Model Tribal Notice Law Materials

Prepared by
The Native American Rights Fund
February 15, 2000

INTRODUCTION
FINAL DRAFT MODEL TRIBAL NOTICE LAW
SECTION-BY-SECTION EXPLANATION
DRAFT TRIBAL RESOLUTION AND DRAFT FORMS

PLEASE NOTE: A complete set of project materials can be ordered from The National Indian Law Library for $12.00 by calling (303)447-8760. These materials include the information on this web page as well as a list of "top ten" questions and answers about the working draft model tribal notice law, summaries of comments received on the working draft, NCAI and NAICJA resolutions, and the attorney work group contact list.


INTRODUCTION

"Notice laws" generally require notice to governments of cases in their courts that question sovereignty or jurisdiction. If a government is not already involved in the case, notice laws allow the government to intervene or otherwise participate in the case to represent its interests.

Over 240 tribes have courts or other dispute resolution forums. As the use of tribal courts increases, many tribes will benefit from prompt notice of cases questioning their sovereignty or jurisdiction. These questions are often raised and decided in cases where tribes are not involved. With notice, tribes will be able to make effective decisions about whether to participate in a case.

The main issues addressed in the Model Tribal Notice Law are: 1) who must provide notice; 2) when and how notice must be provided; and 3) what action(s) tribes may take once notice has been properly given. The Model Tribal Notice Law is now available for tribes to consider adopting or enacting. Please call Rhoda Riggs, legal assistant, at (303) 447-8760 for further information.


FINAL DRAFT MODEL TRIBAL NOTICE LAW

FINDINGS AND PURPOSE

A. Findings ­

The Tribe has a compelling interest in protecting tribal sovereignty and jurisdiction and the validity of tribal laws; and

Tribal sovereignty and jurisdiction or the validity of tribal law may be questioned in cases in the Tribal Court in which the Tribe or any agency, officer, or employee thereof is not a party; and

With adequate, timely, and uniform notice of cases in the Tribal Court that question tribal sovereignty and jurisdiction or the validity of tribal law, the Tribe can effectively assess whether and how to participate in such cases.

B. Purpose ­

The purpose of this law is to provide the Tribe with adequate, timely, and uniform notice of any and all cases in the Tribal Court that question tribal sovereignty and jurisdiction or the validity of any tribal law and in which the Tribe or any agency, officer, or employee thereof is not a party.

II. NOTICE REQUIRED

OPTION A ­ Court to give Notice

In any action or proceeding in which the Tribe or any agency, officer or employee thereof is not a party but which questions tribal sovereignty or jurisdiction or the validity of any tribal law, the Tribal Court will give notice in writing of the action or proceeding to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office]. The Tribal Court will also serve all parties with a copy of the notice given.

OPTION B ­ Court to Inform Parties of Notice Requirement; Party to give Notice

Upon the filing of any action or proceeding in which the Tribe or any agency, officer or employee thereof is not a party, the Tribal Court will promptly inform all parties in writing of this law. Any party to such a proceeding that questions tribal sovereignty or jurisdiction or the validity of any tribal law will give notice thereof to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office]. Such notice will identify the action or proceeding and will include a brief written explanation of the grounds upon which tribal sovereignty or jurisdiction or the validity of tribal law is being questioned. Any party giving notice under this law will simultaneously file proof with the Tribal Court that notice has been given as required by the law.

C. Continued Notice (OPTIONAL)

If notice is required under this law, upon the Tribe's timely written request, the Tribal Court or any party will timely serve copies of all subsequent filings and orders in the case on [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office].

III. MANNER AND TIMING OF NOTICE

A. Simultaneous Notice

Notice required under this law will be given in writing and simultaneously with the raising of a question about tribal sovereignty or jurisdiction or the validity of any tribal law.

B. Notice by Certified Mail (OPTIONAL)

Notice required under this law will be made by certified mail. Other requirements regarding the manner by which notice under this law will be given will be developed by the Tribal Court [and approved by the Tribal Council].

IV. TRIBAL PARTICIPATION FOLLOWING NOTICE

A. Intervention

Upon timely motion or application, the Tribe may intervene as a matter of right in any action or proceeding in the Tribal Court that questions tribal sovereignty or jurisdiction or the validity of any tribal law. Upon intervening under this law, the Tribe may assert any and all available claims and defenses and may present any and all admissible evidence relating to the question of its sovereignty or jurisdiction or the validity of any tribal law, and is entitled to the same relief, including costs, as if the Tribe had instituted a separate action or proceeding; provided that, the Tribe will not be required to pay costs of litigation in any action or proceeding in which it has intervened under this law. Intervention under this law does not abridge, limit, or otherwise affect the right of the Tribe to commence, maintain, defend, or otherwise intervene in actions or proceedings in the Tribal Court.

B. Amicus Curiae

Upon timely motion or application, the Tribe may appear as amicus curiae (friend of the court) in any action or proceeding that questions Tribal sovereignty or jurisdiction or the validity of any tribal law.

C. Information Sharing and Consultation

In any action or proceeding in the Tribal Court that questions tribal sovereignty or jurisdiction or the validity of any tribal law in which the Tribe does not intervene or appear as amicus curiae, the Tribe may nevertheless share important knowledge with any party involved in the action or proceeding. This could include assistance in responding to formal discovery requests or acting as an informal consultant.

