Shoshone-Bannock Tribes – Page 2

Ninth Circuit Holds Shoshone-Bannock Land Use Office/Court Has No Jurisdiction over Nonmember on Nonmember Lands

December 5, 2013Matthew L.M. Fletcher

Here is the opinion in Evans v. Shoshone-Bannock Land Use Policy Commission. The court’s syllabus:

Reversing in the district court’s denial of a motion for preliminary injunction and dismissal of an action seeking to enjoin tribal court proceedings, the panel held that the Shoshone-Bannock Tribes lacked the power to regulate the land use of the plaintiff, a nonmember who owned land in fee simple within the Fort Hall Reservation.

The panel held that the plaintiff was not required to exhaust tribal remedies before bringing suit in federal court because the tribal court plainly lacked jurisdiction. The panel held that because the plaintiff was an owner of non-Indian fee land, the Tribes’ efforts to regulate him were presumptively invalid under Montana v. United States, 450 U.S. 544 (1981), and an exception for the regulation of nonmember activity that directly affects a tribe’s political integrity, economic security, health, or welfare did not apply. The panel reversed the judgment of the district court and remanded the case for further proceedings.

Briefs and lower court materials are here.

Ninth Circuit Briefs in Evans v. Shoshone-Bannock Land Use Commission

March 28, 2013Matthew L.M. Fletcher2 Comments

Here:

Appellant Opening Brief

Appellee Answer Brief

Appellant Reply Brief

Lower court materials are here.

Federal Court Orders Exhaustion of Tribal Remedies in Shoshone-Bannock Zoning Case

December 21, 2012Matthew L.M. Fletcher2 Comments

Here are the materials in Evans v. Shoshone-Bannock Land Use Policy Commission (D. Idaho):

Dkt 20-1 Memorandum in Support of Motion to Dismiss (00049369)[1].PDF[1][1]

Evans Opposition

Evans Motion for PI

Dkt 49 – Response to Plaintiffs’ Motion for Preliminary Injunction (00049977)[1][2][1]

Memorandum Decision & Order[2][2]

From Mark Echo-Hawk, atty for the Tribes:

The Shoshone-Bannock Tribes earned a winning decision in a hard-fought battle in the Idaho District Court today. The case was about exhaustion of tribal court remedies. The specific issue was whether the Tribes could enforce their land use laws against a non-Indian who built a single family residence on fee owned land on the Fort Hall Reservation. The Tribes attempted to enforce their building permit and business licensing laws against the builder and his contractors and when their efforts were ignored the Tribes filed suit in tribal court. The non-Indian landowner and contractors (backed by the surrounding county and non-Indian businesses) sued in federal court, seeking declaratory and injunctive relief. The Tribes filed a motion to dismiss, arguing that exhaustion of tribal court remedies was required. The non-Indian landowner and contractors argued the Reservation was ‘open’, or diminished, and that the tribes initiated the suit in bad faith. The case came down to whether it was plausible that tribal jurisdiction existed under Montana’s second exception. The federal district court found that the Reservation area in question was not open, that jurisdiction was plausible, and granted the tribes’ motion to dismiss, requiring exhaustion of tribal court remedies. Significantly, the Court confined the ‘catastrophic’ consequences language in Plains Commerce Bank relating to Montana’s second exception to land sale cases and distinguished the analysis required for land use cases. Here is the Court’s decision and the Tribes’ supporting briefing: (attached). The Tribes have been fighting with Power County for years about land use jurisdiction. There aren’t many favorable exhaustion cases that focus on Montana’s second exception, so this may be helpful to other Tribes.

Shoshone-Bannock Tribes RFP for Casino Gaming Legal Services

April 9, 2012Matthew L.M. Fletcher

The Shoshone-Bannock Tribes are seeking Request for Proposals for a Casino Gaming Attorney. Interested Attorneys can obtain a complete RFP from Kari Fisher: kfisher@sbtribes.com. This will close on 5/30/12.

CASINO GAMING ATTORNEY: REQUEST FOR PROPOSALS FOR LEGAL SERVICES

Issue Date: April 2, 2012

Proposal Deadline:

May 30, 2012, 5:00 PM

Contact: Kari Fisher (kfisher@sbtribes.com), Recruitment Representative for a complete copy of the RFP.

DESCRIPTION:

The Shoshone-Bannock Tribes (Tribes) are soliciting Proposals for the purpose of contracting for Gaming Casino legal services covering the entire scope of gaming and gaming business related issues. The contract is for a three (3) year term with a possible renewal option.

