Eastern District of Wisconsin

Federal Court Dismisses Civil Rights Claim against Menominee Jail

Matthew L.M. Fletcher

Here is the opinion in Lyons v. Menominee Tribal Jail (E.D. Wis.) — DCT Order Dismissing Lyons Complaint

The petitioner claimed to have been jailed for four months without seeing a judge — Lyons Pro Se Complaint. One hopes that isn’t true.

An excerpt from the order (technically, an order refusing the petitioner to waive filing fees):

Moreover, the complaint does not appear to state a claim upon which relief may be granted. Section 1983, the civil rights statute, imposes liability on individuals who act under color of state law, but it does not apply to those acting under color of tribal law. Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (“A § 1983 action is unavailable ‘for persons alleging deprivation of constitutional rights under color of tribal law.’ ”) (quoting R.J. Williams Co. v. Ft. Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir.1983)). Accordingly, it will be dismissed for that additional reason. “Because plaintiff does not allege that defendant acted under color of state law, the district court was correct to grant summary judgment to defendant on that basis.” Pounds v. Killion, 35 Fed. Appx. 819, 821, 2002 WL 1038774, *1 (10th Cir.2002).

The court also noted that no jurisdiction existed under the Indian Civil Rights Act:

Similarly, the Indian Civil Rights Act (“ICRA”) does not provide a remedy. The only remedy provided in ICRA is that of habeas-style relief (i.e., release from custody)-it does not authorize damages actions after release. United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir.2005) (“We acknowledge that in the civil context, habeas corpus relief generally is the sole federal remedy for a violation of ICRA.”); Stevens v. Skenandore, 2000 WL 1069404, * 1 (7th Cir.2000) (“Stevens cannot sue the individual Oneida defendants under the ICRA because the only remedy authorized by the statute is a habeas corpus proceeding brought against the tribe pursuant to 42 U.S.C. § 1303.”)

Menominee Sues Interior over Off-Reservation Gaming

Matthew L.M. Fletcher

Here’s the news article, via Penchanga, with an excerpt:

The Menominee Nation has filed a lawsuit that seeks to overturn the U.S. Department of the Interior’s decision to block the tribe from building a casino at Dairyland Greyhound Park.

The tribe filed the suit in the U.S. District Court in Green Bay on Friday against the U.S. Department of the Interior and Kenneth Salazar, current secretary of that department. The lawsuit asks the court to declare a January 2009 denial of the Menominee’s land-into-trust application to create a casino at Dairyland as invalid and unlawful and to overturn that decision.

And the complaint — Menominee II Complaint

Vagueness Challenge to Major Crimes Act Fails

Matthew L.M. Fletcher

The case is United States v. Nahwahquaw, out of the Eastern District of Wisconsin — NAHWAHQUAW Report and Recommendation (the district court judge adopted the recommendation). An excerpt:

Even if the court were to conclude that the defendant can maintain a facial challenge to § 1153(a), which it does not, the term “Indian” is not unconstitutionally vague on its face. Although “Indian” is not defined in the statute, the test for determining “Indian” status has been judicially defined over the years and is well established under federal law. The test, first suggested in United States v. Rogers, 45 U.S. 567 (1846) and generally followed by the courts, considers: “(1) the degree of Indian blood; and (2) tribal or governmental recognition as an Indian.” United States v. Torres, 733 F.2d 449, 456 (7th Cir.1984) (quoting United States v. Broncheau, 597 F.2d 1260, 1263 [9th Cir.1979] ) (emphasis supplied by Torres ); See also, United States v. Keys, 103 F.3d 758, 760 (9th Cir.1996); United States v. Dodge, 538 F.2d 770, 786 (8th Cir.1976). Tribal enrollment is “the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.” United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir.2005) (quoting Broncheau, 597 F.2d at 1263); accord, United States v. Antelope, 430 U.S. 641, 646 n. 7 (1977).

United States v. Menominee Tribal Enters. — False Claims Act Suit

Matthew L.M. Fletcher

Here is the opinion — us-v-menominee-tribal-enters-dct-order

An excerpt:

The United States brought this action against Menominee Tribal Enterprises (“MTE”) and two of its employees. The Government alleges that the Defendants submitted invoices seeking payment that contained false information, in violation of the False Claims Act, 31 U.S.C. § 3729. It further alleges that MTE breached contracts it had with the Bureau of Indian Affairs (“BIA”) when it made several large purchases without receiving prior approval. All parties have moved for summary judgment, at least as to some of the claims. For the reasons given herein, I conclude that all claims should be dismissed as to Defendant MTE; False Claims Act claims brought against the individual Defendants will remain.

Menominee Motion for TRO Denied in Fee to Trust Challenge

Matthew L.M. Fletcher

The Eastern District of Wisconsin denied the Menominees motion for a TRO in their challenge to the application of the regulations on off-reservation gaming. The complaint is here.

menominee-motion-for-tro

dct-order-denying-tro

Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land

Matthew L.M. Fletcher5 Comments

In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).

In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.

We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.

Continue reading →

Wrongful Discharge Complaint Against Stockbridge-Munsee Dismissed

Matthew L.M. Fletcher

Sovereign immunity and a lack of federal subject matter jurisdiction barred this wrongful discharge complaint in Louis v. Stockbridge-Munsee Community, decided in the Eastern District of Wisconsin.

stockbridge-munsee-motion-to-dismiss

louis-opposition-to-motion

stockbridge-munsee-reply

dct-dismissal-order-re-louis-v-smc

US v. Menominee Tribal Enterprises — Discovery Abuses and Tribal Sovereign Immunity

Matthew L.M. Fletcher

This case is a wild one. In it, the U.S. is suing Menominee Tribal Enterprises under the False Claims Act for over a million in damages. Bad news. Paraphrasing the DCT here, MTE responded with a very aggressive defense, with massive discovery requests a major feature. Then MTE posts the papers it receives on its website (here). The Menominee Indian Tribe is involved because one of their council members has been subpoenaed by MTE.

From the DCT’s order:

the United States’ motion for a protective order barring MTE’s dissemination of discovery materials on its website and its motion to seal the deposition of Douglas Cox are denied. The Tribe’s motion to quash the subpoena compelling the deposition of Lisa Waukau is granted, and MTE’s motion to compel the production of BIA invoices, invoice review policies, and related documents is denied.

Complaint [there are answers and counterclaims, too, but I’ll leave those out]

Menominee Tribe Motion for Protective Order [council member subpoena]

Continue reading →