June 28, 2022

Volume XII, Number 179


June 27, 2022

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Indian Nations Law Focus: Selected Court Decisions

In Native American Council of Tribes v. Weber, 2014 WL 1644130 (8th Cir. 2014), the Native American Council of Tribes (Council) and inmates sued South Dakota prison officials alleging that the defendants’ policy prohibiting tobacco use by Native American inmates during religious activities substantially burdened the exercise of their religious beliefs in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court judge found the restrictions violated RLUIPA and ordered parties to confer. After the parties failed to agree on a new tobacco policy, the district court granted the plaintiffs injunctive relief and the defendants appealed. The Eighth Circuit Court of Appeals affirmed, holding that (1) inmates’ use of tobacco during Native American ceremonies was a religious exercise, (2) the prison’s complete ban on tobacco use substantially burdened the exercise of the inmates’ religious beliefs, (3) a complete ban was not the least restrictive means of furthering the prison’s interest in order and security, and (4) the district court had narrowly tailored the injunction to remedy the violation of inmates’ rights.

In re Grand Jury Proceedings, 744 F.3d 211 (1st Cir. 2014) related to an investigation into undisclosed violations of federal law. A federal grand jury served a subpoena duces tecum on the Narragansett Indian Tribal Historic Preservation Office (NITHPO). The NITHPO refused to comply on the grounds that it was protected by tribal sovereign immunity. The grand jury was discharged but a newly empanelled grand jury moved to compel NITHPO’s compliance with the earlier subpoena. NITHPO moved to quash the subpoena on grounds of tribal sovereign immunity and unreasonableness. The district court granted the government’s motion to compel and, except for some narrowing of the scope of the subpoena, denied NITHPO’s motion to quash.

On appeal the First Circuit reversed in part, holding that (1) the government could not compel compliance with a subpoena issued by a grand jury that was no longer in existence and (2) even assuming that a subpoena is a “suit” for sovereign immunity purposes, the court would not depart from the “bedrock principle” that the United States is a “superior sovereign from whose suits the tribes enjoy no sovereign immunity.”

In El Paso Natural Gas Co. v. U.S., 2014 WL 1328164 (D.C. Cir. 2014), the United States until 1997 had operated three sites to store waste from uranium mining operations, including a site operated by the Bureau of Indian Affairs (BIA) at Tuba City on Navajo and Hopi land (Dump). El Paso Natural Gas (EPNG), the successor-in-interest to the company that had conducted mining operations, sued the United States and various federal agencies and officials in 2009 under the Uranium Mill Tailings Radiation Control Act of 1978 (“Mill Tailings Act”), and the Solid Waste Disposal Act, which is commonly referred to as the Resource Conservation and Recovery Act of 1976 (“RCRA”). The Navajo Nation (Nation) intervened and asserted parallel claims under the Mill Tailings Act and RCRA, as well as additional claims against the government. The District Court dismissed EPNG’s Mill Tailings Act claim without discovery and certified its ruling for interlocutory appeal. The D.C. Circuit affirmed in 2011. The District Court then dismissed the Nation’s claims, in part for want of jurisdiction due to an administrative settlement between the BIA and the United States Environmental Protection Agency (EPA). The D.C. Circuit affirmed in part and reversed in part, holding that (1) the settlement agreement under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) effectively barred the Nation’s RCRA claims, (2) the case would be remanded to the district court with instruction to dismiss the RCRA without prejudice, (3) the Nation’s claims relating to the Highway 160 site were not moot as a result of a narrow release of liability in connection with a congressionally approved cleanup, and the district court would, therefore, be directed to address their merits, (4) the lower court correctly dismissed the government’s counterclaims against EPNG with prejudice, (5) the terms of the waiver executed by the Nation foreclosed its Third Claim under the Mill Tailings Act and the Nation’s fourth claim under that act filed to state a cause of action under the APA, (6) the Nation’s claims under the American Indian Agricultural Resource Management Act and the Indian Lands Open Dump Cleanup Act of 1994 must be dismissed because those acts provide no private cause of action, (6) the Nation’s breach of trust claim based on 25 U.S.C. § 640d–9(a), which provides that designated lands “shall be held in trust by the United States exclusively for the Navajo Tribe and as part of the Navajo Reservation,” was foreclosed by United States v. Navajo Nation, 556 U.S. 287 (2009), in which the Supreme Court had held that Congress did not intend to create a breach of trust cause of action: “Simply put, Navajo II forecloses the Tribe’s arguments that § 640d–9(a) plus the Government’s control establishes an actionable fiduciary relationship.”

