tribal court exhaustion doctrine – Page 19

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.

Federal Court Stays ICRA Habeas re: ICW Matter Pending Exhaustion of Tribal Court Remedies

December 14, 2012Matthew L.M. Fletcher1 Comment

Here is the order in Jones v. Lummi (W.D. Wash.):

DCT Order on Tribal Court Exhaustion

An earlier order in this matter is here.

Federal Court Orders DISH Network to Exhaust Tribal Remedies in Challenge to Tribal Regulatory Authority

November 2, 2012Matthew L.M. Fletcher1 Comment

Here is the order in DISH Network v. Tewa (D. Ariz.):

DCT Order in DISH v Tewa

Briefs are here.

ICRA Habeas Challenge to Makah Banishment Order Dismissed

October 11, 2012Matthew L.M. Fletcher

Here are the materials in Wilbur v. Makah Tribal Court (W.D. Wash.):

DCT Order Dismissing Wilbur Claims

Makah Motion to Dismiss

Wilbur Response

Makah Reply

Opening Eighth Circuit Brief in Montana 1 Case out of Turtle Mountain Tribal Court (UPDATED with Answer and Reply Briefs)

October 8, 2012November 26, 2012Matthew L.M. Fletcher2 Comments

Here is the brief in DISH Network Service LLC v. Laducer:

DISH Network Opening Brief

And the answer brief:

Tribal Court Brief

And the reply brief:

DISH Network Reply Brief

Lower court materials here and here.

Opening Brief in Encana Oil & Gas v. St. Clair (Wind River Tribal Court Jurisdiction)

September 13, 2012Matthew L.M. Fletcher

Here:

Encana Opening Brief

Lower court materials here.

Federal Court Declines to Dismiss Tribal Election Dispute Question

August 23, 2012August 23, 2012Matthew L.M. Fletcher

Here are the materials in Eastern Shawnee Tribe v. Douthitt (N.D. Okla.):

DCT Order Denying CIO Motion to Dismiss

CIO Motion to Dismiss

EST Response

CIO Reply

An excerpt from the opinion:

Now before the Court is Defendants’ Motion to Dismiss and Brief in Support (Dkt. # 16). Defendants argue that the Court lacks subject matter jurisdiction over this case because plaintiff is asking the Court to resolve an internal tribal dispute. They also assert that they have not waived their sovereign immunity from suit and that plaintiff’s claims should be dismissed. Plaintiff responds that it is asking the Court to determine whether the Court of Indian Offenses for the Eastern Shawnee Tribe of Oklahoma had jurisdiction to decide an election dispute, and this is a federal question that can be decided by this Court. They also argue that defendants are not shielded from suit by the doctrine of sovereign immunity.