Indian Nations Law Update - January 2015: Selected Court Decisions
In EXC Inc. v. Jensen, 2014 WL 7272965-- Fed.Appx. ---- (9th Cir. 2014), Jensen, Johnson and others had brought wrongful death actions against EXC Inc. a trucking company, arising out of a traffic accident on a U.S. highway within the exterior boundaries of the Navajo reservation. The district court held that the tribal court lacked jurisdiction and the Ninth Circuit affirmed: “[T]he Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and this case is governed by Strate v.. A–1 Contractors, 520 U.S. 438 (1997). …This [First Montana] exception does not apply to this case, because the unsigned permit agreement—even if binding on Appellees—did not provide t notice that EXC would be subject to tribal court jurisdiction on U.S. Highway 160 to be a basis for imputing consent.”
In Smith v. Nebraska (8th Cir. 2014), the Omaha Tribe attempted to enforce liquor licensing and taxation regulations against business owners in and near the Village of Pender. The Village and business owners sued, contending that the Tribe lacked jurisdiction. The district court denied the plaintiffs’ motion for summary judgment, concluding that Pender and the relevant areas involved in this action were located within the Omaha reservation and that an 1882 act of Congress did not diminish the reservation. According to the court the act did not clearly evince Congress’ intent to change reservation boundaries but rather reflected congress’ intent that “the United States intended to act as the Omaha Tribe’s sales agent for purposes of surveying auctioning its reservation land . . . with the proceeds held in trust in the United States Treasury for the benefit of members of the Omaha Tribe.” The Eight Circuit affirmed: “Based on our de novo review, we discern that the district court has thoughtfully, and accurately considered the evidence in light of the guideposts provided by the Supreme Court as well as this court.”
In Schaghticoke Tribal Nation v. Kent School Corp. Inc., 2014 WL 7011937 (2d. Cir. 2014), the Schaghticoke Tribal Nation (STN) had sued to assert a land claim based on the Indian Nonintercourse Act, 25 U.S.C. § 177, which prohibits the alienation of Indian land except by federal “treaty or convention entered into pursuant to the Constitution.” The court stayed the cases in 1999 to allow STN to complete the Department of the Interior’s (DOI) Part 83 federal acknowledgment. In 2005, DOI concluded that the STN did not meet all of the criteria for federal acknowledgement, a determination ultimately upheld by the Second Circuit. The district court in the land claims case then granted the defendants’ motion for judgment on the pleadings. The Second circuit affirmed, holding that (1) the plaintiff must be an Indian tribe to bring a claim under Section 177, (2) under the common law rule of Montoya v. United States, an Indian tribe is “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory,” (3) under the federal acknowledgement regulations, a group must meet seven criteria to achieve acknowledgment, including that a “predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present,” and “the petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present,” (4) the DOI’s “creation of a structured administrative process to acknowledge ‘nonrecognized’ Indian tribes using uniform criteria, and its experience and expertise in applying these standards, has now made deference to the primary jurisdiction of the agency appropriate” and (5) the district court’s determination that STN was not “united in a community under one leadership or government” was appropriate in view of the DOI’s finding that STN had presented insufficient direct evidence of a distinct tribal community from 1920 to 1967 and after 1996, and of political authority over tribal members from 1801 to 1875 and after 1996.
In Alvarez v. Tracy, 2014 WL 6871570 (3d Cir. 2014), Alvarez, an enrolled member of the Gila River Indian Community (GRIC), was charged in tribal court with assault, domestic violence, and misconduct involving a weapon after he allegedly assaulted his girlfriend with a flashlight. Prior to arraignment, Alvarez received a copy of the Community’s criminal complaint with an attached “Defendant’s Rights” form, which advised that “[y]ou have the right to appeal, if you are found ‘Guilty’, within a period of five (5) business days after sentencing.” The GRIC court convicted Alvarez, who was unrepresented, after a bench trial in late 2003 and sentenced him to one year of imprisonment for each of the five Charges. In 2008, Alvarez filed a pro se habeas corpus petition (the “Petition”) under 25 U.S.C. § 1303, challenging his convictions and sentences and alleging violations of the Indian Civil Rights Act. (ICRA). The GRIC moved to dismiss, arguing that Alvarez failed to exhaust his tribal remedies. The district court denied the motion and the Ninth Circuit affirmed,holding that Alvarez failed to exhaust his tribal remedies by bringing his challenges in tribal court: “Even when we might exercise jurisdiction in the habeas context, the ‘Supreme Court specifically has instructed us to require exhaustion of tribal appellate court remedies ... because the federal policy of promoting tribal self-government encompasses the development of the entire tribal court system, including appellate courts.’ … Alvarez failed to exhaust his ICRA claims by bringing them first to the tribal courts. Alvarez has not demonstrated that an exception to the exhaustion doctrine applies.”
