Turtle Talk

Even if BAF’s claims were not precluded by the Memorandum Opinion, however, they would fail in their own right. BAF does not have standing, either for itself or to assert the interests of unspecified birth parents, nor has it alleged any basis for this Court to conclude that its claims are ripe. If adoption proceedings are underway, then the Court should abstain from hearing the present suit or dismiss the declaratory relief as contrary to the Anti-Injunction Act. BAF cannot demonstrate that “legal consequences flow” from the Guidelines so as to render them reviewable because it concedes that Defendants do not enforce the Guidelines, and makes no argument that Defendants otherwise treat them as controlling. Nor does BAF cite any binding authority for the propositions that the Guidelines are race-based, that birth parents have a fundamental right to dictate the adoptive placement of their child, that ICWA exceeds the Indian Commerce Clause, or that non-binding Guidelines may commandeer state entities. For these reasons, and because they have not alleged a basis for relief under Bivens, Plaintiffs’ claims fail for lack of subject-matter jurisdiction and as a matter of law and must be dismissed.

Previous filings here. (documents 52, 56, 64, 67)

More “Karluk Tribal Court”/”Karluk Supreme Court” Nonsense

October 27, 2015Matthew L.M. Fletcher

Here are the materials in Remenar v. Office of Dana Scarp (D. D.C.), where the court dismissed a mandamus petition of a non-lawyer seeking admission to practice claiming to be licensed by the fake “Karluk Tribal Court” out of Washington state (not to be confused with the federally recognized Indian nation in Alaska):

Petition for Mandamus Relief

Judge Leon Opinion

And here are materials in Mr. Remenar’s criminal case in Texas:

State of Texas v. Remenar Removal Petition

Remand

We’ve posted materials on the people claiming to represent this fake tribal court and fake tribe here, here, here, here, here, and here.

Interior Solicitor (Tulsa Office) Job Posting

October 27, 2015Matthew L.M. Fletcher

Here. From the description:

Represent the Secretary of the Interior in Oklahoma state court for approval proceedings of conveyances and leases of restricted Five Tribes lands; on probate issues involving restricted lands of deceased Five Tribes individuals and involving restricted lands and head right interests of Osage individuals; and on quiet title matters involving restricted Five Tribes lands.

Represent the Secretary on guardianship cases involving individual members of the Five Tribes and the Osage Nation. Review and make recommendations regarding Osage inter vivos trusts and hold hearings related to Osage wills and trusts.

Provide general legal assistance, such as research and writing legal opinions, reviewing legal documents and administrative records, and handling litigation before administrative bodies such as the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Interior Board of Indian Appeals (IBIA), Interior Board of Land Appeals (IBLA), Civilian Board of Contract Appeals (CBCA), and Oklahoma state boards, primarily to the Bureau of Indian Affairs on matters involving Indian law, realty and land title, environmental law, FOIA, contracts, employment law, tort claims and other matters as assigned.

Federal Agents Raid Menominee Tribe

October 27, 2015Sarah M Donnelly3 Comments

U.S. News report here.

Search warrant and affidavits (PDF) here.

The Tribe is being accused of growing hemp plants with too much THC in them, but the Tribe says they were upfront to the Feds about seedlings they received for industrial hemp research:

Former U.S. Attorney for North Dakota Tim Purdon is working with the Menominee tribe and blasted the raid as a “waste of resources” that “is exacerbated by the fact that the Tribe had agreed to act itself to destroy individual strains of the hemp crop that the Tribe and the U.S. Attorney’s Office agreed were problematic.”

“This misallocation of federal resources is exactly what the [2013] Cole and [2014] Wilkinson Memos were designed to prevent,” he said, referring to the Justice Department memos allowing states and tribes, respectively, to regulate marijuana.

The Menominee Tribe legalized marijuana back in August, but the government has not yet enacted regulations concerning its sale and production.

Ninth Circuit Rules in Favor of Tribe in $36.2M Compact Dispute

October 26, 2015Matthew L.M. Fletcher4 Comments

Here is the opinion in Pauma Band of Luiseño Indians v. State of California.

From the court’s syllabus:

Affirming the district court’s summary judgment, the panel held that the Pauma Band of Luiseno Mission Indians was entitled to rescission of the 2004 Amendment to the 1999 Tribal-State Compact governing operation of Class III, or casino-style, gaming on Pauma’s land.

The panel held that the interpretation of a Compact license pool provision in Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. Cal., 618 F.3d 1066 (9th Cir. 2010), applied, such that the State of California would be deemed to have misrepresented a material fact as to how many gaming licenses were available when negotiating with Pauma to amend its Compact. The panel held that, unlike a change in judicial interpretation of a statute or law, the doctrine of retroactivity does not apply to contracts. Once there has been a final judicial interpretation of an ambiguous contract provision, that is and has always been the correct interpretation from the document’s inception.

The panel held that the district court properly granted summary judgment on Pauma’s misrepresentation claim. The panel held that the district court awarded the proper remedy to Pauma by refunding $36.2 million in overpayments, even though the district court mislabeled the remedy as specific performance, rather than rescission and restitution for a voidable contract. The panel held that this equitable remedy fell within the State’s limited waiver of its sovereign immunity in the Compacts, and thus was not barred by the Eleventh Amendment.

On cross-appeal, the panel held that Pauma was not entitled to seek redress under the Indian Gaming Regulatory Act because the State and Pauma actually reached a gaming Compact.

Dissenting, Chief District Judge Jarvey wrote that the State did not commit the tort of misrepresentation by interpreting the Compact differently than a later court decision. He also wrote that, under the language of the Compact, the State did not waive its sovereign immunity with respect to this claim.

Briefs here.