U.S. DOE Announces $7 Million to Promote Clean Energy in Tribal Communities

Transcription

1 Indian Nations Law Focus May 2013, Volume 8, Issue 5 U.S. DOE Announces $7 Million to Promote Clean Energy in Tribal Communities The U.S. Department of Energy (DOE) recently announced up to $7 million in new funding opportunities to help deploy clean energy projects in tribal communities. These grants can help tribes reduce reliance on fossil fuels and promote economic development and energy independence. 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. The Community-Scale Clean Energy Projects in Indian Country ($2.5 to $4.5 million total available funds) grant program will aid tribes in installing clean energy systems that reduce fossil fuel use by at least 15% in either new or existing tribal buildings. Individual awards may range from $50,000 to $1.5 million, with a minimum 50% cost share required, and DOE anticipates making 10 to 20 awards. The Tribal Renewable Energy and Energy Efficiency Deployment Assistance grant program (approximately $2.5 million total funds available) will aid tribes in installing renewable energy and energy efficiency technology that reduce fossil fuel use in existing tribal buildings by at least 30%. Individual awards may range from $50,000 to $250,000, with a minimum 50% cost share required. DOE anticipates making 10 to 20 awards. More information on DOE s funding announcement can be found here: apps1.eere.energy.gov/news/progress_alerts.cfm/pa_id=871. Godfrey & Kahn has assisted tribes with the preparation of renewable energy and energy efficiency grant applications that have resulted in total awards of more than $5 million. Godfrey & Kahn also assists tribes in packaging federal grants with other grants and tax incentives, including the 30% federal tax credit for renewable energy projects, state and/or utility grants and New Market Tax Credits. For more information about Godfrey & Kahn s energy-related Indian country experience, or a free consultation, contact Indian Nations Law Practice Group leader Brian Pierson at or bpierson@gklaw.com, or Environment and Energy Strategies Practice Group leader John Clancy or jclancy@gklaw.com. Godfrey & Kahn to Present on Financing Renewable Energy at National American Indian Housing Council Convention in Chicago May 22 The National American Indian Housing Council (NAIHC) is holding its annual convention and trade show at the downtown Sheraton in Chicago May 21-23, Godfrey & Kahn attorneys Brian Pierson and John Clancy will join with Kevin Fitzgibbons to present Financing Wind, Solar and Bio-Power for Indian Housing from 8:15-10:15 a.m. on Wednesday, May 22. Kevin is the immediate past administrator of the U.S. Department of Housing and Urban Development s Eastern Woodlands Office of Native American Programs. The panel will describe successful Indian Nations Law Focus May 2013 Page 1

2 renewable energy initiatives in Indian country and discuss tax incentives and other funding sources that may enable tribes to convert to green energy without spending tribal funds. For more information, visit: naihc.net/index.php/events/annualconvention. Godfrey & Kahn to Present on Financing Renewable Energy at Albuquerque Conference June 11 The Developing Tribal Energy Resources and Economies Conference will be held June 10-12, 2013 at Sandia Resort and Casino, Albuquerque, New Mexico. Godfrey & Kahn attorneys Brian Pierson and John Clancy will join with Forest County Potawatomi Attorney General Jeffrey Crawford to present Casino Energy Consumption and the Seven Generations Ethic from 3:00 to 4:30 pm on Tuesday, June 11. The presentation will describe successful Indian country projects and focus on financing strategies that enable tribes to convert to cleaner, less expensive energy using federal tax incentives and other non-tribal funding sources. For more information, visit: regonline.com/builder/site/default. aspx?eventid= Godfrey & Kahn works with tribes to maximize outside funding sources to finance green energy and promote tribal energy independence. For more information about Godfrey & Kahn s Indian country experience, or a free consultation, contact Indian Nations Law Practice Group leader Brian Pierson at or bpierson@ gklaw.com, or Environment and Energy Strategies Practice Group leader John Clancy, or jclancy@gklaw.com. Selected Court Decisions In Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa Inc., 2013 WL (9th Cir. 2013), the plaintiff had entered into a business