Native American Law Blog

Followup - It's "Deadline Day" for Florida/Seminole gambling compacts

As the Pensacola News-Journal reports:

News Journal capital bureau

TALLAHASSEE - Today is the deadline for Gov. Charlie Crist to reach a $150 million deal with the Seminole Tribe to expand gambling in Florida

It's a deadline Crist is likely to meet.

"I'm confident that we will reach a deal," Crist said.

Closely monitoring the negotiations are House and Senate leaders who have to sign off on the deal, most likely in a special session in October.

Watching nervously on the sidelines are dog and horse track and jai-alai fronton owners, especially those in South Florida who have been promised lower taxes, expanded hours, unlimited card games and other incentives to offset the competition.

The stakes are high. Without a compact, the struggling pari-mutuels lose their incentives. Without a compact, the state won't see a dime.

Lead House negotiator Bill Galvano, R-Bradenton, warned that if Crist gives the Seminoles too sweet a deal, lawmakers may throw up their hands and bump the negotiations up to the U.S. Department of the Interior. Doing so would mean the tribe, which is considered an independent nation, would get expanded casino -style gambling and the state would be left out in the cold.

See the full story HERE.

twp

Save The Date - Conference on Protecting Sovereignty - The Role of Tribal Courts

Our colleagues at the Tribal Justice Institute at University of North Dakota are putting on the named conference October 22-23 at Isleta Pueblo Casino and Resort near Albuquerque.

"This conference includes sessions on the following topics:

    - What Tribal Courts do to Protect Sovereignty of Indian Nations

    - Tribal Government Support for Tribal Courts

    - Judicial Independence and Separation of Powers - What it is and How it Can Be

    - Indian Civil Rights Act and Authority of Tribal Courts

    - Tribal Sovereign Immunity - What is it And What Are The Exceptions to it

    - Panel of Tribal Judges Discussing Sovereign Immunity and the Role of Tribal Courts in Resolving Complaints Against Tribal Government

    - Waivers of Sovereign Immunity - Impact of Insurance Coverage

    - Discussion on Promoting Healthy Relationships between Courts and Governments"

Check their WEBSITE for more information.

twp

US Appeals Court upholds Adam Walsh act...including on reservations

From the Billings Gazette and an AP story:

"U.S. Attorney Bill Mercer said Thursday that he will resume prosecuting sex offenders who fail to register with local authorities when they move to Western Montana, following an appeals court ruling this week that upheld the practice.

Mercer's office stopped pursuing such cases in June 2008 after U.S. District Judge Donald Molloy in Missoula ruled the Sex Offender Registration and Notification Act of 2006 was unconstitutional.

Prosecutions had continued in Eastern Montana, supported by a ruling in a separate case before U.S. District Judge Richard Cebull in Billings.

Mercer said prosecutions in the western half of the state would resume based on a 9th U.S. Circuit Court of Appeals opinion issued Tuesday. In a case that originated in Yakima, Wash., the San Francisco-based appeals court said the sex offender act did indeed pass constitutional muster.

In a footnote, the court said it "disapproved" of Molloy's ruling last year, in which he had said Congress lacked authority to enact the law under the interstate commerce clause.

The panel wrote that Congress has the right to enact such a law as long as it is "necessary and proper" under the commerce clause.

The federal law applies to sex offenders who move between states or between a state and an American Indian reservation."

See the full story HERE.

twp

Three NY smokeshops raided: 300 cartons of counterfeit cigarettes confiscated

Law enforcement raided three smokeshops in Mastic, New York, pursuant to a seizure order requested by Phillip Morris Company. A federal judge granted the request based on the company's allegation that the shops were selling counterfeit Marlboro cigarettes. Philip Morris filed the civil suit Tuesday in federal court in Central Islip against three smoke shops and individual shop owners in connection with the alleged counterfeiting.

The raid took place on the Poospatuck Indian reservation; the same reservation in the middle of a closely watched lawsuit filed last year by New York City. As reported yesterday, the City won the first round in that lawsuit when a federal court granted an injunction against several vendors prohibiting the sale of cigarettes to nontribal members. 

A hearing on a temporary restraining order is set for September 3. 

You can read the story HERE.

ddg 

Reservation still exists - so says appellate court

A federal appeals court has upheld a lower court ruling that found a small part of the once-huge Yankton Sioux Tribe's reservation in southeastern South Dakota still exists and remains under the legal jurisdiction of the tribe and federal government.

The state and Charles Mix County have argued through lengthy legal battles that the reservation was disestablished, or eliminated, in the late 1800s.

But U.S. District Judge Lawrence Piersol of Sioux Falls agreed with the tribe and the U.S. government when he ruled in late 2007 that the reservation covers more than 37,000 acres, or 59 square miles, which is mostly land the government holds in trust for the tribe and individual tribal members.

