tribal constitutions

Grand Canyon Skywalk Development Cert Petition

Matthew L.M. Fletcher2 Comments

Here is the cert petition in the case now captioned Grand Canyon Skywalk Development LLC v. Grand Canyon Resort Development Corporation:

Petition For A Writ Of Certiorari

Questions presented:

1. Does Montana v. United States, 450 U.S. 544 (1981) apply on tribal land, as this Court suggested in Nevada v. Hicks, 533 U.S. 353, 358 (2001), or does this Court acquiesce in the Ninth Circuit’s contrary decision in Water Wheel Camp Recreation Area v. LaRance, 642 F.3d 802 (9th Cir. 2011)?

2. Does a non-tribal member consent to tribal jurisdiction under Montana even when that “consent” comes in the form of a contract with a tribal corporation which expressly provides that disputes will be resolved through binding arbitration, not in tribal court, and where the tribal enterprise has expressly waived its sovereign immunity to permit arbitration?

3. Are intangible contract rights of a Nevada corporation located on federal land held in trust for the Tribe and thus subject to the Tribe’s eminent domain powers because they relate to activities on tribal land?

4. Does the bad-faith exception to National Farmers exhaustion require a showing that the tribal court acted in bad faith, or is it sufficient to demonstrate that the Tribe’s governing council (Tribal Council) did so and that the Tribe’s judiciary lacked judicial independence?

Lower court materials here.

Federal Court Dismisses Challenge to Paskenta Band Governance

Matthew L.M. Fletcher1 Comment

Here are the materials in Swearinger v. Paskenta Band of Nomlaki Indians Tribal Business Council (N.D. Cal.):

DCT Order Dismissing Complaint

Swearinger Complaint

Paskenta Band Motion to Dismiss

Swearinger Opposition

Paskenta Band Reply

An excerpt:

Plaintiffs are “enrolled members of the Paskenta Band of Nomlaki Indians,” a federally recognized Indian tribe with “approximately 240 members.” Docket No. 1, Compl. ¶¶ 11, 13-14. Although Congress revoked PBNI’s status as a federally recognized tribe in 1958, it  later restored the tribe’s federally recognized status in 1994 by enacting the Paskenta Band Restoration Act (PBRA), Pub. L. No. 103-454, §§ 301-03, 108 Stat. 4791 (codified as amended at 25 U.S.C. §§ 1300m et seq.). Compl. ¶ 21. The PBRA directed the Secretary of the Interior to conduct an “election for the purpose of adopting a constitution and bylaws for the Tribe.” 25 U.S.C. § 1300m-6. The PBRA further states that, after the tribe adopts a constitution, “such tribal constitution shall govern membership in the Tribe.” Id. § 1300m-4(b).

Nooksack COA Stays Enrollments

Matthew L.M. Fletcher

Here are the materials in Lomeli v. Kelly (Nooksack Ct. App.) and Roberts v. Kelly (Nooksack COA):

Roberts v Kelly Order on Motion for Permission to File Interloctory Appeal

Lomeli v Kelly Order Extending Stay

Roberts v Kelly Notice and Emergency Motion for Permission to Appeal Interlocutory Order And Aceptance of Appeal

Seattle Times Coverage of Nooksack Disenrollments

Matthew L.M. Fletcher

Here.

Excerpt:

The federal government has been hesitant to get involved in tribal internal affairs, according to Robert Anderson, director of the Native American Law Center at the University of Washington and an enrolled member of the Minnesota Chippewa Tribe. A group of Snoqualmie members experienced a rare legal victory in 2009 when a federal court judge overturned their banishment and disenrollment.

Disenrollment decisions are not only about membership, but also about belonging, Raquel Montoya-Lewis, chief judge of the Nooksack Tribal Court, wrote in a court decision.

“Cultural and tribal identity lay at the heart of how we know ourselves. … Belonging to a tribe gives tribal members a sense of home, of connection to a community, whether one lives there or not,” Montoya-Lewis wrote.