agreement with the Hualapai Indian Tribe (Tribe) pursuant to which the parties would develop a skywalk over the Grand Canyon, on trust land within the Tribe s reservation, as a tourist attraction. When a dispute arose, the Tribe enacted a condemnation ordinance and instituted proceedings to condemn the plaintiff s property rights. The plaintiff filed a suit in federal court to enjoin the Tribe from enforcing its condemnation ordinance. The district court dismissed on the ground that the plaintiff was required to exhaust tribal court remedies. The Ninth Circuit Court of Appeals affirmed, holding that plaintiffs had not shown that the Tribe s bad faith justifying an exception to the rule that tribal remedies must be exhausted and that there was no clear lack of tribal jurisdiction since (1) the skywalk was located on tribal trust land, the rule of Montana v. U.S., restricting tribal jurisdiction over non-indians, did not apply and the Tribe could exercise jurisdiction pursuant to its inherent powers to exclude and manage its own lands where there were no competing state interests, and (2) even if Montana v. U.S. applied, the Tribe could exercise jurisdiction under the exceptions for consensual dealings with the Tribe and conduct that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe, and (3) [a]dditionally, tribal laws may be fairly imposed on nonmembers if the nonmember consents, either expressly or through his or her actions. In U.S. v. Robertson, 709 F.3d 741 (8th Cir. 2013), Robertson, a member of the Spirit Lake Tribe in North Dakota (Tribe), administered the Tribe s Low Income Home Energy Assistance Program (LIHEAP). From 2007 through 2011, Robertson approved applications for heating assistance by her adult daughters which did not disclose Robertson as a resident of the households that would receive this benefit, nor her substantial income. Robertson was convicted of knowingly and willfully embezzling, stealing, and misapplying tribal property in violation of 18 U.S.C On appeal, she contested the district court s refusal to instruct the jury on her theory that she believed in good faith that the household was under the 150% threshold for benefits. The Eighth Circuit affirmed: Robertson knowingly approved applications by her daughters that failed to disclose the facts most essential to eligibility how many people were living in the household, and what was their combined income. Robertson was clearly aware of the importance of those disclosures because her formal duties included verifying income disclosures and personally reviewing numerous applications for completeness and accuracy. Her good faith theory ignored Robertson s responsibilities as LIHEAP program Coordinator. In Bristol Bay Area Health Corporation v. United States, 2013 WL (Fed.Cl.), Bristol Bay Area Health Corporation (Bristol Bay) Indian Nations Law Focus May 2013 Page 2

3 sued in the Court of Federal Claims, alleging that the government breached a statutory and contractual duty when it entered into contracts with plaintiff under the Indian Self-Determination and Education Assistance Act (ISDEAA) for plaintiff to provide health care services to tribal members but failed to pay plaintiff for certain contract support costs from fiscal years 1993 through The court denied the government s motion to dismiss, holding that (1) the question whether the six-year statute of limitations was tolled was not ripe for determination, (2) the plaintiffs claims for contract support costs were sufficiently plausible to survive a motion to dismiss, and (3) additional discovery was necessary to determine whether the plaintiffs claims were barred by res judicata based on a previous settlement. In Thorpe v. Borough of Thorpe, 2013 WL (M.D.Pa. 2013), following the death in 1953 of the famous athlete, Jim Thorpe, his wife had entered into an agreement pursuant to which adjoining communities in Pennsylvania would consolidate as Borough of Thorpe and the athlete would be interred in a mausoleum there. Jim Thorpe s sons and the Sac and Fox Tribe (collectively, Plaintiffs), of which Thorpe was a member, sued in federal court to return Thorpe s remains to the Sac and Fox reservation in Kansas, where Thorpe was born, alleging violations of the Native American Graves Protection and Repatriation Act (NAGPRA). On cross-motions, the district court granted summary judgment to the Plaintiffs, holding that (1) the probate exception to federal jurisdiction was inapplicable, (2) laches did not