Federal Court Dismisses & Remands Silvia Burley/California Miwok Challenge to Foreclosure of Tribal Building

Here are the materials in Burley v. OneWest Bank (E.D. Cal.):

14 Onewest Bank Response to Order to Show Cause

15 Burley Response to Order to Show Cause

17 DCT Order

Prior post with materials here.

Split Ninth Circuit Panel Affirms Dismissal of Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Here is the opinion in White v. University of California.

From the court’s syllabus:

The panel affirmed the district court’s dismissal of an action under the Native Graves Protection and Repatriation Act on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action.

The action concerned the “La Jolla remains,” two human skeletons discovered during an archaeological excavation on the property of the Chancellor’s official residence at the University of California-San Diego. The tribes claimed the right to compel repatriation of the La Jolla remains to one of the Kumeyaay Nation’s member tribes. Repatriation was opposed by the plaintiffs, University of California professors who wished to study the remains. The professors sought a declaration that the remains were not “Native American” within the meaning of NAGPRA, which provides a framework for establishing ownership and control of newly discovered Native American remains and funerary objects, as well as cultural items already held by certain federally funded museums and educational institutions.

The panel held that the plaintiffs had Article III standing to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly traceable to the challenged action. In addition, this injury was likely to be redressed by a favorable decision.

The panel held that NAGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. The panel held that the “Repatriation Committee,” a tribal organization, was entitled to tribal sovereign immunity as an “arm of the tribe.” In addition, the Repatriation Committee did not waive its sovereign immunity by filing a separate lawsuit against the University or by incorporating under California law.

The panel held that the tribes and the Repatriation Committee were necessary parties under Federal Rule of Civil Procedure 19(a)(1) and were indispensable under Rule 19(b). In addition, the “public rights” exception to Rule 19 did not apply. Accordingly, the district court properly dismissed the action.

Dissenting, Judge Murguia agreed with the majority that the plaintiffs had Article III standing, that NAGPRA did not abrogate the sovereign immunity of the tribes, and that the Repatriation Committee was entitled to sovereign immunity. She would hold, however, that the Committee was not a necessary and indispensable party because it was neither necessary nor indispensable to resolution of the question whether the University properly determined that the La Jolla remains were Native American within the meaning of NAGPRA.

Briefs are here.

Federal Bankruptcy Court Holds Congress Abrogated Tribal Immunity in Bankruptcy Act

Here are the materials in In re Greektown Holdings LLC (E.D. Mich. Bkrcy.):

453 SSM Renewed Motion to Dismiss

463 Opposition

469 SSM Reply

474 Bankruptcy Court Order

An excerpt:

 

In sum, although Indian tribes have a “thumb on the interpretive scale” tending to tip the balance in their favor in the event of an ambiguity or lack of clarity, that does not come into play because, in this Court’s view, Congress sufficiently, clearly, and unequivocally intended to abrogate their sovereign immunity in the subject statute.

 

Wash. SCT Decides Outsource Servs. Mgmt. v. Nooksack Bus. Corp.

Here is the opinion.

An excerpt:

Washington State courts have jurisdiction over civil cases arising on Indian reservations as long as it does not infringe on the sovereignty of the tribe. At issue in this case is whether Washington State courts have jurisdiction over a civil case arising out of a contract in which the tribal corporation waived its sovereign immunity and consented to jurisdiction in Washington State courts. We hold that it does not infringe on the sovereignty of the tribe to honor its own corporation’s decision to enter into a contract providing for jurisdiction in Washington State courts.

Briefs and other materials here.

Eleventh Circuit Rules in Favor of Seminole Tribe in Title VII Matter

Here is the unpublished opinion in Mastro v. Seminole Tribe:

Mastro v Seminole

Briefs here.

Minnesota COA Affirms TRO against Western Sky; Rejects Immunity Defense

Here is the opinion in State ex rel. Swanson v. CashCall Inc.:

Minn COA Unpublished Opinion

An excerpt:

Respondent State of Minnesota brought a consumer-enforcement action against appellants CashCall, Inc., and WS Funding, LLC, in July 2013, alleging that appellants are using a third company, Western Sky Financial, LLC, as a front to make usurious loans to Minnesota consumers. The state moved for a temporary injunction, and appellants moved to dismiss the state’s complaint pursuant to Minnesota Rule of Civil Procedure 12.02(e). The district court granted the temporary injunction and denied the dismissal motion. Appellants challenged both rulings in these consolidated appeals. Because the district court did not err by denying the dismissal motion and did not abuse its discretion by granting the temporary injunction, we affirm.

Second Circuit Denies En Banc Review in Stockbridge-Munsee Land Claims

Here:

Stockbridge CA2 En Banc Denial

The petition is here.

 

New Mexico COA Remands Sandia Police Sexual Harassment Suit

Here is the opinion in South v. Lujan:

CA32,015

An excerpt:

Plaintiff-Appellant Tiffany South—a former officer with the Sandia Pueblo Police Department (Plaintiff) filed a complaint for violation of the New Mexico Human Rights Act (NMHRA), retaliatory discharge, and tortious inference with contract against Defendants-Appellees Isaac Lujan, William Duran, and Mary-Alice Brogdon (collectively, Defendants) in their individual capacities. The district court granted Appellees’ motion to dismiss based on lack of jurisdiction. Because the record on appeal is insufficient to permit review, we reverse and remand for factual development on the issues relevant to state court jurisdiction.

New Mexico Files Suit to Challenge Application of Part 291 Secretary Procedures to Pueblo of Pojoaque

Here is the complaint in State of New Mexico v. Jewell (D. N.M.):

1 Complaint

Here are the materials in Pueblo of Pojoaque v. State of New Mexico (D. N.M.) referenced in the complaint:

11 Pueblo of Pojoaque Motion for Default Judgment

15 New Mexico Response to Motion for Default Judgment

18 Pueblo of Pojoaque Response

20 New Mexico Answer

21 DCT Order Setting Aside Default Judgment

22 DCT Order Dismissing Case

We posted the complaint in that case here.

Ninth Circuit Briefs in Attempt to Arbitrate Pechange Tort Claims Statute under IGRA

Here are the briefs in Cosentino v. Pechanga Band of Luiseño Mission Indians:

Cosentino Opening Brief

Pechanga Answer Brief

Repky brief TK

Lower court materials (C.D. Cal.):

12-1 Pechanga Motion to Dismiss

13 Cosentino Response

20 DCT Amended Order