October 22, 2019

October 22, 2019

Subscribe to Latest Legal News and Analysis

October 21, 2019

Subscribe to Latest Legal News and Analysis

Confederated Tribes of Grand Ronde Community v. Jewell and Other Selected Cases: Indian Nations Law Update August

In Confederated Tribes of the Grand Ronde Community v. Jewell, 2016 WL 4056092 (D.C. Cir. 2016), the Confederated Tribes of the Grand Ronde Community and Clark County residents sued under the Administrative Procedure Act, challenging the Department of Interior’s (DOI) acquisition of land in trust for the Cowlitz Tribe, which scattered after its lands were sold in the 19th century but which was again acknowledged by the United States as a Tribe in 1978. The plaintiffs asserted that Cowlitz was not under federal jurisdiction in 1934 and, in accordance with the Supreme Court’s Carcieri decision, not eligible to have land taken into trust under the Indian Reorganization Act. Giving substantial deference to the DOI’s liberal interpretation of the “under federal jurisdiction” requirement, the court upheld the acquisition: “We are not persuaded that the Secretary’s interpretation is unreasonable for failure to require a formal, government-to-government relationship carried out between the tribe and the highest levels of the Interior Department. ... The statute does not mandate such an approach, which also does not follow from any ordinary meaning of jurisdiction. Whether the government acknowledged federal responsibilities toward a tribe through a specialized, political relationship is a different question from whether those responsibilities in fact existed. And as the Secretary explained, we can understand the existence of such responsibilities sometimes from one federal action that in and of itself will be sufficient, and at other times from a “variety of actions when viewed in concert.” J.A. 261. Such contextual analysis takes into account the diversity of kinds of evidence a tribe might be able to produce, as well as evolving agency practice in administering Indian affairs and implementing the statute. It is a reasonable one in light of the remedial purposes of the IRA and applicable canons of statutory construction.” The court also rejected challenges to the acquisition based on alleged violations of the National Environmental Policy Act.

In Patchak v. Jewell, 2016 WL 3854056 (D.C. Cir. 2016), Patchak had challenged the decision of the Secretary of the Interior taking land into trust for gaming purposes for the Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians (Tribe). He argued that the Tribe was not under federal jurisdiction in 1934 and, therefore, ineligible to acquire land in trust under Indian Reorganization Act per the Supreme Court’s 2009 ruling in the Carcieri case. The district court had initially held that Patchak’s suit was barred by the Quiet Title Act, but the court of appeals reversed and the Supreme Court affirmed and remanded. In the meantime, in 2014 the Secretary issued an Amended Notice of Decision concerning the Tribe’s fee-to-trust application for two other parcels of land it sought to acquire, expressly con rming its authority under the Indian Reorganization Act (IRA) to take land into trust on behalf of the Tribe. Also in 2014, Congress enacted the Gun Lake Trust Land Reaffirmation Act (ReaffirmationAct), which “reaffirmed” the Secretary’s acquisition of the land subject to Patchak’s suit and provided that “an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be led or maintained in a Federal court and shall be promptly dismissed.” Citing these two developments, the district court granted the government’s motion for summary judgment, rejecting Patchak’s constitutional challenges to the Reaffirmation Act. The D.C. Circuit affirmed, holding that (1) “[p]articularized legislative action is not unconstitutional on that basis alone,” (2) the Gun Lake act did not unduly Patchak’s First Amendment right to petition government or his Due Process rights under the Fifth

Amendment because “there is no deprivation of property without due process when legislation changes a previously existing and still-pending cause of action” and (3) the Act was not an impermissible bill of attainder: “While it may be true that Mr. Patchak was adversely affected as a result of the legislation, the record does not show that Congress acted with any punitive or retaliatory intent.”