apply because the Borough did not suffer any prejudice from plaintiffs delay in commencing suit, (3) the Borough qualified as a museum for purposes of the NAGPRA, and (4) the plaintiffs were entitled to repatriation of Thorpe s remains: The [NAGPRA] recognizes the importance of compliance with Native American culture and tradition where dealing with the remains of one of Native American heritage, and this is a case which fits within the reach of this congressional purpose. In Poulson v. Tribal Court for the Ute Indian Tribe of the Uintah and Ouray Reservation, Not Reported in F.Supp.2d, 2013 WL (D.Utah), the Ute Indian Tribe gave notice to Edson Gardner and Lynda Kozlowicz that their licenses to practice as lay advocates before the Ute Tribal Court would be suspended for 90 days. They attempted to challenge the suspension by bringing a petition for habeas corpus relief under the Indian Civil Rights Act (ICRA), but the court dismissed for lack of jurisdiction, observing that [t]he temporary suspension of one s license to practice as a tribal court advocate is simply not the custody required to sustain habeas corpus proceedings. In Wyandotte Nation v. Salazar, Not Reported in F.Supp.2d, 2013 WL (D.Kan.), Congress had enacted Public Law in 1984 (Settlement Act), providing for the appropriation and distribution of money in satisfaction of judgments awarded to the Wyandotte Nation (Nation) by the Indian Claims Commission and the Court of Claims and directing that $100,000 be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe. In 1992, the Nation purchased 10.5 acres of land near Park City, Kansas (Park City Land), with $25,000 withdrawn from its main investment account. In 2006, the Nation requested that the Park City Land be accepted in trust for gaming purposes under discretionary authority granted to the Secretary of the Interior under Section 5 of the Indian Reorganization Act. In 2008, the Nation changed its position, asserting that acquisition of the property in trust was mandatory under the Settlement Act. The State of Kansas objected, arguing that the Nation had used the entire appropriated $100,000 to purchase the Shriner Tract, property in Kansas City that had generated lengthy litigation. When the Secretary had not acquired the Park City Land by 2011, the Nation sued seeking a court order that the Secretary immediately take the land into trust under the mandatory acquisition provisions of the Settlement Act. The court rejected the Nation s argument, agreeing that the delays were caused by legitimate questions surrounding the source of funds used to acquire the land. The court also rejected the Nation s breach of fiduciary duty theory on the ground that no fiduciary obligation attached to land not yet in trust. The Department of Interior was ordered to make periodic reports on its progress in reaching a final decision. In Jones v. Norton, 2013 WL (D.Utah), Murray, a member of the Ute Indian Tribe, was shot to death within the boundaries of the Uintah and Ouray Indian Reservation after a lengthy police chase involving state, county, and city agencies. His estate sued under the Civil Rights Act of 1871, 42 U.S.C. 1983, alleging that the defendants pursuit violated the Bad Men clause of the Ute Treaty of 1868 (Treaty), which gives tribal members a right to be free from harms caused by bad men among the Indian Nations Law Focus May 2013 Page 3

4 whites while on tribal land. The court dismissed, holding that the Treaty only secures a right to seek redress from the United States Government it does not secure a right to be free from the torts of private individuals. In City of New York v. Golden Feather Smoke Shop, Inc., 2013 WL (E.D.N.Y.), the City of New York (City) sued numerous individuals and businesses engaged in the sale of cigarettes from the Poospatuck Indian Reservation in Mastic, New York (Reservation), where members of the Unkechauge Indian Nation reside, for violations of the Contraband Cigarette Trafficking Act (CCTA), and New York s Cigarette Marketing Standards Act (CMSA), arising out of bulk re-sales of cigarettes on which New York State and City taxes had not been paid (unstamped cigarettes) to the public, either directly or through trafficker intermediaries. The City moved for summary judgment, a permanent injunction against defendants purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes, as well as for damages, civil penalties and attorney s fees. Defendants crossmoved for summary judgment, arguing that