tribal court jurisdiction – Page 7

Cert Petition in API v. Sac and Fox Tribe (Iowa)

November 11, 2010November 11, 2010Matthew L.M. Fletcher

Questions presented:

The questions presented are:

(1) Do the federal agencies’ orders establish that the Walker Council had authority to control the casino and enter the contract, such that the Tribe’s claims must be arbitrated, not litigated in tribal court?

(2) Does the tribal court lack jurisdiction over the Tribe’s claims that petitioner committed tribal-law torts by entering into the casino, investigating the dissidents’ illegal operation of the casino, and receiving payments from the Walker Council?

Lower court materials here.

Federal Court Rejects Navajo Jurisdiction over Arizona School District — UPDATED

September 30, 2010September 30, 2010Matthew L.M. Fletcher3 Comments

Here is the opinion in Red Mesa USD v. Yellowhair (D. Ariz.): Red Mesa USD Opinion.

Here are the materials:

Red Mesa Motion for Summary Judgment

Navajo Cross-Motion for Summary Judgment

Navajo Response

Red Mesa Reply

Navajo Reply

Federal Court Blocks Ute Tribe’s Efforts to Exclude QEP (Questar)

August 7, 2010Matthew L.M. Fletcher

Here is the P.I. order in QEP v. Ute Indian Tribe (D. Utah): DCT Order Granting QEP Preliminary Injunction.

The court noted:

Although the court would generally stay its proceeding in deference to the tribal system until appellate review was complete, exhaustion is not required “where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” Id. at 856, n.21.

The court would stay its determination if the question of the Tribal Court’s jurisdiction rested on an analysis of the jurisdictional bounds set forth in Montana. But because there was a clear and unambiguous waiver of Tribal Court jurisdiction in the Agreement, the litigation in Tribal Court is patently violative of the parties’ written agreement and exhaustion is unnecessary. In addition, because QEP needs immediate relief as described below and cannot seek money damages from the sovereign Tribe, exhaustion would deprive QEP of an adequate remedy.

Briefs are here.

Opening Brief in Water Wheel v. LaRance

May 17, 2010Matthew L.M. Fletcher

Very important case to watch.

Here: Tribal Court Brief

Lower and tribal court materials are here.

“Resisting Federal Courts on Tribal Jurisdiction” Draft Paper Available

May 6, 2010Matthew L.M. Fletcher2 Comments

My paper, “Resisting Federal Courts on Tribal Jurisdiction,” forthcoming in the University of Colorado Law Review‘s 2010 symposium issue, is available for download on SSRN.

The abstract (if you want to call it that):

This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.

In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.

Comments appreciated, as this is still a draft.

Dickson v. San Juan County Cert Petition

February 26, 2010Matthew L.M. Fletcher

Dickson v. San Juan County Cert Petition

Lower court materials here.

Questions presented are too long for this blog to reproduce.

Continue reading →

New Scholarship on Tribal Jurisdiction and Intertribal and Intratribal Common Law

January 5, 2010January 5, 2010Matthew L.M. Fletcher

Jesse Sixkiller has published, “Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank,” in the Arizona Journal of International and Comparative Law.

Here is an excerpt from the conclusion:

Today, as this Note has demonstrated, there remains a clear divide between state and tribal civil jurisdiction powers. While states have come to enjoy a form of civil jurisdiction that can reach beyond their boundaries regardless of state citizenship, tribes remain confined to specific lands within their territory when it comes to jurisdiction over nonmembers.341 It has become more evident that the reasons are based on fairness to the nonmember parties, particularly to non-Indians.342 That stigma of unfairness must be addressed in order to ensure that jurisdiction over nonmembers is not similarly compromised on tribal lands, and possibly to enlarge tribal jurisdiction on nonmember fee lands.

Continue reading →

Federal Court Dismisses Effort to Enforce Billion-Dollar Judgment Against Harrah’s

October 1, 2009Matthew L.M. Fletcher

But not on Indian law grounds — because the case was settled orally in 2003.

Vacco v Harrah’s DCT Order

An excerpt:

A balancing of the Winston factors tips decidedly in favor of the conclusion that a binding oral settlement agreement was reached on March 31, 2003 ending the litigation in this Court over the Tribal Court Judgment. “[T]o protect the parties appearing before it, to preserve the integrity of an action, to maintain its ability to render a final judgment and to ensure the administration of justice,” Haitian Ctrs., 817 F. Supp. at 337, the Court finds that the prior actions were finally dismissed by virtue of the oral settlement agreement entered on March 31, 2003. See Mone, 2001 U.S. Dist. LEXIS 19445, 2001 WL 1518263, at *1 (finding that the action had been settled even though the formal stipulation was never submitted where defense counsel wrote the court confirming a conversation with the judge’s law clerk that the matter had been settled and stating that a formal stipulation would be drafted and forwarded to the court within three weeks); Van Ness, 129 A.D.2d at 932, 514 N.Y.S.2d at 571 (finding that an out-of-court oral agreement to settle as case was binding even though defendant never executed the general release and stipulation discontinuing the action forwarded by defendant counsel). Accordingly, because the subject matter of this action has been asserted in a prior action and settled by an oral agreement to end that matter with prejudice, Defendants’ motion must be granted and this action dismissed. The Court need not, and does not, reach the alternative arguments for dismissal.

Order in Water Wheel v. LaRance Finding Tribal Court Jurisdiction over Non-Indian Business

September 24, 2009Matthew L.M. Fletcher

Here is the order — Order – WW v. LaRance – D.Ariz.

Previous materials are here.

An excerpt:

Plaintiffs Water Wheel Camp Recreational Area, Inc. and Robert Johnson have been sued for eviction in an action pending in the Tribal Court of the Colorado River Indian Tribes (“CRIT”). Plaintiffs ask this Court to prevent Defendants – a judge and clerk of the Tribal Court – from proceeding with the Tribal Court action. Plaintiffs argue that the Tribal Court lacks subject matter jurisdiction under Montana v. United States, 450 U.S. 544 (1981).

After hearings on two requests for temporary restraining orders, extensive litigation
in the Tribal Court and Tribal Court of Appeals, and considerable briefing and oral argument, the Court concludes that the Tribal Court properly exercised jurisdiction over Water Wheel, but not over Robert Johnson. The Court will grant Plaintiffs’ request for declaratory relief with respect to Mr. Johnson and deny it with respect to Water Wheel.