California Federal Court Confirms Tribal Jurisdiction over Nonmember Business

Here are the materials in Rincon Mushroom Corporation of America v. Mazzetti (S.D. Cal.):

166 Rincon Mushroom MSJ

167-1 Tribe MSJ

171 Rincon Mushroom Reply

174 Tribe Reply

Prior post here.

Sauk-Suiattle Moves to Dismiss Seattle’s Federal Court Effort to Prevent Tribal Court Proceeding to Continue

Here is the motion to dismiss in City of Seattle v. Sauk-Suiattle Tribal Court (W.D. Wash.):

Prior post here.

City of Seattle Sues to Stop Sauk-Suiattle Tribal Court Suit over Rights of Nature

Here are the materials in City of Seattle v. Sauk-Suiattle Tribal Court (W.D. Wash.):

Sauk-Suiattle Canoe Racers

2 Complaint

2-1 Exhibit A

2-2 Exhibit B

2-3 Exhibit C

2-4 Exhibit D

2-5 Exhibit E

2-6 Exhibit F

2-7 Exhibit G

2-8 Exhibit H

2-9 Exhibit I

2-10 Exhibit J

2-11 Exhibit K

Tribal court suit here.

Montana Federal District Court Holds Crow Tribe Has Jurisdiction Over Electric Co-op

Previous post on this litigation here.

SCOTUS Denies Cert in FMC Corp. v. Shoshone-Bannock Tribes

Here is today’s order list.

The cert stage briefs in the FMC case are here.

Lower court materials here.

Alex Skibine on the Tribal Right to Exclude Nonmembers

Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.

Here is the abstract:

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.

It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.

In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.

Highly recommended!

Katherine Florey on Regulatory Sovereignty in the Pandemic

Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:

The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.

Federal Magistrate Recommends in Favor of Tribal Jurisdiction over Utility Co-op

Here are the new materials in Big Horn County Elec. Coop. v. Big Man (D. Mont.):

99 Big Horn Response to Big Man MSJ

100 Big Man Response to Big Horn MSJ

102 Tribal Response to Big Horn MSJ

104 Big Horn Reply

105 Big Man Reply

106 Tribal Reply

129 Magistrate Report

Prior post with additional briefing here.

Update:

133 Objections

135 Big Man Response

136 Tribe Response