the City could not establish proximately caused harm to the City and their alleged good faith belief that their conduct was legal. The Court ruled for the City, (1) permanently enjoining defendants purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use ; (2) awarding damages as against certain defendants; (3) awarding civil penalties against other defendants; and (4) awarding the City attorney s fees. In King Mountain Tobacco Co., Inc. v. McKenna, 2013 WL (E.D.Wash. 2013), 46 states had sued the tobacco industry to recover smoking-related health costs. Pursuant to their Master Settlement Agreement with the participating cigarette manufacturers, the states agreed to require non-participating manufacturers to make payments into an escrow account to cover their share of the relevant costs. King Mountain Tobacco Company (King Mountain), owned by a member of the Confederated Tribes and Bands of the Yakama Nation (Nation), engaged in a multistate business that involved (1) growing tobacco on the reservation, amounting to about 37% of the tobacco contained in the finished cigarettes, (2) shipping tobacco to Tennessee to be threshed, (3) shipping tobacco to North Carolina, where the tobacco was blended with North Carolina-grown tobacco, (4) transporting the blended tobacco on its trucks from North Carolina back to Washington, (5) advertising its cigarettes in multiple states through trade shows and the Internet, and (6) selling its cigarettes (through a distributor) to retail stores throughout Washington and other states, where the cigarettes were ultimately sold to consumers. After initially making escrow payments, King Mountain changed its position and, joined by the Nation, sued the Washington attorney general, arguing that the restrictions placed on King Mountain violated the 1855 treaty between the United States and the Nation, which provided that the reservation would be set aside for the exclusive use and benefit of the Nation and that members of the Nation would have the right in common with citizens of the United States, to travel upon all public highways. The federal district court disagreed, citing the holding of Mescalero Apache Tribe v. Jones that [a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State. The court rejected the Nation s argument that cigarettes were reservation-generated: When taking into account the manufacturing process and the amount of non-trustland tobacco that is used in King Mountain s products, the Court finds that the cigarettes and roll-your-own tobacco products produced by King Mountain are not principally generated from the use of reservation land and resources. In Timbisha Shoshone Tribe v. U.S. Dept. of the Interior, 2013 WL (E.D.Cal.), leaders of a faction of the Timbisha Shoshone Tribe (Tribe) sued the Department of Interior (DOI), DOI officials and members of the Tribal Council currently recognized by the DOI, challenging the DOI s recognition of those officials on the ground that they were elected in violation of the Tribe s constitution. The district court dismissed, holding that the tribal officials were indispensable parties who could not be joined because of their immunity, rejecting the plaintiffs argument that the tribal officials could be sued under the Ex Parte Young doctrine: Plaintiffs do not make any claims that the members of the 2011 Elected Council themselves violated federal law to get elected. Rather, Plaintiffs claims focus on the DOI s alleged wrongdoing. In cases where courts found Tribal officials were not immune, the officials themselves engaged in acts that violated federal law. Because Plaintiffs do not allege any members of the 2011 Elected Council violated federal Indian Nations Law Focus May 2013 Page 4

5 law, the council members retain their immunity from suit as tribal officials. In U.S. v. Washington, 2013 WL (W.D.Wash.), a subproceeding of treaty rights litigation initiated in 1970, 19, joined by the United States, sought a determination that the State of Washington (State) had a duty under the 1855 Treaty of Point Elliot to preserve fish runs, and an injunction compelling the State to repair or replace culverts that impede salmon migration to or from spawning grounds. In a 24-page ruling, the court granted the requested relief: The State s duty to maintain, repair or replace culverts which block passage of anadromous fish does not arise from a broad environmental servitude against which the Ninth Circuit Court of Appeals cautioned. Instead, it is a narrow