2Exhibit A (Letter from DOI)
Exhibit B (letter from Gov. Snyder to Chairman Eitrem)
Exhibit C (Sault Tribe Submission for Mandatory Fee-to-Trust Acquisition)
Exhibit D (Same, for the Sibley Parcel)
Exhibit E (Sault Tribe approval of development agreement with Lansing, MI)
Exhibit F (Comprehensive Development Agreement between Sault Tribe and Lansing)
Previous coverage of the Lansing casino case here.
Here:
90 N.D. L. Rev. 13
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
– Hope Babcock
Abstract:
The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others.
90 N.D. L. Rev. 121
In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts
– Ryan Seelau
Abstract:
Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community,1 its existence continues to be attacked as “antiquated” and leading to “unfair” results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts. This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.
90 N.D. L. Rev. 191
Native Americans – Sovereign Immunity: Determining Whether the Indian Gaming Regulatory Act Abrogates Tribal Sovereign Immunity for Lawsuits Arising Outside of Indian Country
Michigan v. Bay Mills Indian Cmty, 134 S.Ct. 2024
– Mitchell G. Enright
Abstract:
In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (“IGRA”) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of Indian country. The Court reasoned that neither the text nor the legislative history of IGRA indicated a desire on the part of Congress to abrogate tribal immunity to allow for such suits; the fact that IGRA specifically addresses activities occurring inside of Indian country was dispositive to the Court that Congress chose to leave traditional state-law remedies in place when illegal gaming activity occurs outside of Indian country. The Court was also unwilling to overrule its previous decision of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., which expanded the doctrine of tribal sovereign immunity to cover suits arising from contracting disputes with non-Indian businesses off-reservation. The Court’s holding in Bay Mills clarifies the doctrine of tribal sovereign immunity within the controversial context of Indian gaming. However, this will not result in any expansion of Indian gaming beyond Indian country. On the contrary, the Court’s decision makes clear that states will continue to have a number of remedies available to them to prevent Indian gaming off-reservation, just not the sort of federal suit at issue in this case.
Here (thanks to the Supreme Court Project page):
State of New York Brief in Opposition
Oneida Indian Nation Brief in Opposition
The petition is here.
Here are the materials in Great Plains Lending LLC v. Connecticut Dept. of Banking (Conn. Super.):
News coverage here: “Oklahoma tribe appeals $1.5 million in payday lending fines.”
Here are the materials in Choctaw Nation of Oklahoma v. Occidental Fire & Insurance Co. (E.D. Okla.):
15 Occidental Motion to Dismiss
18 Choctaw Opposition to Motion to Dismiss
26 Occidental Opposition to Motion to Remand
An excerpt:
Occidental characterizes the issue in this case as whether it may assert or waive the Nation’s sovereign immunity in connection with insurance coverage on a claim made on the policy. It has not been suggested that Congress provided authority for an insurer such as Occidental to abrogate, waive, or otherwise assert the sovereign immunity of an Indian nation through appropriate legislation. Consequently, the source of the waiver must be the Nation itself. The sole unequivocal statement of the relationship between the Nation and the insurers is the policy itself. Indeed, Occidental recognizes this fact by relying upon certain provisions within the policy to argue the Nation has specifically granted it a waiver or control over the assertion of sovereign immunity. The interpretation of the terms of the policy as a contract is governed exclusively by state law.
The final is here.
#2 Tribal Sovereign Immunity v. #10 Tribal In-House Counsel Association
Immunity won with a narrow 54-46 percent margin over Alaska Native tribes. The big splash of the Supreme Court victory overwhelms the big news year for Alaska Native tribes.
The Tribal In-House Counsel Association wins easily over Justice Sotomayor. As Frank Pommersheim once said, the real practice of Indian law is in the trenches, as opposed to the high-stakes reality television of the Supreme Court. A perfect matchup for the final.
It’s been a long strange trip but we’re down to the final four.
#1 Alaska Native tribes v. #2 Tribal Sovereign Immunity
Alaska Native tribes win again with 55 percent of the vote over Bay Mills Indian Community. The top overall seed defeated the Buena Vista Rancheria, the Omaha Tribe, and the Wisconsin Oneidas before facing Bay Mills.
Tribal sovereign immunity also advances with 74 percent of the vote over ICWA. Immunity knocked out alternative energy, American Indian education, and VAWA before taking out ICWA.
The matchup looks very similar for the Alaska tribal communities. In effect, Bay Mills gets a second chance at the prize, along with all the other tribes that have raised sovereign immunity this year. Westlaw says there are 16 tribal immunity cases from 2014 alone. Of course, there are 229 Alaska Native tribes.
#2 Justice Sotomayor v. #10 Tribal In-House Counsel Association
Justice Sotomayor wins out in the people bracket, narrowly eliminating Judge Humetewa with 54 percent of the vote. She eliminated the McAllen Grace Baptist Church, Frank Pommersheim, and the authors of Structuring Sovereignty before facing Judge Humetewa.
