Ninth Circuit Finds No Colorable Tribal Jurisdiction over Rincon Mushroom

Here are the materials in Rincon Mushroom Corp. v. Mazzetti:

CA9 Unpublished Opinion

Rincon Mushroom Opening Brief

Rincon Band Answering Brief

Rincon Band Motion to Take Judicial Notice

Rincon Mushroom Reply

Rincon Mushroom Motion to Take Judicial Notice

Lower court materials here.

An excerpt from the Ninth Circuit opinion:

The Tribe argues that the non-member fee land at issue could potentially contaminate the Tribe’s water supply, or exacerbate a future fire that might damage the Rincon Casino. However, these possibilities do not fall within Montana’s second exception, which requires actual actions that have significantly impacted the tribe. Compare id. at 341 (“The sale of formerly Indian-owned fee land to a third party . . . cannot fairly be called ‘catastrophic’ for tribal self-government. . . .”) (citation omitted); and Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997) (ruling that tribal court jurisdiction over tort suits is not “needed to preserve the right of reservation Indians to make their own laws and be ruled by them”) (citation and internal quotation marks omitted), with Elliott, 566 F.3d at 844, 849-50 (holding that the tribal court had colorable jurisdiction where a non-Indian started a forest fire on reservation land).

To hold that the potential threats of harm presented on this record give rise to tribal jurisdiction under Montana’s second exception would allow the exception to swallow the rule; any property within the Rincon Reservation faces  similar potential threats. See Plains Commerce, 554 U.S. at 330. Because the potential threats did not create a plausible basis for tribal court jurisdiction, the district court erred when it dismissed RMCA’s Complaint for failure to exhaust tribal remedies.  See Elliott, 566 F.3d at 848.

Compare that language to the lower court’s description of the same allegation:

Defendants have submitted evidence indicating that conduct on Plaintiff’s property “pose direct threats to the Tribe’s groundwater resources.” (Minjares Decl. ¶ 29, Doc. # 52). Defendants also have submitted evidence that “[c]onditions on the Subject Property during the [2007] Poomacha Fire contributed to the spread of wildfire from that property to Tribal lands across the street on which the Casino is located.” (Mazzetti Decl. ¶ 15, Doc. # 17-2). Although Plaintiff disputes this evidence, Defendants have shown that conduct on Plaintiff’s property plausibly could threaten the Tribe’s groundwater resources and could contribute to the spread of wildfires on the reservation. This showing is sufficient to require exhaustion, given the relief requested by the first two counts of the Complaint.

Informational Handouts on Tribal Govt. Provisions of VAWA Reauthorization

Here:

VAWA protections for suspects of abuse (04-17-12)

VAWA Combat DV Locally

Letter from Law Professors: “Constitutionality of Tribal Government Provisions in VAWA Reauthorization”

Here:

VAWA Letter from Law Professors – Tribal Provisions

Federal Court Effort to Enjoin Crow Creek Election Fails

Here are the materials in Wounded Knee v. Crow Creek Sioux Tribal Council (D. S.D.):

DCT Order Dismissing Wounded Knee Complaint

Tribal Court Complaint

Tribal Court Motion for PI

Proposed Tribal Court Order

Tribal Court Order

Federal Court Finds Encana Failed to Exhaust Tribal Court Remedies, and Dismisses Challenge to Wind River Tribal Court Jurisdiction

Here are the materials in Encana Oil & Gas v. St. Clair (D. Wyo.):

70 Order Denying PI

71 Order Granting Motions to Dismiss

The briefs and other materials are posted here.

More Materials on Koniag v. Kanum

Here is a complaint filed by Kurt Kanam against the parties in United States v. Washington in the “Karluk Tribal Court” from last fall:

Kanam v All Fish Case Parties, Complaint 11-19-2011

Update in Koniag v. Kanam — Some Evidence that “Karluk Tribal Court” Isn’t a Real Tribal Court At All

You may recall our posting on the recent complaint in Koniag, Inc. v. Kanam (and the Karluk Tribal Court). There is some evidence that the “Karluk Tribal Court” is not attached to a federally recognized tribe, and may be a total fraud.

Here are some additional materials in the ongoing federal suit:

Koniag Motion for TRO

Karluk Tribal Court Materials [Note the location of the tribal court — it’s in Washington state, a thousand miles from the Native village on Kodiak Island]

First Amended Complaint

Here is an order issued by the “Karluk Tribal Court” purporting to declare a Washington state court ICWA proceeding invalid: Continue reading

Michigan Indian Legal Services Winter 2011-2012 Newsletter

Here:

MILS_Newsletter_Winter_2011-2012_Edition

Interesting articles on Jay Treaty border crossings and right to counsel in tribal courts. Oh, and MSU ILPC alum Erin McCormick.

Utah SCT Dismisses Navajo ICWA Tribal Court Transfer Denial Suit as Moot

Here is the opinion:

AdoptLO1223041312

An excerpt:

This case involves a dispute over the Division of Child and Family Services’ (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation’s direct appeal of the juvenile court’s denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation’s consent to the child’s adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.

 

 

Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction

Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.

Here is Paul’s abstract:

The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.