Ho-Chunk Nation

Recent Iowa COA Opinions on ICWA Expert Testimony

Matthew L.M. Fletcher

Here are the unpublished opinions in In re D.S. (here and here). Here is a description of these cases from a dedicated reader:

This decision deals with whether Expert Witness Testimony needs to “support” the overall decision of the Trial Court’s decision to terminate parental rights.  In the first decision, the Court of Appeals misunderstood the parents’ arguments on the expert witness testimony issue.  The Court thought they were claiming that no QEW testimony was provided.  On the contrary, the parents felt that there was QEW and that QEW testimony needed to support the Trial Court’s decision.  The parents stated the QEW testimony did not support the Trial Court’s decision, and thus asked for the Court of Appeals to reconsider its decision.  The second decision essentially states that there is a split on whether QEW testimony just needs to be provided or if the QEW testimony actually needs to support the Trial Court’s decision.  This appellate panel decided that QEW testimony does not need to support the overall decision.

An excerpt from the first:

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Ho-Chunk Nation Trial Court Grants One and Denies One Petition to Access Gaming Per Cap Trust Fund

Matthew L.M. Fletcher

Here is the opinion granting a petition, In the Interest of Adult CTF Beneficiary: Joan M. Frank, DOB 03/27/1990 v. HCN Office of Tribal Enrollment, and here is the one denying a petition, In the Interest of Adult CTF Beneficiary: Tasha Hand, DOB 08/07/1988 v. HCN Office of Tribal Enrollment.

Broadman on Tribal Libel Laws

Matthew L.M. Fletcher

From ICT:

People slander each other everywhere—without regard for territorial boundaries. But the legal treatment of such speech differs drastically depending on whether tribal or non-tribal laws apply. Tribal courts sometimes treat reputational torts like slander and libel, structurally, like their non-tribal counterparts, generally requiring proof of fault, falsity and harm. For instance, in many ways the Little River Band of Ottawa Indians defamation statute mirrors the standards of proof and structure of non-tribal defamation. (“Protection Against Defamation Act of 2006,” PDF) On the other hand, at least one tribal court has recognized a traditional cause of action for defamation under tribal law, complete with novel privileges and standards. As media interests increasingly collide with tribal governmental and commercial interests, tribal laws on expression will be tested. The results, as shown in a recent case from the Ho-Chunk Nation courts, will test the ongoing viability of defamation law in Indian country.

Libel and slander are curious species of lawsuits since they involve a person writing or speaking his mind. In non-tribal courts, plaintiffs who are public figures face a high burden of proof. But because U.S. Constitutional standards are not imported into tribal defamation law, speech laws take on very different shapes in Indian country. In 2008, an ordinance passed and quickly rescinded by the Tribal Business Counsel of the Chippewa Cree of Rocky Boy’s Reservation in Montana made it a crime to defame a tribal official. And last month, a Ho-Chunk Nation Trial Court applied a tribal military veteran’s privilege that, as it is recognized, existed nowhere besides Ho-Chunk.

In a careful treatment of tribal-specific defamation law, the Ho-Chunk Trial Court recently held inGardner v. Littlejohn that a “veteran privilege” existed, protecting certain defamation defendants from liability (see the opinion at the invaluable Turtle Talk—“Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions”—edited by the Indigenous Law and Policy Center at Michigan State University College of Law). The court noted that although it “does not exist in any other jurisdiction,” the Ho-Chunk veteran privilege resembles that possessed by legislators, which shields certain legislative speech.

The suit stemmed from an Indian military veteran’s criticism of a tribal health department employee and an incorrect statement that the plaintiff had been terminated from employment. Typically, public officials suing their defamers must prove knowing or reckless falsehood. InGardner, had such a rule been applied and had defendants simply negligently defamed the plaintiff, no liability would exist.

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Has the St. Croix/Bad River Challenge to BIA’s Off-Rez Gaming Regs Been Mooted?

Matthew L.M. Fletcher

From Indianz:

The Ho-Chunk Nation today announced the purchase of land in Beloit, Wisconsin, where two other tribes have sought to build an off-reservation casino.

In a press release, Vice-President Daniel Brown said tribe said it hopes to pursue economic development opportunities in Beloit. “We are looking forward to the chance to talk with local leaders about potential opportunities to bring jobs, economic development, and further investments to the Beloit area,” he said.

The St. Croix Chippewa Tribe and the Bad River Band of Lake Superior Chippewa Indianswant to build a casino on the site in Beloit. The Bush administration rejected the project in January of this year, and the issue will be heard by the D.C. Circuit Court of Appealsnext week, on November 3.

In the press release, Brown said the Ho-Chunk Nation “remains the only tribal nation with a real opportunity to site a casino” in Beloit. The tribe’s Class III compact allows another gaming site in the state, he said, and the tribe has “federally-recognized aboriginal ties” to Beloit and the region.

