Eighth Circuit – Page 4

It is true that Indian reservations are “physically within the territory of the United States.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis added). The PKPA’s definition of “State,” however, includes “a territory . . . of the United States,” 28 U.S.C. § 1738A(b)(8) (emphasis added), which is most naturally understood to mean a political entity that is not a state but is still “[a] part of the United States . . . with a separate legislature (such as Guam and the U.S. Virgin Islands).” Territory, Black’s Law Dictionary (11th ed. 2019); see, e.g., 48 U.S.C. § 1541(a) (“The Virgin Islands . . . are declared an unincorporated territory of the United States of America.”). And the Supreme Court has made clear that within our constitutional order, such “territories” are distinct from Indian tribes.

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Our conclusion that the PKPA does not apply to Indian tribes is further supported by the fact that when Congress intends for tribes to be subject to statutory full-faith-and-credit requirements, it expressly says so.

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For the reasons explained above, we conclude that the PKPA does not apply to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated under that statute to enforce the North Dakota court orders awarding custody of C.S.N. to Nygaard. The district court properly granted summary judgment to the Tribal Court.

Eighth Circuit Orders Tribal Exhaustion in Cigarette Ban Case

July 3, 2023Matthew L.M. Fletcher

Here is the opinion in WPX Energy Williston LLC v. Jones.

Briefs here.

Eighth Circuit Shows Against Why FTCA’s Discretionary Function Exception Should Be Canned

June 12, 2023Matthew L.M. Fletcher

Here is the cursory, bloodless opinion in Mound v. United States.

Briefs here. Lower court materials here.

An excerpt:

In 2014, the Tribe identified a culvert—a structure that channels water under a road—as a potential maintenance project. In 2018, based on an engineering assessment, the Tribe decided to replace the culvert. Because its existing contract did not authorize funding for the project, the Tribe sought a new contract with the BIA. Before the new contract was finalized, heavy rains collapsed the culvert, leaving a large gap in the road. Four cars drove into the gap and plunged into the water. Trudy Peterson and James Vander Wal were swept downstream and died. Evan Thompson and Steven Willard suffered serious injuries.

Split Eighth Circuit Panel Shields Communications between North Dakota Legislators and Constituents that Probably Shows Racial Animus against Native Voters

June 6, 2023Matthew L.M. Fletcher

Here are the materials in In re: North Dakota Legislative Assembly:

Opinion

Petition for Writ of Mandamus

Turtle Mountain Opposition

The underlying case is here.

Eighth Circuit Affirms Indian Country Drug Conviction over Potentially Interesting Jurisdictional Objections

May 3, 2023Matthew L.M. Fletcher

Here is the opinion in United States v. Milk.

Briefs:

Opening Brief

Federal Answer Brief

An excerpt from the opinion:

Milk, who is Native American and an enrolled member of the Oglala Sioux Tribe, contends that the district court lacked jurisdiction because (1) he was convicted of crimes that are not enumerated under the Major Crimes Act, 18 U.S.C. § 1153,4 and (2) under the General Crimes Act, 18 U.S.C. § 1152, the alleged unlawful acts in this case occurred on the Pine Ridge Reservation and only involved American Indian people. But Milk’s arguments are foreclosed by precedent.