D. No Participation

The Tribe may timely determine that it is in the best interest of the Tribe not to intervene, appear as amicus curiae, or otherwise participate in an action or proceeding in the Tribal Court that questions tribal sovereignty or jurisdiction or the validity of any tribal law.

E. Authority to Determine Participation

[The Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] may determine participation on behalf of the Tribe under this law. [Before determining participation on behalf of the Tribe under this law in any specific action or proceeding in Tribal Court, [the Tribal Chairperson, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] will obtain the approval of the Tribal Council].

F. Timeliness of Participation Determinations

Unless the Tribal Court orders otherwise, where timely and proper notice has been given under this law, the Tribe will notify the Tribal Court and parties in writing within sixty (60) days of receipt by the Tribe of such notice of any determination to participate in any action or proceeding by way of intervention or appearance as amicus curiae.

V. FAILURE TO GIVE NOTICE

A. Failure to Give Notice Not Jurisdictional or Waiver of Rights

The failure of the Tribal Court or a party to give notice as required by this law does not deprive the Tribal Court of jurisdiction and is not a waiver or modification of any rights otherwise timely asserted by any party. Any notice given under this law is not a substitute for, or a waiver or a modification of, any other pleading requirement under tribal law.

B. Late Notice

If the Tribal Court or a party discovers that notice to the Tribe under this law should have been but has not been given, the Tribal Court or party will promptly give notice in writing to the Tribe as required by this law. The Tribal Court may stay the action or proceeding at any stage to allow compliance with this law. If final judgment has already been entered, the Tribe may motion or apply for rehearing as of right, the Tribal Court will entertain promptly any such motions or applications for rehearing by the Tribe, and in disposing of such motions the Tribal Court, for good cause shown, may vacate a judgment or any portion thereof.

C. Civil Sanctions

The Tribal Court may impose civil sanctions on any party for willful or unreasonable failure to give notice as required by this law, and may use other reasonable means to cure any significant harm caused by failure to give notice as required by this law.

VI. TRIBAL JURISDICTION AND SOVEREIGN IMMUNITY FROM SUIT UNAFFECTED

A. Jurisdiction

Nothing in this law shall be deemed or construed to deprive, limit, or extend the jurisdiction of the Tribal Court.

B. Sovereign Immunity from Suit

Notice required under this law does not authorize a party to name the Tribe or any agencies, officers, or employees thereof as a party to any action or proceeding. Nothing in this law shall be deemed or construed as a waiver or limitation of the sovereign immunity from suit of the Tribe, its agencies, officers, or employees.


SECTION-BY-SECTION EXPLANATION
ACCOMPANYING EXPLANATION

SECTION I - FINDINGS AND PURPOSE:

Section I sets out the Findings and Purpose of the Model Tribal Notice Law.

The Findings are that: 1) tribes have a compelling interest in protecting tribal sovereignty, tribal jurisdiction, and the validity of tribal laws; 2) tribal sovereignty, jurisdiction, and tribal laws may be questioned in cases that are in tribal courts but to which tribes are not parties; and 3) with adequate, timely, and uniform notice of such cases, tribes can effectively assess whether and how to participate in the cases.

For authority regarding governmental interests in litigation to which the government is not a party, see generally Arthur F. Greenbaum, Government Participation in Private Litigation, 21 Ariz. St. L.J. 853, 857-858 (1989) ("Litigation between private parties directly implicates interests of the Federal Government....Unlike private parties, the Government has a special role of protecting the public interest."); id. at 862 & n.26 ("One of the first and most significant notice provisions to be adopted by Congress requires federal courts to notify the Attorney General whenever the constitutionality of an Act of Congress is drawn into question", citing 28 U.S.C.

§ 2403(a), originally adopted in 1937, ch. 754, § 1, 50 Stat. 751. "[T]he prospect of a statute's constitutional invalidation presents a more compelling need for Government participation than does invalidation on other grounds. A statute that is held unconstitutional is forever barred, absent adoption of a constitutional amendment or a complete reversal in the courts.").

For examples of cases questioning tribal sovereignty and jurisdiction to which tribes were not parties, see, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (upholding state severance tax on oil and gas development by non-Indians on a reservation); Hagen v. Utah, 510 U.S. 399 (1994) (in upholding state jurisdiction to prosecute an Indian, Court determines that Congress intended to "disestablish" the boundaries of the Uintah and Ouray Reservation).

For authority about the importance of notice of litigation to governments, see generally Greenbaum, supra, at 858 ("Without adequate notice of private litigation that might affect its interests, the Government cannot assess its participatory options effectively. Thus, at a minimum, consideration should be given to requiring that parties or the courts notify the Government of such litigation....").

The Purpose of the Model Tribal Notice Law is to provide tribes with adequate, timely and uniform notice of any and all cases in tribal courts that question tribal sovereignty, jurisdiction, and tribal laws but to which tribes are not parties. See Greenbaum, supra, at 860 ("As an initial matter, the Government must be aware of a lawsuit before it can decide whether or not to participate in it"); id. at 867 ("It would be a mistake to assume [] that reliance upon voluntary notice [by the parties or the court] would protect the Government's interest adequately...Implicit in [statutory notice] requirements is a belief that without them important actions will go unnoticed by the Government...[T]hat rationale was asserted as a major reason for requiring that the Government be notified when the constitutionality of acts of Congress are called into question."), citing 81 Cong. Rec. 3259 (1937). "With greater information about litigation pertaining to its interests, the Government could identify individual cases and litigation patterns that warrant some form of governmental response, either agency regulatory action, suggestions for legislative change, or Government participation in particular suits." Greenbaum, supra, at 880.