In Poarch Band of Creek Indians v. Hildreth, 2016WL3668021(11thCir. 2016), Hildreth, the tax assessor for Escambia County, attempted to impose a property tax on land that the United States had acquired in trust pursuant to Section 5 of the IRA for the Poarch Band of Creek Indians in 1984, the year the tribe was federally acknowledged. Hildreth contended that the Tribe had not been under federal jurisdiction in 1934 and was, therefore, under the Supreme Court’s 2009 decision in the Carcieri case, ineligible to have the Secretary of the Interior take land into trust for its benefit pursuant to the IRA. The Tribe sued in federal court for declaratory relief, and the court granted the tribe’s motion for an injunction against Hildreth’scollection efforts. The Eleventh Circuit Court of Appeals affirmed, holding that (1) the federal court had jurisdiction to hear the Tribe’s challenge under 28 U.S.C. § 1362, which gives district court original jurisdiction over all civil actions “brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States,” (2) the tribe was “duly recognized” for purposes of Section 1362, without regard to whether the Tribe was under federal jurisdiction in 1934, (3) the Tax Injunction Act does not bar a suit by an Indian tribe challenging a state tax, (4) to challenge the Secretary’s 1984 acquisition of land for the Tribe, it would have been necessary for the state to bring an action under the Administrative Procedure Act (APA) within the APA’s six-year statute of limitations after the acquisition and (5) in issuing the injunction, the court did not abuse its discretion: “We are satis ed that a state tax assessment would amount to irreparable violation of tribal sovereignty. ...Also, it is reasonable to conclude that enforcing the existing federal statutory and regulatory structure applicable to Indian tribes would serve the public interest.”

In Aguayo v. Jewell, 2016 WL 3648465 (9th Cir. 2016), the Pala Band of Mission Indians (Tribe) amended its constitution in 1997 to authorize its Executive Committee to replace its existing Enrollment Ordinance with an ordinance governing “adoption, loss of membership, disenrollment, and future membership.” The U.S. Bureau of Indian Affairs (BIA) approved the constitution in 2000. In 2009, the Executive Committee adopted a new enrollment ordinance giving itself the power to “reevaluate” an applicant based on “misrepresented or omitted facts that might have made him/ her ineligible for enrollment,” and remove such members from the rolls. The ordinance permitted an aggrieved person to appeal to the BIA’s regional director but also provided that the regional director could merely make a recommendation and that the Executive Committee would have ultimate authority over enrollment decisions. The Executive Committee determined that the blood quantum of Margarita Britten, a Pala Indian born in 1856, had incorrectly been listed as “full blood” but should have been listed as half- blood. The committee subsequently disenrolled over 150 of her descendants who could not satisfy the Tribe’s 1/16 blood requirement. Many of them appealed to the BIA regional director, but the regional director, and later the Assistant Secretary – Indian Affairs (AS-IA), determined that BIA’s role was purely advisory under the Tribe’s constitution. The plaintiffs then sued in federal court, challenging the AS-IA’s determination under the Administrative Procedure Act (APA) as arbitrary and capricious. The district court upheld the AS-IA’s determination, and the Ninth Circuit affirmed, holding that (1) the BIA’s denial of relief to Plaintiffs and its failure to act on their behalf was a “ final agency action” subject to judicial review under the APA, (2) Indian Reorganization Act (IRA) procedures for adopting and amending constitutions did not apply because the Tribe had voted against adoption of the IRA in 1934, (3) the APA prohibition against judicial review of actions “committed to agency discretion by law” did not apply because “the BIA was not making a generalized decision about whether to recognize the Executive Committee as the legitimate government of the Band, untethered to any legal standard. At each level of agency review, it clearly applied tribal law to answer the same question at issue in Alto – whether “the tribe’s own governing documents vest the [BIA] with ultimate authority over membership decisions;’” (4) the APA’s six-year statute of limitations barred the plaintiffs from challenging the BIA’s decision in 2000 to approve the Tribe’s 1997 Constitution, (5) despite irregularities, BIA’s approval of the 1997 Constitution was, in any event, reasonable since “the BIA generally maintains a hands-off approach, treading lightly to avoid unnecessary intrusion in tribal self-governance” and (6) a “generalized invocation of the government’s trust responsibility toward Native Americans does not compel the conclusion that the BIA acted arbitrarily or capriciously under these circumstances.”

In Unite Here International Union v. Shingle Springs Band of Miwok Indians, 2016 WL 4041255 (E.D. Cal. 2016), Unite Here International Union (Union) and the Shingle Springs Band of Miwok Indians (Tribe) had entered into a Memorandum of Agreement (MOA) on or in 2012, including a requirement that disputes be arbitrated and a waiver of the Tribe’s immunity. After the Tribe terminated two union employees, the union sued. The Tribe moved to dismiss on procedural grounds, but the court denied the motion, holding that the Tribe was required to arbitrate under the Labor Management Relations Act: “Respondent argues that the LMRA is silent on the procedure governing petitions for an order compelling arbitration, whereas the FAA provides that applications for compelling arbitration shall be made and heard ‘in the manner provided by law for the making and hearing of motions,’ and federal courts may look to the FAA for guidance in labor arbitration cases. ... However, Respondent does not cite a case within the context of the FAA supporting dismissal in this speci c set of circumstances.”

