tribal court jurisdiction – Page 6

Gustafson v. Poitra Cert Petition

December 12, 2011Matthew L.M. Fletcher3 Comments

Here is the petition (docket no. 11-701):

Here are the questions presented:

1. Whether the State of North Dakota can supplant its own state case law, instead of federal law on jurisdictional disputes between state courts and tribal courts.

2. Whether the State of North Dakota has subject matter jurisdiction over a contract dispute between a nonmember individual and a member of an Indian tribe arising from the ownership and use of a building located on non-Indian owned fee land on an Indian reservation.

Here is the lower court opinion. Here is Gustafson’s lower court brief. And Poitra’s. Poitra was pro se.

Ninth Circuit Roundly Affirms Tribal Court Jurisdiction in Water Wheel Case

June 10, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion:

Opinion 06_10_11

Here are the briefs.

Tenth Circuit Affirms Injunction against Tribal Court in Crowe & Dunlevy PC v. Stidham

May 27, 2011Matthew L.M. Fletcher3 Comments

Here is the opinion. And the briefs.

An excerpt:

Judge Gregory R. Stidham of the Muscogee (Creek) Nation District Court appeals the district court’s order granting preliminary injunctive relief to Crowe & Dunlevy (“Crowe”) and denying Judge Stidham’s motion to dismiss. Crowe & Dunlevy, P.C. v. Stidham, 609 F. Supp. 2d 1211, 1227 (N.D. Okla. 2009). Because the district court correctly denied Judge Stidham’s motion to dismiss and did not abuse its discretion in granting the preliminary injunction, we affirm.

Montana Supreme Court Decides In re Estate of Big Spring — Exclusive Tribal Court Jurisdiction over On-Rez Probate

May 22, 2011Matthew L.M. Fletcher

Here is the opinion: Big Spring Opinion.

An excerpt:

Julie Big Spring (Julie) and William F. Big Spring III (William) appeal the order of the Ninth Judicial District Court, Glacier County, denying their motion to dismiss for lack of subject matter jurisdiction. They challenge the District Court’s assumption of jurisdiction over the probate of the estate of their father, William F. Big Spring, Jr. (Big Spring), an enrolled member o f the Blackfeet Tribe whose estate property was located within the exterior boundaries of the Blackfeet Indian Reservation at the time o f his death. We reverse the District Court’s order and hold that the Blackfeet Tribal Court has exclusive jurisdiction over the probate of Big Spring’s estate (the Estate).

Here are the briefs.

Navajo Supreme Court Accepts Dismissal of Tribal Court Suit against Public School; Criticizes Federal Court over Jurisdiction Opinion

May 12, 2011May 11, 2011Matthew L.M. Fletcher1 Comment

Here is the opinion in Hasgood v. Cedar Unified School District.

The court’s syllabus:

The Court grants the parties’ stipulated dismissal but strongly questions the basis of a federal court’s decision in a local school board personnel matter, which lends itself to be read as excluding all state-run schools on the reservation from tribal regulatory and adjudicative jurisdiction.

Ethical Implications of the Montana Rule and Exceptions

March 25, 2011March 25, 2011Matthew L.M. Fletcher

Later today, I will be speaking at UNM’s “Montana v. United States: Pathmarking the Field of Indian Law for Three Decades and Counting” conference (agenda here; conference website here).

As many readers know, the Montana test limits tribal civil jurisdiction over nonmembers absent two pretty narrow exceptions. It’s fairly clear now (with the benefit of hindsight) that the Supreme Court’s concern over tribal jurisdiction over nonmembers is largely based on property rights. The Court repeatedly has implied a concern that nonmembers could somehow be subject to a loss of their private property. The Montana case, involving tribal hunting and fishing regulations aimed at members and nonmembers on privately-owned land, seemed to be about regulatory takings. Later cases, such as National Farmers Union, the case that established a federal common law right (and a cause of action) to be free of tribal court jurisdiction, came to the court amidst fears that tribes would literally confiscate nonmember property without review at all.