Oklahoma Federal Court Transfers Cherokee Freedmen Suit to D.C. District Court

Matthew L.M. Fletcher

Here:

2013-08-19 Order Re-Transferring Case to DC

Materials later. It’s lunchtime.:

DCT Order Denying Motion to Transfer — 3-15-13

Cherokee Freedmen Motion to Reconsider

Cherokee Nation Opposition

Interior Response in Support of Motion

Cherokee Freedmen Reply

Cherokee Nation Reply to Interior

Federal Court Dismisses Grand Canyon Skywalk Development Complaint Seeking Arbitration against Hualapai Tribe

Matthew L.M. Fletcher1 Comment

Here are the materials in Grand Canyon Skywalk Development LLC v. Hualapai Indian Tribe of Arizona (D. Ariz.):

DCT Order Denying Motion to Compel Arbitration

First Amended Complaint

Amended Complaint Exhibit Set 1

Amended Complaint Exhibit Set 2

Hualapai Motion to Dismiss

Hualapai Motion to Disqualify

Charlton Declaration

Rhodes Affidavit

GCSD Opposition

Greenberg Traurig Opposition to Motion to Disqualify

Harrison Declaration

Overton Declaration

Overton Exhibit Set 1

Overton Exhibit Set 2

Overton Exhibit Set 3

Quasala Declaration

Hualapai Reply in Support of Motion to Disqualify

Hualapai Reply in Support of MTD

From the opinion:

Defendants Hualapai Indian Tribe and seven named members of the Hualapai Tribal Council have filed a motion to dismiss Plaintiff Grand Canyon Skywalk Development, LLC’s (GCSD) first amended complaint to compel arbitration. Doc. 19; see Doc. 18. The motion has been fully briefed. Docs. 21, 29. Defendants also have filed a motion to disqualify Greenberg Traurig (GT) as counsel for GCSD and for related orders protecting theTribe’s confidential information. Doc. 25. GT has filed a response in opposition which GCSD joined. Docs. 43, 37. For the reasons that follow, the Court will grant Defendants’ motion to dismiss GCSD’s first amended complaint, and deny Defendant’s motion to disqualify GCSD’s counsel and for related orders.

Prior post on this specific suit is here.

Update on Nooksack Disenrollments — Restart on Disenrollment Process

Matthew L.M. Fletcher1 Comment

News coverage on the impact of the disenrollments on school-age children here.

Materials in Roberts v. Kelly (Nooksack Tribal Court):

Roberts v. Kelly Motion for Temporary Restraining Order

Roberts v. Kelly Declaration of Gabriel S. Galanda In Support of TRO Motion wExhibits

Roberts v. Kelly Motion to Disqualify Chief Judge Raquel Montoya Lewis

Roberts v. Kelly Order Denying Emergency Temporary Order Hearing

Roberts v. Kelly Order Denying Motion To Disqualify Hon. Raquel Montoya-Lewis

Materials in Lomeli v. Kelly (Nooksack Ct. App.):

Lomeli Notice of Appeal

Motion for Clarification or Relief from Stay of Proceedings

Order on Motion for Clarification from Stay of Proceedings

Spirit Lake Leadership Dispute — Yankton v. Hopkins

Matthew L.M. Fletcher

Here is the federal court complaint:

Roger Yankton Sr. Amended Complaint

News coverage here and here.

Nooksack COA Stays Disenrollment Proceedings Pending Appeal

Matthew L.M. Fletcher

Here is the news coverage.

And the materials in Lomeli v. Kelly (Nooksack Tribal Ct. App.):

Emergency Motion for Stay of Tribal Court Judgment

Order Granting Appellate Review and Staying Proceedings

And a new suit in tribal court, with a sitting council member as lead plaintiff, Roberts v. Kelly (Nooksack Tribal Ct.):

Roberts v. Kelly Complaint w Appendices

Prior posts here, here, here, here, here, and here.

New Paper on the Availability of Tribal Law

Matthew L.M. Fletcher1 Comment

Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:

This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.