In Seminole Tribe v. Schinneller, 2016 WL 40163309 (Fla. App. 2016), the Seminole Tribe had entered into a compact with the Governor of Florida on behalf of the state that included consent to suits brought by patrons of its gaming enterprises. The Florida Supreme Court, however, held that the governor lacked authority to bind the state and that the compact, therefore, was invalid. Plaintiffs who suffered alleged slip and fall injuries at the Seminole Hard Rock Casino sued the

Tribe. The Tribe moved to dismiss, arguing that the compact was invalid andthat,inanyevent,thewaiverdidnot comply with tribal law, which required that any waiver of sovereign immunity appear in an ordinance or resolution of the tribal government. The trial court denied the Tribe’s motion, but the court of appeals reversed: “Here, the tribe established that no resolution, ordinance or compact including a waiver of immunity was enforceable in 2009 when the plaintiff’s claim arose. ... While the 2007 compact provided a limited waiver of immunity, our supreme court held the compact invalid.... The tribe also provided an affidavit attesting that no waiver of sovereign immunity was in effect when the claim arose. The plaintiff did not rebut this af davit, nor could she have done so.”

In State of New York v. Mountain Tobacco Company, 2016 WL 3962992 (E.D. N.Y. 2016), King Mountain, a for-pro t corporation formed and operating under the laws of the Yakama Indian Nation and maintaining its principal place of business on the reservation, manufactured and sold its own brand of cigarettes. Wheeler, an enrolled member of the Yakama Nation, was King Mountain’s sole owner. New York State troopers stopped a truck in Clinton County, New York, and seized one hundred and forty cases of unstamped King Mountain brand cigarettes, which were being transported by ERW Wholesale to the “Ganienkeh Nation” in Altona, New York. The state sued King Mountain, alleging violations of the Contraband Cigarette Trafficking Act (CCTA), Prevent All Cigarette Trafficking Act (PACT Act), New York Tax Law §§ 471, 471-e, and 480-b, and New York Executive Law § 156-c, seeking an injunction against illegal cigarette sales and shipments into New York, civil penalties, attorney fees, and costs. On cross-motions for summary judgment, the court held that (1) notwithstanding its corporate status, King Mountain was an “Indian in Indian country” for purposes of the 2006 amendment to the CCTA providing that “no civil action may be commenced by a state or local government against an Indian tribe or an Indian in Indian country for violations of the CCTA,” (2) shipments of cigarettes from the Yakama reservation to New York Indian reservations did not constitute “interstate commerce” for purposes of the PACT Act “because the sales did not originate or conclude in a ‘state,’ (3) the state’s PACT claims would be permitted only to the extent that sales were made within New York outside of Indian country, (4) King Mountain’s use of a common carrier to deliver cigarettes did not constitute “possession” of cigarettes by King Mountain for purposes of New York cigarette tax laws, (5) the state would be granted summary judgment with respect to its claim that King Mountain violated Section 471 by selling unstamped cigarettes directly to Indian nations or tribes and/or reservation cigarette sellers or entities that are not licensed stamping agents and (6) New York’s law requiring “[e]very tobacco product manufacturer ... whose cigarettes are sold for consumption in this state” to certify the manufacturer’s status as a “participating manufacturer” under the Master Settlement Agreement did not exempt sales made to an Indian in Indian country.

In Mackinac Tribe v. Jewell, 2016 WL 3902667 (D.C. Cir. 2016), an unacknowledged group claiming to be the successor in interest of an historical tribe sued the Secretary of the Interior for a court order that the Secretary hold an election for the tribe to organize under the Indian Reorganization Act (IRA.) The district court dismissed, holding that the group must exhaust its administrative remedies by completing the federal acknowledgement process. The D.C. Circuit affirmed: “Our decisions ... teach that, when a court is asked to decide whether a group claiming to be a currently recognized tribe is entitled to be treated as such, the court should for prudential reasons refrain from deciding that question until the Department has received and evaluated a petition under Part 83. James gave good reasons for that restraint. Congress delegated to the Secretary the regulation of Indian relations and affairs, see generally 25 U.S.C. § 2, including authority to decide in the rst instance whether groups have been federally recognized in the past or whether other circumstances support current recognition.”

