New Mexico Federal Court Enjoins State Court Tort Claim against Pojoaque Pueblo, Choosing Federal Precedent over State Precedent

Here are the materials in Pueblo of Pojoaque v. Wilson (D.N.M.):

Complaint here.

Dismissal of the Watso v. Piper Case

There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.

Magistrate Report

Memorandum Opinion and Order

Watso v. Jacobson here

Americans for Tribal Court Equality here

Fletcher on Statutory Divestiture of Tribal Sovereignty

“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.

The abstract:

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

North Dakota SCT Awards Attorney Fees to Defendants in Indian Country Tort Claim Brought in State Court

Here is the opinion in Tillich v. Bruce.

An excerpt:

Don Bruce, Vinier Davis, and Linda Davis (“Defendants”) appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court’s denial of the Defendants’ request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.


1. Tillich v. Bruce – Appellee Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.


2. Tillich v. Bruce – Appellant Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.


3. Tillich v. Bruce – Reply Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

Judith Royster on Treaty Rights and Tribal Civil Jurisdiction

Judith Royster has posted “Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands,” published in the Arizona Law Review. PDF SSRN

Here is the abstract:

In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes’ territories. Initially, the Court confined itself to hobbling tribes’ inherent sovereign authority over non-tribal members only on non-Indian (“fee”) lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian (“trust”) lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian lands is not clear, however, and lower federal courts are struggling to interpret it. The primary issue is whether Hicksintended the Montana approach to extend to all nonmembers on trust lands or whether the decision in Hicks is confined to its particular set of facts. That uncertainty could lead to further inroads on the inherent sovereign authority of tribes.

The Court in Montana, however, recognized a second approach to tribal authority over nonmembers on trust land: the tribal treaty right of use and occupation. Although the Court held that those treaty rights are extinguished on fee lands, it agreed that the rights survive on trust lands. This Article argues that the treaty rights argument—that Indian tribes have rights to govern nonmembers on trust lands recognized by treaty and treaty-equivalent—must be resurrected. If inherent tribal authority over nonmembers on trust lands is under increasing judicial attack, tribes may assert their treaty right to govern as a path to ensure their sovereignty on Indian lands.

SCOTUS Holds Dollar General v. Mississippi Choctaw

Here is today’s order list.

The Dollar General v. Mississippi Band of Choctaw Indians cert petition was scheduled for the Court’s Conference last Friday. The Court took no action on the petition. That could mean many things or nothing. It could mean the Court is taking one last look before granting the petition. It could mean the Court is looking at denying the petition but one or more Justices has asked the rest of the Court to wait, or for time to write a dissent on the denial of the cert petition. The fact that the United States has recommended a denial strongly weighs against a grant, but the fact that the Court did not immediately denies cert somewhat mitigates the government’s position. We’ll see in next week or the coming weeks.

The cert stage briefs can be accessed here.

Federal Court Dismisses Town of Browning v. Sharp, States Town Has Tribal Court Remedy

Here are the materials in Town of Browning v. Sharp (D. Mont.):

71 Sharp 12b1 Motion to Dismiss

73 Sharp 12b6 Motion to Dismiss

75 Sharp 12b7 Motion to Dismiss

95 Town Response to 71

96 Town Response to 73

97 Town Response to 75

115 Sharp Reply in Support of 75

156 Magistrate Recommendation

162 DCT Order

An excerpt:

No adequate alternative forum exists to address the Town of Browning’s ex Parte Young action. The Blackfeet Tribal Court appears to represent an adequate alternative forum, however, to address the ongoing dispute between the Blackfeet Tribe and the Town of Browning. Indeed, in the Blackfeet Tribal Court, the Town of Browning can litigate against the Blackfeet Tribe directly rather than through an ex Parte Young action. Further, the Town of Browning appears to have moderated its position regarding the relief that it seeks. (Doc. 159). The Town of Browning appears to seek some reasonable compensation from the Blackfeet Tribe for use of the Town of Browning’s water main to deliver water to utility customers. The Town of Browning can seek and obtain this relief as a counterclaim in the breach of contract claim currently pending in the Blackfeet Tribal Court. Although the Town of Browning has challenged the Blackfeet Tribal Court’s jurisdiction over it on the grounds of sovereign immunity, the existence of a contract between the parties appears to confer jurisdiction on the Blackfeet Tribal Court. Montana v. United States, 450 U.S. 544, 565 (1981). An alternative forum exists for the Town of Browning to obtain the relief it seeks.

After weighing the factors listed in Rule 19(b), this Court has determined that this case should not proceed in the absence of the Blackfeet Tribe, a required party. The potential prejudice to the Blackfeet Tribe far outweighs the harm to the Town of Browning. The Blackfeet Tribal Court represents an alternative forum for the Town of Browning to address its underlying dispute with the Blackfeet Tribe.

Materials on the preliminary injunction stage of this litigation are here.