tribal court jurisdiction

Judith Royster on Treaty Rights and Tribal Civil Jurisdiction

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

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.

ICWA/PL-280 Case out of Idaho Supreme Court

Kate Fort

Here.

Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:

We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.

New Scholarship on Tribal Court Jurisdiction in Alaska

Matthew L.M. Fletcher

The Alaska Law Review has published “Advancing Tribal Court Jurisdiction in Alaska.”

Here is the abstract:

Extensive case law already exists in Alaska on the jurisdiction of tribal courts over domestic relations cases, with one of the seminal cases—John v. Baker—establishing that Alaska tribes have jurisdiction even in the absence of Indian country. A common assumption, though, is that Alaska tribes do not have jurisdiction over criminal offenses. This Article argues that both under the logic of John v. Baker and the development of Indian law in the Lower 48, Alaska tribes already possess inherent jurisdiction over criminal offenses within their Native villages. With the gamut of social challenges facing Alaska Natives in rural Alaska, tribes need to be empowered to exercise this jurisdiction.

Federal Court Rules Insurance Dispute May Proceed in Tribal Court

Matthew L.M. Fletcher

Here are the materials in Amerind Risk Management Co. v. Blackfeet Housing (D. N.M.):

18 Blackfeet Motion to Dismiss

23 Response

34 Reply

36 DCT Order

An excerpt:

THIS MATTER comes before the Court upon a Motion to Dismiss for Failure to State a Claim, filed on March 23, 2015 by Blackfeet Housing and Blackfeet Limited Partnerships (―Blackfeet Housing‖ or ―Defendants‖), #1-#4 (Doc. 17). Having reviewed the parties‘ briefs and applicable law, the Court finds that Defendants‘ motion is well-taken on the grounds that the Court lacks subject matter jurisdiction over this case, but denies the motion with regard to the other grounds for dismissal raised by Defendants

Federal Court Decides Matter Involving ERISA and Tribal Court Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Life Insurance Company of North America v. Hudson Insurance Company (E.D. Okla.):

16 Motion to Dismiss

18 Response

19 Reply

20 DCT Order

An excerpt:

LINA argues that tribal exhaustion does not apply to an ERISA case. The exhaustion of tribal remedies requirement was modified in El Paso Natural Gas Company v.  Neztsosie, 526 U.S. 473 (1999). In that case, the Supreme Court held that the tribal exhaustion requirement did not apply to a case involving the Price-Anderson Act, a statute with a broad preemptive scheme. LINA argues that the Northern District of Oklahoma has since held that like the Price-Anderson Act at issue in Neztsosie, ERISA preempts state and tribal court claims “related to benefit plans falling under its purview” and concluded that abstention would be inappropriate. Vandever v. Osage Nation Enterprise, Inc., No. 06-CV-380-GKF-TLW, 2009 WL 702776, at *5 (March 16, 2009 N.D. Okla.) (citing 29 U.S.C. § 1144). See also Coppe v. Sac & Fox Casino Healthcare Plan, No. 14-2598-RDR, 2015 WL 1137733 (March 13, 2015 D. Kansas). This court agrees. 

Hudson argues, however, that Vandever is not controlling in this case because suits between insurers for reimbursement of benefits paid are not pre-empted by ERISA. Hudson is correct. Complete preemption under ERISA “is limited to claims brought under § 502(a), and that provision, in turn, is limited by its terms to claims ‘by a participant or beneficiary’ of an ERISA-regulated plan ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan or to clarify his rights to future benefits under the terms of the plan.’” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221-22 (10th Cir. 2011) (citing 29 U.S.C. § 1132 (a)(1)(B)).

North Dakota SCT Holds State and Tribal Courts Enjoy Concurrent Jurisdiction over Child Support Matters…

Matthew L.M. Fletcher

… where one parent lives on and the other lives off the reservation. 

Here is the opinion in Lavallie v. Lavallie.

Briefs:

Appellee

Reply



Western Sky Financial v. Jackson Cert Stage Materials

Matthew L.M. Fletcher1 Comment

Here:

Western Sky v Jackson Cert Petition

Jackson Cert Opp Brief

Western Sky Cert Stage Reply

Questions presented:

I. Whether the validity of an arbitration clause is determined exclusively by the statutory requirements of the Federal Arbitration Act (“FAA”), as held by the First, Fourth, Fifth, and Eleventh Circuits – or by a common-law “reasonableness” test, as held by the Seventh Circuit below?

II. Whether a court may apply a state law defense in a manner that disfavors arbitration by voiding an entire arbitration clause merely because the contractually-designated arbitrator is unavailable, notwithstanding the FAA’s express directive to appoint a substitute arbitrator?

III. Whether the Seventh Circuit erroneously – and in conflict with the Second and Eighth Circuits – required a non-tribal-member’s physical entry onto the relevant Indian reservation in connection with a transaction with a tribal member before ordering tribal court exhaustion of judicial claims arising from the transaction?

Lower court materials here.

Cherokee Nation Allowed to Proceed with Avandia Suit against GlaxoSmithKline in Cherokee Courts

Matthew L.M. Fletcher

Here are the materials in GlaxoSmithKline LLC v. Cherokee Nation (D. Mass.):

62 GlaxoSmithKline Motion

63 US Memorandum

65 Cherokee Nation Motion

68 GlaxoSmithKline Reply

70 Cherokee Nation Reply

79 DCT Order

An excerpt:

The dispute in this case centers on a 2012 settlement agreement entered into by Plaintiff GlaxoSmithKline LLC (“GlaxoSmithKline” or “GSK”) in connection with its plea in a  criminal proceeding, United States of America v. GlaxoSmithKline, LLC, Criminal Action  No. 12-10206-RWZ (D. Mass). GlaxoSmithKline now seeks a declaratory judgment that claims brought by the Cherokee Nation in the District Court of the Cherokee Nation were released by the settlement agreement. Presently at issue are GlaxoSmithKline’s Renewed Cross-Motion for Summary Judgment [#61] and the Cherokee Nation’s Cross-Motion for Summary Judgment [#64]. For the following reasons, GlaxoSmithKline’s motion is DENIED and the Cherokee Nation’s motion is ALLOWED.

We posted the complaint here.