In Little eld v. Jewell, 2016 WL 4098749 (D. Mass, 2016), the Secretary of the Interior in 2015 had taken land into trust for economic development purposes for the benefit of the Mashpee Wampanoag Tribe under Section 5 of the Indian Reorganization Act of 1934 (IRA), which authorizes the Secretary to acquire land in trust for Indians, a term that is elsewhere in the IRA de ned to include “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.” The plaintiffs argued that the Tribe was not under federal jurisdiction when the IRA was enacted in 1934 and, consistent with the Supreme Court’s 2009 decision in Carcieri v. Salazar, was ineligible for IRA Section 5 acquisitions. The Tribe and the federal government argued that the rst clause of the IRA’s “Indian” de nition was not linked to the jurisdiction in 1934, but the court rejected the argument and ruled that the acquisition was invalid: “Post-Carcieri, Section 479 of the IRA effectively reads: ‘The term “Indian” as used in this Act shall include [1] all persons of Indian descent who are members of any recognized Indian tribe ... under Federal jurisdiction [in June 1934], and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of one-half or more Indian blood.’”

In Renteria v. Shingle Springs Band of Miwok Indians, 2016 WL 4000984 (E.D. Cal. 2016), the parents of three young girls were killed in an auto accident on December 17, 2015. Their father was a member of the Shingle Springs Band of Miwok Indians (Tribe). The children had resided outside the Tribe’s reservation and had little contact with their paternal family or the Tribe. The children’s maternal great aunt and uncle (Plaintiffs) cared for the children in the weeks following the accident. On January 5, 2016, members of the children’s paternal family appeared at Plaintiffs’ house in Visalia, presented the plaintiffs with an emergency order issued by the Tribal Court and forcibly removed two of the children. On January 22, 2016, the Tribal Court held a review hearing regarding guardianship, appointed Plaintiffs as temporary guardians for the Minors, and established a schedule of visitations for the paternal family. After incidents of alleged sexual abuse by a member of the father’s family during visitation, the Plaintiffs sued in federal court challenging the Tribal Court jurisdiction. The court granted their motion for an injunction against enforcement of the tribal court order pending a nal determination: “Given the severity of the harm Plaintiffs and the Minors are likely to suffer if the Court does not grant a temporary restraining order, Plaintiffs need only show that there are serious questions going to the merits of their claims. They have done so and are therefore entitled to preliminary relief if the balance of the hardships tips sharply in their favor.”

In Agua Caliente Band of Cahuilla Indians v. Riverside County, 2016 WL 3951666 (C.D. Cal. 2016), the Agua Caliente Band of Cahuilla Indians (Tribe) sued Riverside County and county of cials, alleging unlawful taxation by Riverside County on lessees occupying Indian Trust land within the Tribe’s Reservation and seeking a declaration that the assessment and collection of taxes on lessees’ possessory interest in lands and permanent improvements on lands held in trust by the United States for the benefit of the Tribe and its members were unlawful. The Tribe relied in part on federal leasing regulations, 25 C.F.R. § 162.017, purporting to prohibit taxation of activities on leased land. The court denied the defendants’ motion for judgment on the pleadings, concluding that the possessory interest tax was preempted under the rule of White Mountain Apache Tribe v. Bracker, holding that (1) 1970s Ninth Circuit decisions that state taxes of reservation activity could be preempted only upon a nding of congressional intent were superseded by the Supreme Court’s 1980 decision in Bracker, (2) the court would not decide whether the possessory interest tax was preempted by Section 5 of the Indian

Reorganization Act, which authorizes the Secretary of Interior to acquire “lands, water rights or surface rights” for tribes and provides that “such lands or rights shall be exempt from state and local taxation,” (3) Section 162.017 was entitled to deference as a federal interpretation of the impact of the state tax on the federal regulatory scheme but did not replace the particularized inquiry and balancing of tribal, federal and state interests prescribed by Bracker, (4) the comprehensive federal regulation of leasing weighed in favor of the Tribe, (5) the Tribe had a strong interest in tax revenues that it was forbearing to collect to avoid double taxation of its lessees and (6) where the revenues collected by the state were unconnected to any services provided to the Tribe or its members, the state interest was not sufficient to overcome the strong tribal and federal interests.

