tribal court jurisdiction

API v. Sac and Fox — Court Finds Tribal Court Jurisdiction over Nonmembers

Matthew L.M. Fletcher

Here is the district court order granting the tribe’s motion to dismiss a challenge to the tribal court’s jurisdiction in this long-running intratribal dispute — DCT Order on Cross Motions

The pleadings are here.

An excerpt:

API’s conduct imperiled the Tribe’s political integrity. In essence, API invaded the Tribe’s land to quell an intra-tribal governmental dispute. API argues this intra-tribal dispute was merely incidental to the raid. API contends that, if the court finds the raid imperiled the Tribe’s political integrity, any action taken by a non-member on tribal land during an intra-tribal governmental dispute would justify a court’s invocation of the second Montana exception. The court disagrees. API’s actions were made and intended to be a direct challenge to the Bear Council. API raided the Casino on behalf of the Walker Council, which was not the Tribe’s true governing authority. API conducted the raid pursuant to the Agreement, and the Agreement’s terms indicate the services API was expected to provide related directly to the Tribe’s governmental affairs. See Agreement at P I.2.A (stating API “shall perform services directly relating to the investigation of a takeover by dissidents at the [Casino] located on the Tribe’s reservation lands” and “[i]nvestigat[e] [. . .] individuals involved in the unlawful acts against the Tribal Government”). In other words, API was  hired to assist in the resolution of an intra-tribal governmental dispute, which strikes at the heart of the secondMontana exception. The fact API believed it was operating with the consent of the Tribe’s governing authority, that is, the ousted Walker Council, has no effect on the application of this exception. In truth and in fact, API raided the Casino specifically to weaken one side of an intra-tribal governmental dispute, which happened to be the Bear Council, the Tribe’s true governing body. This is an act with potentially catastrophic consequences to the Tribe’s government. The court concludes this merits the application of the protective prong of the Montana exception and that the Tribal Court’s exercise of civil jurisdiction over API was proper.

Riggs v. San Juan County — Appellate Brief

Matthew L.M. Fletcher

Once again, this long-running case heads back to the Tenth Circuit. Here is the opening salvo — all 645 pages (about 8 MB) — riggs-ca10-brief

Counsel for appellants may be heading for trouble for filing a frivolous appeal (see my paper here). Who knows?

Case to Watch — Amerind v. Malaterre

Matthew L.M. Fletcher2 Comments

The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure–I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]

This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.

Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.

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Tribal Court Jurisdiction over Tribal Insurers under the Montana Exceptions

Matthew L.M. Fletcher1 Comment

The District of North Dakota, in Amerind Risk Management v. Malaterre, refused to the grant the insurance company’s motion for summary judgment on the grounds that the Turtle Mountain Tribal Court did not have jurisdiction over it under Montana v. United States. The Turtle Mountain tribal council had waived the Turtle Mountain Housing Authority’s sovereign immunity to the extent of insurance coverage, in accordance with tribal court precedent. Plaintiffs who were injured and killed in a house fire sued the insurance company in tribal court, which then asserted the Montana defense.

Here are the materials:

amerind-risk-mgmt-v-malaterre-tmac-opinion

amerind-motion-for-summary-judgment

defendants-response-to-amerind-motion-for-summary-judgment

amerind-reply-brief

amerind-v-malaterre-dct-order

Ninth Circuit Rejects (again) Tribal Court Jurisdiction over BNSF

Matthew L.M. Fletcher

In BNSF v. Ray, the Ninth Circuit again rejected tribal court jurisdiction over a tort claim against Burlington Northern Santa Fe Railroad.

bnsf-v-ray-ca9-opinion

bnsf-brief

bnsf-v-ray-ca9-opinion1

[The tribal briefs aren’t available.]

New Mexico Supreme Court Grants Cert in Indian Country Jurisdiction Case

Matthew L.M. Fletcher

The case is captioned Garcia v. Gutierrez (opinion). The issue was stated by the New Mexico Court of Appeals as such:

This case comes before us on appeal from a partial final order pursuant to a divorce between Angelina Garcia and Matthew Gutierrez. Gutierrez, who is a member of the Pueblo of Pojoaque, argued that the district court lacked subject matter jurisdiction over the issues raised in the petition as a matter of state law and that, even if the district court did have such jurisdiction under our state statutes, its exercise of jurisdiction was improper as a matter of federal Indian law. As we conclude that the district court had jurisdiction over those issues raised in the petition for dissolution of marriage that were unrelated to child custody, we affirm the district court’s order as to those issues. The question of the district court’s subject matter jurisdiction over the custody dispute requires this Court to determine whether land owned in fee by a non-Indian within the exterior boundaries of a pueblo is considered part of a “tribe” for purposes of determining the “home state” of a child under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), NMSA 1978, Sections 40-10A-101 to -403 (2001). As we conclude that such land is part of the tribe as that term is used in the UCCJEA, we hold that the district court erred in concluding that the children in this case had no home state and in finding that it, rather than the tribal court, had jurisdiction. Accordingly, we reverse the district court as to the custody matters and remand so that those claims may be dismissed.

Tribal Judge Korey Wahwassuck on Tribal Court Jurisdiction

Matthew L.M. Fletcher1 Comment

Leech Lake Band of Chippewa Indians Chief Judge Korey Wahwassuck has published “The New Face of Justice: Joint Tribal-State Jurisdiction” in the Washburn Law Journal.

This piece covers the watershed agreement between the Leech Lake Band and the Cass County District Court.

July 2007 NY State Bar Exam Indian Law Question

Matthew L.M. Fletcher1 Comment

We know that Washington, New Mexico, and South Dakota have Indian law on the state bar exam, but so did the July 2007 New York state bar(!!!!).

Update from Paul Spruhan: The question came from a “multistate performance test” that is created by the National Conference of Bar Examiners and administered in all states that utilize the MPT.  The MPT is an additional part of those states’ bar exams in addition to the essays and multi-state multiple choice exam (here’s their web site: http://www.ncbex.org/multistate-tests/mpt/)

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Plains Commerce Bank v. Long Family Land & Cattle Co. Materials — Additional Update

Matthew L.M. Fletcher3 Comments

Here is the entire set of Plains Commerce Bank v. Long Family Land and Cattle Co. materials, with the addition of two tribal court lower court orders:

ETA: Final SCOTUS decision has been added to this post as well.

Tribal Court Denial of Bank’s Motion for Summary Judgment

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Commentary on the Plains Commerce Bank Cert Grant

Matthew L.M. Fletcher

The Supreme Court’s decision to grant certiorari in Plains Commerce Bank v. Long Family Land & Cattle Co. surprised me a great deal. It proves, I think, that Indian law scholars and practitioners cannot claim to predict how the Supreme Court is going to act (no big surprise there, given how few Indians or Indian lawyers have clerked for the Court), but I also think it shows that the so-called Supreme Court bar can miss one every now and then [SCOTUSBlog’s Petitions to Watch seemed to miss this one].

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