Ninth Circuit Decides Confederated Tribes and Bands of the Yakama Nation v. Yakima County

Here is the opinion. An excerpt:

This case presents the question whether the State of Washington may exercise criminal jurisdiction over members of the Confederated Tribes and Bands of the Yakama Nation who commit crimes on reservation land. To answer that question, we must interpret a 2014 Washington State Proclamation that retroceded—that is, gave back—“in part,” civil and criminal jurisdiction over the Yakama Nation to the United States, but retained criminal jurisdiction over matters “involving non-Indian defendants and non-Indian victims.” If “and,” as used in that sentence, is conjunctive, then the State retained jurisdiction only over criminal cases in which no party—suspects or victims—is an Indian. If, by contrast, “and” is disjunctive and should be read as “or,” then the State retained jurisdiction if any party is a non-Indian. We conclude, based on the entire context of the Proclamation, that “and” is disjunctive and must be read as “or.” We therefore affirm the district court.

Briefs here. Oral argument video here.

United States Petitions for Cert in Case Involving Tribal Police Authority to Detain Non-Indians

Here is the cert petition in United States v. Cooley:

Cert Petition

Question presented:

Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Lower court materials here.

Wyoming Court Confirms Clayvin Herrera’s Conviction for Hunting at Bighorn National Forest on Issue Preclusion Grounds

Here is the order in Wyoming v. Herrera:

Herrera Circuit Court Remand Order

The case is on remand from the Supreme Court (decision here).

Update in Suit Involving Aftermath of Fraud Arising from Wakpamni Lake Community Corp. TED Bonds in 2014-15

Here are materials in Water Works Board of the City of Birmingham v. U.S. Bank National Association (D.S.D.):

100 Redacted Statement of Material Facts

110 US Bank Motion to Exclude Vinella Testimony

128 US Bank Reply in Support of 110

132 US Bank Reply in Support of 99

155 DCT Order

Excerpts that provide background on the deal:

In 2013, Timothy Anderson (“Anderson”) began doing legal work in the area of economic development for the Wakpamni Lake Community Corporation (“WLCC”). (“Statement of Material Facts “SOMF” 103.) WLCC is a corporation organized under the laws of the Oglala Sioux Tribe, a federally-recognized Indian Tribe, and the Wakpamni Lake Community, and is wholly-owned by the Wakpamni Lake Community. (SOMF 4.) In approximately April 2014, while Anderson was a partner in the law firm Dilworth Paxson, LLP, he attended a conference focused on tribal economic development and while there, was asked by WLCC to attend a meeting wherein John Galanis, father of Jason Galanis, presented the idea for issuing taxable revenue bonds to fund construction projects in the Wakpamni Lake Community. (SOMF 103-106.) John Galanis (a/k/a “Yanni”) connected Anderson with Burnham Securities, Inc. (“Burnham”) based in New York, New York, and his son, Jason Galanis, to serve as the Placement Agent in the WLCC Bond offerings. (SOMF 107.)

Hugh Dunkerley (“Dunkerley”) was an investment banker at Burnham working on the WLCC bond deal. (Pentelovitch Decl. Ex. 49, 1005:11-13.) Burnham hired Anderson and his firm, Dilworth Paxon, to serve as its counsel in the WLCC bond offerings. (SOMF 38, 45-46.) Anderson received written conflict waivers from Burnham and WLCC in order to represent Burnham in the WLCC bond issuances. (SOMF 113.)

***

Anderson had suggested the U.S. Bank National Association (“USB”) would be a good fit as the indenture trustee on the WLCC bond offerings because USB was a well-known and reputable financial institution with “serious experience in tribal Indian Country.” (Murzyn Decl. Ex. 122, Trial Tr. 527-28.) USB is a member of the Federal Deposit Insurance Corporation (“FDIC”) and is a “financial institution” subject to the provisions of the Bank Secrecy Act (“BSA”). (SOMF 24, 25.) USB is engaged in the corporate trust business through its division called Global Corporate Trust Services (“GCTS”) and was known in the corporate trust industry as being one of the largest and most active indenture trustees in the market. (SOMF 26; Murzyn Decl. Ex. 7, Graham Dep. at 58:19-59:16.)

***

USB classified the bonds as municipal bonds. (SOMF 179.) Most municipal bonds are issued to finance a particular project, but the nature of the tribal development project supporting the bond issuance was unclear from the start which counsel for USB acknowledged as being unusual. (Murzyn Decl. Ex. 14, Slania Dep. 195:3-15; 205:8-16.) A term sheet sent by Anderson to USB on July 1, 2014, suggested that part of the proceeds would be used to build a “distribution facility” without any additional detail about what would be distributed from the facility. (Murzyn Decl. Ex. 7, Graham Dep. 78:6-79:8; Ex. 24.) A draft of the indenture dated July 23, 2014, that was provided to USB’s counsel suggested that the bond proceeds would be used to build a “gaming facility.” (Murzyn Decl. Exs. 35, 55.) Under USB policy existing at the time, gaming was designated under USB policy as an additional risk factor that may render a customer account high risk, thus requiring additional due diligence. (Murzyn Decl. Ex. 65.) Typically, a private placement memorandum describing the business purpose of the municipal bond transaction is provided, but no such memorandum was ever prepared with the WLCC bond issuances. Contrary to custom and practice in the industry, no construction budget or plans for the development project were produced. (Murzyn Decl. Ex. 14, Slania Dep. 204:22-205:16; Ex. 13, Pillar Dep. 104:17-105:04; Ex. 89.) Henselen testified at his deposition that he could not recall what the economic development project was for the August 2014 bond issuance and did not recall ever seeing a construction budget. (Murzyn Decl. Ex. 8, Henselen Dep. 206:13-23.)