SECTION II - NOTICE REQUIRED, BY WHO AND TO WHOM:

Section II establishes generally that notice to tribes is required in any tribal court case in which the sovereignty, jurisdiction, or laws of the tribe are being challenged. See Greenbaum, supra, at 870 ("Without notice, the Government has no opportunity to participate in actions that may have a significant impact on its ... responsibilities. Adoption of a broad general notice provision would be one way to address this problem"); id. at 871 ("The Federal Government ... has an interest in federal court cases in which federal statutes come under constitutional attack. Presumably it has an interest in cases involving the interpretation of federal statutes and regulations as well."), citing, inter alia, Fed. R. Civ. P. 24(b).

In addition, Section II addresses the important issues of who is responsible for giving notice to tribes, and to whom within the tribe notice should be given. It is intended that tribes considering the adoption or enactment of a Tribal Notice Law will select either Option A (Court to give Notice) or Option B (Party to give Notice). Option C (Continued Notice) may be included along with Option A or B to give a tribe continual notice of subsequent filings and orders in a case. Furthermore, tribes may wish to include in this Section other relevant notice law provisions of which they are aware, and / or modify any of these suggested provisions to fit their own systems and existing tribal law.

Option A places the duty of giving notice to tribes with the Tribal Court. Having the court give notice is the preferred method in federal law because generally, "the court is best suited to ... [give notice to the government], primarily because the parties' judgment may be colored by their own self-interest ...[,]because the courts are less likely than private parties to err in providing notice...[and there] is the greater likelihood that a party would overlook the responsibility, especially if the party's counsel has limited experience litigating [] governmental issues." Greenbaum, supra, at 873-874 & n.64; see also 28 U.S.C. § 2403(a) (in cases involving the constitutionality of a federal statute, duty to provide notice to the United States is on the courts); accord Fed. R. Civ. P. 24(c) (court shall provide notice to United States under 28 U.S.C. § 2403); cf. Fed. R. App. P. 44 (in appeals in cases questioning the constitutionality of federal statutes, parties must give notice to court who then must then notify the United States). For those tribes that wish to adopt or enact Option A, we have developed a Draft Form to help implement that Option. See Draft Forms for Section II, Option A in Part 3 of these materials.

Option A also provides that the Tribal Court will serve all parties with a copy of the notice to tribes given under this law. This provision is intended to ensure that parties are aware of the notice law and the possible presence of a tribe in their cases. The provision may be superfluous if tribal law otherwise provides for service on the parties of orders and other papers issued by the court.

Alternatively, Option B places the duty of giving notice to tribes on the party that questions tribal sovereignty, jurisdiction, or tribal law validity. See Greenbaum, supra, at 874 (giving notice can be "delegated to the party who asserts the claim or defense predicated on federal law....[I]f a generally applicable notice requirement were adopted, lawyers would likely become aware of it very soon."); id. at n.64 (party responsibility for notice may be justified under certain circumstances, e.g., where court certification places a substantial burden on already busy courts). In federal law, the statutes most likely to require that notice to the government be given by the parties, not the court, are the regulatory schemes in the area of environmental law that provide for so-called "citizen suits" as a means of enforcing the scheme. See, e.g., the Toxic Substances Control Act, 15 U.S.C. § 2619(b)(1)(A); the Endangered Species Act, 16 U.S.C. § 1540(g)(2); the Federal Water Pollution Control Act, 33 U.S.C. § 1365; the Clean Air Act, 42 U.S.C. § 7604.

Under Option B, parties giving notice under this law must briefly explain in writing the grounds upon which they are challenging tribal sovereignty, jurisdiction, or laws. Several state laws have similar requirements. See, e.g., Fla. Stat. Ch. 120.56 (challenges to administrative rules or proposed rules must sufficiently explain the grounds for the alleged invalidity); N.H. Rev. Stat. Ann. § 72:33 (applications for tax exemptions must explain grounds therefor); accord Tenn. Code Ann. § 30-2-314 (exceptions to estate administration). Also under Option B, parties giving notice must simultaneously file proof with the tribal court that notice has been given. And, under Option B, the Tribal Court still has a duty to inform all parties promptly of the notice requirement. All of these provisions are intended to ensure compliance with the notice law. For those tribes that wish to adopt or enact Option B, we have developed Draft Forms to implement that Option. See Part 3 of these materials.

Interestingly, all federal appellate courts and some federal district courts require that parties give immediate notice in writing to the courts themselves of cases questioning the constitutionality of federal statutes. Fed. R. App. P. 44; accord Local Rule 24.1 (N.D.Ohio) (in any case in which the constitutionality of a federal or state statute is drawn into question, "the party raising the constitutional issue shall notify the Court of the existence of the question by stating on the pleading that alleges the unconstitutionality, immediately following the title of that pleading, 'Claim of Unconstitutionality' or the equivalent."). For those tribes that wish to adopt or enact such a requirement, we have developed a Draft Provision to help implement this requirement. See Part 3 of these materials.