In Colombe v. Rosebud Sioux Tribe, 2014 WL 1356854 (8th Cir. 2014), BBC Entertainment, Inc. (BBC), a company owned by tribal member Colombe, had entered into a contract with the Rosebud Sioux Tribe (Tribe) to manage the Tribe’s casino in return for 35% of the net profits. The contract, which was approved by the National Indian Gaming Commission Chair (NIGC), required BBC to fund an initial Operation Expense Reserve (OER) account. BBC, however, never made the initial contribution and instead orally agreed that BBC would contribute 7.5% of the casino’s net profits to the account each month. When the contract term expired, BBC withdrew $415,857 from the OER account based on its belief that it was entitled to 35% of the remaining OER account balance. The Tribe brought a breach-of-contract suit in tribal court, arguing that the oral modification was never approved by the NIGC as required by the Indian Gaming Regulatory Act. The Tribe’s appellate court agreed and awarded the Tribe damages of more than $500,000. BBC did not appeal the ruling to the Tribe’s Supreme Court. The Tribe, finding BBC to be judgment proof, initiated a second suit in tribal court to pierce the corporate veil whereupon Colombe sued in federal court to enjoin the second action. The district court dismissed part of the claim and later granted summary judgment to the Tribe on the issue of the tribal court’s authority to determine the validity of the contract. On appeal to the Eighth Circuit, the Court not only rejected Colombe’s appeal but held that the district court should have dismissed all aspects of Colombe’s claim for failure to exhaust tribal remedies: “BBC never raised the jurisdictional challenge in the tribal court in the initial suit brought by the Tribe. Second, after the tribal court ruled in favor of BBC, the Tribe appealed that decision to the Rosebud Supreme Court. BBC did not file an appeal or a cross-appeal challenging whether the tribal court had jurisdiction to consider the contract modification claim.”

In Wyandot Nation of Kansas v. United States, 2014 WL 1379106 (Fed. Cl. 2014), The Wyandot Nation (Tribe) sued the United States under the Tucker Act and Indian Tucker Act seeking money damages for the defendant’s numerous alleged breaches of its trust duty to the Tribe arising out of conveyances of tribal lands, failure to obtain adequate compensation, failure to collect and invest income and other breaches of the government’s alleged obligation “to protect, preserve, and manage the trust properly so as to ensure the highest and best use of those assets and generate the highest possible revenue” for the Tribe. Invoking the Supreme Court’s 2011 ruling in United States v. Tohono O‘Odham Nation, the Federal Claims court dismissed on the ground that the Tribe’s previously filed action in the federal district court seeking equitable relief for similar alleged breaches of trust deprived the court of jurisdiction under 28 U.S.C. §§ 1505, 1491.

In Tuba City Regional Health Care Corporation v. United States, 2014 WL 1648215 (D.D.C. 2014), the Tuba City Regional Health Care Corporation (Corporation), a health care provider servicing Navajo citizens, sued the federal government under the Contract Disputes Act to compel the government to pay costs to which the corporation was entitled pursuant to its contract with the Indian Health Service under the Indian Self-Determination and Education Assistance Act of 1975. The government, pointing out that it had not yet made a final decision, moved to dismiss for lack of jurisdiction on the ground that the corporation had failed to exhaust administrative remedies, but the court denied the motion, holding that a constructive denial occurred when the government failed to decide the claim within the time limits it had set: “The CDA states: ‘A contracting officer shall, within sixty days of receipt of a submitted certified claim over $100,000–(A) issue a decision; or (B) notify the contractor of the time within which a decision will be issued.’ 41 U.S.C. § 7103(f)(2) (emphasis added). This provision allows a contracting officer, if they wish, to pick their own deadline. Once picked, however, that deadline is firm ... Dayish stated that he ‘anticipated’ that he would issue a final decision on the fiscal year 2006 claims by March 16, 2013, and that he would issue a final decision on the fiscal year 2007– 2012 claims by May 3, 2013. ... Even assuming that these statements were firm enough to comply with § 7103(f)(2), once the deadlines passed, the claims were constructively denied under the plain language of the CDA.”

