The Supreme Court agrees to hear the Dollar General case

Transcription

1 Indian Nations Law Focus July 2015, Volume 10, Issue 8 The Supreme Court agrees to hear the Dollar General case The Supreme Court agreed on June 15 to review the Fifth Circuit Court of Appeals decision in Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014). The Court s decision, expected in spring 2016, will likely be a significant addition to the court s jurisprudence relating to tribal jurisdiction over non-indians. Brian L. Pierson bpierson@gklaw.com The Godfrey & Kahn Indian Nations Law Practice Group provides a full range of legal services to Indian nations, tribal housing authorities, tribal corporations and other Indian country entities, with a focus on business and economic development, energy and environmental protection, and housing development. Dolgencorp Inc. and Dollar General Corporation (Dolgen) operated a Dollar General store on trust land on the Choctaw Indian Reservation under a lease and business license from the Mississippi Band of Choctaw Indians (Tribe). Townsend, a non-indian Dolgen employee, allegedly molested John Doe (JD), a minor tribal member, while JD worked at the store under a work experience program run by the Tribe. JD and his parents sued Townsend and Dolgen in tribal court. Dolgen and Townsend then sued the Tribe and the Tribal Court in federal court, challenging the tribal court s jurisdiction. The federal district court granted summary judgment to the Tribe, holding that (1) there was no jurisdiction under the Second Exception identified by the U.S. Supreme Court in Montana v. U.S. because the nonmember conduct did not imperil the subsistence of the tribal community and tribal jurisdiction thus cannot be necessary to avert catastrophic consequences but that (2) the Tribe had jurisdiction under the First Montana Exception based on Dolgen s agreement to participate in the Tribe job placement program. The Fifth Circuit affirmed, rejecting Dolgen s argument that the First Exception applied only where the nonmember conduct interfered with the Tribe s internal relations: [T]he ability to regulate the working conditions (particularly as pertains to health and safety) of tribe members employed on reservation land is plainly central to the tribe s power of self-government. Nothing in Plains Commerce requires a focus on the highly specific rather than the general. In its petition to the Supreme Court, Dolgen presented the issue as follows: Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members? The Solicitor General of the United States had recommended that the Supreme Court not accept the case for review, arguing that the Fifth Circuit s decision was correct and that there was no split among the circuits. Since four justices must agree to hear a case, it seems likely that four justices were dissatisfied with the Fifth Circuit s decision and unpersuaded by the Solicitor. In Montana v. U.S., the Supreme Court held that tribes normally may not exercise jurisdiction over non-indians but recognized exceptions where non-indians enter into Indian Nations Law Focus July 2015 Page 1

2 consensual relations with tribes and their members and where non- Indians engage in conduct that has a direct effect on the political integrity, economic security or health or welfare of the tribe. When first announced in 1981, the Montana exceptions seemed to provide ample sphere for tribes exercise of territorial sovereignty. Over time however, the Court has steadily encrusted the exceptions with qualifications and corollaries, radically constricting their scope. While predictions are hazardous, the potential for a decision that will further diminish tribal sovereignty is apparent. The Court s decision is likely to take its place in the important Montana v. U.S. line of cases defining tribal jurisdiction over non-indians. The Supreme Court agrees to hear Menominee contract support cost case On the final day of its term, the Supreme Court granted certiorari in Menominee Indian Tribe of Wisconsin v. U.S. In that case, the Menominee Tribe of Wisconsin (Tribe) had sued the Indian Health Service of the U.S. Department of Health and Human Services (HHS) in 2005, alleging breach of the Tribe s contract under the Indian Self- Determination and Education Assistance Act. Specifically, the Tribe contended that HHS failed to pay contract support costs accrued from 1996 through 1998 relating to the operation of the Tribe s health clinic. The Tribe argued that it was