Option C, which is optional in and of itself but which may be combined with either Option A or B, serves to provide continued notice to tribes during the course of tribal court cases that question tribal sovereignty, jurisdiction, or tribal law validity. Upon a tribe's timely written request, the Tribal Court or any party would be required to serve copies of all subsequent filings and orders in the case on the appropriate tribal agency, officer, or employee to whom notice should be given. This provision could be helpful in instances where tribes do not intervene in cases as parties, but nevertheless want to be kept timely informed of the cases. See, e.g., False Claims Act, 31 U.S.C. § 3730(c)(3) (if the government so requests, it shall be served with copies of all pleadings filed in the action and copies of all deposition transcripts); Department of Agriculture Requirements for State Agencies , 7 C.F.R. § 272.4(e)(1)(iii) (when individuals sue participating state agencies, the agencies shall notify the federal Food and Nutrition Service when court cases have been dismissed or otherwise settled). For those tribes that wish to adopt or enact a Continued Notice provision, we have developed a Draft Form to help implement such a provision. See Part 3 of these materials.

Options A, B, and C suggest several choices in terms of the tribal agency, officer, or employee to whom notice should be given, e.g., the Tribal Chairperson; the Tribal Council; the Tribal Attorney; the head of the Tribal Legal Department; or the head of the appropriate Tribal Agency or Office. These choices parallel the ones in federal law. For example, when the constitutionality of a federal statute is questioned, notice must be given to the United States Attorney General. 28 U.S.C. §2403; Fed. R. Civ. P. 24(c). In contrast, "[n]otice required as part of a specific regulatory scheme usually goes to individual agency heads." Greenbaum, supra, at 875. Other federal law notice requirements vary, "although in suits brought against the United States, its agencies or its officers acting in an official capacity, the plaintiff typically is required to serve process on the United States Attorney for the district in which the action is brought, the Attorney General of the United States and the officer or agency involved." Id.

The Model Tribal Notice Law intends that each tribe determine, amongst these choices or others of which it may be aware, to whom giving notice will be most effective within its system. Additionally, it could be decided that more than one agency, official, or employee within a tribe should be given notice. Greenbaum, supra, at 876-877. There is support for this in federal law. "Modern government is so complex ... that litigants might have difficulty determining the proper agency or agencies to receive notice. For this reason, if feasible, notice probably should be given to the Attorney General, who in turn could route it to the appropriate recipients." Id. at 876. Also in federal law, notice provisions are generally "construed liberally" to excuse notice given to the wrong party, "if actual notice has been accomplished." Id.

SECTION III - MANNER AND TIMING OF NOTICE:

Section III addresses the issues of how and when notice to tribes must be given under this law. Tribes considering the adoption or enactment of a Tribal Notice Law may wish to modify this section or its provisions to fit their own systems and existing tribal law.

Subsection A requires notice to be made in writing when questioning tribal sovereignty, jurisdiction, or the validity of any tribal law. There are such requirements in federal law. See, e.g., the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270(b) (notice must be given "in writing"). In addition, Subsection A requires notice to be made simultaneously with questioning tribal sovereignty, jurisdiction, or tribal law validity. Simultaneous notice is often required under federal law. See, e.g., the False Claims Act, 31 U.S.C. § 3730(b) (private persons bringing cases under this section must serve a copy of the complaint and all material evidence on the federal government); the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(2)(F) (in citizen suits the plaintiff shall serve a copy of the complaint on the federal government); accord the Clean Air Act, 42 U.S.C. § 7604(c)(3).

Subsection B, which is optional, requires notice to be given by certified mail. Similar requirements may be found in federal law. See, e.g., the Consumer Product Safety Act, 15 U.S.C. § 2073 (notice must be given by registered mail). This optional provision is intended to give both tribes and parties adequate assurance that notice is received. However, it may be necessary for some tribes to modify or exclude this provision due to distance from a postal facility. In such cases, the Tribal Court should develop an alternative and practical "mailing rule" which best ensures that the tribe will receive timely and verifiable notice.

In addition, Subsection B states that other requirements regarding the manner in which notice is to be given will be developed by the Tribal Court and, where appropriate, approved by the Tribal Council. This provision is intended to provide flexibility for and within tribal systems. In non-tribal systems, notice laws need not expressly or wholly provide for the notice process. The process for implementing federal statutory notice requirements may be found in local rules of court. See, e.g, Local Rule 24.1 (E.D.Wash.) (process for notice under 28 U.S.C. § 2403(a)). The notice process may also be left to the agency charged with enforcing the statute. See, e.g., the Powerplant and Industrial Fuel Use Act, 42 U.S.C. § 8435(b) (in citizen suits under this act, notice to the government "shall be given in such manner as the Secretary shall prescribe by rule"); accord the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9659(d) (notice to the government of citizen suits under this section "shall be given in such manner as the President shall prescribe by regulation"). Likewise, approval by the Tribal Council of any notice process developed is an optional provision that may be included depending on current tribal law.

SECTION IV - TRIBAL PARTICIPATION FOLLOWING NOTICE:

Section IV sets forth several actions tribes may take regarding their participation in particular cases once they have received notice. "Once the Government becomes aware of private litigation that may affect its interests, it must decide whether to participate in the litigation and, if participation is warranted, determine the form such participation should take." Greenbaum, supra, at 882. Tribes considering the adoption or enactment of a Tribal Notice Law may wish to modify this section to fit their own systems and existing tribal law.

