tribal court jurisdiction – Page 4

GlaxoSmithKline v. Cherokee Nation — Suit over Cherokee Court Jurisdiction

December 13, 2013Matthew L.M. Fletcher1 Comment

Here is the complaint in GlaxoSmithKline LLC v. Cherokee Nation (D. Mass.):

An excerpt:

By filing suit in the Tribal Court for conduct relating to the marketing, sale and promotion of Avandia, the Cherokee Nation breached the Avandia Settlement Agreement in three ways. First, the Avandia Settlement Agreement clearly specifies that the exclusive jurisdiction and venue over disputes under the Avandia Settlement Agreement are vested in the United States District Court for the District of Massachusetts. Filing suit in the Tribal Court was a breach of this exclusive jurisdiction and venue provision. Second, the Cherokee Nation’s suit runs afoul of the Avandia Settlement Agreement because it asserts claims that were released under the Avandia Settlement Agreement. Third, the suit purports to seek relief under the “statutory, common, and decisional laws of the Cherokee Nation,” notwithstanding that disputes under the Settlement Agreement are “governed under the laws of the United States.”

Alaska Newspaper Poll on Tribal Court Jurisdiction

October 30, 2013October 30, 2013Matthew L.M. Fletcher

Here.

Important Montana 1 Decision in Federal Trade Commission Suit against On-Rez Payday Lenders

March 29, 2013Matthew L.M. Fletcher

Here are the materials in FTC v. Payday Financial LLC (D. S.D.):

DCt Order Denying Defendants’ Motion

Defendants’ Motion for Partial Summary J

FTC Opposition

Defendants’ Reply

From the opinion:

The pending motion for partial summary judgment presents the issue of tribal court jurisdiction over non-Indians who contract with a company doing business from an Indian reservation. The “pathmarking” case on tribal authority over nonmembers is Montana v. United States, 450 U.S. 544 (1981). See Strate v. A-I Contractors, 520 U.S. 438, 445 (1997) (describing Montana as “pathmarking” and applying Montana to evaluate tribal court jurisdiction authority over non-Indians.) In Montana, the Supreme Court recognized two areas in which Indian tribes have sovereign power to exercise authority over nonmembers on their reservation. The first such “Montana exception” recognizes tribal authority over “the activities of nonmembers who enter consensual relationships with a tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”Montana, 450 U.S. at 565. The precise question presented in this case is one of first impression: When a company conducting business from an Indian reservation enters into a commercial contract with a non-Indian, is it an unfair and deceptive practice for the company to include forum selection and consent to tribal jurisdiction provisions in [2] the contract and to then expect to litigate any alleged breach of contract claim against the non-Indian in tribal court? This Court determines that, under the circumstances of this case and on the sole issue currently before this Court, such contract provisions are not unfair and deceptive when the non-Indian has entered into “consensual relationships [with tribal] members” with a sufficient connection to on-reservation activities to make the consent to jurisdiction and forum selection provisions enforceable under the first Montana exception. See Montana, 450 U.S. at 565. However, in this case, two open issues prompt this Court to deny Defendants’ Motion for Partial Summary Judgment: (1) This Court’s record lacks information establishing that the Defendants are in fact “members” of the tribe for purposes of the first Montana exception; and (2) an ambiguity in the contract exists as to under what circumstances the non-Indian is consenting to tribal court jurisdiction in addition to binding arbitration.

Katherine Florey on Tribal Courts’ Jurisdiction

March 6, 2013Matthew L.M. Fletcher1 Comment

Katherine Florey has posted her paper, “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts – even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. In this project of limiting tribal power, as with so much of the Court’s Indian law jurisprudence, the Supreme Court has emphasized tribes’ distinctive status, notably failing to consider the relevance of more generally applicable doctrines such as personal jurisdiction. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and non-tribal land.

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and treating it in any other way limits and distorts courts’ analysis. Indeed, the field of jurisdiction presents a striking disparity between the absence of factors actually unique to the tribal context and the extreme idiosyncrasy of the Court’s doctrine. No good reason exists why existing personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Further, because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum, personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country. For these reasons, the Article argues, limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.

