Yet another decision captioned Parnell v. CashCall/Western Sky Financial (N.D. Ga.):
54-1 Motion to Compel Arbitration
An excerpt:
Based on the foregoing reasons, the Court declines to enforce the delegation provision and the arbitration provision in the Parnell Loan Agreement. The arbitral forum is unavailable, and the provisions themselves are unconscionable. The Court therefore denies Defendant’s Motion to Compel.
Here.
Here are the materials in Western Energy Alliance v. Dept. of Interior (D.N.D.):
32 Federal Response to Motion to Stay
An excerpt:
After a careful review of the entire record, and a careful consideration of all of the Dataphase factors, the Court finds that Western Energy has not met the burden of establishing the necessity of a preliminary injunction. The Dataphase factors, when viewed in their totality, weigh against the issuance of a preliminary injunction. The Court notes that both parties presented very well-reasoned legal arguments in support of their respective positions. Suffice it to say the need for this new Final Rule is unclear at best, particularly when the long-established process for obtaining BIA grants of rights-of-way across tribal lands seems to have worked relatively well for more than 60 years. The undersigned is very familiar with the process for obtaining grants of rights-of-way on reservation lands in North Dakota, as a direct result of significantly increased oil field activity in western North Dakota. Although the current regulations may arguably have been in need of some updates and “modernization,” the Final Rule will likely create far more confusion, chaos, and litigation than what the Department of the Interior ever contemplated. However, the Court finds the Dataphase factors, and the equities, weigh against the granting of the extraordinary remedy of a preliminary injunction. Accordingly, Western Energy’s motion for a preliminary injunction (Docket No. 9) is DENIED. Western Energy’s emergency motion for a stay (Docket No. 31) is DENIED as moot.
Complaint (and the main thrust of the injunction motion) here.
Here are the new filings in Belmont v. Kelly (Nooksack Ct. App.):
Belmont v Kelly Michelle Roberts Pro Se Petition for Writ of Mandamus
Belmont v Kelly Pro Se Declaration of Michelle Roberts in Support of Motion for Writ of Mandamus
Prior filings here.
Here are the materials in Kitras v. Town of Aquinnah:
Aquinnah Gay Head Amicus Brief
Martha’s Vineyard Land Bank Commn Brief
Real Estate Bar Assn Amicus Brief
Vineyard Conservation Society Brief
Excerpts from the opinion:
In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).4 Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus. At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).5 When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty6 by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked. The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants. We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of access and, therefore, no easements by necessity exist.7
And:
The Land Court judge assumed that the plaintiffs satisfied the elements of a presumption of an intent to establish an easement by necessity but concluded that the defendants submitted sufficient evidence to rebut the presumed intent of the parties. The judge concluded that (1) tribal custom and usage of the land, (2) other rights granted, and (3) the condition of the land at the time of partition provided sufficient evidence to rebut the presumed intent. We agree.
Here.
Background materials here.
Quick commentary:
This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117.
If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.
Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.
The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter).
He’s moving across town to U Dub.
Here are the briefs in Alto v. Jewell:
Lower court briefs here.
Here are the materials in Ninilchik Traditional Council v. Towarak (D. Alaska):
20 DCT Order re Judicial Notice
Here is “In Washington, the Nooksack 306 fight to stay in their tribe” from the High Country News.
Turtle Talk 
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