The Model Tribal Notice Law suggests intervention as a party and appearances as amicus curiae (friend of the court) as the primary forms of direct participation by tribes. In federal law, "the primary procedural mechanisms through which the Government may participate directly in private litigation [are]: joinder, intervention, consolidation, and amicus participation." Greenbaum, supra. at 883. Intervention and amicus curiae participation are suggested here because it assumed that joinder and consolidation are already addressed in other tribal law or rules. See, e.g., Fed. R. Civ. P. 19 (joinder); Fed. R. Civ. P. 42(a) (consolidation). Moreover, the Model Tribal Notice Law is intended to address means for voluntary participation by tribes in cases in tribal court, not means that might compel tribal participation. See, e.g., Fed. R. Civ. P. 19(a) (compulsory joinder); but cf. Greenbaum, supra, at ns. 116 & 177 (sovereign immunity from suit may prevent joinder of the government in all or some instances). In federal law, the voluntary participation means are available to protect governmental interests and are often relied upon by courts in lieu of the forced participation means. Greenbaum, supra, at 888-889.

Subsection A authorizes and provides for intervention by tribes as of right in cases questioning tribal sovereignty, jurisdiction, or the validity of any tribal law. "[I]ntervention provides the Government with a powerful vehicle for participation." Greenbaum, supra, at 997. The direct precedent in federal law is the statute providing for intervention by the United States as of right in cases that question the constitutionality of an act of Congress. 28 U.S.C. § 2403(a).

In federal law, specifically providing for intervention as of right gives assurance that intervention will be allowed. Greenbaum, supra, at 925-927; id. at 998 ("As between intervention of right and permissive intervention, the Government will prefer to intervene of right ... [because that] assures the Government's ability to participate ... [and] the court is less likely to limit the scope of intervention when it is obtained of right."). In the Model Tribal Notice Law, the term "may" is used because "[t]he weight of authority ... suggests that the term 'may,' standing alone, is meant to grant an absolute right to intervene .... [and] the 'may' language in intervention statutes usually should be interpreted to provide intervention of right." Id. at 929 & 930; see also id. at 918-919, 922-925 & 966-970 (discussing non-statutory and statutory permissive governmental intervention).

In addition, Subsection A qualifies the general right of tribes to intervene with a timeliness requirement. See Subsection F; see also Greenbaum, supra, at 931-935. "Intervention, whether permissive or of right, must be timely." Id. at 931; see also Fed. R. Civ. P. 24(a) & (b) (providing for intervention "upon timely application").

Subsection A also provides that if a tribe intervenes, the tribe may assert any and all available claims and defenses, may present any and all admissible evidence relating to the question of its sovereignty, jurisdiction, or law validity, and is entitled to the same relief, including costs, as if the tribe had instituted a separate case; provided that the tribe will not be required to pay costs of litigation in any case in which it intervenes under this law. Generally, in federal law [a]n intervener becomes a party to the suit, with all the attendant rights and obligations, unless the court conditions intervention in some way. As a party, the Government typically can help shape the issues considered in the litigation, participate in the pretrial, settlement, and trial processes and assure that issues decided adversely to the Government's position are saved for appeal.

Id. at 997. Under 28 U.S.C. § 2403, the federal government may intervene "for presentation of evidence ... otherwise admissible in the case, and for argument on the question of constitutionality." 28 U.S.C. § 2403(a). That statute also provides that "[t]he United States shall, subject to the applicable provisions of law, have all the rights of a party ... to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.' Id. However, while 28 U.S.C. § 2403(a) subjects the United States, upon intervention, to court costs as a party, the Model Tribal Notice law suggests that in the situation of intervening tribes, they should not be subject to court costs. This suggestion is based solely on the assumption that tribes in general have fewer financial resources than the United States. See also Idaho Code § 39-4416(4) (where the state has intervened in citizens suits under the state hazardous waste management law, the state will not be required to pay costs).

Subsection A also provides that intervention by tribes under this law does not abridge, limit, or otherwise affect the right of tribes to commence, maintain, defend, or otherwise intervene in cases in tribal court. See, e.g., Ariz. Rev. Stat. § 13-2314.04(H) (notice to state of private action under racketeering law does not limit or otherwise affect right of state to maintain racketeering action). For example, where tribes initiate cases to enforce tribal laws or tribal rights, such cases may call into question tribal sovereignty, or jurisdiction, or law validity. See, e.g., County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992) (tribe sued to enjoin state taxation of land owned in fee by tribe and tribal members). Tribal laws may provide for tribal administrative agency jurisdiction, at least in the first instance, over cases that call into question tribal sovereignty, jurisdiction, or law validity. See, e.g., Mustang Production Co. v. Harrison, 94 F.3d 1382 (Tenth Cir. 1996), cert. denied, 117 S.Ct. 1288 (1997).

Subsection B authorizes and provides for appearances by tribes as amicus curiae as of right in cases in tribal court that question tribal sovereignty, jurisdiction, or the validity of any tribal law. Amicus curiae is a common means of participation by the federal government in private litigation. See generally Greenbaum, supra, at 972-976 & 998-1001. "Amicus participation is particularly appropriate when the Government seeks to argue issues of law that arise in private litigation." Id. at 998.

"Under Federal Rule of Appellate Procedure 29 and Supreme Court Rule 36, the Government may participate as amicus as of right, without need for consent of the parties or approval of the court, if its application is timely." Id., at 973 & 1002 (noting, however, that no federal statute or rule governs amicus participation by the federal government at the district court level, where the decision to permit such participation is discretionary with the court); see also Ariz. Rev. Stat. § 13-2314.04(J) (in private actions under state racketeering law, in addition to state's right to intervene as party, state may appear as amicus curiae); Ariz. Rev. Stat. § 44-1415(C) (in any civil action under the Uniform State Antitrust Act pending before an Arizona court, the state may appear as amicus curiae); Okla. Stat. Ann. tit. 79, § 211 (in any civil action pending before any Oklahoma court, agency, or commission under the Oklahoma Antitrust Reform Act, the Attorney General may appear as amicus curiae).

