Eighth Circuit – Turtle Talk

A dispute over the practice of flaring natural gas from oil wells fuels the legal controversy in this case: the scope of Native American tribal court authority over nonmembers. Several members of the MHA Nation sued numerous non-tribal oil and gas companies in MHA tribal court. Those companies operate oil wells on lands within the Fort Berthold Indian Reservation that have been allotted to individual tribe members but are held in trust by the federal government. The tribe members alleged the companies owed royalties from wastefully-flared gas. Some of these companies unsuccessfully contested the tribal court’s jurisdiction over them in tribal court. Then they initiated this action in federal court to enjoin the tribal court plaintiffs and tribal court judicial officials. The district court issued a preliminary injunction, and the tribal court plaintiffs and officials separately appealed. We affirm the injunction because we conclude suits over oil and gas leases on allotted trust lands are governed by federal law, not tribal law, and the tribal court lacks jurisdiction over the nonmember oil and gas companies.

Briefs here.

Eight Circuit Affirms Conviction of Habitual D.V. Offender

August 1, 2019Matthew L.M. Fletcher

Here is the opinion in United States v. Oka.

Split Eighth Circuit Panel Affirms Constitutionality of North Dakota Election Law Designed to Dilute the Indian Country Vote

July 31, 2019Matthew L.M. Fletcher

Here is the opinion in Brakebill v. Jaeger.

Materials and other coverage here.

Eighth Circuit Decision Upholding Tribal Jurisdiction in Watso v. Piper [ICWA, PL 280]]

July 16, 2019Kate Fort

Decision here.

This settles a long running string of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.

ICWA holding:

Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.

PL 280 holding:

Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.

And a succinct due process holding:

Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.