Non-Indian facing tribal court in fire - East Valley Tribune: Arizona

Non-Indian facing tribal court in fire

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Posted: Thursday, May 14, 2009 5:54 pm | Updated: 1:46 am, Sat Oct 8, 2011.

A non-Indian woman accused of starting at least part of a massive 2002 wildfire may face a civil trial in tribal court, a federal appellate court ruled Thursday.

In a decision with statewide and regional implications, the 9th Circuit Court of Appeals acknowledged that tribal courts have only limited jurisdiction over nontribal members. And Judge Susan Graber, writing the ruling for the unanimous court, said the court is "sympathetic" to the concerns of Valinda Jo Elliott that she will have to defend herself in an unfamiliar court system.

Nothing in the ruling, however, overturns long-standing laws that bar tribes from bringing criminal charges against nontribal members.

But Graber said those tribal courts are generally entitled to decide themselves whether they have jurisdiction before federal courts will intercede.

The decision is a setback for Elliott who, lost for three days, started a fire to get the attention of a helicopter covering the Rodeo fire after she got lost.

That succeeded. But the fire she set spread, becoming the Chediski fire; the two merged fires eventually consumed more than 400,000 acres.

If tribal courts insist they have jurisdiction, Elliott will have to defend herself in tribal court against civil charges including negligence and trespassing and could face monetary damages if she is found liable. Attorney Joe Sparks said only if she loses in tribal courts, can she take her claims to federal courts.

But Sparks, who represents Indian nations in various legal actions, said it also is a significant victory for tribes. He said it means they will be able to pursue all sorts of civil actions against non-Indians for what they do on tribal lands.

Cari McConeghy-Harris, Elliott's attorney, agreed that the ruling has broad implications. But she did not agree with Sparks that those are positive.

"This decision can affect anyone who is driving across tribal land, who could be hauled into court," she said. McConeghy-Harris said her client will appeal.

According to court records, the White Mountain Apache Tribe brought charges against Elliott after the federal government declined to prosecute her.

Elliott sought a delay of the trial while she took the question of jurisdiction to the tribal appellate court. But that request was denied because tribal court rules do not provide for such a delay.

In her appeal to federal court, Elliott argued she had done all she can at the tribal level. But Graber said that's not true, as there has not yet been a civil trial or an appeal.

Graber acknowledged there are cases where federal courts will intercede when tribal courts seek to conduct trials against those who are not tribal members, such as when lawsuits are brought in bad faith or solely to harass. But the judge said there is no evidence of that here.

That, the judge said, leaves Elliott with only one possible argument: that it is plain and obvious that the tribal court lacks jurisdiction. But Graber said the evidence does not support that contention.

The most obvious, the judge said, is that the lands at issue belong to the tribe. Beyond that, Graber said, is that the tribe has a legitimate interest in what is at stake here.

"The tribe seeks to enforce its regulations that prohibit, among other things, trespassing onto tribal lands, setting a fire without a permit on tribal lands, and destroying natural resources on tribal lands," she wrote.

And Graber said the tribe "makes a compelling argument that the regulations at issue are intended to secure the tribe's political and economic well-being." She said that is significant in this case where the allegations against Elliott are that her actions resulted in "the destruction of millions of dollars of the tribe's natural resources."

Sparks said the ruling is important to tribes which control 27 million acres of land in Arizona.

"It goes to the sovereign power of an Indian tribe to manage its own resources, its own internal affairs and, in civil matters, to enforce civil law," he said.

For example, Sparks said, tribes have various regulations dealing with the killing of wildlife, cattle rustling and robbing of graves. He said the tribes have a legitimate interest in being able to enforce those laws - including against those who are not tribal members - especially if state or federal authorities choose not to bring charges.

Sparks also said the ruling is important for tribes to be able to maintain order at their casinos, using the hammer of civil charges against those who break the rules.

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