) -scheduled a special election for Nov. 14, 1988 Walpi Hopi Sovereign Rights Committee -brought suit to block the election -claiming that 25% meant 25% of an accurate roll of village members eligible to vote in a village election such a list could only come from the Kikmongwi (est. 1000) Tribal Court ordered stay of election for 90 days held voting list invalid held that there was insufficient time for residents to study draft const. ordered SRC to draft proposed guidelines to determine voter qualifications and election procedures SRC -filed guidelines -filed voter’s list (1305 names) -asked tribal court to issue a final order enjoining elections denied Hopi Appellate Court -SRC requested stay of election granted until a future referendum election held following new procedures Here Hopi Const. procedures not followed Superintendent’s determination invalid -village membership ? residence -membership has a much deeper meaning maintenance of religious and cultural ties proper procedure for Superintendent ask Kikmongwi to provide list/his role to admit people to village challenges to list may be brought in tribal court granted permanent injunction

    5. 4/29/2012 5 Hopi Forums

    6. 4/29/2012 6 Constitution & By-Laws of the Hopi Tribe Approved December 19, 1936 Amended On: August 1, 1969 February 14, 1980 December 7, 1993 Outside of Hopi, the Hopi IRA constitutional adoption process and governing document are known for: Boilerplate modified to accommodate “theocratic social-political order”, notably to recognize the influence of the “traditional religious leaders known as Kikmongwi”; the federal nature of the Hopi constitution, reserving powers to previously autonomous villages (Article III, Section 2, inheritance and family disputes); The intra-tribal conflict over the original process of adoption and later rejection of the Hopi Tribal Council -traditionals boycotted the original election on constitution/treated as yes votes -Also boycotted subsequent elections for Chair and councilmen; -Tribe entered into an approved lease with Peabody Coal Company for $20 million -Kikmongwi suit against SOI to void lease Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir., 1975) -Hopi Traditionals petition UN arguing U.S. govt. denying them right to self-determination under international lawOutside of Hopi, the Hopi IRA constitutional adoption process and governing document are known for: Boilerplate modified to accommodate “theocratic social-political order”, notably to recognize the influence of the “traditional religious leaders known as Kikmongwi”; the federal nature of the Hopi constitution, reserving powers to previously autonomous villages (Article III, Section 2, inheritance and family disputes); The intra-tribal conflict over the original process of adoption and later rejection of the Hopi Tribal Council -traditionals boycotted the original election on constitution/treated as yes votes -Also boycotted subsequent elections for Chair and councilmen; -Tribe entered into an approved lease with Peabody Coal Company for $20 million -Kikmongwi suit against SOI to void lease Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir., 1975) -Hopi Traditionals petition UN arguing U.S. govt. denying them right to self-determination under international law

    7. 4/29/2012 7 Tribal Council As Court Article VI, §1(h)

    8. 4/29/2012 8 Reserved Jurisdiction of the Villages Article III, Section 2

    9. 4/29/2012 9 Establishment of Tribal Court by Statute Hopi Resolution H-01-37 Tribal Council authorized the BIA field agent (Hopi Superintendent) to act in an adjudicatory capacity to “punish any offenders of rules and/or regulations on the Hopi Reservation Superintendent Seth Wilson oversaw the creation of the Hopi Court of Indian Offenses First judge, a Tewa man named Irving Pabanale (police officer and council member) (9 years) Instructed to use the CFR (handled intox, theft, assault and battery, violations of BIA stock reduction programs) Abolished in 1972 upon adoption of Ord. 21 establishing a tribal court The Hopi Tribal Court was established in response to the threat of external federal review of Hopi governance -1972 lawsuit filed by a Navajo man who had been arrested by officers of the Hopi Tribe -charged with allowing his livestock to trespass on Hopi land under Ord. 18 -Navajo defendant claims of rights violations under the 1968 ICRA -Hopi’s attorney Robert Boyden felt that neither the CFR Court nor the ordinance would survive federal scrutiny -Boyden recommended the establishment of a tribal court under the direct supervision of the tribe -the proposed Ord. 21 was unanimously accepted and was approved by the BIA Superintendent and was declared effective as of July 10, 1972 by the Acting Area Director of the Phoenix Office in 1973Hopi Resolution H-01-37 Tribal Council authorized the BIA field agent (Hopi Superintendent) to act in an adjudicatory capacity to “punish any offenders of rules and/or regulations on the Hopi Reservation Superintendent Seth Wilson oversaw the creation of the Hopi Court of Indian Offenses First judge, a Tewa man named Irving Pabanale (police officer and council member) (9 years) Instructed to use the CFR (handled intox, theft, assault and battery, violations of BIA stock reduction programs) Abolished in 1972 upon adoption of Ord. 21 establishing a tribal court The Hopi Tribal Court was established in response to the threat of external federal review of Hopi governance -1972 lawsuit filed by a Navajo man who had been arrested by officers of the Hopi Tribe -charged with allowing his livestock to trespass on Hopi land under Ord. 18 -Navajo defendant claims of rights violations under the 1968 ICRA -Hopi’s attorney Robert Boyden felt that neither the CFR Court nor the ordinance would survive federal scrutiny -Boyden recommended the establishment of a tribal court under the direct supervision of the tribe -the proposed Ord. 21 was unanimously accepted and was approved by the BIA Superintendent and was declared effective as of July 10, 1972 by the Acting Area Director of the Phoenix Office in 1973

    10. 4/29/2012 10 Forum Shopping Possibilities

    11. 4/29/2012 11 Subject Matter Jurisdiction of Hopi Trial & Appellate Courts

    12. 4/29/2012 12 Appeals

    13. 4/29/2012 13 Special Writs

    14. 4/29/2012 14 Certified Questions

    15. 4/29/2012 15 Tribal Court Sorting of Jurisdiction Between Tribal Court & Villages

    16. 4/29/2012 16 Characteristics of the Hopi Tribal Court Dockets (2003) Total Cases Filed: 2,652 Total Hearings Held: 6,199 Top five offenses: Intoxication Assault/Battery Possession of Marijuana Disorderly Conduct Possession of Alcohol Civil cases include: Governance disputes Land disputes Contract disputes Children’s Docket: Abuse Neglect AbandonmentTotal Cases Filed: 2,652 Total Hearings Held: 6,199 Top five offenses: Intoxication Assault/Battery Possession of Marijuana Disorderly Conduct Possession of Alcohol Civil cases include: Governance disputes Land disputes Contract disputes Children’s Docket: Abuse Neglect Abandonment

    17. 4/29/2012 17 End.

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