SCOTUS Denies Cert in FMC Corp. v. Shoshone-Bannock Tribes

Here is today’s order list.

The cert stage briefs in the FMC case are here.

Lower court materials here.

Federal Court Orders Exhaustion (again) of Tribal Remedies in Suit against LDS

Here are the materials in Corporation of the President of the Church of Jesus Christ of Latter-Day Saints v. F.D. (D. Utah):

1-1 Federal Complaint

10 FD Motion to Dismiss

11 Notice of Removal

19 Motion to Remand

19-1 DCT Stay Order

19-2 Redacted Complaint

32 FD Opposition

40 Reply

43 DCT Order

A related case, Corporation of the President of the Church of Jesus Christ of Latter-Day Saints v. B.N. (D. Utah), is stayed:

2 Complaint

2-1 BN Tribal Court Complaint

2-2 Window Rock DCT Order on Motion to Dismiss

2-3 Navajo SCT Opinion

17 BN Motion to Dismiss

23 Opposition

24 Reply

45 DCT Stay Order

Our prior post on the first order to exhaust is here.

Alex Skibine on the Tribal Right to Exclude Nonmembers

Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.

Here is the abstract:

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.

It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.

In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.

Highly recommended!

Federal Court Refuses to Enforce Ute Tribal Court Order over Water Rights

Here are the materials in Ute Indian Tribe v. McKee (D. Utah):

55 Tribe Motion for Summary Judgment

55-1 Volume I of Appendix

60 McKee Cross-Motion

64 Ute Reply

68 McKee Reply

89 DCT Order

Prior post here.

Federal Court Dismisses Suit against Duck Valley Tribe for Failure to Exhaust

Here are the materials in Magee v. Shoshone Paiute Tribes of the Duck Valley Reservation (D. Nev.):

1 Complaint

10 Motion to Dismiss

10-1 Tribal Court Record

16 Response

25 Reply

26 Surreply

28 Objection to Surreply

40 DCT Order

Pleadings (so far) in Insurance Company’s Effort to Avoid Navajo Nation District Court Jurisdiction

Here are the materials in Zurich American Insurance Company v. McPaul (D. Ariz.):

1 Complaint

1-2 Navajo Nation Complaint in Chinle D. Ct.

30 Zurich Motion for Summary J

32 Navajo Motion for Summary J

34 Zurich Response

35 Navajo Response

39 Zurich Reply

40 Navajo Reply

FMC Corp. v. Shoshone-Bannock Tribes Cert Petition [Updated]

Here:

cert-petition.pdf

Questions presented:

1. Whether the Ninth Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever a Montana exception is met, or whether, as the Seventh and Eighth Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe’s inherent authority to set conditions on entry, preserve tribal self-government, or control internal relations.

2. Whether the Ninth Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.

Lower court materials here.

Update:

Brief in Opposition

Reply

US Invitation Brief

FMC Supplemental Brief