tribal court exhaustion doctrine

SLAPP Lawsuits and the Tribal Court Exhaustion Doctrine

Matthew L.M. Fletcher2 Comments

There’s an interesting exchange in a District of North Dakota case (Laducer v. DISH Network) involving an allegation that a non-Indian-owned business claim that a tribal court has no jurisdiction over it is actually a SLAPP lawsuit. A SLAPP lawsuit — strategic lawsuit against public participation — often is a frivolous countersuit by a corporate defendant against an individual plaintiff designed to bleed the plaintiff’s finances dry, effectively ending the original case. In this instance, it doesn’t appear that the facts support the claim.

But what if an Indian plaintiff brings a legitimate claim against a non-Indian in tribal court, and the defendant frivolously brings a federal court action to shut down the tribal court action? The non-Indian likely would not be subject to Rule 11 sanctions for filing a frivolous claim because the Supreme Court’s Montana jurisprudence is so negatively swayed against tribal jurisdiction that even easy cases are not easy (see the Water Wheel case). Any non-Indian defendant can bleed a tribal plaintiff dry.

Here are the materials:

Brian Laducer Motion to Dismiss

DISH Network Response

Brian Laducer Reply

Federal Court Defers to Tribal Court Proceedings in Alltel v. Oglala Sioux Tribe

Matthew L.M. Fletcher1 Comment

Here is the order denying Alltel’s motion for a TRO to shut down a tribal court proceeding brought by the Oglala Sioux Tribe: Alltel Communications v Oglala Sioux Tribe.

The court wrote:

That under the guidance of Lien and Gaming World, the court recognizes comity and honors the right of the Oglala Sioux Tribal Court, in the first instance, to determine whether it has jurisdiction to consider the defendant tribe’s petition for preliminary injunction in tribal court action Civ. # 09-0673.

Federal Court Dismisses Tort Claim against Harrah’s under Tribal Court Exhaustion Doctrine

Matthew L.M. Fletcher

Here are the materials for this case, Jaramillo v. Harrah’s (Rincon Casino & Resort):

Harrah’s Motion to Dismiss

Jaramillo DCT Order

Turtle Mountain Band Tribal Court Exhaustion Case

Matthew L.M. Fletcher

Here is the opinion in Auto Owners Insurance v. Azure (D. N.D.): Auto Owners Ins v Azure DCT Order.

An excerpt:

The Court finds the legal analysis and reasoning as set forth in Malaterre and Nielson is instructive. Auto Owners clearly had a consensual relationship with defendant Ken Davis when it issued a homeowner’s insurance policy to him. As a result, the first Montana exception applies and the tribal court retains jurisdiction over the conduct of Auto Owners. The Court further finds that Strate v. A-1 Contractors does not prevent tribal court exhaustion because in this dispute there is a colorable claim of tribal court jurisdiction such that exhaustion would not serve as a delay. Nielson, 2002 WL 417402, at *5.  In accordance with the policies underlying the tribal exhaustion doctrine, the tribal court should be given the first opportunity to address the factual and legal issues presented. Exhaustion is “especially appropriate” to protect the operation of tribal government and avoid undermining the authority of the tribal court. See Bruce H. Lien Co. Three Affiliated Tribes, 93 F.3d 1412, 1420 (8th Cir. 1996).

Federal Court Dismisses ICRA Habeas Case for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher2 Comments

Here is the opinion in this unremarkable case (Acosta-Vigil DCT Order).

What is remarkable, though I could be wrong, is why the tribal judge is literally defending the petition. Shouldn’t the tribal prosecutor be doing this?

Here is the response: Delorme-Gaines Response

Michigan Case re: Tribal Court to Federal Court Removal and Remand

Matthew L.M. Fletcher1 Comment

This case, Geroux v. Assurant, Inc., started as a tribal court complaint against two insurance companies seeking benefits for long-term disability, but was removed by the defendants to federal court. The district court remanded the case back to tribal court under the principles of the tribal court exhaustion doctrine.

Tribal Court Complaint against Assurant

Tribal Court Complaint against Union Security

Geroux Motion to Remand

Union Security Co. Answer and Counterclaim

Assurant Answer

Geroux Motion to Dismiss Counterclaim

Union Security Opposition to Motion to Dismiss

Geroux v Assurant DCT Remand Order

FMLA Claim against Soaring Eagle Casino Dismissed

Matthew L.M. Fletcher

Here is the court order in Sober v. Soaring Eagle Casino (E.D. Mich.), dismissed on grounds that the plaintiff failed to exhaust tribal court remedies (she did not appeal tribal court’s dismissal of her claim to the tribal court of appeals) — Sober v Soaring Eagle DCT Order

Here are the materials:

SCIT Motion to Dismiss

Sober Tribal Court Order

Elliott v. White Mountain Apache Tribal Court Cert Petition

Matthew L.M. Fletcher3 Comments

This case arises out of a major forest fire (the Rodeo-Chediski fire) partially caused by Valinda Jo Elliott on White Mountain land (she started the Chediski part). The tribe sued her in tribal court for damages related to the fire. On her federal claim, she argued that the tribal court could not have jurisdiction over her. The Ninth Circuit’s holding was that tribal court jurisdiction was plausible (read: not entirely frivolous) and ordered her to exhaust tribal court remedies. As such, it appears the reason the Supreme Court would grant cert here is because four members of the Court believe it is time to either overrule or significantly undermine National Farmers Union and Iowa Mutual, the key cases in the tribal court exhaustion doctrine

Here is the petition — Elliott Cert Petition

The question presented:

Can a tribal court assert jurisdiction over a non-consenting non-Indian and force her to defend against civil claims in that unfamiliar forum when it is plain that the tribal court has neither regulatory nor adjudicatory jurisdiction and where the conduct at issue by the non-consenting non-Indian on tribal land does not and cannot ever threaten or directly effect the tribal political integrity, economic security, or the health or welfare of the tribe?

The lower court materials are here.

Ninth Circuit Rejects Challenge to 2001 Crow Constitution

Matthew L.M. Fletcher

Here is the unpublished opinion in Harris v. Parisien.

And an excerpt from a local news article (Billings Gazette):

A federal appeals court has rejected a Billings woman’s claim that her rights were violated when the Crow Tribe of Indians adopted a new constitution in 2001.

Frances Harris is an enrolled member of the Crow Tribe. She sued in U.S. District Court, seeking to invalidate the 2001 tribal constitution because it eliminated a voting district for tribal members who do not live on the Crow Indian Reservation.

Continue reading →

Graham v. Applied Geo Techs — Failure to Exhaust Tribal Court Remedies

Matthew L.M. Fletcher

Here are the materials in this case, out of the Southern District of Mississippi, where a plaintiff brought a race discrimination suit against a tribally owned enterprise (Mississippi Band Choctaw).

defendant-motion-to-dismiss

defendant-rebuttal-memorandum

graham-dct-order-dismissing-claim