District of North Dakota – Page 10

Since this is also a challenge to a federal statute, expect a strong cert petition from the US if it loses this case in the Eighth Circuit. If not, then look for a circuit split down the line.

Here are those materials:

US v Cavanaugh Appellant Brief

Cavanaugh Answer Brief

US v Cavanaugh Reply Brief

Earlier posting with lower court materials here.

SLAPP Lawsuits and the Tribal Court Exhaustion Doctrine

May 17, 2010Matthew L.M. Fletcher2 Comments

There’s an interesting exchange in a District of North Dakota case (Laducer v. DISH Network) involving an allegation that a non-Indian-owned business claim that a tribal court has no jurisdiction over it is actually a SLAPP lawsuit. A SLAPP lawsuit — strategic lawsuit against public participation — often is a frivolous countersuit by a corporate defendant against an individual plaintiff designed to bleed the plaintiff’s finances dry, effectively ending the original case. In this instance, it doesn’t appear that the facts support the claim.

But what if an Indian plaintiff brings a legitimate claim against a non-Indian in tribal court, and the defendant frivolously brings a federal court action to shut down the tribal court action? The non-Indian likely would not be subject to Rule 11 sanctions for filing a frivolous claim because the Supreme Court’s Montana jurisprudence is so negatively swayed against tribal jurisdiction that even easy cases are not easy (see the Water Wheel case). Any non-Indian defendant can bleed a tribal plaintiff dry.

Here are the materials:

Brian Laducer Motion to Dismiss

DISH Network Response

Brian Laducer Reply

Indian Frauds: United States v. Reed

January 15, 2010Matthew L.M. Fletcher

Here is the opinion — US v Reed

An excerpt:

Suffice it to say the pleadings filed by Reed to date are plagued with vagueness, confusion, and indecipherable gibberish. Reed appears to be arguing that he is a sovereign, namely that he is a member of the “esens-tribus-family” or the “Little Shell Nation” Indian tribe, and, therefore, he is not subject to the laws of the United States. See Docket Nos. 25, 32, and 34. The indictment alleges that the acts occurred in the District of North Dakota and that he violated federal law.

Federal Court Dismisses Indictment in Indian Country Domestic Violence; Questions Constitutionality of Statute

January 5, 2010January 5, 2010Matthew L.M. Fletcher4 Comments

Here is United States v. Cavanaugh (D. N.D.), where the court dismissed an indictment under the federal domestic violence by a habitual offender in Indian Country statute (18 U.S.C. 117), holding that the use of prior uncounseled tribal court D.V. convictions to establish the “habitual” element of the crime was unconstitutional. See my paper on how state courts should use, if at all, uncounseled tribal court convictions. The court rejected claims that the statute itself was unconstitutional under Morrison and Lopez.

Here are the materials:

Cavanaugh DCT Order on Motion to Dismiss

Cavanaugh Motion to Dismiss

US Opposition to Cavanaugh Motion to Dismiss

Cavanaugh Reply Brief

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Turtle Mountain Band Tribal Court Exhaustion Case

December 29, 2009Matthew L.M. Fletcher

Here is the opinion in Auto Owners Insurance v. Azure (D. N.D.): Auto Owners Ins v Azure DCT Order.

An excerpt:

The Court finds the legal analysis and reasoning as set forth in Malaterre and Nielson is instructive. Auto Owners clearly had a consensual relationship with defendant Ken Davis when it issued a homeowner’s insurance policy to him. As a result, the first Montana exception applies and the tribal court retains jurisdiction over the conduct of Auto Owners. The Court further finds that Strate v. A-1 Contractors does not prevent tribal court exhaustion because in this dispute there is a colorable claim of tribal court jurisdiction such that exhaustion would not serve as a delay. Nielson, 2002 WL 417402, at *5. In accordance with the policies underlying the tribal exhaustion doctrine, the tribal court should be given the first opportunity to address the factual and legal issues presented. Exhaustion is “especially appropriate” to protect the operation of tribal government and avoid undermining the authority of the tribal court. See Bruce H. Lien Co. Three Affiliated Tribes, 93 F.3d 1412, 1420 (8th Cir. 1996).

Chaotic Land Dispute Case at Turtle Mountain Dismissed from Federal Court

June 21, 2009Matthew L.M. Fletcher1 Comment

Here is the district court opinion in Gustafson v. Poitra — Gustafson DCT Order

An excerpt:

There may have been an actual, ongoing case or controversy when this action was filed to determine whether the Turtle Mountain Tribal Court had jurisdiction to issue a temporary restraining order against Gustafson, the case did not remain alive once the Turtle Mountain Tribal Court set aside the temporary restraining order on April 28, 2009.

Tribal court materials:

Turtle Mountain Tribal Court TRO

Turtle Mountain Tribal Court Set Aside of TRO