In Shirk v. U.S. ex rel. Dept. of Interior, 2014 WL 6871562 (9th Cir. 2014), two tribal police (officers) employed by the Gila River Indian Community (GRIC) were en route to one of the officer’s home after attending a training in Tucson. When they observed a motorist, Sanford, driving erratically, they pursued him. Seeking to elude the officers, Sanford drove through a red light and struck Shirk, who was thrown from his motorcycle and sustained serious physical injuries as a result. The Tribe’s law enforcement program was funded by the Bureau of Indian Affairs under the Indian Self-Determination and Education Assistance Act (ISDEAA). The collision occurred outside the GRIC reservation. Sanford, who was under the influence of alcohol, subsequently guilty to one count of aggravated assault with prior felony convictions and one count of leaving the scene of a serious injury accident in violation of Arizona law. Shirk and his wife sued the United States, alleging negligence by the Officers and loss of consortium under the Federal Tort Claims Act (FTCA). Shirk claimed that the Officers were employees of the Bureau of Indian Affairs (BIA) for purposes of the FTCA and, as such, that the United States was liable for the Officers’ purported negligence. The district court issued an order granting the government’s motion to dismiss and entered judgment for the United States. Applying the statutory standard that tribal employees are deemed BIA employees for purposes of the FTCA “while acting within the scope of their employment in carrying out the [ISDEAA] contract or agreement,” the Court held that courts must apply a two-part test: “At the first step of the § 314 inquiry, courts must determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. The scope of the agreement defines the relevant ‘employment’ for purposes of the scope of employment analysis at step two. Second, courts must decide whether the allegedly tortious action falls within the scope of the tortfeasor’s employment under state law. If both of these prongs are met, the employee’s actions are covered by the FTCA.” The court remanded to give the district court the opportunity to apply the prescribed test.
In State v. Charlie, 2014 WL 7187049 Not Reported in P.3d (N.M. 2014), New Mexico police officers, in separate incidents, observed Navajo Nation members Charlie and Norberto driving erratically from non-Navajo Nation land onto Navajo lands. They officers pursued and arrested the suspects on Navajo land, and transported them off reservation for breathalyzer tests. The defendants were subsequently booked on tribal charges and later prosecuted in state court under state law. Both defendants moved to dismiss the state prosecutions for lack of jurisdiction, arguing that State Police officers’ failure to follow Navajo extradition protocols violated tribal sovereignty. The arresting officers countered that they were cross-commissioned as Navajo officers and had authority to take suspects off reservation for intoxication testing under an agreement with the Nation. The trial court rejected the defendants’ motions but the court of appeals reversed. The New Mexico Supreme Court, however, reversed the court of appeals and remanded, holding that (1) the defendants did not properly challenge the cross-commission agreements in the trial court and could not raise related arguments on appeal, and (2) it was not necessary for the arresting officers to follow Navajo extradition procedures: “At the time of Defendants’ transport, both arresting State Police officers were acting pursuant to their roles as enforcers and investigators of Navajo law. …Therefore, there was no need to follow Navajo extradition procedures because Defendants were not transported off the reservation for delivery into the custody of state officials. They were transported as part of an investigation of Navajo crimes and were subsequently booked at a Navajo detention facility.”
In U.S. v. Kirkaldie, 21 F.Supp.3d 1100 (D. Mont. 2014), the government charged Kirkaldie as a habitual domestic violence offender under 18 U.S.C. § 117(a), which attaches a federal penalty to the commission of a domestic assault when the actor has a final conviction “on at least 2 separate prior occasions in Federal, State, or Indian tribal court.” Kirkaldie moved to dismiss on the ground that he was uncounseled in connection with his prior tribal court convictions. Acknowledging that Kirkaldie had no Sixth Amendment right to counsel in the tribal court proceedings, the court nonetheless granted the motion, holding that the uncounseled convictions could not serve as underlying convictions for purposes of a federal offense: “The absence of counsel otherwise guaranteed by the Sixth Amendment in tribal court directly results from ICRA. 25 U.S.C. § 1302(a)(6). No issue of constitutional moment arises from that proceeding. An issue of constitutional moment arises when an uncounseled tribal court proceeding serves as evidence of a federal crime. … The Government’s use of evidence of a prior uncounseled conviction to fulfill an element of a crime, particularly one that resulted in incarceration, conflicts with the fundamental right to counsel.”
In New York v. Mountain Tobacco Co., 2014 WL 7174239 (E.D.N.Y. 2014), Mountain Tobacco Company, doing business as King Mountain Tobacco Company, Inc. (KMTC), manufactured and sold cigarettes throughout the United States, including in New York. KMTC was formed under the laws of the Yakama Nation of Washington by its owner, Yakama member Delbert Wheeler, and maintained its principal place of business on the Yakama reservation, The State of New York sued KMTC and Wheeler, alleging violations of the Contraband Cigarette Trafficking Act, (CCTA), the Prevent All Cigarette Trafficking Act, (PACT Act), and New York State tax and executive laws concerning tax stamping and sale of cigarettes within the state. Wheeler moved to dismiss for lack of jurisdiction but the court denied the motion, holding that (1) Section 2346(b)(1) of the CCTA, which provides that “[n]o civil action may be commenced ... against an Indian tribe or an Indian in Indian country,” did not entitle Wheeler to dismissal because the applicability of the CCTA to Wheeler was an issue separate from the court’s jurisdiction and the motion was untimely, and (2) Wheeler’s status as a “delivery seller” under the PACT Act was an issue for trial and not a bar to the court’s jurisdiction.