entitled to a tolling of the sixyear statute of limitations for various reasons, including its inability to foresee the Supreme Court s 2005 holding in Cherokee Nation v. Leavitt that Indian Health Service (IHS) was obligated to pay support costs regardless of federal appropriations. The district court granted the government summary judgment on the ground that the Tribe had failed to sue within the applicable six-year statute of limitations. The D.C. Court of Appeals affirmed, holding that (1) the Tribe s miscalculation that it would be eligible to participate in a class action was not an extraordinary circumstance warranting equitable tolling, (2) the Tribe s alleged certainty that its claim would have been rejected was not an extraordinary circumstance that warranted equitable tolling, and (3) the series of events that tribe faced in bringing its claims did not jointly amount to an extraordinary circumstance that justified tolling. 764 F.3d 51 (D.C. Cir. 2014). In their petitions for review, the parties pointed out that the D.C. Circuit s decision conflicted with the decision of the Federal Circuit in Arctic Slope Native Ass n v. Sebelius, 699 F.3d 1289 (2012). In Holland v. Florida, 560 U.S. 631, 649 (2010), the Court had ruled that equitable tolling must be determined in light of specific circumstances, including whether the litigant exercised reasonable diligence and whether there were extraordinary circumstances to justify tolling. In granting the petition for review, the Supreme Court stated: The petition for a writ of certiorari is granted limited to the following question: Whether the D. C. Circuit misapplied this Court s Holland decision when it ruled that the Tribe was not entitled to equitable tolling of the statute of limitations for filing of Indian Self- Determination Act claims under the Contract Disputes Act? Selected court decisions In Soaring Eagle Casino and Resort v. National Labor Relations Board, 2015 WL (6th Cir. 2015), all three judges on the three-judge panel concluded that the National Labor Relations Act (NLRA) should not apply to Soaring Eagle Casino and Resort, an enterprise owned and operated by the Saginaw Chippewa Tribe. Nonetheless, by a 2-1 vote, the judges held that the NLRA would apply to the enterprise because, they explained, they were bound by a 2-1 decision by a different three-judge panel in NLRB v. Little River Band of Ottawa Indians, decided just three weeks earlier. The majority in the Little River Band case had adopted the Coeur d Alene rule to analyze whether a federal law that does not mention tribes should nonetheless apply to them. Under Coeur d Alene, a federal law of general applicability will apply to tribes unless it touches exclusive rights of self-governance in purely intramural affairs or would violate a treaty. Courts applying the Coeur d Alene rule invariably find that tribal casinos do not involve exclusive rights of self-governance or intramural affairs because enterprise employees and patrons are often predominately non-members. The Soaring Eagle panel rejected Coeur d Alene and invoked instead the Supreme Court s Montana v. United States cases. Under Montana, tribes can exercise regulatory authority over non-indians only in cases in which they enter into consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements or their conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. According to the Soaring Eagle court, if one of the [Montana] exceptions applies, the generally Indian Nations Law Focus July 2015 Page 2

3 applicable federal statute should not apply to tribal conduct, and Congress must amend the statute for it to apply against the Tribe if Congress so desires. The relationship between the Tribe and its employees, the court reasoned, falls within the first Montana Exception. To apply the NLRA to the Tribe, the court concluded, would therefore infringe the Tribe s right of self-government. In support of its legal conclusion that the NLRA should not apply to the Tribe, the court cited the additional circumstances that the casino is on trust land, is part of the tribal government and generates revenues that is crucial for the Tribe s governmental services. The linchpin of the decision, however, is the Court s use of the Montana exceptions to limit the sphere of the federal government s regulatory authority over tribes. The Soaring Eagle panel also held that the provision in an 1855 treaty setting aside a reservation for the exclusive use, ownership and occupancy of