Author: Matthew L.M. Fletcher

US Tax Court Rejects Navajo Elder’s Claim that Nephew is Dependent under Tribal Common Law

Matthew L.M. Fletcher1 Comment

Interesting case, this Begay v. Commissioner.

The court rejects Religious Freedom Restoration Act and Equal Protection claims, holding that a Navajo elder’s care of a nephew is insufficient to confer the required status for deductions under the Internal Revenue Code.

Here is the argument:

Although petitioner concedes that TD is not her qualifying child under section 152(c)(2), she argues that the exclusion from the section 152(c)(2) relationships of certain obligatory clan-based relationships in Navajo culture violates her constitutional rights under both the Free Exercise Clause of the First Amendment to the Constitution and the Fifth and Fourteenth Amendments to the Constitution. According to petitioner, in Navajo culture and tradition children are not only children of the parents; they are also children of the clan. Petitioner submits that a Navajo clan consists of the first clans of the child’s mother, father, maternal grandfather, and paternal grandfather and that the clan relationship may extend beyond the foregoing if, for example, the child is adopted.

Update in Columbe v. Rosebud Sioux Tribe: Tribal Court Has Jurisdiction to Rule on Gaming Management Contract

Matthew L.M. Fletcher2 Comments

Here are the materials in Columbe v. Rosebud Sioux Tribe (D. S.D.):

DCT Order Granting RST Motion

Columbe Motion for Summary J

RST Cross Motion for Summary J

Columbe Response

An excerpt:

Colombe now asks this Court to rule on the sole remaining issue from this Court’s September 23, 2011 Opinion and Order: Whether the Tribal Court had jurisdiction to hold that the oral modification to the NIGC-approved management contract was void. Colombe argues that the NIGC has the sole, exclusive authority to determine whether modifications to NIGC-approved management contracts can have any legal effect. Doc. 49 at 6-7. Colombe also argues that Defendants’ Tribal Court suit is prohibited because IGRA does not authorize a private cause of action. Doc. 49 at 8. Defendants counter that the Rosebud Sioux Tribal Supreme Court had jurisdiction to rule on the legal validity of the oral, unapproved modification to the approved management contract after Colombe raised the modification as a defense in the Tribe’s underlying contract suit. Doc. 59; Doc. 60. Defendants also assert that its Tribal Court suit is not for a “claimed IGRA violation” and therefore does not need to be authorized by the IGRA. Doc. 57 at 19.

Here are the materials on the Sept. 2011 order, and on the motion for reconsideration.

 

 

Split Ninth Circuit Orders Federal Prosecutors to Prove Federal Recognition Status of Tribes in Major Crimes Act Prosecutions…

Matthew L.M. Fletcher4 Comments

… to a jury beyond a reasonable doubt.

Here are the materials in United States v. Zepeda:

CA9 opinion

CA9 memorandum (related opinion on other issues)

Zepeda Opening Brief

US Answer Brief

Zepeda Reply Brief

US Supplemental Brief

Zepeda Supplemental Brief

The court’s summary:

The panel reversed jury convictions under the Major Crimes Act, 18 U.S.C. § 1153, which provides for federal jurisdiction over certain crimes committed by Indians in Indian country.
The panel held that whether a given tribe is federally recognized, as required for jurisdiction under § 1153, is a question of fact for the jury, not a question of law for the court; and rejected the government’s request that this court take judicial notice of the Bureau of Indian Affairs’s list of federally recognized tribes in 2008 and 2010.
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Dissenting, Judge Watford would hold that federal recognition of an Indian tribe is a question of law for the court to resolve.

N.Y. Trial Court Holds Lower Brule Corporation Not Immune from Discovery in Loan Dispute

Matthew L.M. Fletcher1 Comment

Here is the opinion in Seaport Loan Products LLC v. Lower Brule Community (N.Y. Supreme Ct.):

Seaport-LBCDE – Decision re Motion to Compel

News coverage: NY Law Journal Article (Sovereign Immunity)

The complaint is here.

Sexual Harassment Complaint against King County, Wash. Sheriff’s Office Alleges BlasĂ© re: Indian Country Sexual Assaults

Matthew L.M. Fletcher

Here is the complaint in Ferguson v. King County (Pierce County Superior Court):

King County Sexual Harassment Complaint

From page 9:

Provenzo regularly told Belinda not to fully investigate rape or sexual assault cases that occurred on the Muckleshoot Indian reservation, because rape happens on the reservation “all the time.”