A three-judge panel of the 8th U.S. Circuit Court of Appeals on Tuesday upheld most of Piersol's ruling.

See the full story HERE in the AP story in the Mitchell Republic's website.

twp

Follow Up: Court issues injunction in NY cigarette case

On Tuesday, a federal judge granted the city of New York's request for an injunction against a group of  tobacco vendors on the Poospatuck reservation on Long Island.  As we first reported last year, Mayor Bloomberg filed suit against the reservation, arguing that the city and the state lose more than $1 billion a year in tax revenue because of what it calls bootleg cigarettes distributed on Indian reservations in New York. Of that amount, the administration contends, $195 million represents the city’s share, and officials blame the Unkechaug Nation reservation for most of that. A four day preliminary injunction hearing was held in May.  

According to the Mayor's press release, the Court issued the injunction after concluding that "the City has established a clear or substantial likelihood of success on the merits of its claim" that the defendant businesses' "receipt, possession, sale, distribution and purchase of quantities far in excess of 10,000 cigarettes, which do not bear New York tax stamps, under circumstances where such stamps are required" violates the Federal Contraband Cigarette Trafficking Act as well as the New York Cigarette Marketing Standards Act.  The judge rejected an argument that the smoke shops and their owners, which are licensed by the Unkechaug tribe, could not be sued because they are part of a sovereign nation.

This is a win  for the city because the injunction prohibits the vendors from selling tax-free cigarettes to the general public until a federal court rules in the lawsuit between the reservation and the City. The vendors have thirty days to appeal.  

We will continue to follow this story.

You can read the article on nytimes.com

ddg

Turtle Talk following Tribal Sovereign immunity cases

Turtle Talk has posted a brief history of recent tribal sovereign immunity federal and state court decisions. As they explain, most of these types of cases are routine "— slips and falls, internal tribal disputes —" but there are some which they say are "worth watching because of the subject matter and the general uniqueness of the problem."

It's an interesting read with links to the referenced cases.

Read the post HERE.

ddg

Trial for killing to get eagle feathers or not?

It went all the way up to the Supreme Court, but now it's back at the trial court level...Winslow Friday shot and killed a bald eagle for use in his tribe's Sun Dance .  Thing is he didn't get a permit from the feds....who have allegedly been pretty reticent about issuing the permits.  The Supreme Court declined to hear the claim that the federal regulations and laws violated his religious rights. 

Now his lawyer thinks they'll ifind something other than a criminal trial to resolve the case. 

Read the full story HERE on NativeTimes.com

twp

Judge throws out lawsuit seeking to block Gun Lake casino

Students of Constitutional Law, particularly MY students of ConLaw should pay attention to this.  (And if you're not, it's interesting, anyway).

A federal judge had a casino case on the bench.  The tribe generally known as the Gun Lake Tribe wanted to build a casino.  The Department of the Interior had taken the land for it into trust.  Here's the rub - the Carcieri decision, which held that if you weren't a recognized tribe in 1934, the feds couldn't take land into trust for the tribe.  Well, the Gun Lake Tribe didn't gain recognition until 1999.  That would seem to leave them out, absent any correction in the statutory law by Congress, upon which the Carcieri decision was based.

So you'd think that would stop the casino dead in the tracks of the construction bulldozers.  AH, but you would think that too soon.....because the plaintiff seeking to stop the casino with the lawsuit lacked something critically important (here's the ConLaw connection).....he didn't have STANDING to bring the suit to challenge the casino construction.  He's only a private citizen, with no direct interest in the land-into-trust process, so says Judge Richard Leon.  No standing, no lawsuit.

See the full story HERE on Indianz.com.

twp

twp

Comments to the blog

We welcome comments.  We really do.

Here's the thing, though - we will  look at EVERY comment before it is posted to the blog.

There are a lot of good reasons for this, to include screening out the spam and other advertising crap that some people figure they can post for free on any blog they encounter.

But we have to do this manually.....which means that any comment you send will NOT be posted up instantly.  It may take a day or so.  We don't want to discourage commentary on anything connected to Native American Law, but we WILL use our judgment as to what we'll allow and what we won't. 

So if you send a comment, and it's not posted to the public right away, don't take offense.  And if something in it gets trimmed out before posting, don't take it personally.

twp

A very sincere "Thank You" to all of our readers

Today we reached 15,000 hits on our little blog about Native American law.  Given how it's still pretty much a niche field in the law, that should be regarded as a pretty darn good number is slightly less than a year.

So truly, we thank all of our readers.  We'll continue to try and convey stories and information about Native American law to you to the best of our abilities and available time.