the Saginaw Chippewa Tribe was an insufficient basis for barring the NLRA from exercising jurisdiction. The Little River panel had reached the same conclusion with respect to the wellestablished, non-treaty-based right of tribes to exclude outsiders. In Pueblo of Jemez v. U.S., 2015 WL (10th Cir. 2015), the Pueblo of Jemez (Pueblo) brought this action against the United States under the federal common law and the Quiet Title Act (QTA) seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what is now the Valles Caldera National Preserve. The district court dismissed for lack of subject matter jurisdiction, concluding that the Pueblo s claim accrued in 1860 when the United States granted the lands in question to the heirs of Luis Maria Cabeza de Baca (the Baca heirs). Since the Pueblo had failed to bring a timely claim before the Indian Claims Commission, the court concluded, it was barred by the statute of limitations and the government s sovereign immunity. The Tenth Circuit Court of Appeals reversed and remanded, holding that the Pueblo s claim was not barred by the grant to the Baca heirs: On remand, the Jemez Pueblo will have to prove that it had, and still has, aboriginal title to the land at issue in the case. This appeal concerns whether the 1860 Baca grant extinguished the Jemez Pueblo s alleged aboriginal title to the lands which are the subject of this action. We hold it did not. In Robinson v. Jewell, 2015 WL (9th Cir. 2015), the Kawaiisu, a nonfederally recognized Native American group indigenous to the Tehachapi Mountains and the Southern Sierra Nevada (Kawaiisu), and its elected chairperson, Laughing Horse Robinson, sued in federal court, asserting a claim to the Tejon Ranch, one of the largest continuous expanses of private land in California based on a 1777 grant from the Spanish crown, the 1849 Treaty with the Utah, and its negotiation of Treaty D with the federal government in The district court dismissed for failure to state a claim and the Ninth Circuit Court of Appeals affirmed, holding that (1) the Kawaiisus failure to present a claim pursuant to California Land Claims Act of 1851 extinguished its title to property based on its alleged receipt of Spanish land grant, (2) recognition of aboriginal title requires a clear statement from Congress unequivocally granting legal rights, (3) Congress s ratification of 1849 Treaty with Utah did not give Kawaiisu tribe enforceable rights to property but was, rather, aimed at promoting peaceful relations and encouraging Indians to adopt a more geographically constrained agrarian mode of living, (4) Kawaiisu participation in Treaty D, executed in 1851 by the tribe and United States, did not comply with the California Land Claims Act of 1851 and did not perfect tribe s title to property because it was never ratified by Senate, (5) an 1853 congressional act did not create a reservation for the Kawaiisu, even though the President directed his officers to execute a plan for creating reservations in California, where that plan lacked specificity, and there was no evidence that the President ever approved creation of reservation, and (6) any rights to property that the Kawaiisu possessed as result of Acts of Congress of 1853 and 1855 were extinguished by Act of 1864, which superseded Acts of 1853 and 1855 by allowing only four reservations in California. In Howard ex rel. U.S. v. Shoshone- Paiute Tribes, 2015 WL (9th Cir. 2015), plaintiffs brought claims against the Shoshone Paiute Tribes of the Duck Valley Indian Reservation (Tribes) under the False Claims Act (FCA). The district court dismissed and the Ninth Circuit affirmed: [T]he Tribe, like a state, is a sovereign that does not fall within the definition of a person under the FCA. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, (2000) (applying the longstanding interpretive presumption that person does not include the sovereign, to be disregarded only upon some affirmative showing of statutory intent to the contrary ). In Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 2015 WL (10th Cir. 2015), the State of Utah and the Ute Indian Tribe of the Uintah and Ouray Reservation (Tribe) had previously litigated the extent of the Tribe s reservation, resulting in a 1985 Tenth Circuit decision rejecting Utah s argument that Congress had diminished the reservation by removing three constituent parts of Ute tribal lands the Uncompahgre Reservation, the Uintah Valley Reservation, and Indian Nations Law Focus July 2015 Page 3

