Arizona COA Decides ISDEAA Immunity Case in Favor of Tribal Interests

Here is today’s opinion in Shirk v. Lancaster:

CV 12-0131

An excerpt:

Loren Shirk seeks damages for allegedly negligent conduct by two Gila River Indian Community (“GRIC”) police officers. Because we conclude the trial court erred in granting Shirk’s motion to set aside the prior final judgment in favor of the officers, we reverse.

Briefs are here. Lower court materials here. Materials in related case against City of Chandler here. Here are the materials in the federal case dismissing a Federal Tort Claims Act action.

D.C. Circuit Decides “Old Section 81” Case

Here is the opinion in Quantum Entertainment Limited v. Department of the Interior:

Quantum Entertainment v Dept of Interior

Briefs are here.

Lower court materials are here.

Billboard Uses Indians to Make Second Amendment Argument

From WaPo here.

Indians and Guns

Second Circuit Briefs in Cayuga Property Tax Dispute with Seneca County

Here are the briefs in Cayuga Indian Nation v. Seneca County:

Seneca County Opening Brief

Cayuga Indian Nation Answer Brief

Seneca County Reply

Lower court materials here.

Federal Court Gives Full Faith and Credit to Navajo Customary Adoption Order

A small part of this case, but important nonetheless. Here are the materials in Kinlichee v. United States (D. Ariz.):

Chinle District Court Order Validating Adoption

DCT Order Denying US Motion to Dismiss

DCT Order re Settlement

Federal Motion to Dismiss

Plaintiffs’ Response

From the opinion:

It is undisputed that Ms. Davis is a Navajo and that Mr. Kinlichee was as well. (Doc. 52–1 at 1–2). It is undisputed that the alleged negligence in this case occurred within the Navajo Nation. (Doc. 1 at 1–2). It is undisputed that Ms. Davis obtained an order in the Family Court of the Navajo Nation validating her Navajo common law adoption by Mr. Kinlichee. (Doc. 52–1 at 1–10). Although the adoption was posthumous as to Mr. Kinlichee and retroactive to 2003, the Navajo court granted the adoption. See (Doc. 52–1 at 1, 10).

Additionally, the Ninth Circuit Court of Appeals has held that a state must give full faith and credit to adoption decrees issued by the tribal court of a Native American sovereign. Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 562 (9th Cir.1991). There is no issue known to the Court, or raised here, suggesting that the Navajo Nation lacks the status of a Native American sovereign, and its tribal court granted Ms. Davis an adoption order. If Ms. Davis had been legally adopted by Mr. Kinlichee in another state, and then became a tort plaintiff in the District of Arizona, that adoption likely would not be questioned, or legally analyzed for its merits, before Ms. Davis would be granted standing. Accordingly, this Court must recognize the order of the Navajo court validating Mr. Kinlichee’s adoption of Ms. Davis.
Therefore, as to Ms. Davis, the Court denies Defendant’s Motion to Dismiss for lack of standing.

Federal Court Allows Leave to Amend Civil Rights Complaint against Salt River Police re: Medicinal Marijuana Confiscation

Here are the materials so far in Phillips v. Salt River Police Dep’t (D. Ariz.):

DCT Order

Phillips Complaint

Omaha Tribe RFP for Appellate Court Services

THE OMAHA TRIBE OF NEBRASKA & IOWA is seeking Requests for Proposals (RFP) for professional legal consultation to support the establishment of a local Appellate Court. Applicants shall be licensed to practice law in any State or Federal jurisdiction and shall be familiar with appellate process. The Applicant shall be responsible for drafting appellate process, accompanying procedures for Clerk of Court, assist in searching and interviewing potential appellate panel and providing educational presentations for community and governmental agencies. RFP’s can be directed to the Omaha Tribal Human Resources Department at P.O. Box 368, Macy, Nebraska 68039, (402) 837-5391, or emailed to the Omaha Tribal Human Resources Director Carlton LeCount at clecount@omahatribe.com .

Blog Post of the Day — “The Frequent Irrelevancy of the Supreme Court”

Possibly the best blog post this year (so far) comes from Sr. federal trial judge Richard George Koft on his great blog Hercules and the Umpire. It is “The Frequent Irrelevancy of the Supreme Court.” Judge Kopf writes from the POV of a federal trial judge:

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

I think the same of is often (maybe not “frequent[ly]” but some of the time) true in Indian law. My vote for most irrelevant Indian law decision of the last ten years is Plains Commerce Bank v. Long Family Land and Cattle Co. The law going in to that case, which involved tribal civil jurisdiction over nonmembers, was that the Montana “exceptions” applied to on-reservation lands owned by non-Indians, and that it was difficult to meet the exceptions. The law after that case? No change whatsoever, with some fairly minor tightening of the second Montana exception where the Chief Justice quoted the Cohen Handbook:

One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen §4.02[3][c], at 232, n. 220.

Other than that (which is basically dicta), n0 new law at all. There was no point, other than to throw a bone to a nonmember bank that a tribal jury found to have racially discriminated against tribal members on their commercial loans, a verdict not preserved for review by the bank.

What’s your vote? Comments welcome.

NIGC Summer Legal Internship — Paid Position

Here:

NIGC Job Announcement 2013