Update on American Indian Law Litigation Tom Schlosser January 4, 2016

Learning Goals Case summaries: chronologically arranged within overlapping topics Target top cases for tribal counsel Practical points, tactics Ask questions throughout

Economical Research –[Google] site:narf.org [search terms] –Turtle talk –forums.delphiforums.com/IndianLaw/ –scholar.google.com – Casemakerwww.wsba.org – – –Indian Law Reporter

1. Michigan v. Bay Mills (S.Ct. 2014) Claimed compact violation by operating on settlement fund land Sec. 2710(d)(7)(A)(ii) juris. requires Indian lands and compact violation Sec gives jurisdiction but (5-4) confronts sovereign immunity No waiver and, originally, no officers were parties

11. Chemehuevi v. Jewell (9 th Cir. 2014) DOI disapproved land assignments granting exclusive possessory interests in perpetuity Can §81 encumbrance allow a conveyance otherwise barred by §177? §81 regs allow “temporary use” §415(h) enables tribal laws permitting 75 year leases

21. Alto v. Jewell (9 th Cir. 2013) & remand San Pasqual disenrolled members, Interior aff’d Constitution allows appeals to BIA, committee sought approval of disenrollment Court enjoined, Interior directed Alto remain entitled to rights & benefits Tribe not necessary party; claim results from DOI action, not tribal action

44. Adoption of T.A.W. (WA App. 2015) Indian mother petitions to terminate non-Indian biological father’s rights ICWA applies to an Indian child and both parents Active efforts requirement of WA law applies to parent who has had custody before abandoning child In re Adoptive Couple isn’t binding

48. Menominee Tribe v. U.S. (D.C. Cir. 2104) Late-filed contract support cost claims- equitable tolling? When contracting officer denies claim: –Appeal under CDA, or –File in district court under ISDA Successful class action in Ramah Navajo v. Lujan shielded old BIA claims but not IHS Pursued diligently? Extraordinary blockage?

53. Shirk v. U.S. (9 th Cir. 2014) ‘638 contract with Gila River to enforce only federal, tribal laws on reservation. But see #54 SLEC officer returning from off-res training, chased felon 1. Was activity within the contract? 2. Under state law was employee’s action within scope of employment?

62. EEOC v. Peabody Coal (9 th Cir. 2014) Approved Kayenta lease requires preference to Navajos Since the 1940s DOI has approved leases with preference to tribe members; Title VII didn’t disapprove Preference is political rather than based on national origin Dawavendewa I is distinguishable

68. Oneida Tribe v. Village of Hobart (7 th Cir. 2103) Tribe contests storm water utility charges on trust land State plan omits Indian country Hobart also relies on U.S. waiver in 33 U.S.C. 1323(a) Charges are a tax on and potential encumbrance of trust land

90. U.S. v. Brown (8 th Cir. 2105) Lacey Act prohibits sale of fish in violation of tribal law (which bars commercial fishing) 1837 treaty reserved fishing but 1855 treaty didn’t Tribal laws do not change scope of treaty protection of individuals U.S. v. Sohappy (9 th Cir 1985) treaty differs

91. Agua Caliete Band v. Coachella Valley W.D. (C.D. CA 2015) Do Winters rights include groundwater? 1865 Exec. Orders established a homeland in Sonoran desert Reserved rights attach to all appurtenant water Aboriginal rights ended by 1851 Act

92. Hopi Tribe v. U.S. (Fed. Cir. 2015) Damages claim-U.S. funded wells contain arsenic 1882 Exec. Order for Hopi use Law creates specific substantive duty? Federal control and Winters right to prevent 3d party interference aren’t enough to impose clean-up duty

113. Big Lagoon Rancheria v. Calif. (9 th Cir. 2014) District court held State refused to negotiate in good faith under IGRA Gaming is limited to Indian lands Carcieri challenge to 1994 trust acquisition and recognition En banc court aff’d, holding APA sets 6-year statute of limitation

126. Bodi v. Shingle Springs (E.D.CA 2014) Tribal member health program director terminated Tribe removed state court FMLA claim to federal court Does tribe’s assertion of 1331 jurisdiction waive immunity? Yes. 11 th Amend. immunity is waived by removal

130. United States v. Bryant (9 th Cir. 2014) Habitual offender status based on two tribal court uncounseled convictions for domestic abuse 6 th Amendment inapplicable but can’t be used to prove element of an offense Cert granted, No ; circuit split

131. Otoe-Missouria Tribe v. Dept. Fin Svs (2d Cir. 2104) Tribes sued after NY ordered cease internet payday loans to NY citizens Location of conduct and status of parties limit state power: Mescalero No evidence of investment, who operates website, where are servers, banks? Injunction balancing looks to who, where & what

136. State v. Shale (WA 2015) County convicted Yakama sex offender living within Quinault reservation ‘280 jurisdiction partly retroceded No preemption or threat to self- government so Colville applies (nonmember Indians are taxable) Tribes too have criminal jurisdiction over non-member Indians