and specific treaty-based duty that attaches when the State elects to block rather than bridge a salmonbearing stream with a roadbed. The roadbed crossing must be fitted with a culvert that allows not only water to flow, but which insures the free passage of salmon of all ages and life stages both upstream and down. That passage is best facilitated by a stream simulation culvert rather than the lesseffective hydraulic design or no-slope culvert. In Clark County v. Secretary of Department of Interior, D.D.C. 2013, Clark County challenged the 2010 Record of Decision (ROD) of the Department of Interior Assistant Secretary Indian Affairs taking land into trust for the Cowlitz Tribe (Tribe), which had been acknowledged by the federal government in 2002, finding that the Tribe was under federal jurisdiction in 1934, as required by the Supreme Court s Carcieri decision. After learning that the Assistant Secretary-Indian Affairs had not considered the National Indian Gaming Commission s (NIGC) determination of the Tribe s reservation at the time of the ROD in 2010, the DOI moved to remand. The court denied the motion but permitted the DOI to consider whether it wished to withdraw the ROD in light of the NIGC determination. The DOI moved instead to submit a supplemental ROD. The court rejected the attempt, remanded with an order to issue a new ROD within 60 days and dismissed the case. In Mitchell v. Seneca Nation of Indians, 2013 WL (W.D.N.Y.), Mitchell, a member of the Seneca Nation of Indians (Nation), was indicted by a federal grand jury on criminal charges of fraud and misconduct stemming from his involvement in a sale of land to the Seneca Niagara Falls Gaming Corporation, a Nation-controlled business. While the case was pending, the Nation Council passed a resolution prohibiting Mitchell from entering any Nation buildings or business except to appear in court to defend himself and to attend scheduled health care appointments at Nation clinics, suspending and holding in escrow annuity payments due to Mitchell pending resolution of the criminal charges and any related civil proceedings, revoking Mitchell s Nation-issued business license and prohibiting Nation-licensed businesses from doing business with Mitchell. Mitchell sued in federal court under the habeas corpus provisions of the Indian Civil Rights Act, 25 U.S.C On the Nation s motion, the Court dismissed for lack of subject matter jurisdiction, holding that Mitchell is not subject to custody restrictions sufficient to obtain a writ of habeas corpus. In Inetianbor v. CashCall, Inc., 2013 WL (S.D.Fla.), Inetianbor had entered into a consumer payday loan agreement with Western Sky Financial, LLC (Western Sky), for $2,525 with an annual interest rate of 135%. The loan agreement provided that the laws and jurisdiction of the Cheyenne River Sioux Tribe (Tribe) would govern, that the borrower would consent to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court and that disputes would be subject to arbitration in that court. When Western Sky continued to submit negative credit information about him to credit agencies after he had allegedly paid off the loan, Inetianbor sued Cashcall, Western Sky s loan servicer, in state court. Cashcall removed to federal court and sought an order compelling Inetianbor to arbitrate. Inetianbor sought to avoid arbitration on the grounds that the interest rate charged by Western Sky was usurious, the tribal court lacked jurisdiction, Western Sky used tribal law to evade state and federal consumer protection laws and the agreement was unconscionable. The court ruled that Inetianbor had failed to overcome the preference for enforcing arbitration clauses and must submit the case to arbitration. After Tribal Judge Demery informed Inetianbor by letter that the Tribe does not authorize Arbitration as defined by the American Arbitration Association (AAA), the court agreed to reopen the case, noting that Plaintiff has made a showing that the arbitration forum specified in the subject arbitration agreement is not available. CashCall has not offered any evidence in rebuttal. In Oglala Sioux Tribe v. Schwarting, 894 F.Supp.2d 1195 (D. Neb. 2012), the Oglala Sioux Tribe sued manufacturers, distributors, and Indian Nations Law Focus May 2013 Page 5

