Rule 19

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:
1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”
2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.
Lower court materials here.
UPDATE (1/4/16): Anthropologists Amicus Brief

Update in Western Sky-Related Proceedings

Matthew L.M. Fletcher

Here are materials in Dillon v. BMO Harris Bank NA (M.D. N.C.):

162 Dillion Motion to Compel re Generations

164 Dillon Motion to Compel

165 Bay Cities Bank Opposition

166 Generations Community FCU Opposition

170 DCT Order

An excerpt:

Using the Heldt analysis, however, Plaintiffs’ logic can be used to assert a colorable claim of tribal jurisdiction, because some of Defendants’ actions involved alleged tribal entities and/or tribal members.”). Operating against that backdrop, these courts mandated tribal exhaustion where the record did not establish (i) the nature of the payday lenders’ relationship to each other and/or the tribe; (ii) the unavailability of the specified tribal arbitral forum; and (iii) for purposes of the Western Sky agreement, (A) who constitutes an “authorized representative of the Cheyenne River Sioux Tribal Nation” and (B) whether any such authorized representative “is a JAMS or AAA arbitrator,” Heldt, 12 F. Supp. 3d at 1193 (internal quotation marks omitted).See id. at 1184-87, 1190-93; see also Brown, 84 F. Supp. 3d at 480-81 (following Heldt).

As discussed below, Dillon bases his Requests and Motions to Compel in significant part on a need to develop a factual record sufficient to overcome the concerns in the Heldt line of cases. (See, e.g., Docket Entry 162 at 1-2; Docket Entry 162-2 at 4-6.).

We posted on this Rule 19 portion of this case here.

 

Otoe-Missouria Tribe of Indians Seeks to Quash Third-Party Subpoena in Class Action re: Sovereign Lending

Matthew L.M. Fletcher

Here is the motion in Dillon v. BMO Harris (W.D. Okla.):

1 Motion to Quash

Here are materials in the North Carolina portion of this suit.

Oklahoma v. Hobia Cert Stage Briefing Complete

Matthew L.M. Fletcher

Here:

Petition for a Writ of Certiorari

Hobia Cert Opp

Oklahoma Reply

Lower court materials here.

Hobia Cert Opposition Brief

Matthew L.M. Fletcher

Here:

Hobia Cert Opp

Cert petition here.

Ninth Circuit Briefs in Timbisha Shoshone Tribe v. Dept. of Interior

Matthew L.M. Fletcher1 Comment

Here:

Opening Brief

Interior Answer Brief

Tribal Council Answering Brief

Agency decision here. Materials here.

Federal Court Dismisses Challenge to Santa Ynez Chumash Casino

Matthew L.M. Fletcher

Here are the materials in Save the Valley LLC v. Santa Ynez Band of Chumash Indians (C.D. Cal.):

22-1 Santa Ynez Motion to Dismiss

26 Opposition

29 Reply

31 DCT Minute Order

We posted the complaint here.

Eighth Circuit Affirms Dismissal of Two Shields v. Wilkinson

Matthew L.M. Fletcher2 Comments

Here is the opinion:

Two Shields Opinion

An excerpt:

Appellants Ramona Two Shields and Mary Louise Defender Wilson are Indians with interests in land allotted to them by the United States under the Dawes Act of 1887. Such land is held in trust by the government, but may be leased by allottees. Two Shields and Defender Wilson leased oil and gas mining rights on their allotments to appellee companies and affiliated individuals who won a sealed bid auction conducted by the Board of Indian Affairs (BIA) in 2007. Subsequent to the auction, appellants agreed to terms with the winning bidders, the BIA approved the leases, and appellees sold them for a large profit. Appellants later filed this putative class action in the District of North Dakota, claiming that the United States had breached its fiduciary duty by approving the leases for the oil and gas mining rights, and that the defendant bidders aided, abetted, and induced the United States to breach that duty. The district court concluded that the United States was a required party which could not be joined, but without which the action could not proceed in equity and good conscience, and dismissed the case. Appellants challenge that dismissal. For the reasons stated below, we affirm.

Briefs here.

Federal Court Imposes $200K Appeal Bond on Wolfchild Appeal

Matthew L.M. Fletcher3 Comments

Here are the relevant materials in Wolfchild v. Redwood County (D. Minn.):

208 Lower Sioux Community Motion for Rule 11 Sanctions

291 DCT Order

Materials on the court’s dismissal of the claim are here.

Federal Court Dismisses Town of Browning v. Sharp, States Town Has Tribal Court Remedy

Matthew L.M. Fletcher

Here are the materials in Town of Browning v. Sharp (D. Mont.):

71 Sharp 12b1 Motion to Dismiss

73 Sharp 12b6 Motion to Dismiss

75 Sharp 12b7 Motion to Dismiss

95 Town Response to 71

96 Town Response to 73

97 Town Response to 75

115 Sharp Reply in Support of 75

156 Magistrate Recommendation

162 DCT Order

An excerpt:

No adequate alternative forum exists to address the Town of Browning’s ex Parte Young action. The Blackfeet Tribal Court appears to represent an adequate alternative forum, however, to address the ongoing dispute between the Blackfeet Tribe and the Town of Browning. Indeed, in the Blackfeet Tribal Court, the Town of Browning can litigate against the Blackfeet Tribe directly rather than through an ex Parte Young action. Further, the Town of Browning appears to have moderated its position regarding the relief that it seeks. (Doc. 159). The Town of Browning appears to seek some reasonable compensation from the Blackfeet Tribe for use of the Town of Browning’s water main to deliver water to utility customers. The Town of Browning can seek and obtain this relief as a counterclaim in the breach of contract claim currently pending in the Blackfeet Tribal Court. Although the Town of Browning has challenged the Blackfeet Tribal Court’s jurisdiction over it on the grounds of sovereign immunity, the existence of a contract between the parties appears to confer jurisdiction on the Blackfeet Tribal Court. Montana v. United States, 450 U.S. 544, 565 (1981). An alternative forum exists for the Town of Browning to obtain the relief it seeks.

After weighing the factors listed in Rule 19(b), this Court has determined that this case should not proceed in the absence of the Blackfeet Tribe, a required party. The potential prejudice to the Blackfeet Tribe far outweighs the harm to the Town of Browning. The Blackfeet Tribal Court represents an alternative forum for the Town of Browning to address its underlying dispute with the Blackfeet Tribe.

Materials on the preliminary injunction stage of this litigation are here.