We posted the complaint and a motion for a TRO earlier here.
As Indianz reported, the federal court has dismissed the claim for failure to exhaust tribal remedies (and in heavy reliance upon the Ninth Circuit’s recent decision in the Water Wheel case).
Here are those materials:
John Duncan, Minister of Aboriginal Affairs and Northern Development, announced on Friday that s. 67 of the Canadian Human Rights Act would be repealed, as of June 18th. This was done to “ensure First Nations people have the same protection of their human rights as other Canadians.” Therefore, as of Saturday, any decisions made or actions taken by band councils and the federal government, made under or pursuant to the Indian Act, will be fully subject to the Canadian Human Rights Act.
Thanks for Marilyn Vann for the head’s up.
The briefs are here, and hopefully links will work below as well:
| 1- Petition in Error 1-25-11 |
| 2- Designation of Record 2-7-11 |
| 3- Entry of Appearance 2-23-11 |
| 4- Response to Petition in Error 2-23-11 |
| 5- Counter-Designation of Record 2-23-11 |
| 6-Certification of Court Clerk |
| 7-Brief 4-25-11 |
| 8-Appellees’ Answer Brief 6-3-11 part 1 |
| 8-Appellees’ Answer Brief 6-3-11 part 2 |
| 8-Appellees’ Answer Brief 6-3-11 part 3 |
| 8-Appellees’ Answer Brief 6-3-11 part 4 |
Here is the court’s summary:
Plaintiff is proceeding pro se in this action, which was referred to the undersigned pursuant to Local Rule 302(c)(21). As a grandparent of two children associated with the Washoe Tribe, plaintiff seeks custody of her grandchildren despite the previous action of the Washoe Tribal Court and the Inter-Tribal Court of Appeal of Nevada. Presently pending is defendant’s motion to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, 12(b)(6) for failure to state a claim, for failure to exhaust tribal court remedies and for sovereign immunity.
The interrelationship of federal and tribal courts is a delicate and often complex matter. This case fits that mold. While it is clear that a federal court may have jurisdiction over a non-Indian’s federal claim, Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004), the parameters of that claim are not clear, i.e., jurisdiction over what. Nor does plaintiff’s complaint make clear what she seeks. Although alleging at one point that the Washoe tribal court lacked jurisdiction, and that she was denied due process in some manner, plaintiff does not clearly specify her precise claims or ask for any certain relief. In supplemental briefing on the jurisdictional question (Docket #25), plaintiff indicated that she wished the children returned to her.
The undersigned finds that the court has subject matter jurisdiction over a claim by plaintiff, and that claim may include an attack on the tribal court jurisdiction and any constitutional claims that plaintiff may have, e.g., lack of due process in taking the children from non-Washoe lands, lack of due process in the tribal court, alleged fundamental right of a grandparent to custody over grandchildren in the circumstances of this case. The undersigned will defer ruling on the validity of any such claims until they are specified with greater particularity and further facts are known. Likewise, the undersigned will not attempt to define now what remedies may be available. The undersigned further concludes that plaintiff has exhausted her tribal court remedies. With respect to sovereign immunity, the court will defer ruling on such a claim until after an amended complaint is filed setting forth with preciseness the nature of plaintiff’s claims and appropriate defendants.
Here are the materials so far in Fred v. Washoe Tribe (E.D. Cal.):
Available here (Illinois website), and pdf:
This document details the findings of fact, and makes recommendations for discipline. We posted relevant documents on this matter here and here and here.
The six counts are as follows (details are in the document linked above):
COMPLAINT
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Meriel Coleman, pursuant to Supreme Court Rule 753(b), complains of Respondent, Joseph Henry Martin, who was licensed to practice law in the State of Illinois on May 2, 1995, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:
Here is the complaint in South Florida Entertainment Inc. v. Seminole Tribe of Florida (S.D. Fla.):
Here’s the first paragraph:
1. This action, in material part, seeks declaratory relief wherein SFLE and individual Plaintiffs seek to have this Court declare that the Tribe has violated the Indian Civil Rights Act, 25 U.S.C. § § 1301 and 1302 (the “ICRA”) and to order further necessary and proper relief in favor of SFLE pursuant to 28 US.C. §2202. Among other things, SFLE believes and contends that the Tribe is incapable of meeting its quasi-Constitutional obligation to provide due process of law under the ICRA due to its admitted failure to create and maintain a tribal court system or any other legitimate forum for ensuring compliance with the ICRA and the Constitutional-like protections it is intended to grant to members and non-Tribal members, alike. SFLE also seeks a declaration concerning whether the Tribe’s administration of the issuance of Tribal Liquor Licenses comports with or violates federal law, namely 18 U.S.C. §§1154, 1156 and 1161. SFLE also seeks a judicial declaration that the Tribe has contractually waived sovereign immunity with respect to disputes involving the Tribe, the Seminole Hard Rock Hotel and Casino which it operates and owns, SPR, and its commercial tenants and subtenants, like SFLE as well as the individual Plaintiffs. Moreover, each Plaintiff alleges that the Tribe solely controls SPR, as indicated in several pieces of correspondence with Plaintiffs. Proof of such control is reflected in Plaintiff’s Composite Exhibit “C” where the Defendant Tribe specifically alleges that it does business as SPR. The individual’s Plaintiffs, PENDLETON and PRIOLO, also allege damages for various tort claims against both Defendants, as stated within the various Counts herein below.
Here is the opinion out of the Mashantucket Pequot tribal court:
White Mountain Apache Tribe v Pequot Health Care
An excerpt:
The Plaintiff, the White Mountain Apache Tribe, alleges that it entered into an agreement with the Mashantucket Pequot Tribal Nation and its wholly owned subsidiaries, Pequot Health Care and Pequot Plus Health Benefits, to serve as the “third party administrator” of the Plaintiff’s self-funded tribal health plan. The plaintiff also alleges that it entered into the agreement based on the Defendants’ representations that it had the knowledge, skill, experience and expertise necessary to serve as a third party administrator of the Plaintiff’s health plan, and that it would achieve costs savings for the plan. The Plaintiff further alleges that the Defendants negligently and improperly administered the plan, failed to disclose to the Plaintiff that it had or was negligently and improperly administering the plan, and that as a result of the Defendants’ conduct, the Plaintiff suffered substantial losses to its self insured benefits plan.
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