4 certain national forest areas. The State nonetheless continued to pursue criminal prosecutions of Indians for crimes committed within the Tribe s Indian country and eventually persuaded the Utah Supreme Court that Congress had removed the Uintah Valley reservation from the Tribe s Indian country. In 1994, the U.S. Supreme Court agreed. In 1997, the Tenth Circuit modified its 1985 mandate accordingly, leaving intact the Uncompahgre Reservation and national forest areas. The U.S. Supreme Court denied certiorari but the State of Utah, believing that the logic of the Supreme Court s 1994 decision applied equally to the Uncompahgre Reservation and national forest areas, asserted its criminal jurisdiction over crimes committed by Indians in those areas. The Tribe sued, seeking a permanent injunction prohibiting the State and its counties from pursuing criminal prosecutions of Indians in state court for offenses arising in areas declared Indian country in the Tenth Circuit s 1997 decision. On appeal from the district court s orders, the Tenth Circuit decided in the Tribe s favor, holding that (1) the Anti- Injunction Act does not apply where a federal court acts to prevent state litigation of an issue that previously was presented to and decided by the federal court, (2) the County was bound by the Court s 1997 decision, (3) the Tribe was protected by sovereign immunity from the counterclaims brought by the defendants, (4) the County was not immune from the Tribe s suit, and (5) the Tribe was entitled to a preliminary injunction. In Shields v. Wilkinson, 2015 WL (8th Cir. 2015), Plaintiffs Two Shields and Wilson owned allotments on the Bakken Oil Shale Formation in the Fort Berthold Reservation in the state of North Dakota. Two Shields was a member of the Three Affiliated Tribes of the Fort Berthold Reservation and Wilson was a member of the Standing Rock Sioux Tribe. Certain individuals and related companies won bids for leases of the allotments to extract oil and gas. Under the terms of the leases, plaintiffs were entitled to a bonus of $400 per acre and a royalty of 18 percent. Although Federal regulations provided [t]he Secretary shall not approve leases with a royalty rate less than percent of the amount or value of production produced and sold from the lease unless a lower royalty rate is agreed to by the Indian mineral owner and is found to be in the best interest of the Indian mineral owner, the United States Bureau of Indian Affairs (BIA) certified that the leases were in the allottees best interests. The winning bidders sold the leases at a large profit, whereupon the allottees brought a class action lawsuit alleging that the United States had breached its fiduciary duty by approving the leases and that the defendant bidders induced the United States to breach that duty. The district court concluded that the United States was a required party which could not be joined because it had not waived its sovereign immunity and dismissed. The Eight Circuit Court of Appeals affirmed and also pointed out that the Court of Federal Claims had determined the plaintiffs claims to be subsumed within the Cobell class action settlement. In Patchak v. Jewell, 2015 WL (D.D.C. 2015), Patchak had challenged the decision of the Secretary of the Interior to take 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 confirming its authority under the IRA to take land into trust on behalf of the Tribe. Also in 2014, Congress enacted the Gun Lake Trust Land Reaffirmation Act (Reaffirmation Act), 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 filed 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. In Crow Allottees Ass n v. U.S. Bureau of Indian Affairs, 2015 WL Not Reported in F.Supp.3d (D.Mont. 2015), Crow tribal members holding interests in allotments on the Crow reservation sued the BIA, federal officials (Federal Defendants) and judges of the Montana Water Court, challenging a Water Compact entered into between the Crow Tribe, the State of Montana, and the United States. The plaintiffs alleged that the Federal Defendants violated their fiduciary duty during the Compact s negotiations by failing to provide the allottees with independent counsel, by reducing the allottees water rights under the Winters doctrine without adequately consulting the Crow Allottees, and by failing to ensure that the tribal members would retain an adequate amount of water. On the defendants motion to dismiss, the court dismissed the Federal Defendants based on sovereign immunity because there had not yet been Indian Nations Law Focus July 2015 Page 4