And in that area, an announcement of sorts - your erstwhile editor, Professor Tim Pleasant, is taking a little of his own medicine.  I've gone back to school - to the University of Tulsa Law School, there to obtain (hopefully) an LLM in Native American Law.   But I wouldn't be able to do this without the help and encouragement of a number of people, not the least of whom is my co-editor here, Professor Deena DeGenova, to whom I give my special thanks for always being there and backing me up as needed.

Call for papers in Native American law

Just received this Call for Papers from the Law Review at William Mitchell College of Law:

"The William Mitchell Law Review is proud to dedicate its second issue to Native American Law in its upcoming Volume 36 (fall 2009).  We are currently seeking papers that examine current issues and recent developments in this important area of law.  Submissions may either take the form of shorter commentaries or longer law review articles.   * * *

Please direct inquiries to Executive Editor Vanessa Denis at vanessa.denis@wmitchell.edu.  Please send submissions to lreview@wmitchell.edu or mail them to our Editorial Office.  Please note that the Law Review prefers electronic submissions.

William Mitchell Law REview
William Mitchell college of Law
875 Summit Avenue, Suite 159
St. Paul, Minnesota 55105

Follow Up: Looks like Mashantucket Pequot Tribe and UAW will be moving on to arbitration

As we have been reporting, the Tribe and UAW have been in contract talks since December. During negotiations they were able to reach agreement as to some of the issues, however some issues still remain. The unresolved issues center on management's refusal to recognize the UAW as the collective bargaining representative for dealers and “dual rates “ - dealers who also act in supervisory roles, as well as benefits for part time dealers. 

Although, under tribal law, either side was entitled to petition the Tribal Court to appoint an arbitrator as early as April (150 days after negotiations began), the union bargaining committee chose to continue negotiations and to invoke arbitration "no later than Aug. 21."  It seems an agreement has not yet been reached and unless one is reached by Friday, the issues will be worked out by an arbitrator. 

We will continue to follow this story..  

Read the story on TheDay.com

ddg

ICWA applies even where minors are not biological children of parent with Indian blood

A California appellate court has ruled that ICWA applies even where the only Indian involved is the presumed father's adoptive father. In the case before the court, an order of termination of parental rights was entered against both the mother and the father. The mother appealed arguing that the order must be reversed because the Apache tribe was not noticed as required by ICWA.

In this case, the minors were not the biological children of a parent with Indian blood. They were the grandchildren by adoption of an ancestor with Indian blood. So the issue before the court was whether ICWA applied even if an adoptive parent was the only Indian.  The court found that the definition of Indian Child under ICWA does not by its terms automatically exclude such children. The court said "to the contrary, the ICWA focuses on membership rather than racial origins" and "protects children who are members of or eligible for membership in federally recognized Indian tribes." The court went on to find that the definition of Indian Child "does not by its own literal language require either that the child's biological parents be members of a tribe or that one of the child's biological parents have tribal ancestry." The court said "such a child could still be an Indian child for purposes of ICWA so long as either (1) the child is a member of an Indian tribe or (2) one of the child's biological parents is a member of the tribe and the child is eligible membership."  In this case the children are biologically related to the father and the father is potentially a member of the Apache tribe via his adoptive relationship with the minor's grandfather. As a result, the court reversed the order of termination of parental rights and remanded the case back to the trial court to follow the notice requirements set out in ICWA. 

You can find a link to the case on Turtle Talk. 

ddg

Court finds insurance company should have known house was built on Indian mound

Plaintiff's filed suit against their title company alleging that the company failed to inform them that their property was officially designated as an Indian cemetery mound. This meant that they could not make any changes without prior permission and also meant that the Indian tribe has a legal right to conduct a ceremony on the mounds at any time upon reasonable notice. The company denied coverage and said it  wasn't responsible because the abstract did not make any reference of a grant of property to an Indian tribe.     

The court disagreed and awarded plaintiff's $250,000 for the diminished value of the property. According to the article in Finance and Commerce, the judge noted that "the title commitment stated that it relied on public records in making its commitment. The location of Indian burial mounds is a matter of public record because the records are maintained by the Minnesota state archaeologist" and "lay persons would believe that the title examination included all public records. "  The court went on to say that a simple telephone call to the State Archaeologist where the records are recorded, would have disclosed the existence of the mounds and found that the company "either knew or should have known that the State of Minnesota maintained a State Archaeologist Office, which maintains records of Indian burial mounds in Minnesota.”  Therefore, the judge found "coverage existed under the policy because it covered the risk that someone other than the plaintiffs could limit the use of their land and because their title was unmarketable" and that since the company "did not provide any evidence to show basis for the denial of coverage" the property was covered under the policy.

The article can be found HERE

ddg.