6 retailers of beer and other alcoholic beverages, alleging that the sale of the beverages in Whiteclay, a town located outside the tribe s reservation, caused harm on the reservation. The district court dismissed for lack of subject matter jurisdiction, holding that (1) diversity jurisdiction was lacking because a tribe is not a resident of any state for purposes of 29 U.S.C. 1332, (2) a federal criminal statute, 18 U.S.C. 1161, that prohibited the introduction of alcohol into Indian country, did not authorize private suits, and (3) 28 U.S.C authorizes suits by tribes without regard to the dollar limits that otherwise apply but does not remove the requirement that the tribe demonstrate a federal question. In the case of In re Moses, 2013 WL (Bkrtcy.E.D.N.C.), Moses, a North Carolina resident, had entered into a consumer loan agreement with Western Sky Financial, LLC, (Western Sky), a South Dakota company, for a loan in the amount of $1,500. Western Sky assigned Plaintiff s loan to Cashcall, Inc. (Cashcall). The loan agreement provided that the loan would be subject solely to the laws and jurisdiction of the Cheyenne River Sioux Tribe of the Cheyenne River Indian Reservation, that the borrower consented to the Cheyenne River Sioux Tribal Court s sole subject matter and personal jurisdiction and that any dispute would be resolved by arbitration conducted by the Cheyenne River Sioux Tribal Nation. Moses filed a Chapter 13 bankruptcy petition. When Cashcall filed a proof of claim for $1,929, Moses initiated an adversary proceeding against Cashcall seeking a declaration that the loan agreement was invalid and damages for violations of North Carolina consumer protection laws. After its motion to withdraw the proof of claim and its motion to dismiss or stay the adversary action pending arbitration were denied, Cashcall moved for a stay pending appeal of the denial of its motion to dismiss, arguing that Section 16(a)(1)(A) of the Federal Arbitration Act mandated a stay. The federal bankruptcy judge disagreed and denied the motion: [T]he Court believes a stay of the matter will unnecessarily hamper an efficient administration of Plaintiff s bankruptcy estate. Permitting a stay throughout a potentially protracted appeals process would only serve to upend the countervailing policy of the bankruptcy code with respect to all parties involved. In Western Montana Water Users Ass n, LLC v. Mission Irr. Dist., 2013 WL (Mont.), 2013 MT 92, the Confederated Salish and Kootenai Tribes (Tribes) had entered into the Hellgate Treaty with the United States in 1855, creating the Flathead Indian Reservation in Montana. Congress authorized allotment of the Reservation for homestead purposes in 1904 and, in 1908, authorized the Secretary of the Interior to construct the Flathead Indian Irrigation Project (FIIP), which provided individual tribal members and non-tribal members on the Flathead Reservation with water for irrigation. After the Tribes claimed aboriginal water rights, they negotiated a compact with the United States and the State of Montana settling their claims. When the United States and irrigation districts within the Reservation entered into a Water Use Agreement (Agreement) as part of the implementation of the Compact, the Western Montana Water Users Association, a group of landowners claiming water rights, sued in state court, contending that the Agreement must be submitted to a vote of all irrigators and approved by a court pursuant to Montana law. The state district court granted the plaintiffs a writ of mandamus and injunction barring the irrigation districts from executing the Agreement. The Montana Supreme Court reversed, holding that the district court had issued relief based on grounds not argued, that the Montana statutes cited by the plaintiffs did not apply to the Agreement and that the determination of the plaintiffs water rights was the subject of the pending compact negotiations: Without any determination of the water issues on the merits, which the District Court admittedly and properly did not do in this proceedings, no grounds exist for its conclusion that the Water Use Agreement will take away those water rights. In State v. Scott, 2013 WL (S.D.), 2013 S.D. 31, Scott was convicted after an Indian member of the jury venire panel was stricken because, according to the prosecutor, he just didn t get a good feeling from her response to his question and because he allegedly had information that the prospective juror was charged or at least investigated for like threatening behavior on a phone. Defense counsel argued that the strike violated the holding of Batson v. Kentucky prohibiting a prosecutor s use of a peremptory challenge to exclude jurors based solely on their race, but the trial court overruled the defense s objection on the ground that the strike was not part of a pattern. The South Dakota Supreme Court remanded to the trial court to make specific findings on the basis for the State s feeling toward Juror Laroche and the validity of the State s claim that Juror Laroche had been charged with or investigated for criminal behavior. If the court finds no racial motivation, the judgment will stand affirmed, subject to Scott s right to appeal this finding. If the court concludes that Scott proved purposeful Indian Nations Law Focus May 2013 Page 6