The deal team members changed throughout the August 2014 bond deal. In a draft Indenture emailed to USB on August 15, 2014, the designated Issuer changed from Wakpamni Lake Community Development Corporation to Wakpamni Lake Community Corporation and provided that WLCC shall deliver a letter to USB at closing appointing Wealth Assurance AG as the Investment Manager. (Murzyn Decl. 8, Henselen Dep. 78:1-15.) The draft Indenture received by USB on August 25, 2014, two days prior to closing, showed a change in the Investment Manager from Wealth Assurance AG to Private Equity Management, LLC. (Murzyn Decl. Ex. 81.)

Ultimately, the Trust Indenture was executed on August 25, 2014, and provided that WLCC would be issuing $24,844,0892 Special Limited Revenue Bonds (Taxable) to finance the purchase of an annuity investment in the amount of $22,094,089 as well as economic development projects for the benefit of the Wakpamni Lake Community, including “projects near the junction of Routes 18 and 391, including a certain warehouse/distribution center and other revenue producing enterprises.” In addition to the development project being ill-defined, another unique aspect of the deal was that it involved an annuity. Deal team members and USB’s expert testified that they had never been involved with a bond issuance involving an annuity, especially one that would finance nearly ninety percent of the principal and interest payments to bondholders. (SOMF 109; Ex. 14, Slania Dep. 148:5-9; Ex. 1, Ambriz-Reyes Dep. 107:12-15; Ex. 16, Von Hess Dep. 22:19-23; Ex. 6, Gadsen Dep. 49:21-25.) Despite the unusual structure of this bond issuance, Henselen indicated on the “Establish Deal” form that the sources for all assets and cash transfers were coming from known sources that fit the standard profile for this product. (Pillar Decl., Ex. O.)

***

The persons designated and authorized to sign for WLCC relating to the August 2014 Bond Indenture, as detailed in the Certificate provided to USB, were Geneva Lone Hill, President of WLCC, and Wilma Standing Bear, Secretary of WLCC. (Murzyn Decl. Ex. 95.)

On August 26, 2014, Jason Galanis, the Placement Agent with Burnham, sent an email to Anderson with wire instructions for the $22,092,089 that was to be transferred out of USB’s settlement account for the purchase of the Annuity Investment and payment of certain closing costs. The wire instructions were to a JP Morgan Chase Bank account in Beverly Hills, California, and the account holder was designated as Wealth Assurance Private Client with an address in Santa Monica, California. Neither WLCC nor its counsel was copied on the email, and WLCC did not consent to any change in the Annuity Provider from Wealth Assurance Private Client, British Virgin Islands, to Wealth Assurance Private Client in California4. On August 27, 2014, Henselen’s manager confirmed that the bank account information provided in the Galanis/Anderson email matched the wire information before USB completed the $22,092,089 wire to the JPMorgan Chase Account in California. (Murzyn Decl. Ex. 16, Von Hess Dep. 101:5-102:7.)

Eventually, Galanis was indicted and pled guilty to fraud. Unfortunately, many of the pleadings are sealed, including the plaintiff’s expert report, which opines on the irregularities of this deal.

Prior post on this case here.

 

Federal Court Dismisses Suit against Flandreau Tribal Police Officers, FTCA Suit to Proceed

Here are the materials in Ten Eyck v. United States (D.S.D.):

1 Complaint

9 Tribal Police Motion to Dismiss

17 Opposition

18 Reply

21 DCT Order

22 Plaintiffs’ Response to 21

23 Tribal Police Response to 21

26 DCT Order

Federal Court Holds Prosecution under 18 U.S.C. § 117 for Indian Country D.V. Does Not Require Indian Victim or Perpetrator

Here are the materials in United States v. Unzueta (E.D. Mich.):

18 Magistrate Report

24 US Response

29 Defendant Response

30 DCT Order

New Student Scholarship on Jurisdiction and Gender-Based Violence against Native Women

Emily Mendoza has published “Jurisdictional Transparency and Native American Women” in the California Law Review Online.

Here is the abstract:

While lawmakers have long known that Native American women experience gender-based violence at higher rates than any other population, lawmakers historically have addressed these harms by implementing jurisdictional changes: removing tribal jurisdiction entirely, limiting tribal jurisdiction, or returning jurisdiction to tribes in a piecemeal fashion. The result is a “jurisdictional maze” that law enforcement officers, prosecutors, and courts are unable to successfully administer to bring perpetrators to justice. This Article is the first to identify what I call “jurisdictional transparency”—or clear, easily ascertainable rules governing courts’ jurisdiction—as a core value of the American legal system and will argue that a lack of jurisdictional transparency over criminal prosecutions in Indian country contributes to the excessive rates of domestic violence, sexual assault, and rape against Native American women. Because arguments for or against sovereignty are divisive and often put a swift end to productive dialogue, this has often led to the layering of more jurisdictional rules on top of the current system. Jurisdictional transparency, on the other hand, advocates an approach that is both more fundamental and more attainable: allocating criminal jurisdiction in Indian country in a way that can be easily determined at the outset of a case.

The Article begins by examining jurisdictional rules in other contexts while highlighting the federal courts’ continuous demand for clear jurisdictional rules in the interest of judicial efficiency and public access to the courts. With this backdrop, the Article then illuminates the discrepancy between such transparency demands and the opaque jurisdictional rules in Indian Country, using key case examples to demonstrate the system’s failures. Finally, the Article proposes a solution that is reflected in numerous facets of the law: jurisdictional transparency. Such a solution has a procedural guise capable of penetrating a polarized political climate while lifting the opacity that has prevented thousands of Native American women from accessing justice.