5 a final decision reviewable under the Administrative Procedure Act. In Muller v. Morongo Casino, Resort, and Spa, 2015 WL , Not Reported in F.Supp.3d (C.D. Cal. 2015), Muller, an employee of the Morongo Casino owned by the Morongo Band of Mission Indians (Tribe), sued Morongo Casino, Resort, and Spa (MCRS), as well as two individual managers, under the Family Medical Leave Act, after the Tribe fired her for drug use. She alleged that her drug use was connected to the illnesses for which she received the leave in the first place. The court dismissed on the ground of sovereign immunity, holding that (1) MCRS was an arm of the Tribe that shared the Tribe s immunity, (2) the individual defendants shared the Tribe s immunity, (3) the Tribe did not waive its immunity by agreeing in its gaming compact to [a]dopt and comply with standards no less stringent than the standards of the Fair Labor Standards Act, and (4) the Tribe did not waive its immunity from employment-related claims by agreeing in its compact to waive its right to assert sovereign immunity... in connection with any claim for bodily injury, property damage, or personal injury arising out of, connected with, or relating to the operation of the Gaming Facility. In Navajo Health Foundation - Sage Memorial Hosp., Inc. v. Burwell, 2015 WL (D.N.M. 2015), the Navajo Health Foundation Sage Memorial Hospital (Sage Hospital) had challenged the decision of the Navajo Area Office of the Indian Health Service s (NAIHS) not to renew its contract with Sage Hospital to provide healthcare to Navajo Indians in the Navajo Nation under the Indian Self-Determination and Education Assistance Act (ISDEA). On April 12, the district court issued a preliminary injunction ordering federal health officials to fund Sage Hospital according to the terms of the proposed 2015 Annual Funding Agreement and ISDEA contract pending final resolution. In the instant decision, the Court granted NAIHS s Motion for Summary Judgment on its Fourth Claim for Relief, holding that the IHS s decision to take fourteen months to approve or to deny the Claim was unreasonable under the Contract Disputes Act. In Southern Ute Indian Tribe v. U.S. Department of the Interior, 2015 WL , Not Reported in F.Supp.3d (D.Colo. 2015), the Southern Ute Tribe (Tribe) sued the Department of Interior (DOI) challenging the Bureau of Land Management s (BLM) March 26, 2015 Final Rule (Rule) governing the use of hydraulic fracturing techniques in oil and gas development on federal and Indian lands, contending that the Rule violates the Administrative Procedure Act because it unlawfully interferes with the powers of the Tribe under the Indian Reorganization Act and the Indian Mineral Development Act to establish the terms and conditions and the rules governing activities undertaken on the Tribe s lands. On June 22, the Tribe moved for a preliminary injunction barring the DOI from enforcing the Rule, which had been scheduled to take effect on June 24. The court denied the motion, holding that the Tribe had failed to make the requisite showing of irreparable harm: [T]he Tribe is largely articulating a sort of conceptual or philosophical harm rather than any tangible injury: that allowing the BLM to assert the ability to regulate certain aspects of hydraulic fracturing activities on Indian lands illustrates a disrespect for or diminishment of the Tribe s rights as a sovereign over its lands, but does not necessarily effect any immediate direct and tangible harm to the Tribe s finances or contractual rights with its existing oil and gas operations. Because the federal government enjoys some ability to intrude upon rights of Indian sovereignty, cases recognizing the inherent irreparability of injuries caused by state intrusions on Indian sovereignty are not persuasive here. In Citizens for a Better Way v. U.S. Department of the Interior, 2015 WL (E.D. Cal. 2015), the U.S. Department of Interior (DOI) had decided to take land into trust for gaming purposes for the Estom Yumeka Maidu Tribe of the Enterprise Rancheria (Enterprise). Various parties, including the United Auburn Indian Community of the Auburn Rancheria (UAIC) and the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community (Colusa), sued on the grounds that the DOI had not sufficiently considered the adverse impacts of the proposed casino for purposes of its environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). When