As with Subsection A, intervention, the right of tribes to appear as amicus curiae in Subsection B is qualified by a timeliness requirement. See Subsection F.

Subsection C provides for tribes to be involved by means that are referred to by one commentator as "indirect participation." See Greenbaum, supra, at 976-983. In federal law, "information sharing" takes "a variety of forms," such as reporting, investigations, and other "agency-generated information," subject, of course, to non-disclosure and withholding laws and rules. Id. at 980-982. The federal government also "may consult with private litigants informally or otherwise provide them with support services." Id. at 983. For example, in employment discrimination cases, the relevant federal agency operates a support services program that includes "model pleadings, model discovery requests, and summaries of case law, as well as educational support and technical assistance." Id.

Subsection D provides that tribes may choose not to participate in cases in tribal court that question tribal sovereignty, jurisdiction, or the validity of tribal laws. See, e.g., the False Claims Act, 31 U.S.C. § 3730(b)(4) & (c)(3) (within sixty days of proper notice of private actions under the act, the Government may decline to participate directly and must notify the court thereof; Government can request to be kept on the service list for the action; and Government can intervene at a later date upon a showing of good cause and with court's permission). Subsection D is also qualified by a timeliness requirement. See Subsection F.

Subsection E provides for which agency, officer, or employee of a tribe is authorized to make participation decisions for the tribe. Many federal and state laws include such provisions. See Greenbaum, supra, at 17 ("Authority [to intervene] received from an explicit statutory grant is seldom questioned."); see also 12 U.S.C. § 1715z-4a(b) (Attorney General has exclusive authority to authorize initiation of proceedings for unauthorized use of multifamily housing project assets and income); 15 U.S.C. § 56(a)(1)(A) (Federal Trade Commission, or the Attorney General on its behalf, is authorized to commence, defend, or intervene in certain civil actions); Ariz. Rev. Stat. § 49-362(F) (in wastewater treatment action, county water department may authorize the state attorney general to bring an action in the county in which the violation occurred); Ky. Rev. Stat. Ann. § 15.715(1) (if local prosecutor refuses to act in certain criminal cases, the council may authorize the Attorney General to intervene or supersede the prosecutor).

This provision may need to be modified or eliminated if tribal law otherwise provides for participation in cases in the tribal court. See, e.g., Title 4, Mille Lacs Band Stat. Ann. §18(c) (1996) (Solicitor General has the duty to initiate or defend any legal action necessary, that is or can be brought in or against the name of the Non-Removable Mille Lacs Bands of Chippewa Indians); Navajo Nation Code § 1964(F) (1990) (Attorney General shall defend and initiate all actions in which Navajo Nation is a party). Tribes adopting or enacting this section should be very careful to coordinate it with such existing provisions.

In addition, Subsection E includes an optional provision requiring authorized tribal agencies, officers, or employees to obtain the specific approval of the Tribal Council before tribal participation occurs in each case. This optional provision is intended to provide a means, where appropriate, for proper consideration of each instance of tribal participation in tribal court cases by the tribal legislative branch of government. There are some parallels for such a requirement. See, e.g., 26 U.S.C. § 7401 (in civil actions by the United States for collection of taxes, the Attorney General must first authorize the action to be commenced); Navajo Nation Code § 1964(F) (1990) (before concluding any settlement which involves a particular branch of tribal government, the Attorney General shall consult with that branch, and where there is no branch named, she shall consult with the President). Where existing tribal law has such provisions, tribes adopting or enacting a Notice Law should be careful to take these provisions into account and modify or coordinate the Notice Law accordingly.

Subsection F provides for the timeliness of tribal participation determinations. While the Federal Rules of Civil Procedure do not prescribe a general timeliness requirement for participation by the federal government, many federal statutes do. See False Claims Act, 31 U.S.C. § 3730(b)(2) (in citizens suits, the Government may elect to intervene within sixty days after it receives proper notice of the suit). Thus, the Model Tribal Notice Law provides that, unless the tribal court orders otherwise, determinations of a tribe regarding participation must be made within sixty (60) days of receipt by the tribe of timely and proper notice. The tribe is required to notify the tribal court and the parties in writing within this time period of any determination to participate by way of intervention or appearance as amicus curiae. These provisions are intended to best balance the interests of tribes in making participation determinations with the interests of the parties in having their cases proceed efficiently and speedily. They also allow for some latitude in specific cases where more time for tribal participation determinations might be warranted.

V. FAILURE TO GIVE NOTICE; CONSEQUENCES:

Subsection A provides that the failure to give notice to tribes of a case that questions tribal sovereignty, jurisdiction, or tribal laws does not deprive the tribal court of jurisdiction over the case. This provision follows the general rule in federal law "that failure to provide notice ... is not a jurisdictional defect; decisions rendered without notice retain their validity." Greenbaum, supra, at 877-878; see also Fed. R. Civ. P. 24(c) ("A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted."); cf. Ariz. Rev. Stat. § 13-2314.04(H) (under racketeering law citizen suits, requirement of serving notice on the state attorney general is jurisdictional); accord Iowa Code § 706A.3(9).