 

Habeas Claim dismissed against tribe; non member cannot claim banishment as an illegal detention

Petitioner, who claimed that he was a descendent of the Pechanga Indian Tribe, attempted to enter to the Pechanga Indian Reservation without prior permission from the Tribe. Tribal Council found that these actions constituted trespass and public nuisance and excluded Petitioner from the reservation pursuant to the Tribe’s “Non-Member Reservation Access and Rental Ordinance.”  The Tribal Council sent Petitioner a letter informing him of his exclusion. Subsequently, Petitioner attempted to enter the reservation to pray at his father’s gravesite, but tribal rangers refused to let him enter the reservation, the sheriff's department was called and he was threated with arrest.  

 

Petitioner filed a Complaint for Writ of Habeas Corpus, alleging that Respondents illegally banished him from the Pechanga Band, in violation of the United States Constitution and the American Indian Civil Rights Act, and challenged the constitutionality of his alleged “detention.”  A U.S. District Court judge dismissed the petition on two grounds; (1) the petitioner failed to establish personal jurisdiction, because the named respondent was no longer a member of the Tribal Council; and (2) petitioner failed to state a claim because he did not satisfy the “detention “ requirement since he was a descendent of the Tribe and not a member; therefore, he did  not sufficiently allege his exclusion from the Tribe constitutes a restraint on liberty that rises to the level of a “detention” for purposes of § 25 U.S.C. § 1303.

 

You can find the link to the opinion on Turtle Talk.

ddg

Follow Up: Muscogee Creek Nation will not get their seized cigarettes returned

A U.S. District Court Judge dismissed Muscogee Creek Nation's lawsuit against the Oklahoma Tax Commission for seizing tobacco from two of it's trucks. The court dismissed the case on two grounds:  (1) because the Oklahoma Tax Commission's "sovereign immunity" exempts it from suit and (2) because, under the tribe's arguments, the tribal entity does not constitute a "person" who can bring suit.

As reported back in May, Oklahoma Highway Patrol, working with the Oklahoma Tax Commission, stopped three different tribal vehicles, two of which carried tobacco. Law enforcement seized the cigarettes which totaled about $100,000.  The tribe filed suit seeking injunctive relief to refrain  defendant's  from stopping and searching their vehicles and seizing the items found therein, as well as requesting the return of the seized cigarettes and tobacco products. The state argued that such relief should be denied because the cigarette brands are not on the Master Settlement Agreement and are therefore illegal to sell. Since they did not have a tax stamp affixed to them, the state would lose around $42,000. 

A federal judge dismissed the case, finding not only that the Tax Commission was exempt from suit, but that the tribe's interest "was based on its sovereign status and one that a similarly situated private party would not enjoy" and therefore, the tribe did not have standing to bring suit.

You can read more about the case on Tulsa World. 

ddg

. 

Followup - Blackfeet and Glacier County sign cross-deputization agreement

In an "unprecedented" attempt to help solve the criminal jurisdictional problems that occur on the interface between tribal and state law enforcement efforts, the Blackfeet Tribe and Glacier County, Montana, have agreed to cross-deputize a number of their deputies and tribal law enforcement officers.

See the full story HERE in the Great Falls Tribune.

twp

Survey: Americans want a Native American Supreme Court Justice

US News and World Report conducted the following poll: 

President Obama appears eager to bring diversity to the Supreme Court, having picked the first Hispanic to sit on the bench. If presented with a second chance, which should he pick?

Native American	50%
Asian	19%
African-American	16%
Gay or lesbian	13%
Muslim	2%

Fifty percent of those polled want a Native American as the next pick The survey was conducted July 27-29 among 1,000 nationally representative households.  

ddg

Tribal Police have limited powers over non-Indians

The 9th Circuit Court of Appeals has ruled a non-Indian can pursue his claim in federal court that the actions of tribal police violated his civil rights. The case involved a roadblock which was set up pursuant to tribal authority to check for motorists' sobriety, driver's licenses, registration and possession of alcohol.  Bressi, who was stopped at the roadblock, insisted the stop was unconstitutional and refused to provide a driver's license or other identification. Tribal police handcuffed him and took him the side of the road, and eventually issued two citations for violating state law. The encounter lasted about four hours. Bressi filed a complaint in District Court that his civil rights had been violated. The District Court judge dismissed the case, holding that officers were acting pursuant to tribal law and tribes had immunity from being sued in federal court.

The Ninth Circuit Court of Appeals reversed the lower court, finding that although roadblocks on state highways are permissible, "a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians the stop is limited to determining whether or not the driver is an Indian or a non-Indian."  The Court also said that tribal police "are authorized to enforce state law. But when they do, they will be held to the U.S. Consitution. . . . If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.'' 

Find the story HERE.

ddg