the plaintiffs proposed to present certain evidence outside the administrative record, the defendants, including the intervernor Enterprise tribe, moved to strike. Noting that courts normally refuse to consider evidence not before the agency at the time it made its decision, subject to four exceptions, the court struck (1) a report demonstrating the adverse economic impact of the proposed casino on the Colusa Tribe, (2) an affidavit purporting to show a conflict of interest involving the firm that prepared the EIS and undue involvement in the preparation of the EIS by Enterprise, and (3) a letter offered by UAIC challenging assertions by Enterprise that Enterprise had a significant historical connection to the site of the proposed casino In Hackford v. Utah, Not Reported in F.Supp.3d 2015 WL (D. Utah 2015), Hackford, an alleged member of the non-federally recognized Indian Nations Law Focus July 2015 Page 5

6 Uinta Valley Shoshone Tribe of Utah Indians, challenged the actions taken in connection with the Ute Partition and Termination Act and sought an order that members of Uinta Valley Shoshone Tribe be restored to tribal status. The district court dismissed on the grounds that Hackford had failed to exhaust administrative remedies through the acknowledgement process, the Secretary of Interior was immune from suit and that the stature of limitations had expired, noting that the Tenth Circuit has held that exhaustion is required when, as here, a plaintiff attempts to bypass the regulatory framework for establishing that an Indian group exists as an Indian tribe. In United Planners Financial Services of America, L.P. v. Sac and Fox, 2015 WL (W.D. Okla. 2015), the Sac and Fox Housing Authority (HA) sued United Planners Financial Services of America (UPFS) in the Sac and Fox tribal court, asserting that UPFS had breached broker agreements, breached its fiduciary duties and been negligent. UPFS then sued in federal court seeking an order to enjoin the Sac and Fox Nation (Nation), the HA, the tribal court and the tribal court judge from exercising jurisdiction. On the tribal defendants motion, the court dismissed, holding that (1) whether the tribal court had exceeded its jurisdiction was a federal question, giving the court subject matter jurisdiction, (2) the alleged unlawful exercise of tribal court jurisdiction in violation of federal common law is an ongoing violation of federal law sufficient to sustain the application of the Ex parte Young doctrine, but (3) UPFS was required to exhaust tribal court remedies under the rule of National Farmers Union. In Elk Petroleum, Inc. v. Rocky Mountain Regional Director, Not Reported in F.Supp.3d., 2015 WL (D.Mont. 2015), Elk Petroleum Inc. (Elk) had entered into a Mineral Development Agreement with the Crow Tribe that provided for certain bonus payments and annual rental payments. The BIA Regional Director approved the agreement after the party made certain modifications. When Elk failed to make payments, the Director canceled the agreement and assessed Elk with bonus and rental payments totaling $626,930. The Indian Board of Indian Appeals affirmed and Elk sought judicial review under the Administrative Procedure Act, arguing that the agreement was subject to certain conditions moved to be permitted to engage in discovery. The district court denied the motion: The Court finds that the Board s written ruling is sufficient for this Court to determine whether it considered all the relevant factors. This does not foreclose Elk Petroleum s arguments that the Board reached an incorrect legal conclusion. It just means that the record does not need to be supplemented for the Court to determine if the Board considered all factors and explained its decision. In Boricchio v. Casino, 2015 WL (E.D. Cal. 2015), plaintiffs in five consolidated cases brought claims against their former employer, the Defendant Chicken Ranch Casino (Casino) and its owner, the Chicken Ranch Rancheria of Me Wuk Indians of California (Tribe) alleging violations of the federal Age Discrimination in Employment Act (ADEA). The district court dismissed for lack of subject matter jurisdiction and failure to state a claim based on the Tribe s sovereign immunity, rejecting the plaintiff s argument that the Tribe waived its immunity by stating its form employment application that Applicants are considered without regard to... age... or any factors prohibited by federal law. In Nation v. Tanner, 2015 WL (N.D.N.Y. 2015), representatives