In Butte County v. Chaudhuri, 2016 WL 3919803 (D.D.C. 2016), the Department of Interior (DOI) in 2008 had taken 625 acres of land into trust for the Mechoopda Tribe (Tribe) for gaming purposes under the “restored lands” exception to the Indian Gaming Regulatory Act (IGRA) rule against gaming on lands acquired after 1988. The county where the land was located sued under the Administrative Procedure Act (APA). The district court upheld DOI’s decision, but the D.C. Circuit in 2010 remanded because it could nd no evidence that DOI had considered an academic report that the county had submitted in opposition to the Tribe’s application (Beckham Report). On remand, DOI, citing the passage of time, invited the parties to submit additional evidence. The county submitted additional materials and the Tribe submitted its own academic report (Tiley Report). After giving the county 30 days to respond, the

DOI closed the record and thereafter again approved the Tribe’s fee to trust application in 2014 and the county appealed. The district court upheld the DOI’s decision, holding that (1) the D.C. Circuit remand did not limit the DOI’s ability to open the record to further evidence, (2) the DOI was not required to give the county additional time to respond to the Tiley Report, (3) the DOI was not required to consider a revised Beckham report submitted after the DOI had closed the record and (4) the DOI’s 2014 decision was not arbitrary or capricious.

In Tulalip Tribes v. Washington, 2016 WL 3906896 (W.D. Wash. 2016), the Tulalip Tribes sued the county and state, challenging the defendants’ right to impose retail sales, business and occupation and property taxes on business activities in Quil Ceda Village (Village), a federally recognized municipality comprised of approximately 2,000 acres of land on the Tulalip Reservation that the Tribes had developed at their own expense and allegedly without assistance from the state or county. The defendants objected to the Tribes’ demand for discovery of information relating to the taxation of other entities, relying on privileges based on state law. The court rejected the defendants’ argument and ordered disclosure: “The State Defendants are correct that federal courts have recognized state privileges based on the principle of comity between state and federal law. However, the Court nds that doing so is not appropriate in this case. ... [T]the Court nds that the State’s interest in maintaining the con dentiality of the tax records is not sufficiently important to outweigh Tulalip’s need for the information. The State Defendants assert that maintaining the con dentiality of the information is important to protect the privacy interest of the taxpayers. They also claim that it is important to encourage full and accurate disclosure by the taxpayers. The Court nds that these interests are diminished in this case because the tax information will not be used for any purpose adverse to the taxpayers. In addition, the information will be produced pursuant to the parties’ Protective Order ... Nevertheless, the Court will add an additional element of protection and require the State Defendants to redact any identifying information prior to producing the requested material to Tulalip.”

In Akiachak Native Community v. United States Department of Interior, 2016WL3568092(D.C.Cir.2016),the Akiachak Native Community (Tribe) had challenged the longstanding position of the Department of Interior (DOI) that, as a result of the Alaska Native Claims Settlement Act (ANCSA), Alaska Native Villages were ineligible to apply to the DOI to take fee land into trust under Section 5 of the Indian Reorganization Act (Alaska Exception). The State of Alaska intervened to defend the Alaska Exception. The federal district court held for the Tribe. The DOI initially appealed but voluntarily dismissed its appeal after concluding that the Tribe and the district court were correct. When the DOI issued final rules in 2015 eliminating the Alaska Exception, the Tribe and the DOI moved to dismiss on the ground that its claims were moot. The district court granted the motion over the objections of Alaska, which requested that the court enjoin the regulations, and the Circuit Court for the District of Columbia affirmed on narrow grounds without addressing the merits of the Alaska Exception: “[E]ven were we to construe Alaska’s pleading as asserting some independent claim, the only relief Alaska requested was a ruling that the Alaska exception was valid and compelled by the statute. ... As with Akiachak’s complaint, the subject of that purported claim—the Alaska exception—no longer exists, and so cannot continue to generate a live controversy.”

In Paskenta Band of Nomlaki Indians v. Crosby, 2016 WL 3854237 (E.D. Cal. 2016), the Paskenta Band of Nomlaki Indians (Tribe) and Paskenta Enterprises Corporation (PEC), a tribal corporation, sued Crosby and others alleging RICO claims of racketeering, aiding and abetting, fraud, conspiracy, and violations of duciary duties owed to the Tribe. The defendants led a third party complaint against various tribal of cials, alleging that to the extent they are held liable to the Tribe and/or PEC for any alleged wrongdoing, such liability can only be derivative from and/or concurrent with the acts and liability of Third-Party Defendants. The district court dismissed the Third Party Complaint on the ground that the Third Party Plaintiff could not satisfy the rule that “[a] defendant held liable under a federal statute has a right to contribution or indemni cation from another who has also violated the statute only if such right arises (1) through the affirmative creation of a right of action by Congress, either expressly or implicitly, or (2) via the power of the courts to formulate common law.”