In McVay v. Allied World Assur. Co., Inc., 2014 WL 1576865 (D. Nev. 2014), McVay was injured when she fell at a gas station convenience store owned by the Fallon Tribal Development Corporation (FTDC), a subsidiary of the Fallon Paiute Shoshone Indian Tribe (Tribe). Concluding that the Tribe’s immunity would bar a suit against the Tribe directly, McVay sued the Tribe’s insurer directly. The court dismissed, holding that (1) under Nevada law, the insurer could raise any defense available to its insured and (2) provisions of the Indian Self-Determination and Education Assistance Act requiring insurance were not applicable to FTDC’s activities.

In Alabama v. PCI Gaming Authority, 2014 WL 1400232 (M.D. Ala. 2014), the State of Alabama (State) sued PCI Gaming Authority (PCI), the wholly owned gaming enterprise of the Poarch Band of Creek Indians (Tribe), in state court, alleging violations of state nuisance laws and the Indian Gaming Regulatory Act (IGRA), 18 U.S.C. § 1166, which makes violation of state anti-gambling laws a federal offense. The State’s central complaint was that the Tribe offered class III gaming without a compact. The Tribe removed the action to federal court, and the court dismissed, holding that (1) Alabama’s state law nuisance claims were preempted by IGRA, (2) PCI, “wholly owned by the Poarch Band and chartered under its tribal laws,” shared the Tribe’s sovereign immunity from suit, (3) the State could sue PCI and tribal officials for prospective injunctive relief under the Ex Parte Young doctrine with respect to its claim that they acted “beyond the authority that the Poarch Band is capable of bestowing upon them under IGRA” and it was not necessary for the State to allege individual actions or omissions by the named tribal officials, (4) tribal officials did waive immunity from state law- based claims by removing the case to federal court, and (5) notwithstanding the Ninth Circuit’s contrary decision in Big Lagoon, the State would not be permitted to argue that the Secretary of Interior’s acquisitions, in 1984, 1992 and 1995, of lands in trust, where the current gaming operations took place, were illegal under the Supreme Court’s Carcieri decision: “Here, the State does not challenge the United States’ land-into-trust decisions under the APA’s framework; the Secretary is not a defendant; and the attack on the validity of the land-into-trust decisions comes decades after the expiration of the APA’s six-year statute of limitations ... The [Big Lagoon] dissent persuasively reasons that Carcieri cannot be read as permitting an untimely collateral attack on the Secretary’s designation of trust lands.”

In U.S. v. Puyallup Tribe of Indians, 2014 WL 1386553 (W.D. Wash. 2014), the United States Internal Revenue Service (IRS) attempted to collect back taxes owed by Turnipseed, a member of the Puyallup Tribe (Tribe), by issuing a levy to the Tribe for Turnipseed’s wages, salary, or other income in an attempt to collect Turnipseed’s liabilities. When, despite the levy, the Tribe issued per capita payments to Turnipseed, the government sued. It held that the per capita payments issued by the Tribe were not “property” subject to IRS levy because payments were made at the tribal council’s discretion: “Turnipseed’s payment was not fixed and determinable. First, neither the IGRA nor the Tribe’s Per Capita Ordinance mandate, or fix, per capita payments. ... Once the Tribal Council decides, at its own discretion, whether to issue a payment, Turnipseed’s payment is then fixed and determinable. This factual circumstance is more akin to the bank deposit example, as opposed to the sale of personal property example provided in the regulations. A levy may reach a delinquent taxpayer’s current balance, but may not reach subsequent deposits to that bank account. ...Just like there is no guarantee that a subsequent deposit will be made to a levied bank account, there is no guarantee that Turnipseed will receive another per capita payment. While the Tribe strives to provide for its members, it still makes a discretionary monthly decision whether it shall do so.”

In Kelsey v. Pope, 2014 WL 1338170 (W.D. Mich. 2014), Kelsey, a member of the Little River Indian Band of Ottawa Indians (Tribe) tribal council, was convicted in tribal court of assaulting a tribal member during a tribal council meeting held in a building owned by the tribe but located outside the Tribe’s reservation. The court sentenced Kelsey to six months incarceration. After the Tribe’s appellate court rejected his challenge to the court’s jurisdiction, Kelsey filed a petition for habeas corpus in federal court under the Indian Civil Rights Act. The court, adopting the magistrate’s recommendation, granted the petition, holding that the Tribe lacked criminal jurisdiction over its members for conduct outside the Tribe’s Indian country.