of the Cayuga Nation (Nation) and persons claiming to be Nation officials sued the Village of Union Springs (Village) and Village officials to enjoin efforts by the defendants to enforce antigambling ordinances against Lakeside Entertainment, a Nation-controlled gaming facility. The Nation argued that such efforts were preempted by the Indian Gaming Regulatory Act (IGRA). The district court dismissed, concluding that the persons purporting to authorize the suit on behalf of the Nation did not have the authority to do so. The Nation appealed and moved for an injunction pending resolution of the appeal and the individual plaintiffs moved for reconsideration. The court granted the Nation s motion but denied the motion for reconsideration: To be sure, the Village has done a fair amount of saber-rattling in its submissions during this case, but representations made in legal memoranda cannot confer standing. With respect to the authority of the persons purporting to be the Nation government, the court noted: that it remains entirely unclear whether that body with its requirement of unanimous consent as a prerequisite to Council action authorized filing this lawsuit in the first place. In Native American Arts, Inc. v. Peter Stone Co., U.S.A., Inc., 2015 WL (N.D. Ill.2015), Native American Arts (NAA) sued Peter Stone Company (Stone) under the Indian Arts and Crafts Act, which forbids selling merchandise in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.... The Act authorizes suit by an aggrieved Indian, Indian tribe, or Indian arts and crafts organization and permits a successful plaintiff to recover the greater of treble Indian Nations Law Focus July 2015 Page 6

7 damages, including any and all gross profits accrued by the defendant as a result of its prohibited activities, or in the case of each aggrieved individual Indian, Indian tribe, or Indian arts and crafts organization, not less than $1,000 for each day on which the offer or display for sale or sale continues. NAA was an Indian Arts and Crafts Organization owned by Matthew and Mary Mullen, who are enrolled members of the Ho Chunk Nation who sell Indian craft items. The district court granted Stone s motion for summary judgment on the ground that NAA lacked standing to sue Stone: review of [Mullen s] deposition testimony shows that he has nothing more than a belief that companies like Stone hurt Indian arts and crafts organizations like NAA. He has no evidence of anything concrete or particularized and no evidence to trace whatever injury he believes he has suffered by Stone s activities. And that s fatal for NAA s lawsuit because mere speculation or conjecture is not enough to establish an injury in fact. Evidence is required. In the case of In re Greektown Holdings, LLC, 2015 WL (E.D Mich. 2015), Greektown Holdings, LLC and affiliates (Debtors) had commenced proceedings under Chapter 11 of the United States Bankruptcy Code in In 2010, the Official Committee of Unsecured Creditors filed an adversary proceeding alleging that $177 million was fraudulently transferred by the debtor, Greektown Holdings, LLC (Holdings), to the defendants, including the Sault Ste. Marie Tribe of Chippewa Indians and its gaming authority, Kewadin Casinos Gaming Authority (collectively the Tribe). The bankruptcy court denied the Tribe s motion to dismiss based on sovereign immunity, but the district court reversed, holding that section 106(a) of the Bankruptcy Code, abrogating the sovereign immunity of governmental unit[s], and section 101(27) of the Bankruptcy Code, defining governmental units to include other... domestic government[s], did not have the effect of waiving the Tribe s immunity: [T]he Court cannot say with perfect confidence that Congress intended, by using the generic phrase other domestic governments in 101(27), to clearly, unequivocally, unmistakably and without ambiguity abrogate tribal sovereign immunity in 106(a). In U.S. v. Washington, 2015 WL (W.D. Wash. 2015), the Upper Skagit Tribe brought a subproceeding in the treaty rights case initiated in 1970 (Boldt Litigation) to obtain a ruling that the Suquamish Tribe had no right to fish in Samish Bay, Chuckanut Bay, and a portion of Padilla Bay (the Disputed Areas), where the Upper Skagit has its own Court-approved usual and accustomed (U & A) fishing grounds. The district court granted summary judgment to Upper Skagit, finding that it had met its burden of demonstrating that Judge Boldt did not intend to include these areas in Suquamish