137. NLRB v. Little River Band (8 th Cir. 2015) NLRB sued to block tribal ordinance barring strikes, picketing, requires labor union licensing, etc. NLRA applies: Tuscarora and 3-part Coeur d’Alene analysis --Tribe is an employer Soaring Eagle case #141 rejected treaty claim NLRB in Chickasaw adopted treaty defense

139. Howard v. Shoshone- Paiute (9 th Cir. 2015) False Claims Act suit v. tribe re Medicare fraud Vermont Agency v. U.S. (2000) holds “person” excludes sovereigns absent statutory intent No claims stated under FCA

153. White v. Univ. of CA (9 th 2014) NAGPRA Final Notice of Inventory finds remains to be Native American Was an adequate finding made that the remains are Native American? NAGPRA doesn’t abrogate tribal immunity Committee and Tribes are necessary & indispensable under Rule 19

169. Cayuga Nation of NY v. Seneca Co. (2 nd Cir. 2014) County suit to foreclose on parcels to recover property tax Enjoined based on immunity and vacated 2 nd Cir. opinion in Oneida Nation v. Madison Co. Suit v. government and suit v. its property are the same City of Sherrill and Co. of Yakima don’t imply abrogation of sovereign immunity

172. Outsource Servs v. Nooksack Bus. Corp. (WA 2014) NBC’s loan waived immunity and consented to suit in a state court “of general jurisdiction.” Could Superior Ct. hear dispute on trust land though outside ‘280? Respecting NBC’s consent doesn’t infringe self-government Different rule would hurt tribes contracting

177. Allen v. Smith (9 th Cir. 2015) Disenrolled Pala members sued individual officials for lost benefits Nominal defendants but relief to reinstate membership operates against sovereign Individuals acted in official capacity Is admin decision’s preclusive effect “federal law” for Ex parte Young?

181. Pistor v. Garcia (9 th. Cir. 2015) Gamblers arrested and property seized in casino by tribal staff Damages suit against tribal police chief, inspector, GM in individual capacity Sovereign immunity does not protect individual capacity from financial liability Personal immunity defenses, e.g., reasonable reliance on existing law

187. Evans v. Sho-Ban Land Use Comm. (9 th Cir. 2013) Nonmember home built on res. fee land ignoring tribal zoning law No Montana Exception 2 risk from construction Look at potential dangers addressed by zoning and character of surrounding land Tribal juris. is not plausible, therefore no exhaustion of tribal court remedies

188. Dollar General v. Mississippi Band Choctaw (5 th Cir. 2014) Minor in Youth Opportunity Program sued in tribal court for molestation by store employee Lessee challenged tribal jurisdiction Agreement to participate in YOP creates consensual relationship for Montana I test

190. Kelsey v. Pope (W.D. Mich. 2014) Councilman prosecuted for assault on member in off-reservation bldg. Habeas petition re affirmed 6-month sentence “Internal relations” by implication is restricted to Indian country Ordinance used Indian country definition => ex post facto issue

192. State v. Lang (Az. App. 2014) State bar asserts unauthorized practice J.D. practices in San Carlos Apache court and elsewhere A state resident who performs legal services from a state office is subject to discipline Tribal court work not enjoined

194. Simmonds v. Parks (Ak. S.Ct. 2014) Full faith & credit for Minto tribal court termination of parental rights? Minto mother incarcerated; child member; father (Parks) NV of Stevens member No notice that attorneys couldn’t talk to tribal judge; Parks didn’t appeal State argues exhaustion would not be meaningful

197. Belcourt Pub. School Dist. v. Davis (8 th Cir. 2015) Suit to determine tribal court lacked jurisdiction over tort claims against state school district Tribe-District Plan of Operations agreement was not a consensual relationship No Montana 1 or 2 exception allows jurisdiction

200. Sprint Comm. v. Wynne (D.S.D. 2015) Sprint seeks injunction v. Oglala utilities commission regulation requiring business licenses FCC recognizes that tribes can have a regulatory role Exceptions to requirement of exhausting tribal court remedies don’t exist; case stayed.

206. Seminole Tribe v. Fla. Dept. Rev. (11 th Cir. 2014) Tribe claims exempt from tax on off- res fuel, seeks refund State pre-collects from suppliers; refunds to some users; incidence is on consumers Ex parte Young doesn’t allow recovery of money from State

210. Seminole Tribe of Fla. v. Stranburg (11 th Cir. 2015) Tribe challenged rental and utility taxes 25-year leases to non Indians for casino food court 25 U.S.C. 465 and Mescalero Apache v. Jones bar rental tax, as does 25 CFR (c). Incidence of utility tax is on utility

211. AUTO v. Washington (Wash. S.Ct. 2015) Statutory compacts refund 75% of state fuel tax to tribes for transit uses Enjoin refunds because constitution is violated? Tribes aren’t parties, but not indispensable (2012 opinion) Constitution expressly allows refunds and then-applicable statute authorizes refunds. Incidence of state fuel tax is unclear.

237. First Citizens Bank v. Harrison (WA Div ) Bank garnished personal accounts for unpaid notes Tribal member proffered that funds were from leases of Indian trust land 25 U.S.C. 410 (1906) exempts “money accruing from any lease or sale of [trust] lands”