7 discrimination or the court is unable to reach a conclusion because of the passage of time, Scott s conviction should be vacated and a new trial ordered. In City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 2013 WL (Minn.App.), the City of Duluth (City) and the Fond du Lac Band of Lake Superior Chippewa (Tribe) had entered into an agreement in 1986 pursuant to which the City would support the acquisition of land by the United States in trust for the Tribe for gaming purposes and would share gaming revenues. The agreement provided that the acquisition of additional land by the Tribe, and the declaration of such land as reservation, would require the City s approval. A 1994 umbrella agreement resolving a subsequent dispute between the parties provided for federal court jurisdiction over disputes arising under the umbrella agreement. When the Tribe purchased land in 2011 and applied to the Secretary of the Interior to place it in trust, the City sued for injunctive relief, contending that the application breached the parties agreement. The district court dismissed the City s claim for lack of jurisdiction, but the Minnesota Court of Appeals reversed and remanded: The 1994 umbrella agreement and exhibits, however, do not control or address the trust application which is at the heart of this litigation. In State v. Snow, 2013 WL (Wis. App.), Snow, a tribal member (affiliation unstated), was charged with operating a motor vehicle with a prohibited alcohol concentration. During jury selection, Whiteeagle, a Ho-Chunk member and the sole Indian on the panel, disclosed that two prospective witnesses were friends of her father kind of. Although she claimed she could be impartial, the prosecutor struck her from the jury, stating that I am aware that family ties, especially in the Ho- Chunk traditional culture, are extremely strong, and I do not accept her explanation she doesn t socialize with them and can be fair. I can t take the risk that she s going to place more credit on their testimony because of her at least acquaintance with them and the fact that they are friends of her father. Snow was convicted but the court of appeals reversed, holding that the prosecution s explanation for the strike was not race neutral and violated the holding of Batson v. Kentucky prohibiting a prosecutor s use of a peremptory challenge to exclude jurors based solely on their race: Here, the prosecutor linked his doubts as to Whiteeagle s ability to fairly weigh testimony due to his belief that family ties, especially in the Ho Chunk traditional culture, are extremely strong, thereby demonstrating that the strike was based on a prohibited characteristic. Indian Nations Team Members Mike Apfeld, Litigation mapfeld@gklaw.com Peggy Barlett, Debtor-Creditor Member of the Sault Ste. Marie Chippewa Tribe pbarlett@gklaw.com John Clancy, Energy & Environmental jclancy@gklaw.com Todd Cleary, Employee Benefits tcleary@gklaw.com Jessica Franklin, Environmental jfranklin@gklaw.com Rufino Gaytán, Employment rgaytan@gklaw.com Arthur Harrington, Energy & Environmental aharrington@gklaw.com Brett Koeller, Business & Corporate bkoeller@gklaw.com Michael Lokensgard, Real Estate mlokensgard@gklaw.com Carol Muratore, Real Estate cmuratore@gklaw.com Dave Navarre, Business, Mergers & Acquisitions, Private Equity dnavarre@gklaw.com Brian Pierson, Federal Indian & Tribal Indian Nations Team Leader, Lead Contact bpierson@gklaw.com Marlene Prahl, Paralegal mprahl@gklaw.com John Reichert, Banking & Financial Institutions jreichert@gklaw.com Jed Roher, Tax jroher@gklaw.com Christopher Smessaert, Litigation csmessaert@gklaw.com Mike Wittenwyler, Government Relations mwittenwyler@gklaw.com Roxana Wizorek, Intellectual Property rwizorek@gklaw.com OFFICES IN MILWAUKEE, MADISON, WAUKESHA, GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, D.C. WWW GKLAW.COM TEL