Thanks to Trent Crable and Diana Bob for the find.

Rep. Tom Cole Calls Redskins Name “Very Offensive”

Matthew L.M. Fletcher

Here.

Article says he’s a Cowboys fan.

Federal Court Complaint Filed Alleging Turtle Mountain Tribal Court “Bad Faith”

Matthew L.M. Fletcher1 Comment

Here are the materials in Knight v. Vondal (D. N.D.):

Knight v Vondal Complaint

Tribal Court TRO

Land Sale Dispute on Cheyenne River Sioux Tribe Reservation Remanded to State Trial Court

Matthew L.M. Fletcher

What a case — McGuire v. Aberle. Law profs looking for a good fact pattern check these first two paragraphs out:

In 1967, Raymond and Margaret Becker’s eight children each inherited an undivided one-eighth interest in patented fee land located within the exterior boundaries of the Cheyenne River Sioux Indian Reservation. None of the Beckers are Indians. In 2006, one of the Becker children sold her undivided one-eighth interest to Patrick and Carletta Aberle. Patrick is a member of the Cheyenne River Sioux Tribe. Carletta is a non-Indian. Patrick subsequently conveyed his interest to his son. Before this suit, Patrick’s son transferred the property back to Patrick. As a result, Patrick and Carletta each own an undivided one-sixteenth interest.

Sometime after Patrick and Carletta acquired their interests, a dispute arose between the Aberles and the Becker children who still retained an interest in the property. The Becker children commenced this action in circuit court, seeking a sale of the entire property. The Aberles counterclaimed for partition. Patrick also moved to dismiss for lack of subject matter jurisdiction. Patrick argued that because he was a member of the Tribe, and because he had become an owner of an undivided one-sixteenth interest in property on the Reservation, the circuit court possessed no subject matter jurisdiction to adjudicate the dispute between the parties. Aberles contended the Cheyenne River Sioux Tribal Court had jurisdiction.

On remand, the trial court will have to answer the following riddle:

But the problem in this case is that the record does not reflect how and under what authority the land in question was initially alienated. That is significant because counsel for the Tribe and Aberles contended at oral argument that this land could not have been alienated under the General Allotment Act of 1887 (the Cheyenne River Sioux Reservation was not created until 1889). Counsel also argued that we should read the 1908 Act differently than the General Allotment Act. Moreover, counsel for the Becker children agreed that the nature of the patent and the Act under which it was granted is important to the jurisdiction question. But that information is not known or reflected in this record.

Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

Matthew L.M. Fletcher4 Comments

Well, the anti-Indian bug has hit law students! 🙂

This student note, Help Me Help You: Why Congress’s Attempt To Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes (PDF), is published in the American University Law Review.

The abstract:

Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans.  Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA).  By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and employment to Indian country.  These contracts do not always run smoothly, however, and sometimes people get injured.  Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government.  The government pays out any settlements or judgments from the Judgment Fund.  This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances.

In hastily extending the FTCA to cover tribal contractors, Congress contravened FTCA jurisprudence in theory and in practice.  Congress intended to help the tribes avoid having to buy costly insurance by directly assuming liability under the FTCA.  While perhaps well-intentioned, the result is a system of perverse incentives and a string of inconsistent decisions.  Courts struggle to apply the FTCA’s waiver of the federal government’s sovereign immunity to the tribes, which remain separate sovereigns that retain some of their own sovereign immunity.  The arrangement also creates problems in determining whether tribal contractors are within the scope of their employment and undertaking discretionary functions.  Furthermore, the statutory scheme creates the potential for tribal law to govern the United States’ tort liability and may have inadvertently created a loophole for the intentional torts of tribal law enforcement officers.  The end result of this untenable situation is that savvy tribes recognize the unpredictability of the FTCA protection and purchase private insurance anyway, sometimes with federal contract support funds.  This is the exact result Congress hoped to avoid.

Congress should end the experiment of extending the FTCA to cover tribal contractors and replace it with subsidized private insurance.  This new arrangement would simplify the process for potential claimants and keep the government from having to pay the duplicative costs of insurance and judgments.

I don’t know much about this, but I thought Congress covered the tribes because the tribes were stepping into the shoes of federal service providers. As such, I’m not sure I’m persuaded that ISDEAA contracts should be molded to fit “FTCA jurisprudence … theory and … practice.” But I can’t argue much with the conclusion that there are a lot of unpredictable cases.

The tribes have been winning big on contract support costs cases lately. So if this proposal gets legs and runs, will that increase tribal indirect costs even more?