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Seventh Circuit Affirms Convictions for Bilking HCN in Casino Fraud

Matthew L.M. Fletcher

Here is the opening paragraph in United States v. Moore, one of the more entertaining introductions lately:

The time: 6 p.m. The place: Ho-Chunk casino in Baraboo, Wisconsin. The event: a drawing to determine who would walk off with $10,000. Undoubtedly, excitement was in the air. Realistically, the average schlemiel had only a .000067 percent chance of winning. But another participant in the drawing had to like his chances: Bruce Knutson had a 30 percent chance of coming up a winner. And when the winning entry form was pulled from the barrel-ta da-the winner was Bruce Knutson! The lucky winner then posed for a publicity picture, signed off on a tax form, received a check for $5,000, and pocketed $5,000 in cash. It was, we suspect, a night to remember. But all was not, as we shall see, quite as it seemed. The rest of the story explains why Knutson and his buddy, Darwin Moore, are here appealing their convictions after they were found guilty of bilking the casino out of $10,000.

No Divided Argument in Carcieri v. Kempthorne

Matthew L.M. Fletcher

The Supreme Court released its other orders from last Monday’s long conference.

The motion of petitioners Donald L. Carcieri, Governor of Rhode Island, and the State of Rhode Island for divided argument is denied. The motion of petitioner Town of Charlestown for divided argument is denied. The motion of Narragansett Indian Tribe for leave to participate in oral argument as amicus curiae and for divided argument is denied.

So I assume the State will let Ted Olson on behalf of the governor argue the case against Ed Kneedler on the government’s side.

Here are the cert denials:

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2008 Term Preview: The Long Conference — September 29, 2008

Matthew L.M. Fletcher4 Comments

On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.

1. Hawaii v. Office of Indian Affairs (07-1372)

This petition has a fairly good chance to be granted.

The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).

2. Ho-Chunk Nation v. Wisconsin (07-1402)

I don’t think this one has much chance to be granted.

It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)

3. Kemp v. Osage Nation (07-1484)

This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.

Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.

4. Kickapoo v. Texas (07-1109)

This one has a slight chance for a grant.

I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.

Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.

5. Klamath Tribes v. PacificCorp (07-1492)

This one has no chance.

First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦

6. Matheson v. Gregoire (08-23)

Again, no chance.

First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.

7. South Fork Band v. United States (08-100, 08-231)

No chance.

This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.

8. United States v. Navajo Nation (07-1410)

Very, very good chance for a grant.

First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).

Either way you have a grant.

Challenge to Ho-Chunk Trust Acquisition Rejected

Matthew L.M. Fletcher

In Sauk County v. Dept. of Interior, the Western District of Wisconsin rejected NEPA and constitutional challenges to the Department’s decision to take land into trust (non-gaming purposes) for the benefit of the Ho-Chunk Nation.

sauk-county-v-doi-dct-opinion

Gaming Per Cap Bankruptcy Proceeding

Matthew L.M. Fletcher

The case is In Re DeCora. It involves a Ho-Chunk member declaring bankruptcy and whether the Ho-Chunk Nation Bank’s interest in the member’s per cap proceeds were secured. The opinion is a little entertaining, beginning with a reference to Frank Zappa:

Musician and satirist Frank Zappa once quipped that “Communism doesn’t work because people like to own stuff.” Whether this is an accurate take on geopolitical realities or not, the concept of personal property rights is certainly deeply ingrained into American culture and jurisprudence. In America, people may own all the stuff they can afford, and they can sell or give their stuff to someone else. Even when life doesn’t take Visa (or some other unsecured form of credit), people find ways to use their stuff as collateral for loans so that they can run out and buy more stuff. The present case involves competing interests in an intangible bit of stuff that this Court has encountered before-namely, a debtor’s right to receive tribal per capita distributions from tribal gaming revenues. The debtor used his right to future distributions as collateral for a loan so that he could afford, among other things, a new car. The question is whether the creditor took sufficient steps to protect its security interest from challenge.

Slip op. at 1-2.

The court also cites to numerous Ho-Chunk tribal court opinions. For example:

Third, the tribal courts of the Ho-Chunk Nation have themselves indicated that tribal members have a right to per capita distributions, if and when they are made, as long as that member is on the rolls of the Ho-Chunk Nation. See Kedrowski, 284 B.R. at 448-49; Hendrickson v. HCN Enrollment, CV 99-10 (Ho-Chunk Nation Trial Court 1999).

Slip op. at 3.

Here are the materials:

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CA7 Remands Wisconsin & Ho-Chunk Nation Gaming Revenue Sharing Dispute

Matthew L.M. Fletcher

The Seventh Circuit remanded (again) the dispute over the revenue sharing provisions of the Class III gaming compact between the State of Wisconsin and the Ho-Chunk Nation.

CA7 Opinion

The briefs are here:

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