In Atlantic Richfield Company v. Pueblo of Laguna, 2016 WL 3574150 (D.N.M. 2016), the Pueblo of Laguna (Tribe) had formed Laguna Construction Company under New Mexico law (New Mexico LCC) in 1988. In 1994, the Tribe formed a corporation with the same name under Section 17 of the Indian Reorganization Act (LCC) and the two entities were formally merged in 1995. The Atlantic Rich eld Company (ARCO) sued LCC under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), asserting that LCC Mexico negligently performed reclamation work at the Jackpile Paguate uranium mine and that the LCC could not claim sovereign immunity because the 1995 articles of merger provided that “all rights of creditors ... of either Constituent Corporation shall be preserved unimpaired, and all debts, liabilities and duties of the respective Constituent Corporations shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.” The district court initially agreed with ARCO, holding that LCC New Mexico did not enjoy sovereign immunity and that the preservation of rights clause was a waiver of LCC’s sovereign immunity. On LCC’s motion for reconsideration, however, the court concluded that ARCO did not qualify as a “creditor” for purposes of the articles of merger: “LCC waived sovereign immunity and promised to preserve the rights of all entities who currently (as of the merger) possessed claims against LCC New Mexico. This limited waiver would not apply to entities like ARCO whose claims did not come to fruition until after the merger was complete.”

In Findleton v. Coyote Valley Band of Pomo Indians, 2016 WL 4120780 (Cal. App. 2016), the constitution of the Coyote Valley Band of Pomo Indians (Tribe) provided for the Tribe to be governed by a General Council consisting of all adult members and a Tribal Council composed of seven elected of cials. The constitution provided that waivers of sovereign immunity would require the General Council’s “consent” and “prior approval.” In 2007, the General Council approved a resolution that it “hereby delegates to the Tribal Council authority to waive on a limited basis the sovereign immunity of the Tribe in contracts of the Tribe approved by the Tribal Council ... as determined necessary by the Tribal Council for the nancing and development of the Project.” The same year the Tribe entered into a construction contract with Findleton that included dispute resolution by arbitration and the contradictory provisions that “[t]he foregoing agreement to arbitrate ... shall be speci cally enforceable in accordance with applicable law in any court having jurisdiction thereof” ... “The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof... No term or provision in this Agreement shall be construed as a waiver of the sovereign immunity of the Coyote Valley Band of Pomo Indians. The Parties speci cally agree that the sovereign immunity of Coyote Valley Band of Pomo Indians shall not be waived for disputes or other matters related to this Agreement.” The agreement provided that tribal law would apply except that “[i]f a particular issue is not covered by such law, federal law shall govern” and that “[t]he Contractor agrees to the jurisdiction of the Coyote Valley Band of Pomo Indians.” In 2008, the General Council reaffirmed the sovereign immunity waivers in its current contracts and again delegated waiver authority to the Tribal Council. When the Tribe later failed to make payments, Findleton sued. The Tribe argued that the waivers were invalid. The California court disagreed, holding that “when read as a whole, the constitution supports the interpretation ... that the ‘consent’ the General Council must give for the Tribal Council to exercise the power to waive the Tribe’s immunity ... can be obtained by a majority vote of the General Council—which the Tribe concedes occurred when it adopted Resolution 07–01, and the undisputed evidence demonstrates also occurred with respect to Resolution 08–01. The Tribe’s position that these terms require an initiative is not a reasonable interpretation, even based upon the text of the constitution alone.” The court refused to defer to the Tribe’s litigation interpretation of its constitution since that interpretation was in con ict with the interpretation previously adopted by the Tribe’s General and Tribal Constitutions.

Copyright © 2019 Godfrey & Kahn S.C.

TRENDING LEGAL ANALYSIS


About this Author

Brian Pierson Tribal Lawyer Godfrey Kahn Law Firm
Shareholder

Brian Pierson leads Godfrey & Kahn's Indian Nations Law Team. Brian clerked for federal district judge Myron L. Gordon before entering private practice. Brian has more than 20 years experience representing Indian tribes, beginning with his successful representation of Chippewa Indians in federal court litigation to prevent racially-motivated interference with treaty-reserved, off-reservation fishing rights.

As leader of the firm's Indian Nations team, Brian's primary objective is to draw on the knowledge and experience of G&K's attorneys to assist tribes in formulating and...

414.287.9456