TICA is the big upstart in this inaugural tournament, winners of the groups bracket but the lowest seed remaining. Obviously, I underestimated their staggering power at the beginning. TICA squeaked by NABA and the Tribal Supreme Court Project before gathering steam and completely destroying the Carcieri challengers and the 1491s.
Hmm, this semifinal features one versus many, begging us to ask Spock’s stark question — do the needs of the many outweigh the needs of the few, or the one?
Here are the category finals in all four categories:
Category 1 — Indian nations
#1 Alaska Native tribes v. #3 Bay Mills Indian Community
Alaska Native tribes knock off the Wisconsin Oneidas, who made a very good showing against the northwest leviathan, but Alaska wins 68 percent. And, yes, there is internet in the UP, or there are just plenty of downstaters (hearing me Port Huron?) banking on the BMIC casino? The Gun Lakers only garner 41 percent of the vote.
So the two big tribal winners of the year face off.
Category 2 — Laws, Doctrines, and other stuff
#1 ICWA v. #2 Tribal sovereign immunity
The Indian Child Welfare Act motors on with 64 percent of the vote over intra-tribal disputes. I think we’re all in denial. Too bad, too, cuz tribal sovereign immunity, one of the reasons we have such compelling intra-tribal disputes, also moved on, defeating VAWA narrowly with 54 percent of the vote.
Oil and water face off. We at Turtle Talk know for a fact that ICWA and tribal immunity cases absolutely dominate the federal and state cases we see almost every day here. You can make your living on these two, so long as you’re willing to work for next-to-nothing as an ICWA attorney and so long as you don’t try to make a living suing Indian tribes.
Category 3 — People and Parties
#1 Hon. Diane Humetewa v. #2 Justice Sotomoyor
Sarah Deer gave her a serious run for her money, but fell by a mere two percentage points in the most highly contested (the most votes that is) pairing of the third round. Judge Hemetewa prevails again but only to face the most recognizable and fabulous Supreme Court Justice in history. Yes, I said that.
Category 4 — Other things
#1 1491s v. #10 Tribal In-House Counsel Association
The 1491s sneak past the Cohen Handbookies with 54 percent of the vote. Did I call it or what? All four top seeds are in the final eight. They appear to be in serious trouble though as the Tribal In-House Counsel Association is gaining unbelievable momentum, absolutely crushing the Carcieri beneficiaries with 78 percent of the vote. Of course, that might merely be a question of popularity because who likes those guys anyway? TICA’s going to have to rely more on beneficence to defeat the staggering monolith that is the 1491s.
Now it’s getting tight. We’re down to the last 16.
Category 1 — Indian nations
#1 Alaska Native tribes v. #12 Oneida Tribe of Wisconsin
Alaska Native tribes once again won handily, earning 86 percent of the votes over the Omaha Tribe. The Wisconsin Oneidas continue to surprise, knocking off the Cayugas and their impressive Second Circuit tax victory with two-thirds of the vote.
Interesting matchup here, with two contenders that had a big year facing off against state and local governments.
#7 Gun Lake Tribe v.#3 Bay Mills Indian Community
Enrollment numbers don’t matter! The Gun Lakers earn 61 percent of the vote and take out the Sault Tribe and its vast membership. It can’t be that there’s no internet in the UP, right?
Well, the internet worked for Bay Mills, winning by one vote over LCO and the Wisconsin treaty tribes. Bay Mills makes a living winning by one vote.
So another ‘Nish matchup. Will Gun Lake be able to get past another Upper Peninsula Chippewa community?
Category 2 — Laws, Doctrines, and the Like
#1 Indian Child Welfare Act v. #5 Intra-tribal disputes
In the battle for Indian civil rights, nonvoters prevailed over voters, and ICWA moves on with 57 percent of the vote. Maybe that TT post on South Dakota came a day too late.
Well, intra-tribal disputes took down Indian gaming, with 58 percent of the vote. I hope that won’t be true in real life.
#2 Tribal sovereign immunity v. #3 VAWA
With 72 percent of the vote, it turns out sovereignty does predate knowledge of sovereignty. Cool, I guess.
VAWA and the hopes it encourages for tribal governance in the future (as well as its 67 percent vote tally) easily defeated tribal court exhaustion, which wilted with fatigue near the end.
Now we move on to the Category 2 quarterfinals.
#1 Indian Child Welfare Act v. #9 Indian country voting rights
The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?
This one is an old-fashioned clash of civil rights.
#4 Indian gaming v. #5 Intra-tribal disputes
Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.
Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.
#2 Tribal sovereign immunity v. #7 American Indian education
Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.
Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.
#3 VAWA v. #6 Tribal court exhaustion
VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.
Turtle Talk 
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