David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

February 26, 2013Matthew L.M. Fletcher3 Comments

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place. If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes. And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe. Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions. It’s not a constitutional hurdle—it’s a legislative one. And the Senate just voted to remove that hurdle.

Moapa Drops Tribal Court Suit against Wells Fargo; Agrees to Mediation (Updated 2/25/13)

February 22, 2013February 25, 2013Matthew L.M. Fletcher

Here is the tribe’s press release:

MOAPA DISMISSES TRIBAL COURT ACTION
Moapa, NV –The Moapa Band of Paiute Indians today announced that it and Wells Fargo Financial Advisors LLC had agreed to submit to mediation certain issues between the parties, and that the Band had caused dismissal of an action against Wells Fargo Financial Advisors commenced in the Tribe’s tribal court.
Tribal Chairman William Anderson commented that “The Tribe will always defend its inherent sovereign rights. However, the Tribe also observes its valid agreements, including valid waivers of its sovereign immunity. Further, the Band strives to be commercially responsible in its contractual relationships. We believe that the Band’s voluntary submission of the issues to mediation and dismissal of the tribal court action reflect these principles. We hope that through good faith mediation the parties will mutually resolve the issues.”
About the Moapa Band of Paiutes
The Moapa Band of Paiute Indians is located on its 72,000 acre Moapa River Reservation in Nevada. The Tribe’s reservation is the proposed site of a solar 350 megawatts energy project generating (sufficient to power 100,000 homes) being developed by K Road Power.

We posted on this case here.

Update — docs here:

Moapa 2-22-13 Press Release

Moapa Tribal Court Dismissal

Wells Fargo Motion for TRO against Moapa Tribal Court Denied

February 7, 2013February 7, 2013Matthew L.M. Fletcher5 Comments

Here are the materials in Wells Fargo Advisors v. Kolhoss (D. Nev.):

DCT Order Denying TRO

Wells Fargo Complaint

Wells Fargo Motion for TRO

Moapa Tribal Court Order

Wells Fargo Motion to Dismiss — Moapa Tribal Court [corrected]

From the federal court order:

Plaintiffs initiate this declaratory relief action seeking to declare that the tribal court lacks jurisdiction because the Tribe has waived sovereign immunity and agreed to arbitration. Plaintiffs seek an ex parte emergency temporary restraining order to enjoin the tribal court from proceeding with a hearing scheduled for February 7, 2013. However, the Court denies Plaintiffs’ Motion because (1) the Motion does not comply with Federal Rule of Civil Procedure 65 and the District of Nevada Local Rules; (2) Plaintiffs fail to demonstrate the existence of an emergency; and (3) Plaintiffs fail to demonstrate that they will suffer irreparable harm should the Court deny their Motion.

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.

On Steve Russell and English Common Law

September 7, 2012Matthew L.M. Fletcher

Steve Russell’s short commentary on the English common law of tort and tribal governance was a delight to read.

Two points in somewhat in response and largely in agreement. First, I really do think more tribes should reconsider what Anglo-American tort law does to their governance culture. Tribes should do this for all of the law that they borrow deriving from English common law. Many tribes (most) already have rejected the formality and formalism of civil procedure and evidence rules, rules the derive from rules designed to exclude the lower classes from the judicial system. That said, many tribes politically and economically need to integrate seamlessly with surrounding communities and have chosen to borrow and adapt the law of their neighbors. It would be helpful if tribes actually made a choice, after legislative consideration. A clear determination in cases such as Plains Commerce Bank and the Crazy Horse Malt Liquor case could have precluded the obfuscation on traditional tribal law that defendants (and some judges) used to complicate those cases. Nonmember defendants have a legitimate beef that they don’t know the law applied to them.

Second, I’ve argued before that tribal courts should continue to assert jurisdiction over nonconsenting nonmembers. It’s baffling to me that federal courts can issue orders enjoining tribal courts from engaging in their own business (though the court in a recent case out of Navajo got around that by enjoining the tribal court plaintiffs). Steve raises an excellent point about using tort law as a means of excluding what they used to call “bad men.” Tribal judgments can be sufficient to keep undesireables away. Not always, see the Lara case, and some tribes might not want to effectively exclude a particular defendant.