Among the reasons for the "not jurisdictional" rule in federal law are the pragmatic: in instances when notice is not provided, additional or "satellite litigation concerning the effect that failure to provide notice should have on the underlying litigation ... [is] disruptive, and remedies imposed to cure such failures ... [add] to the costs of litigation." Greenbaum, supra, at 877. Subsection A also provides that any notice given under this law is not a substitute for, a waiver of, or a modification of any other pleading requirements under tribal law. See Local Rule 24.1(b) (N.D.Ohio).

Subsection B provides that if a Tribal Court or a party discovers that notice to a tribe should have been given but has not been given, the court or party will promptly give notice in writing to the tribe. Subsection B also provides that the tribal court may stay the case at any stage to allow compliance with the notice law. Subsection B further provides that if final judgment has already been entered, tribes may move or apply for rehearing as of right and the tribal court will promptly entertain such motions or applications. Finally, Subsection B provides that in disposing of such motions or applications the tribal court may vacate a judgment or any portion thereof for good cause shown.

These provisions follow the general rule in federal law, that "if a court discovers while litigation is proceeding that notice has not been given, it must then provide 'meaningful notice' to the Government so it can participate if it chooses." Greenbaum, supra, at 878. "Meaningful notice" may include "affording the Government an opportunity to participate at that time or notifying the Government that it may still participate through a rehearing request or on appeal if it chooses." Id. "At a minimum, the court should stay the proceedings if the Government requires additional time to participate meaningfully." Id. at 878-879. See also Fed. Rs. Bankr. Proc. Rule 9018 (if an order is entered into under this rule without notice, any entity affected thereby may move to vacate or modify the order); Alaska Stat. § 09.38.070 (Michie 1982) (the court may vacate or modify an order under this section); Ariz. Rev. Stat. § 12-1841 (1998) (if the attorney general is not served in a timely manner, on motion by the attorney general, the court shall vacate any finding of unconstitutionality).

Subsection C provides that tribal courts may impose civil sanctions on parties for wilful or unreasonable failure to give notice to tribes, and may use other reasonable means to cure any significant harm caused by failure to give notice. "[C]ourts will attempt to cure any significant harm late notice has caused the Government." Greenbaum, supra. at 878. For example, if "the Government can show it was prejudiced by its inability to participate in creating the factual record, the court should afford the Government an opportunity to create its own factual record." Id. at 879. See also 8 U.S.C. § 1306 (failure to notify attorney general of change of address authorizes authorities to take alien into custody); 26 U.S.C. § 905 (no right to redetermination if taxpayer fails to notify secretary on or before prescribed date); 26 U.S.C. § 6689 (if taxpayer fails to notify secretary on or before prescribed date of a foreign tax redetermination, a penalty will be added); Miss. Code Ann. § 31-19-25 (1990) (member of governing board who shall wilfully fail to give notice shall be liable personally and on his official bond for a penalty in each case $500); N.C. Gen. Stat. § 105-309 (g) (1996) (any person who fails to give notice shall be subject to penalties, and if failure was wilful, penalties are harsher).

VI. TRIBAL JURISDICTION AND SOVEREIGN IMMUNITY UNAFFECTED:

Subsection A establishes generally that nothing in the Model Tribal Notice Law shall be construed to affect the jurisdiction of the tribal court. There are similar protections for court jurisdiction in various federal and state laws. See, e.g., 7 U.S.C. § 2 (i) (nothing contained in federal commodity exchange regulations shall supersede or limit the jurisdiction conferred on courts of the United States or any State); 19 U.S.C.§ 1528 (nothing in the Tariff Act of 1930 shall be construed to limit or restrict the jurisdiction of the United States Court of International Trade or the Court of Appeals for the Federal Circuit); Ariz. Rev. Stat. § 41-2198.03 (Arizona landlord-tenant disputes shall be heard by an administrative law judge, but nothing in the statute affects the jurisdiction of the Arizona courts).

Subsection B also makes explicit that nothing in the Model Tribal Notice Law acts to waive the sovereign immunity from suit of the tribe, its agencies or officers, or employees. Thus, just because notice must be given, parties may not use the notice requirement to name the tribe or its agencies, officers or employees as a party to the case. This provision follows similar federal and state laws establishing that giving notice to a government is not a waiver of the government's sovereign immunity from suit. See generally U.S. Const. Amend. XI (judicial power of United States not to be construed to extend to any suit against a state by citizens of another state, or by citizens of a foreign state); the Trademark Appeal Act, 15 U.S.C. § 1071 (b) (2) (on appeals in private actions in trademark cases, the agency head must be notified of appeals and has a right to intervene but may not be made a party to the proceeding); Ariz. Rev. Stat. § 13-2314.04(H) (notice to state attorney general of private action under racketeering law does not authorize the person to name the state or the attorney general as a party to the action); Iowa Code § 548-115(1) (in actions for cancellation under state trademark law, agency head must be notified of action and has a right to intervene in it, but will not be made party to proceeding).