In Walker River Paiute Tribe v. U.S. Dept. of Housing and Urban Development, 2014 WL 7072505 (D. Nev. 2014), had determined that the Walker River Paiute Tribe (WRPT) had overstated its “formula current assisted stock” (FCAS) for purposes of applying for FY 2008 Indian Housing Block Grant (IHBG) funds under the Native American Housing Assistance and Self-Determination Act (NAHASDA), resulting in an overpayment. Specifically, the WRPT had continued to include housing units that, under lease-toown agreements, should have been conveyed to tenants. HUD sought to recover the overpayment by deducting it from WRPT’s FY 2009 IHBG. The WRPT sued, contending that HUD had no legal basis for adopting 25 C.F.R. § 1000.318, the regulation purportedly authorizing HUD to deduct conveyed units from FCAS, HUD’s interpretation of the rule was arbitrary and capricious and HUD violated WRPT’s due process rights. The court held that (1) HUD had the legal authority to adopt the regulation, (2) HUD’s interpretation of the rule was arbitrary and capricious because HUD did not take into account that lease-to-own units might not be conveyed at the end of the lease period for reasons beyond the tenant’s control, and (3) the court was bound by the Ninth Circuit’s determination in Fort Belknap Housing Department v. HUD that HUD was not obligated to follow notice and hearing requirements before recovering overpayments of IHBGs.
In Confederated Tribes of Grand Ronde Community of Oregon, 2014 WL 7012707 (D.D.C. 2014), the U.S. Supreme Court had determined in its 2009 Carcieri v. Salazar decision that, pursuant to the definition of “Indian” at Section 19 of the Indian Reorganization Act (IRA) as “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” the Department of Interior (DOI) could take land into trust only for tribes that were “under federal jurisdiction” when the IRA was enacted in 1934. Following Carcieri, the DOI adopted a two-part test. First, If “the United States had, in 1934 or at some point in the tribe’s history prior to 1934, taken an action or a series of actions— through a course of dealings or other relevant acts for or on behalf of the tribe or in some instance tribal members— that are sufficient to establish, or that generally reflect federal obligations, duties, responsibility for or authority over the tribe by the Federal Government,” federal jurisdiction would be established. Second, even in the absence of any actions for or on behalf of the tribe thereafter, DOI would assume the continuation of federal jurisdiction in “the absence of any probative evidence that a tribe’s jurisdictional status was terminated or lost prior to 1934.” Applying this test, the DOI in 2013, took 152 acres into trust for gaming purposes for the Cowlitz Indian Tribe, which had been re-acknowledged by the Department of Interior in 2002. The plaintiffs sued, challenging the DOI’s decision under the Administrative Procedure Act (APA), IRA, Indian Gaming Regulatory Act (IGRA) and National Environmental Policy Act (NEPA). On the court upheld DOI’s acquisition, holding that (1) the DOI’s conclusion that Section 19 did not require a tribe to be “recognized” in 1934 was entitled to deference, and (2) the two-part test applied by the DOI was not arbitrary, capricious or legally erroneous. In Amador County, Cal. v. U.S. Dept. of the Interior, 772 F.3d 901 (D.C. Cir. 2014), the County brought action in 2005 challenging Interior Secretary’s “no-action” approval of a compact between Buena Vista Rancheria of Me–Wuk Indians (Tribe) and the State of California state allowing gaming on tribal land, contending that the Tribe’s land failed to qualify as “Indian lands”—a statutory requirement for gaming under the IGRA. The Tribe sought to intervene in 2011 but the district court denied the Tribe’s motion. The Ninth Circuit affirmed: “In this case, the County filed the complaint over nine years ago. In November 2011, the County and Interior agreed that the case was “ready for oral argument and decision on the merits.” … The Tribe’s motion for intervention and the subsequent appeal have delayed a decision on the merits for three years. If the Tribe’s motion were granted, a resolution of this case would be further delayed as the district court at the very least would need to accept briefing on the Tribe’s Rule 19 motion, hear argument, and rule on the motion. On such facts, we cannot say that the district court abused its discretion in finding that the Tribe’s intervention would cause prejudicial delay.”
In State v. Yang, 2014 WL 7343765 Not Reported in N.W.2d (Minn. App. 2014), Minnesota charged Yang, a non-Indian, with manufacture of a controlled substance in the first degree, possession of a controlled substance in the first degree, and aiding and abetting the sale of a controlled substance in the first degree after security guards employed by the Mystic Lake Casino Hotel, owned by the Shakopee Mdewakanton Sioux Community, discovered drug paraphernalia after searching Yang’s room at the hotel and alerted state law enforcement officials. Yang moved to dismiss on the ground that the Tribe had violated his rights under the Indian Civil Rights Act, which prohibits “ unreasonable search and seizures,” but the court denied the motion, holding that the security guards did not have police-like authority and were acting as enterprise employees seeking to limit the hotel’s liability rather than as government officials.