tribal courts

Update in Inetianbor v. Cashcall (Western Sky Financial): Federal Court Reopens Case

Matthew L.M. Fletcher3 Comments

You may recall from our February post that a federal court had honored an arbitration provision in a Cashcall/Western Sky Financial form agreement and sent the case to the Cheyenne River Sioux Tribal Court. That court responded to the plaintiff that the Cheyenne River Sioux Tribe does not authorize arbitration under the American Arbitration Association rules, so the plaintiff successfully brought the case back to federal court.

Materials in Inetianbor v. Cashcall Inc. (S.D. Fla.) are here:

DCT Order Granting Motion to Reopen

Inetianbor Motion to Reopen + Tribal Court Letter

Cashcall Opposition

Important Montana 1 Decision in Federal Trade Commission Suit against On-Rez Payday Lenders

Matthew L.M. Fletcher

Here are the materials in FTC v. Payday Financial LLC (D. S.D.):

DCt Order Denying Defendants’ Motion

Defendants’ Motion for Partial Summary J

FTC Opposition

Defendants’ Reply

From the opinion:

The pending motion for partial summary judgment presents the issue of tribal court jurisdiction over non-Indians who contract with a company doing business from an Indian reservation. The “pathmarking” case on tribal authority over nonmembers is Montana v. United States, 450 U.S. 544 (1981). See Strate v. A-I Contractors, 520 U.S. 438, 445 (1997) (describing Montana as “pathmarking” and applying Montana to evaluate tribal court jurisdiction authority over non-Indians.) In Montana, the Supreme Court recognized two areas in which  Indian tribes have sovereign power to exercise authority over nonmembers on their reservation. The first such “Montana exception” recognizes tribal authority over “the activities of nonmembers who enter consensual relationships with a tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”Montana, 450 U.S. at 565. The precise question presented in this case is one of first impression: When a company conducting  business from an Indian reservation enters into a commercial contract with a non-Indian, is it an unfair and deceptive practice for the company to include forum selection and consent to tribal jurisdiction provisions in [2] the contract and to then expect to litigate any alleged breach of contract claim against the non-Indian in tribal court? This Court determines that, under the circumstances of this case and on the sole issue currently before this Court, such contract provisions are not unfair and deceptive when the non-Indian has entered into “consensual relationships [with tribal] members” with a sufficient connection to on-reservation activities to make the consent to jurisdiction and forum selection provisions enforceable under the first Montana exception. See Montana, 450 U.S. at 565. However, in this case, two open issues prompt this Court to deny Defendants’ Motion for Partial Summary Judgment: (1) This Court’s record lacks information establishing that the Defendants are in fact “members” of the tribe for purposes of the first Montana exception; and (2) an ambiguity in the contract exists as to under what circumstances the non-Indian is consenting to tribal court jurisdiction in addition to binding arbitration.

Ninth Circuit Briefs in Evans v. Shoshone-Bannock Land Use Commission

Matthew L.M. Fletcher2 Comments

Here:

Appellant Opening Brief

Appellee Answer Brief

Appellant Reply Brief

Lower court materials are here.

Materials in Denial of Yakama Motion to Dismiss Washington v. Yakama Tribal Court

Matthew L.M. Fletcher1 Comment

Here:

DCT Order Denying Yakama Motion to Dismiss

Yakama Motion to Dismiss

Washington Opposition to Motion to Dismiss

Yakama Reply re Motion to Dismiss

PI materials here.

Idaho Argonaut on the Navajo Nation Supreme Court’s Visit to Idaho Law School

Matthew L.M. Fletcher

Here.

Colville Tribal Prosecutor Article on Practicing in Tribal Court

Matthew L.M. Fletcher

From the March 2013 edition of the Washington State Bar’s “NW Lawyer“:

nwlaywer201303

Tribal Court Suit to Prevent 306 Nooksack Tribal Membership Disenrollments

Matthew L.M. Fletcher2 Comments

Here:

Complaint (with a list of the 306 proposed disenrollees)

Motion for Temporary Restraining Order

Declaration of Nooksack Elder Sonia Lomeli (with Exhibits)

Declaration of Noosack Elder Norma Aldredge (with Exhibits)

Declaration of Tribal Council Secretary Rudy St. Germain (with Exhibits)

Declaration of Tribal Member RaeAnne Rabang

Declaration of Tribal Fisherman Terry St. Germain (with Exhibits)

Declaration of Gabriel S. Galanda (with Exhibits)

N.C. Appellate Court Affirms Dismissal of Tort Suit against EBCI

Matthew L.M. Fletcher2 Comments

We previously posted an earlier appeal of this case to the state appellate system here. The Eastern Band tribal court had jurisdiction all along.

Here are the materials in Cardeon v. Owle Constr. II:

Appellant Brief

Appellee Brief

Reply Brief

NC App Unpublished Decision

Federal Court Holds Navajo Nation Labor Commission Has No Jurisdiction over Window Rock Public Schools

Matthew L.M. Fletcher2 Comments

Here are the materials in Window Rock Unified School District v. Reeves (D. Ariz.):

DCT Order Granting Summary J to School District

NNLC Motion to Dismiss

Window Rock Response

NNLC Reply

Window Rock Reply

We posted the complaint here.

New Scholarship on Domestic Violence and Alaska Natives

Matthew L.M. Fletcher1 Comment

Laura S. Johnson has published “Frontier of Injustice: Alaska Native Victims of Domestic Violence” (PDF) in American University Law School’s “The Modern American.”

An excerpt:

This paper will present three pieces of a strategy to better combat domestic violence in Alaska Native communities. First, cooperation among sovereigns is critical to ensure that laws are enforced. Second, effective law enforcement can be enhanced by creative, community-based, culturally-sensitive models that respond to domestic violence through alternate forms of dispute resolution in Alaska Native communities such as tribal courts. The State of Alaska should actively encourage the development of tribal courts to offer victims alternative forms of dispute resolution because they can offer victims more immediate, culturally-sensitive and community-based remedies. And finally, Alaska Native tribes should exercise regulatory civil jurisdiction over domestic violence crimes in their communities to help Alaska Native victims of domestic violence achieve justice and be protected from their abusers. Part I lays the foundation for a discussion of legal remedies available to Native Alaskans by briefly examining the limitations on tribal jurisdiction in Alaska. Part II presents the remedies that are currently available to Alaska Native victims of domestic violence. Part III expands from the Alaska Supreme Court’s monumental decision in John v. Baker to argue that Alaska’s courts should recognize tribal jurisdiction in domestic violence cases just as Alaska’s Supreme Court recognized tribal adjudicatory jurisdiction in the family law context.