s usual and accustomed fishing grounds. In Grand Canyon Skywalk Development LLC v. Cieslak, 2015 WL (D. Nev. 2015), Grand Canyon Skywalk Development LLC (Skywalk) had entered into an agreement with the Hualapai Indian Tribe of the Hualapai Indian Reservation (Tribe). After the Tribe passed an ordinance providing for the condemnation of Skywalk s interest, the Tribe hired Scutari & Cieslak Public Relations, Inc. (Cieslak) to present the Tribe in the best possible light in connection with the dispute. The parties agreement provided that the Tribe would indemnify the firm for any damages resulting from its public relations activities on the Tribe s behalf. Skywalk sued individual members of the Hualapai Tribe and Scutari & Cieslak, alleging that the defendants conspired to conduct a media campaign to falsely accuse the Plaintiffs of having breached their contracts with the Hualapai Tribe, and to portray Plaintiffs as disreputable business persons and published defamatory statements to third parties. When Cieslak asserted that it had taken certain action in reliance on advice from the Tribe s attorneys, Gallagher & Kennedy (Gallagher), Skywalk sought discovery from Gallagher relating to advice the firm had given Cieslak. The court rejected Gallagher s assertion that it was protected by the Tribe s sovereign immunity and ordered compliance with Skywalk s discovery requests: The subpoena in this case seeks documents from Gallagher & Kennedy s regarding its communications with Scutari & Cieslak with respect to the allegedly defamatory statements that were published about the Plaintiffs. This Court agrees with the Tenth Circuit s view in Bonnet v. Harvest (U.S.) Holdings, Inc., which is also supported by Juvenile Male 1, that a federal civil subpoena served on an individual tribal officer or employee, as opposed to the tribe itself, does not trigger tribal sovereign immunity. Therefore, even if Gallagher & Kennedy might otherwise be immune from a suit for damages based on tribal sovereign immunity, the doctrine does not protect or excuse it from compliance with the subpoena. In State v. Steven B., 2015 WL (N.M. 2015), state prosecutors charged juvenile members of the Navajo Nation under state law for assaults they allegedly committed on Parcel Three of Fort Wingate (Parcel Three), which Congress created in 1950 when it enacted a statute that transferred 13,150 acres of Fort Wingate to the Department of the Interior, for use by the Bureau of Indian Affairs. The lower court dismissed the charges for lack of state jurisdiction on Indian Nations Law Focus July 2015 Page 7

8 the ground that Parcel Three was a dependent Indian community and, therefore, Indian country outside state jurisdiction. The New Mexico Supreme Court reversed, holding that Parcel Three did not meet the definition of a dependent Indian community: Congress did not set aside Parcel Three for long-term settlement by an Indian community. By transferring the land simply for use of the Bureau of Indian Affairs, Congress gave the BIA broad discretion over how to use the land. Such discretion which apparently extends to transferring a significant portion of Parcel Three to another agency and even to selling part of it to a private individual is antithetical to long-term settlement by an Indian community and therefore is inconsistent with an intent to create Indian country. Indian Nations Team Members Mike Apfeld, Litigation mapfeld@gklaw.com Marvin Bynum, Real Estate mbynum@gklaw.com John Clancy, Environment & Energy Strategies jclancy@gklaw.com Todd Cleary, Employee Benefits tcleary@gklaw.com Shane Delsman, Intellectual Property sdelsman@gklaw.com Jessica Franklin, Environment & Energy Strategies jfranklin@gklaw.com Rufino Gaytán, Labor, Employment & Immigration rgaytan@gklaw.com Arthur Harrington, Environment & Energy Strategies aharrington@gklaw.com Brett Koeller, Corporate bkoeller@gklaw.com Michael Lokensgard, Real Estate mlokensgard@gklaw.com Carol Muratore, Real Estate cmuratore@gklaw.com Andrew S. Oettinger, Litigation aoettinger@gklaw.com Brian Pierson, Indian Nations bpierson@gklaw.com Marlene Prahl, Paralegal mprahl@gklaw.com Jed Roher, Tax & Employee Benefits jroher@gklaw.com Timothy Smith, Tax & Employee Benefits tcsmith@gklaw.com Josh Torres, Banking & Financial Institutions jtorres@gklaw.com Mike Wittenwyler, Government Relations mwittenwyler@gklaw.com OFFICES IN MILWAUKEE, MADISON, WAUKESHA, GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, D.C. WWW GKLAW.COM TEL