Friday, July 21, 2006

Tribal Court Civil Jurisdiction

There was another big win for tribal court civil jurisdiction this week in Plains Commerce Bank v. Long Family Land and Cattle Co. The federal court upheld tribal court jurisdiction over a claim by a family farm owned and operated by a Cheyenne River Sioux Tribe family that their lending bank had committed an act of fraud and discriminated against them. Specifically, the bank promised to make loans to the farmers and then failed to make good on those promises. The tribal court, per Judge B.J. Jones of the UND Tribal Judicial Institute, found in favor of the plaintiffs on several of these charges following a two-day jury trial. The CRST appellate court upheld the trial verdict, over some very threatening comments made by defense counsel on appeal, criticized heavily by appeals court judge Frank Pommersheim. I've written about these comments in a recent paper as well.

Of course, the bank was located off reservation and alleged that Supreme Court cases like Nevada v. Hicks and Strate foreclosed tribal jurisdiction. But the bank only argued that the discrimination verdict was foreclosed by Hicks. The court was unpersuaded, in large part, because the bank had attempted to use the tribal court to foreclose against the Longs. The voluntary use of the tribal court in another aspect of the same case amounted to a consensual relationship as discussed in the Montana case. This was the same result reached in Smith v. Salish Kootenai College, a case in which the Supreme Court recently denied cert.

The Montana 1 exception -- consensual relationships -- should be exploited by tribes. More and more non-Indians come to Indian Country to do business and, as entities enjoying tribal services, they should consent to tribal jurisdiction.

Wednesday, July 12, 2006

Cobell -- Ouch!!!!

The D.C. Circuit removed Judge Lamberth from the Cobell case in its latest opinion. Apparently, an opinion from the judge that included some inflammatory language about the federal government's continuing reluctance to cooperate was the final straw for the court of appeals. It appears the more irritated you can get a federal judge about your behavior, the better off you are. has a good piece on Judge Lamberth from a former clerk.

Monday, July 10, 2006

NIGC Drops Another Decision

The National Indian Gaming Commission's decision that the so-called "Shriner Tract" in Kansas City, KS [once known, as the district court acknowledged, as "Wyandotte City"] did not qualify as Indian lands under the land settlement exception in IGRA Section 20 has been reversed.

The case, Wyandotte Nation v. National Indian Gaming Commission is a long-running case over a parcel of land that was a cemetery for the tribe during their "stay" in the area. The Wyandotte, or Huron, or Wendat [I believe, I could be wrong], came from the Great Lakes region. But they were removed west in numerous instances, eventually to arrive in Oklahoma. Though the Nation is located in Oklahoma, they wished to commence gaming on trust land in Kansas City, KS. Since the cemetery was held in trust in perpetuity as a cemetery, the Nation purchased adjoining land and persuaded the Secretary to take the land into trust (long, long ago, in the 1990s) for gaming purposes. There have been challenges from the Kansas government, the tribes located in Kansas, and later the NIGC -- but it appears the Nation is winning more often than not.

The case highights numerous (sometimes) ugly issues relating to gaming, especially Tribe vs. Tribe.

Thursday, July 06, 2006

Sovereignty and Illiberalism

One of the more provocative articles to appear in some time, Sovereignty and Illiberalism, by Angela Riley (Citizen Potawatomi), is available for download. The article will be published in Volume 95 of the California Law Review. Get it now while it's hot!

From the abstract:

Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this article, Professor Riley argues that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards Indian nations' inherent right to live and govern beyond the reach of the dominant society. This “measured separatism” embodies liberalism's commitment to the accommodation of pluralism. On the other hand, however, critics charge that imposing liberalism onto Indian nations is necessary to prevent infractions of individual rights by tribal governments. For these scholars, individual autonomy must always be preferenced above Indian nations' continued existence. Scholars concerned with illiberal practices perpetrated by tribal governments are increasingly calling for an expansion of federal civil rights laws into tribal communities. But these urgings are rarely accompanied by a thorough and thoughtful analysis of American Indian tribal sovereignty. In fact, most scholars writing in this area fail to acknowledge that expansion of such laws into tribal communities would potentially eviscerate tribal sovereignty and wipe out Indian differentness altogether. Accordingly, based on a detailed examination of tribal sovereignty - both as embodied in American law and as experienced by Indian nations “on the ground” - Professor Riley concludes that the United States' own theory of Indian sovereignty supports the perpetuation of Indian nations' autonomous existence. Further, it mandates that internal tribal decisions regarding Indian culture and tradition be left to Indian tribes, even when those decisions are inapposite to Western liberal ideals.

Supreme Court 2006 Term

The Supreme Court's October 2006 Term may shape up to be one of the most critical Terms for Indian law in several years.

First, the Court may decide to take the fee-to-trust cases where the States of Utah and South Dakota are directly challenging the constitutionality of the statute authorizing the Secretary of Interior to take land into trust for Indians and Indian tribes. In the 1990s, the Court, over a strident dissent from Justice Scalia, vacated an Eighth Circuit decision (69 F.3d 878) declaring the statute unconstitutional.

Second, the Court may decide to hear Morris v. Tanner and/or Means v. Navajo Nation, cases challenging the validity of the Duro Fix. If you thought U.S. v. Lara answered this question, think again. Two of the Justices in the seven-justice majority have departed and two others in the majority (Thomas and Kennedy) wrote concurrences suggesting they would be glad to revisit the question if a nonmember Indian brought a challenge to a tribal court conviction (which Lara neglected to do).

And, third, though it may be a Term away, the NLRB v. San Manuel case may be decided by the D.C. Circuit this fall, paving the way for a petition for cert. in the winter.