Proposals must be time stamped by the General Counsel’s office of the Shoshone-Bannock Tribes by the exact date and time indicated above. Late proposals will not be accepted.

It is the intent of the Tribes to obtain qualified legal services for its Casino and gaming operations. The Tribes are seeking a law firm, or an individual specializing in gaming and business laws. The law firm or primary attorney must have at least five (5) years of gaming and business related experience and meet the requirements and qualifications set forth herein.

The Tribes invites interested law firms and individuals to submit written proposals to provide legal services as set forth herein.

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En Banc Ninth Circuit Panel Decides Important NEPA Intervention Case

January 15, 2011January 14, 2011Matthew L.M. Fletcher

Here is the opinion in Wilderness Society v. USFS.

And the tribal amicus brief: Tribal Amicus Brief

An excerpt:

Today we revisit our so-called “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors’ motion to intervene.

Gambling Addicts Challenge to Shoshone-Bannock Tribes’ Video Gaming Compact Proceeds

December 30, 2010December 30, 2010Matthew L.M. Fletcher

The State of Idaho and the Dept. of Interior had filed motions to dismiss. The district court granted Idaho’s motion, but held that the gambling addicts, who are neighbors to the tribal casino, had standing to challenge the compact approval by the Secretary.

The plaintiffs had previously challenged the compact under Idaho state law, losing in the Idaho Supreme Court.

Here are the materials in Knox v. Interior (D. Idaho):

DCT Order on USA and Idaho Motions to Dismiss

Idaho Gov. Motion to Dismiss

Knox and Dotson Opposition to Idaho Motion

Idaho Reply

USA Motion to Dismiss Knox Complaint

Knox and Dotson Opposition to US Motion

US Reply in Support of Motion to Dismiss Knox Complaint

Ninth Circuit Affirms Conviction and Rejects Efforts to Inquire into Tribal Court Judge’s “Neutral[ity] and Detach[ment]”

June 10, 2010Matthew L.M. Fletcher

Here are the materials in United States v. Wahtomy, out of the Shoshone-Bannock reservation:

US v Wahtomy CA9 Opinion

Wahtomy Brief

US Brief in Wahtomy

An excerpt:

With regard to whether Judge Coby was “neutral and detached,” Wahtomy failed to proffer any description of Judge Coby’s testimony beyond stating that Judge Coby was his former wife’s daughter. He did not proffer even basic details of the relationship that were within his personal knowledge, such as whether Wahtomy and Judge Coby were personally acquainted or the extent and frequency of their interaction. He did not proffer any specific evidence of bias, nor why the relationship might have made Judge Coby biased against him in his case. Wahtomy also sought to inquire into Judge Coby’s relationship to law enforcement, but made no showing of any basis for so inquiring. Speculation based on the fact of a relationship or relationships alone is not sufficient to make out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose on an Indian reservation of several thousand people, where the likelihood that the on-call tribal judge has a relationship to the subject of a requested warrant is greater than in a more populous jurisdiction. In the absence of concrete evidence of partiality, we have expressed wariness to “disqualify small-town judges on demand” unless the appearance of partiality is “extreme.” Id.

Wahtomy also failed to proffer evidence of why Judge Coby might not have been competent to determine whether probable cause existed. Laypersons may properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983). Wahtomy acknowledged that he had no specific basis to question Judge Coby’s competency to make a “nontechnical, common-sense judgment[]” as to whether law enforcement had demonstrated probable cause. Id. In the absence of an appropriate proffer, the district court properly declined to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.

Judge Rawlinson concurred, but apparently refused to join this unpublished memorandum opinion.

Idaho Supreme Court Dismisses Claim by Gambling Addicts that State Indian Gaming Law was Unconstitutional

November 28, 2009Matthew L.M. Fletcher1 Comment

Here is the opinion in Knox v. State of Idaho. And the court’s press release.

From the opinion:

This is an action seeking to have Idaho Code §§ 67-429B and 67-429C declared unconstitutional. The district court dismissed this action on the ground that the Plaintiffs lacked standing. It concluded that the relief sought would not redress the Plaintiffs’ alleged injuries. We affirm.

Tribal Judicial Immunity in Federal Criminal Cases

October 27, 2008Matthew L.M. Fletcher

In U.S. v. Wahtony, the District of Idaho held that a federal criminal defendant’s subpoena of a tribal judge’s background must be quashed on sovereign immunity grounds.

shoshone-bannock-motion-to-quash

wahtomy-response-brief

shoshone-bannock-reply-brief

us-v-wahtomy-dct-order