Consider Justice Rehnquist’s separate opinion in National Farmers Union issued prior to the granting of certiorari, where he expressly notes his concern that nonmember property could be seized without due process by tribes:

After the issuance of the mandate of the [Ninth Circuit] Court of Appeals, tribal officials, at the behest of respondent Sage, seized 12 computer terminals, other computer equipment, and a truck from the school district. The basis for this seizure was said to be the Tribal Court judgment, and no state process was invoked.

If the Court of Appeals is correct in the conclusions which it drew in its opinion, the state of the law respecting review of jurisdictional excesses on the part of Indian tribal courts is indeed anomalous. The Court of Appeals may well be correct that tribal courts are not constrained by the Due Process or Equal Protection Clauses of the Fourteenth Amendment[.]

This excerpt is available on pages 1187-1188 here.

Ironically, very ironically, the Court’s aggressive limitation on tribal court jurisdiction (even where the tribal court provided admirable due process, as in Plains Commerce Bank) under the Montana test, coupled with the Court’s steadfast recognition of tribal immunity, encourages Indian tribes to confiscate tribal property first, and then litigate. Consider the Tenth Circuit’s decision in Miner Electric, where the tribe used a civil forfeiture ordinance to confiscate the property of a nonmember that had likely committed a crime, defend the confiscation in tribal court on the merits, but then raise sovereign immunity in federal courts (successfully). As a direct result of the Court’s very cramped view of tribal jurisdiction over nonmembers, more and more tribes are resorting to civil offense and civil forfeiture statutes as a solution to their inability to regulate offensive and illegal nonmember conduct.

Continue reading →

Eighth Circuit (2-1) Holds Amerind Insurance Co. Immune From Suit in Tribal and Federal Courts

February 15, 2011February 15, 2011Matthew L.M. Fletcher3 Comments

Very important decision. Our prior commentary on this case is here.

Here are the materials:

Amerind v. Malaterre CA8 Opinion

Amerind Opening Brief

Malaterre Brief

Amerind Reply

Malaterre Letter Brief re Immunity

Amerind Brief re Immunity

HCN Trial Court Asserts Jurisdiction over Contract Breach Claim with Non-Indian Company

February 2, 2011Matthew L.M. Fletcher

Very interesting case, captioned Ho-Chunk Nation v. Money Centers of America, Inc.

An excerpt:

The Court has jurisdiction over the plaintiff‟s breach of contract claim as it arises under the customs and traditions of the Ho-Chunk Nation. The HCN Trial Court first dealt with contract claims in Ho-Chunk Nation v. Ross Olsen, CV 99-81 (HCN Tr. Ct., Sept. 18, 2000). This case involved a dispute over a “Purchase Agreement” for cigarettes. Id. at 1. The Court determined that “neither the HCN CONSTITUTION, nor the laws, statutes, codes, or ordinances of the Ho-Chunk Nation addressed the rights and responsibilities concomitant with the formation of a contract.” Id. at 13. Former Chief Trial Court Judge Mark Butterfield consulted the Ho-Chunk Nation Traditional Court as to whether Ho-Chunk “custom and tradition recognized agreements analogous to the modern day „contract.‟”

The Traditional Court held that “in the tradition and custom of the Ho-Chunk Nation, agreements between parties for the exchange of goods or services were recognized as binding.” Id. Therefore, the Court has subject matter jurisdiction over contract claims as they arise from custom and tradition. The HCN Supreme Court has upheld and adopted this precedent, using the contract in question as the operative law for the Trial Court to apply. See e.g., Marx Advertising Agency, Inc., v. Ho-Chunk Nation, SU 04-07 (HCN S. Ct., Apr. 29, 2005) (affirming the Trial Court‟s interpretation of a contract between the Ho-Chunk Nation and its advertising agency, Marx Advertising Agency, Inc.).

Supreme Court Denies Cert in API v. Sac and Fox

January 18, 2011Matthew L.M. Fletcher2 Comments

As expected, though one never knows with the tribal court jurisdiction cases, the Supreme Court denied cert in API v. Sac and Fox (order list here).

API was a non-Indian-owned business hired by a tribal group (or individual) to enter into a tribal governmental office to retrieve documents and perform other security-related tasks. The tribal court held it had jurisdiction under Montana 2 to adjudicate contract and tort claims relating to that activity. There probably isn’t a better fact pattern for a Montana 2 “political integrity” exception to Montana’s general rule.