In Caddo Nation of Oklahoma and Brenda Edwards, as Chair v. Court of Indian Offenses for the Anadarko Agency, 2014 WL 1328378 (W.D. Okla. 2014), the Caddo Nation Tribal Council, following a disputed recall election, had initiated proceedings against Edwards, the Tribe’s chair, in the Court of Indian Offenses, a court operating under the Code of Federal Regulations (CFR Court). When the CFR court entered an order prohibiting Edwards from acting as the Nation’s chair or expending its funds, she sued in federal court to enjoin enforcement of the order, citing a provision of federal regulations barring CFR Courts from exercising jurisdiction over election disputes. The federal district court dismissed: “Plaintiffs ... have the opportunity to obtain relief in that forum. Plaintiffs also have the ability to seek to stay enforcement of injunctive relief ordered in the CFR Proceedings. See 25 C.F.R. § 11.801(d). Thus, Plaintiffs are not left without any available remedy.”

In Heldt v. Payday Financial, LLC, 2014 WL 1330924 (D.S.D. 2014), plaintiff borrowers, alleging diversity jurisdiction under 28 U.S.C. § 1332, brought claims on their own behalf and on behalf of similarly situated borrowers against various tribally owned payday lenders, alleging that the defendants conspired to evade state anti-usury laws. On the defendants motion to stay proceedings and compel arbitration, the court held that (1) the plaintiffs could avoid the forum selection clause of lending contracts, which provided for arbitration and dispute resolution in the Cheyenne Sioux tribal court, only if they could show that it was fraudulent, (2) in the absence of such a showing, the court could only decline to enforce the forum selection clause if the Cheyenne tribal court lacked jurisdiction, and (3) tribal court jurisdiction under the First Montana Exception, which applies to non-Indian for consensual relations with tribes and their members within Indian country, seemed unlikely, but (4) the court would stay the case while the plaintiffs exhausted tribal court remedies. “[T]he Court’s skepticism about tribal court jurisdiction is not sufficient to establish that invocation of tribal court jurisdiction is ‘patently violative of express jurisdictional prohibitions.’”

In Ramos v. Bureau of Indian Affairs, 2014 WL 1334172 (D. Mass. 2014), members of the Mashpee Wampanoag Tribe (Tribe) sued the BIA and BIA officials seeking an injunction requiring the defendants to investigate the Tribe’s 2009 election. The court granted the defendants’ motion to dismiss for lack of federal jurisdiction, observing that the Administrative Procedure Act (APA) waives government’s sovereign immunity but does not create a legal cause of action: “Plaintiffs have not directed the Court to any authority, statutory or otherwise, that would require the BIA to take the investigatory and remedial action they seek. Indeed, the Defendants have asserted in their papers and at oral argument that no such source of law exists, as the BIA is not ‘empowered to interfere’ with a tribe’s sovereign authority to conduct its own elections.”

In Lee v. Cleve Her Many Horses, 2014 WL 1331007 (D.S.D. 2014), the plaintiff sued BIA officials and officials of the Oglala Sioux Tribe in federal court, alleging violations of tribal law and asking the court to “enforce the equal applications and protections of the law from renegade Councils that use their powers to instill nothing but despotism through an Oligarchy form of government” and contending that the federal government had a duty to intervene pursuant to the trust doctrine. The court dismissed the claims against tribal officials for lack of federal jurisdiction: “Because resolution of plaintiffs’ claims against the individually named defendants involves interpretation and application of the OST Constitution and tribal law, those claims are ‘not within the jurisdiction of the district court.’” The court dismissed the claims against federal officials for failure to exhaust administrative remedies.

In Healy Lake Village v. Mt. McKinley Bank, 2014 WL 1408554 (Alaska 2014), members of Healy Lake Village Tribe (Tribe) who claim to constitute the newly elected tribal council brought suit in Alaska superior court against Mt. McKinley Bank after the Bank refused to change the signatory authority on the Tribe’s accounts to reflect the alleged leadership change. A second group of tribal members, who also claim to represent the Tribe based on a competing election, intervened to contest the superior court’s jurisdiction. The superior court dismissed for lack of jurisdiction and the Alaska Supreme Court affirmed: “Because the state has no interest in determining the outcome of this internal tribal dispute, the tribal election and membership dispute in this case remains within the tribe’s retained inherent sovereign powers. We therefore conclude that the state court lacks subject matter jurisdiction in this case because the state lacks an interest, and the exercise of jurisdiction would require the state court to apply tribal law to determine the outcome of a tribal election dispute and issues of tribal membership.”

