Here is the opinion:
Turns out Keystone’s backers lost 4-3, but state law required a super majority….
News coverage here.
Author: Matthew L.M. Fletcher
Federal Civil Rights Claim Brought by Indian-Owned Construction Contractor May Proceed
Here are the materials in Parker Excavating Inc. v. Lafarge West (D. Colo.):
US Prevails in Wrongful Death Action/MedMal Brought against Indian Health Service
Here are the materials in Archambault v. United States (D. S.D.):
49 DCT Order Granting Summary J to the US
An excerpt:
Plaintiff, in the briefs, has lodged many complaints against the Indian Health Service (“IHS”) and the failures of the United States to live up to treaty obligations. The court sympathizes with the plaintiff. The problems within HIS are well known, at least to those of us with significant contacts with “Indian Country.” I have often observed that Native Americans have been and are being unfairly treated by the United States, considering the failed promises these many years. This court, however, cannot micromanage the IHS or even a single clinic. I cannot dictate how many hours per day or week or month any federal health care provider should be required to be on duty. The court also realizes how very difficult it is for any health care agency to recruit and retain qualified health care providers, especially in rural isolated areas. Living conditions are often sub-standard, especially for highly educated workers. The climate is rather harsh. The ultimate solution is for Native Americans to obtain the necessary education and skills to return to serve their families and others. That process has already started and improvements have been made by dedicated health care providers. Much more remains to be accomplished.
Prior post on this case here.
Who Won American Indian Law and Policy 2014? Third Round Bracket 2 of 2
Now for the other half of the bracket.
Category 3 — People and Parties
Notably, this is an all-woman category semifinal. Damn right.
#1 Hon. Diane Humetewa v. #4 Sarah Deer
Judge Humetewa knocks off Bill Wood with 74 percent of the vote. Bill.I.Am’s Backers made it closer than I predicted. Sarah Deer keeps rolling, taking down the assistant secretary with 62 percent of the vote.
#2 Justice Sonia Sotomayor v. #11 Structuring Sovereignty
Justice Sotomayor wins the battle of New York City with 69 percent of the vote. The Structuring Sovereignty team keeps rolling with 58 percent of the vote.
Category 4 — Other
#1 1491s v. #5 Cohen Handbook
It appears the number of people who reject NFL racism outnumbers the Cobell class pool; I’d say we have a victory of humor over angst. And it wasn’t close, as the 1491s win 61 percent of the vote.
In the other matchup, Cohen outran Ma’iingan, which is saying something.
This semifinal reminds me of the theme song to Pinky and the Brain — one is a genius, the other’s insane. But which is which?
#10 Tribal In-House Counsel Assn. v. #6 Carcieri Challengers
In a massive upset, upstart TICA knocks of the Supreme Court project with 65 percent of the vote. No, I’m serious.
This sets up a huge round-of-16 matchup between TICA and the Carcieri beneficiaries In other words, will principle defeat market share?
Who Won American Indian Law and Policy 2014? Third Round Bracket 1 of 2
Now it’s getting tight. We’re down to the last 16.
Category 1 — Indian nations
#1 Alaska Native tribes v. #12 Oneida Tribe of Wisconsin
Alaska Native tribes once again won handily, earning 86 percent of the votes over the Omaha Tribe. The Wisconsin Oneidas continue to surprise, knocking off the Cayugas and their impressive Second Circuit tax victory with two-thirds of the vote.
Interesting matchup here, with two contenders that had a big year facing off against state and local governments.
#7 Gun Lake Tribe v.#3 Bay Mills Indian Community
Enrollment numbers don’t matter! The Gun Lakers earn 61 percent of the vote and take out the Sault Tribe and its vast membership. It can’t be that there’s no internet in the UP, right?
Well, the internet worked for Bay Mills, winning by one vote over LCO and the Wisconsin treaty tribes. Bay Mills makes a living winning by one vote.
So another ‘Nish matchup. Will Gun Lake be able to get past another Upper Peninsula Chippewa community?
Category 2 — Laws, Doctrines, and the Like
#1 Indian Child Welfare Act v. #5 Intra-tribal disputes
In the battle for Indian civil rights, nonvoters prevailed over voters, and ICWA moves on with 57 percent of the vote. Maybe that TT post on South Dakota came a day too late.
