Eastern District of Washington – Page 10

The ultimate Finding of Fact in this matter is that the BIA maliciously caused the institution and continuation of unfounded criminal proceedings against Duane Garvais in Spokane Tribal Court in retaliation for the proper performance of his duties in investigating thefts by BIA patrol officers with close connections to the Tribe. As stated, those charges were ultimately dismissed pursuant to the finding of this court that the Spokane Tribal Court did not have jurisdiction over Mr. Garvais.

The court finds that Mr. Garvais and his family suffered substantial emotional distress and turmoil as the result of the wrongful action of the BIA at the behest of and in association with the Spokane Tribal Council and its agents and employees. This emotional distress continued over a period of years, including Mr. Garvais having to seek habeas corpus relief in this court. The court finds that just compensation to Mr. Garvais is in the amount of $ 400,000 plus the sum of $ 13,102.66 billed by Mr. Weatherhead’s law firm Witherspoon, Davenport, & Toole.

Federal Court Dismisses Most Claims by Non-Indians over Indian Leases; Demands Reason Why U.S. Did Not Represent Indian Allotment Owners

January 19, 2010Matthew L.M. Fletcher2 Comments

Here is the court order in Grondal v. United States — Grondal DCT Order. Non-Indian plaintiffs sued to prevent federal government from evicting them from Indian trust allotments after expiration/cancellation of federal leases.

Previous orders in a related case (Wapato Heritage LLC v. United States, where the U.S. sued to evict the leaseholders, are here.

Importantly, the district court ordered the United States to show cause as to why it did not enter an appearance on behalf of unrepresented Indian allotment owners in accordance with 25 U.S.C. 175. The court noted:

None of the individually named Defendants who have ownership interests in the real property known as MA-8 appeared. The court notes that the United States has not entered an appearance on behalf of any of the named individual Indian landowners. The court does not know why such an appearance has not been filed since the United States actually granted the Master Lease (as opposed to simply approving it) on behalf of at least certain landowners pursuant to its authority under 25 C.F.R. § 162.601. More importantly, 25 U.S.C. § 175 provides that “[i]n all States and Territories where there are reservations or allotted Indians the United States district attorney shall represent them in all suits at law and in equity,” although the statute is not mandatory. Siniscal v. United States, 208 F.2d 406, 410 (9th Cir.1953) (holding that 25 U.S.C.A. § 175 is not mandatory and that its purpose “is no more than to insure the Indians adequate representation in suits to which they might be parties.”) Unlike this case, in Siniscal, the Indians named were being sued as individuals and “not with reference to any right in which the United States … is in the position of trustee or guardian.” Id. At least one court has recognized where there is a possible conflict of interest between the Indians and the United States, it may be proper for the Indians to be represented by private counsel. State of New Mexico v. Aamodt, 537 F.2d 1102, 23 Fed. R. Serv.2d 810 (10th Cir.1976). The United States has not provided any reason for its failure to enter an appearance on behalf of the un-represented individual Indian landowners to make certain they have adequate representation in this action.

It appears the U.S., like most, has assumed that Section 175 is a virtual dead letter. Maybe not….

Federal Court Rules against Yakama Nation in Tax Dispute with Washington State

January 6, 2010Matthew L.M. Fletcher2 Comments

Here is the opinion in Yakama Indian Nation v. Gregoire (E.D. Wash.): Yakama DCT Order on X-Motions for Summary J

Here are the motions:

State Motion for Summary J

Yakama Motion for Summary J

Trial Court Orders in Wapato Heritage LLC v. United States — Allotment Case

November 10, 2009January 19, 2010Matthew L.M. Fletcher2 Comments

Here are the opinions out of the Eastern District of Washington:

Wapato Heritage DCT Order Granting Partial Summary J

Wapato Heritage DCT Order to Dismiss

An excerpt:

On May 19, 2006, Plaintiff submitted to Defendant a proposed “Replacement Lease” for MA-8, which would run for a term of 99 years and allow housing development on part of MA-8. In order to secure approval of the Replacement Lease, Plaintiff needed to obtain the consent of a majority of the beneficial owners of MA-8. To that end, Plaintiff and the BIA scheduled a number of meetings in the summer of 2006 with Indian landowners to provide information about the Replacement Lease. During the summer of 2006, Plaintiff asserted that a majority of beneficial owners had consented to the Replacement Lease, and included its own approximately 24% ownership interest in calculating that majority. Plaintiff’s interest is a life estate, with the remainder reverting to the Colville Confederated Tribes (“Tribe”).

Court Dismisses Teck Camino Counterclaim against Colville

June 27, 2009June 27, 2009Matthew L.M. Fletcher

Here is the opinion in Pakootas v. Teck Camino (E.D. Wash.) in which the court dismisses counterclaims by the polluter (Teck Camino) against one of the plaintiffs (the Colville Confederated Tribes) on grounds that tribes cannot be liable under CERCLA — DCT Order Dismissing Teck Camino Counterclaims

Here are the briefs:

Colville Motion to Dismiss Counterclaims

Teck Camino Response to Motion to Dismiss

Colville Reply re Motion to Dismiss

Pakootas v. Teck Camino District Court Order on Attorney Fees

March 17, 2009Matthew L.M. Fletcher1 Comment

A million bucks is pretty significant…. pakootas-atty-fees-dct-order

(H/T Indianz)

Kalispel v. Moe — Moe Motion for New Trial Denied

November 13, 2008Matthew L.M. Fletcher

We reported the earlier decision in this case, involving the sovereign immunity of the Kalispel Tribe in a counterclaim against it here. The counter-claimants sought a new trial on the question after the counterclaims were dismissed. The denial of the motion is here:

kalispel-v-moe-dct-order-on-motion-for-new-trial

CERCLA Case on Spokane Tribe Reservation

October 21, 2008Matthew L.M. Fletcher

In United States v. Newmont USA, the Eastern District of Washington held that the Newmont company was liable for clean-up costs at the “Midnite Mine.”

us-v-newmont-usa-dct-order

us-v-newmont-usa-dct-order-on-us-motion-to-dismiss (2007)