In Billie v. Stier, 2014 WL 1613661 (Fla. App. 2014), Billie, a member of the Miccosukee Tribe residing on the Tribe’s reservation, initiated proceedings in tribal court to obtain custody of her two minor children. Service was made on Stier, the children’s father, a non-member, by mailing notice to his mother’s home. At the tribal court hearing, proceedings were conducted largely in the Miccosukee language, which Stier did not understand. No interpreter was provided. Stier’s attorney appeared but was not permitted to attend. At the end of the hearing, the court gave Stier a short synopsis of the mother’s testimony and extended her custody. When Stier initiated his own custody proceedings in Florida state court, Billie sought a writ prohibiting the court from taking jurisdiction.

After holding an evidentiary hearing, the state court concluded that it had jurisdiction because the tribal court proceedings did not satisfy the Uniform Child Custody, Jurisdiction, and Enforcement Act (UCCJEA). Citing the unusual circumstances attending the tribal court hearing, the Court of Appeals affirmed: “[A] custody determination pertaining to an Indian child made by a tribal court must be recognized by Florida if the determination was made by the tribe under factual circumstances in substantial conformity with jurisdictional standards of the UCCJEA ... , if the Tribal Court in this case had substantially complied with the requirements of the UCCJEA, it would have jurisdiction and not the court of the State of Florida. ... We conclude the Circuit Court did not err in finding that the Tribal Court did not substantially conform with the requirements of the UCCJEA and that such failure to comply conferred jurisdiction on the Circuit Court.”

After learning of the Tribal Court hearing, but prior to the time for the hearing, the father filed his own petition for custody on November 1, 2012 in the Eleventh Judicial Circuit, in and for Miami–Dade County, Florida. In March 2013, the mother filed for permanent custody in the Tribal Court and, simultaneously, filed a motion in the Circuit Court to dismiss the father’s petition, arguing that the court did not have jurisdiction pursuant to the UCCJEA. The Circuit Court thereafter conducted an evidentiary hearing to determine which of the two courts had jurisdiction pursuant to the UCCJEA. In a detailed Order, with findings of fact and conclusions of law, the Circuit Court determined that it properly had jurisdiction. The crux of the Circuit Court’s Order is that, although the mother’s filing in the Tribal Court preceded the Father’s filing, the Tribal Court did not substantially comply with the jurisdictional requirements of the UCCJEA and, therefore, pursuant to the UCCJEA, jurisdiction should be in the Circuit Court.

In State ex rel. New Mexico Office of Atty. Gen. v. Grand River 2014 WL 1612684 (N.M. App. 2014), the State had obtained a default judgment against Grand River Enterprises Six Nations, Ltd., (GRE), a manufacturer of cigarettes and other tobacco products based in Ontario, Canada, compelling GRE to contribute money into New Mexico’s tobacco escrow fund established pursuant to its settlement with the large cigarette manufacturers. The Court of Appeals reversed, holding that that the default judgment was invalid because the state lacked personal jurisdiction because GRE had not engaged in any act “purposefully directed” at the state: “[GRE’s] affidavit stated that Grand River had never engaged in any business activity in New Mexico and that it never had any contractual relationship with either Snow Mountain Wholesale or Grace’s Smoke Shop. The president’s affidavit also stated that Grand River, including its cigarette manufacturing, operates exclusively on the Six Nation Indian Reserve in Canada and that it has not sold cigarettes at any place other than the Six Nation Indian Reserve.”

Copyright © 2022 Godfrey & Kahn S.C.National Law Review, Volume IV, Number 132

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Mike Apfeld, a shareholder and a member of the firm’s Litigation Practice Group in Milwaukee, devotes the majority of his practice to civil appeals and complex motion practice. He has appeared repeatedly before the Wisconsin Supreme Court, all four districts of the Wisconsin Court of Appeals, the United States Court of Appeals for the Seventh Circuit, and the state and federal trial courts of Wisconsin. He also has appeared in the United States Courts of Appeals for the Tenth and Federal Circuits, the Illinois Appellate Court, the Circuit Court of Cook County, as well as various United...

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