Well, intra-tribal disputes took down Indian gaming, with 58 percent of the vote. I hope that won’t be true in real life.
#2 Tribal sovereign immunity v. #3 VAWA
With 72 percent of the vote, it turns out sovereignty does predate knowledge of sovereignty. Cool, I guess.
VAWA and the hopes it encourages for tribal governance in the future (as well as its 67 percent vote tally) easily defeated tribal court exhaustion, which wilted with fatigue near the end.
Ninth Circuit Materials in Appeal Involving Insurance Cos. Defending Torts against Tribal Business
Here are the materials in McVay v. Allied World Ins. Co.:
Lower court materials are here:
33 McVay Supplemental Response
Federal court opinion: 16_F.Supp.3d_1202
From the West syllabus:
Background: Pedestrian who allegedly slipped and fell in a gas station convenience store owned by tribal development corporation, which was an entity of Indian tribe, brought action against, inter alia, insurer for the Indian tribe and insurer’s administrator, seeking to recover damages for injuries she sustained as a result of the slip-and-fall. Defendants filed motions to dismiss for failure to state a claim.
Holdings: The District Court, Howard D. McKibben, J., held that:
(1) pedestrian lacked standing to enforce the Indian tribe’s contract with insurer under Nevada law, and (2) pedestrian lacked standing to assert claim against insurer for breach of the implied covenant of good faith and fair dealing under Nevada law.
Motions granted.
Forest County Potawatomi FOIA Suit against Interior over Menominee Fee to Trust Materials
Here is the complaint in Forest County Potawatomi Community v. Jewell (D. D.C.):
An excerpt:
For over two years, Plaintiff Forest County Potawatomi Community (the “Community”) has attempted to obtain records from Defendants, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §552 et seq., related to the Secretary of the Interior’s reconsideration of the Menominee Tribe of Wisconsin’s (“Menominee’s”) request to acquire land in Kenosha, Wisconsin, into trust for gaming purposes under Section 5 of the Indian Reorganization Act (“IRA”), 25 U.S.C. §465, and a request for a Secretarial Determination under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §2719(b)(1)(A) (the “Kenosha Casino Application”). The Community sought the information as part of its effort to meaningfully consult with and provide comments to the Assistant Secretary – Indian Affairs (the “Assistant Secretary”) before he made critical decisions on the Kenosha Casino Application. Defendants have improperly withheld the requested records and have repeatedly violated their clear statutory obligations under FOIA. The Community seeks, inter alia, a declaratory judgment that Defendants are in violation of FOIA for improperly withholding records and engaging in a pattern and practice of violating FOIA, a finding that the Department of the Interior (“DOI”) personnel acted arbitrarily and capriciously and in violation of law in withholding records, and an order requiring Defendants to immediately and fully comply with the FOIA requests set forth herein.
Ninth Circuit Briefs in Yakama/King Mountain Tax Dispute
North Quinault Properties LLC v. Quinault Indian Nation Complaint
Here is the complaint:
An excerpt:
Under State and federal law Lake Quinault, a navigable waterway abutting the Quinault Indian Reservation and located in Washington State, should be open to the public for its use and recreation as well as to those non-tribal property owners with real property abutting the Lake shore such as the Plaintiffs. However for more than a decade the Quinault Indian Tribe has increasingly asserted “jurisdiction” and control over this navigable waterway, forcing out the public and non-tribal property owners in derogation of the Equal Footing Doctrine and the Public Trust Doctrine. Most recently, the Quinault Indian Tribe has restricted all use of the Lake for non-tribal members. Through this civil action, the Plaintiffs seek court determination as to the status of Lake Quinault and the property rights of non-tribal property owners abutting the Lake and court determination as to the public’s right to access of the Lake, its shore and lakebed.
Gila River Indian Community Seeks Director of Defense Services
Here.
A description:
The Director, Defense Services serves as the lead defense attorney responsible for planning, directing, managing, supervising, implementing and achieving department strategic goals of the Defense Services Office of the Gila River Indian Community (GRIC). Work involves hiring and supervising attorneys to serve as defense attorneys; formulating and monitoring a departmental budget, reviewing proposed legislation; ensuring compliance with tribal, state, and federal governmental regulations; providing leadership and guidance; monitoring and evaluating case files; developing, implementing, and interpreting policies; and handling high profile cases on behalf of GRIC.
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