DRAFT TRIBAL RESOLUTION AND DRAFT FORMS

MODEL TRIBAL NOTICE LAW

DRAFT TRIBAL RESOLUTION
Adopting or Enacting a Tribal Notice Law

Resolution No. _______

WHEREAS,   The Tribe has a compelling interest in protecting tribal sovereignty, jurisdiction, and the validity of tribal laws; and

WHEREAS,   Tribal sovereignty, jurisdiction, or the validity of tribal laws may be questioned in cases in the Tribal Court in which the Tribe or any agency, officer, or employee of the Tribe is not a party; and

WHEREAS,   With adequate, timely, and uniform notice of cases in the Tribal Court that question tribal sovereignty, jurisdiction, or the validity of tribal law, the Tribe can effectively assess whether and how to participate in such cases; and

WHEREAS,   To ensure that the Tribe has adequate, timely, and uniform notice of any and all cases in the Tribal Court that question tribal sovereignty, jurisdiction, or the validity of any tribal law and in which the Tribe or any agency, officer, or employee thereof is not a party, it is advisable and necessary to adopt / enact the attached Notice Law;

NOW THEREFORE BE IT RESOLVED, that the ______________ Tribe adopts / enacts the attached Notice Law in order to protect its sovereignty, jurisdiction, and laws, and to give the Tribe adequate, timely, and uniform notice of cases pending before the Tribal Court that question tribal sovereignty, jurisdiction, and laws but to which the Tribe or any agency, officer, or employee of the Tribe is not a party.

CERTIFICATION


MODEL TRIBAL NOTICE LAW

DRAFT FORM FOR IMPLEMENTING TRIBAL NOTICE LAW
SECTION II, OPTION A (Court to give Notice)

In the TRIBAL COURT

______________,  
Plaintiff No. ______________
v.   Filed ____________
_______________, NOTICE CERTIFICATE
Defendant.  
_____________________________________  

The Court hereby notices [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] that the above-captioned case, to which neither the Tribe, nor any agency, officer, or employee of the Tribe is a party, questions the sovereignty or jurisdiction of the Tribe, or questions the validity of a tribal law.

The Clerk of this Court is hereby directed to forward to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] this notice certificate, together with a copy of any pleadings filed by the parties to this action.

Under tribal law [cite to code or section], the Tribe has sixty (60) days within which to respond to this notice.

Dated: ______________ _______________________________
  Tribal Court Judge

MODEL TRIBAL NOTICE LAW
DRAFT FORM FOR IMPLEMENTING TRIBAL NOTICE LAW

SECTION II, OPTION B (Court to Inform Parties of Notice Requirement)

In the TRIBAL COURT

______________,  
Plaintiff No. ______________
v.   Filed ____________
_______________, INFORMING PARTIES OF
Defendant. NOTICE REQUIREMENT
_____________________________________  

The Court hereby informs all parties to the above-captioned case of [cite to tribal notice law code or section] which states:

[insert text of Tribal Notice Law here]

The Court also provides the parties with the attached Notice Certificate by which notice may be given to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] that the case calls into question the sovereignty, jurisdiction or laws of the Tribe.

Dated: ______________ _______________________________
  Tribal Court Judge


MODEL TRIBAL NOTICE LAW
DRAFT FORM FOR IMPLEMENTING TRIBAL NOTICE LAW

SECTION II, OPTION B (Party to give Notice)
In the TRIBAL COURT

______________,  
Plaintiff No. ______________
v.   Filed ____________
_______________, NOTICE CERTIFICATE
Defendant.  
_____________________________________  

 

[Name of party], a party to the above-captioned case, hereby notices the [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] that the case, to which neither the Tribe, nor any agency, officer, or employee of the Tribe is a party, questions the sovereignty or jurisdiction of the Tribe, or questions the validity of a tribal law as follows:

The party signing this notice must provide a brief explanation of the grounds upon which tribal sovereignty, jurisdiction, or the validity of any tribal law is being questioned.

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

The undersigned party hereby forwards to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] this notice certificate, together with a copy of any pleadings and orders filed to date in this action.

Under tribal law [cite to code or section], the Tribe has sixty (60) days within which to respond to this notice.


Dated: ______________ _______________________________
  Plaintiff / Defendant


MODEL TRIBAL NOTICE LAW
DRAFT FORM FOR IMPLEMENTING SECTION II

Explanation of Draft Provision:

To help implement Section II, Notice Required, we provide the following Draft Provision. This provision could be incorporated into any standard Tribal Court Complaint or Answer form. Alternatively, the provision could be incorporated into any standard instructions provided by the Tribal Court for filing Complaints and answers in the Tribal Court.

Draft Provision:

If the party to this [Complaint or Answer] questions tribal sovereignty, jurisdiction, or the validity of any tribal law as to any part of its claim, the party is required to indicate this fact by marking this box. (box omitted)



MODEL TRIBAL NOTICE LAW
DRAFT FORM FOR IMPLEMENTING TRIBAL NOTICE LAW

SECTION II, OPTION C (OPTIONAL)
In the TRIBAL COURT

______________, No. ______________
Plaintiff   Filed ____________
v. ORDER FOR
_______________, CONTINUED NOTICE  TO THE TRIBE

_____________________________________

The [Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] has timely requested that the Court provide [Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] with continued notice of all subsequent filings and orders in the above-captioned case, which questions tribal sovereignty or jurisdiction, or the validity of a tribal law, and to which neither the Tribe, nor any agency, officer, or employee of the Tribe is a party.

The Clerk of this Court is hereby directed to forward timely to [the Tribal Chairperson, or the Tribal Council, or the Tribal Attorney, or the head of the Tribal Legal Department, or the head of the appropriate Tribal Agency or Office] copies of all subsequent filings and orders in this case.

Dated: ______________ _______________________________
  Tribal Court Judge

Date Last Modified: 18 April 2000