The parties have filed cross-motions for summary judgment:
The United States and the State of Nebraska have each filed briefs on the question of whether the Omaha Tribe’s 1854 reservation has been diminished/disestablished, with the federal government supporting the tribe and the state opposing:
Here are the briefs in Columbe v. Rosebud Sioux Tribe:
Lower court materials here.
Here are the materials in Estate of Kalama v. Jefferson County (D. Or.):
Here are the materials in Smith v. Parker (D. Neb.):
DCT Order Granting Nebraska Motion to Intervene
Opposition to Motion to Intervene
Nebraska Reply in Support of Motion to Intervene
Prior posts on this very interesting case are here and here.
Here is the unpublished opinion.
Briefs:
From the opinion:
This is an interlocutory appeal asserting jurisdiction in this court under the collateral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiff’s grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiff’s daughter). After pursuing tribal remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.
Prior posts on this case here and here.
Here are the materials in Lexington Insurance Co. v. Data Aire (W.D. N.C.):
Consent Motion to Stay All Proceedings
The federal court, after ordering the United States DOJ to exhaust tribal court remedies (an order that apparently made the government’s attorneys ornery), granting partial summary judgment to the government.
Here are the new materials in United States v. Ray (W.D. Wash.):
DCT Order Granting Partial Summary J
US Motion for Partial Summary J
And the Makah tribal court materials:
US Petition for Determination of Makah Tribal Law
The post on the federal court’s requirement that the government seek a tribal court determination of tribal law is here.
The underlying complaint is here.
Here.
From the court’s syllabus:
Affirming the district court’s judgment in an action concerning a dispute over a revenue-sharing contract between a Nevada corporation and a tribally chartered corporation of the Hualapai Indian Tribe for the building and operation of the Grand Canyon Skywalk, the panel held that the Nevada corporation must exhaust tribal court remedies before proceeding in federal court on its claims challenging the Tribe’s authority to condemn its intangible property rights in the contract.
The panel concluded that the bad faith and futility exceptions to the exhaustion requirement did not apply. It held that where a tribal court has asserted jurisdiction and is entertaining a suit, the tribal court must have acted in bad faith for exhaustion to be excused; bad faith by a litigant instituting the tribal court action will not suffice. The panel held that the submitted evidence did not establish that the tribal court operated in bad faith or was controlled by the tribal council in its decision making. The panel also affirmed the district court’s conclusion that the evidence did not meet the narrow futility exception, which applies where exhaustion would be futile because of the lack of adequate opportunity to challenge the tribal court’s jurisdiction.
The panel held inapplicable the exhaustion exception for cases in which the tribal court plainly lacks jurisdiction. The panel stated that the main rule of Montana v. United States, 450 U.S. 544 (1981), that generally Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, was unlikely to apply to the facts of this case. The panel held that the district court correctly relied upon Water Wheel Camp Recreation Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011), which recognizes that a tribe’s inherent authority over tribal land may provide for regulatory authority over non-Indians on that land without the need to consider Montana. Moreover, even if the tribal court were to apply Montana’s main rule, the Nevada corporation’s consensual relationship with the tribal corporation, or the financial implications of their agreement, likely would place the case squarely within one of Montana’s exceptions and allow for tribal jurisdiction.
Briefs are here.
Here:
Lower court materials are here.
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