motion to dismiss

Texas v. Zinke (ICWA Challenge) April Update

Kate Fort

There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.

Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.

Ohio and Goldwater have filed amicus briefs on the opposition to the motion to dismiss.

Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.

The federal government and the plaintiffs are going back and forth on the scheduling of additional briefing, but there are no orders yet.

News Coverage of Goldwater (ICWA Litigation) Hearing

Kate Fort4 Comments

News coverage that confirms all accounts we received that this was a very difficult and discouraging hearing.

This hearing was on DOJ’s motion to dismiss the Goldwater ICWA litigation, which is contesting the constitutionality of ICWA. Relevant documents are here.

In response to questions we’ve been getting–this hearing was only on the government’s motion to dismiss. By the looks of it, the judge is not likely to dismiss the case at this point. Next up in the litigation is a fight over class certification, which the judge was delaying full briefing on until after the decision on the motion to dismiss. There will also be rulings on Navajo Nation and Gila River’s motions to intervene. Short answer to what the hearing likely means–this is looking like a long slog. We would really love to be wrong.

Farmers Union Oil v. Guggolz — Plains Commerce Bank Redux

Matthew L.M. Fletcher

This is a case before the same trial judge as in Plains Commerce Bank in the D.S.D. This one is a slip and fall, but Farmers Union Oil the defendant in tribal court at Standing Rock. The judge followed Plains Commerce Bank and many other similar decisions in requiring the exhaustion of tribal court remedies, but then he took an unfortunate potshot at the CA8 opinion in Plains Commerce Bank:

I have previously cited in this order and opinion the case of Plains Commerce. I was the trial judge in that case. The case was affirmed on appeal by the United States Court of Appeals for the Eighth Circuit. As I read the appellate opinion, I was struck by the fact that such opinion would clearly and substantially broaden the jurisdiction of tribal courts in the Eighth Circuit. It would allow tribal courts to decide what common law principles were to be applied in tribal courts. This would be a significant expansion of tribal court jurisdiction in civil cases. In the past few days, I have noted that the United States Supreme Court has granted the petition of Plains Commerce for a writ of certiorari. Apparently, we will have further guidance from the Supreme Court.

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U.S. v. Gonzales et al. — Makah Whalers — Up to Date Materials

Matthew L.M. Fletcher1 Comment

The Makah whaling case in federal court is turning into a very interesting discussion of whaling treaty rights and federal criminal procedure.

Here are the current materials in United States v. Gonzales, et al., No. CR 07-5656 JKA (W.D. Wash.):

United States v. Gonzales Indictment

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Makah Tribe Proposed Amicus Brief in Federal Whaling Prosecution

Matthew L.M. Fletcher

The Makah Nation has filed a motion for leave to file an amicus brief in the United States v. Gonzales whaling prosecution. Here are the materials, including Defendant Noel’s opposition to the motion:

Makah Amicus Brief

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U.S. v. Gonzales et al. — Makah Whalers — Update

Matthew L.M. Fletcher

We previously published the indictment here. There have been two motions to dismiss the indictment and a motion to suppress evidence. There has been no federal response yet. Here are those materials:

Defendants Motion to Dismiss Count 1

Defendants Motion to Dismiss Count 2

Defendants Motion to Suppress

Alvarado v. Table Mountain Rancheria (9th Cir.) Materials

Matthew L.M. Fletcher

Yesterday, the Ninth Circuit affirmed the dismissal of claims by a class represented by Pearl Alvarado that they are entitled to membership in the Table Mountain Rancheria. The Ninth Circuit did not address the tribe’s claim of sovereign immunity, but instead ruled that the plaintiffs failed to establish subject matter jurisdiction.

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Oklahoma Sovereign Immunity Case

Matthew L.M. Fletcher

This one is called Murphy v. Kickapoo and is out of the Western District of Oklahoma. It exemplifies the current problem of tribal sovereign immunity litigation — i.e., courts desperately trying to find a waiver or some reason why tribal immunity does not bar the suit, in plain opposition and conflict to clear Supreme Court precedent (Kiowa Tribe).

Kickapoo Motion to Dismiss

Opposition to Kickapoo Motion

Reply Brief

District Court Opinion