Case Law Update Forest County Potawatomi Tribal Court Law Day April 30, 2015.

Case Law UpdateForest County Potawatomi Tribal Court Law Day

April 30, 2015

Stifel Nicolaus v. Lac Courte Oreilles Band, 13-CV-121 (6-19-14)

LCO Band had issued and sold bonds in 2006 for ~ $31M. Used for various projects including refinancing 2003 bonds.

It eventually came to light that Stifel allegedly breached a fiduciary responsibility with respect to how the bond transactions were structured and carried out.

The Band sued Stifel in LCO Tribal Court. Stifel then sued in federal court, Western District of

Wisconsin.


The Bond Purchase Agreement executed between Stifel and the Band contained language in which the Band expressly consented to jurisdiction in federal court with state court as a back up.

The BPA also contained language that the parties agreed that the transaction did not take place on the LCO Reservation.


The Court ruled that Stifel must litigate in Tribal Court first.

First Montana exception applied – consensual relationship

Language about situs of transaction not dispositive.

Harris v. Lake of the Torches, 14 AP 1692

Benjamin Harris worked at LDF Lake of the Torches Casino

Injured thumb badly in kitchen. Some treatment; separated employment. Sued in state court for workers compensation

benefits Case transferred to tribal court Trial held in tribal court.

Harris v. Lake of the Torches

After trial, no decision from the trial court for 11 months. Mr. Harris seeks to have the case returned to state court. State court judge grants motion to return to state court. Issues decision in favor of Mr. Harris based on record from

tribal trial court. Tribe then moves for dismissal based on sovereign

immunity. State trial court grants the motion

Harris v. Lake of the Torches

Issues: Length of time for trial tribal court decision Sovereign immunity 801.54 application – twice

Jackson v. Payday Financial, No. 12-2617, (7th Cir., Aug. 22, 2014).

Defendant Payday Financial offers loans over the Internet; short-term high interest.

Plaintiffs want out of the agreement. Sue in state court; Defendants remove to federal

court. Two main issues:

Validity of arbitration clauseValidity of forum selection clause / Tribal court

exhaustion


Arbitration clause held invalid: No arbitration rules on the Reservation Choice of arbitrator had no method Not substantively or procedurally sound

Forum selection clause requiring litigation in Cheyenne River Sioux Court held invalid: No tribal court jurisdiction: no activity occurred on

the Reservation. No “colorable” claim of jurisdiction


Take aways:Not great factsDefendant is an individual tribal memberDevelopment of laws

Colville Indian Housing Authority v. Edwards, 6 CTCR 12 (Colville Confederated 3/11/2014)

Colville Indian Housing Authority (CIHA) filed unlawful detainer action against Ms. Edwards. (Essentially an eviction).

Day of hearing a memo appears in the file from a third party that Ms. Edwards is incarcerated and wants a continuance. Judge authorizes a continuance.

Before the next date, the CIHA requests that Ms. Edwards appear by phone if she is still incarcerated. Judge re-schedules again.

Tribal law requires a hearing within 30 days on detainer actions; well past 30 days.

Colville Indian Housing Authority v. Edwards, 6 CTCR 12 (Colville Confederated 3/11/2014)

CIHA makes an interoluctory appeal to the Colville Supreme Court.

Supreme Court chides the Trial Court that it must treat both sides fairly and not grant continuances where the defendant had not actually requested one.

A judge is to conduct hearing objectively and fairly. This includes conducting the hearing without looking like she is taking one side or the other. Even if the judge hasn't taken one side or the other, if it looks like she is, this violated procedural due process.

Evans v. Shoshone Bannock Tribes, 13-35003 (9th Cir. 12/05/2013)

Evans, a non-Indian on his own fee land, was constructing a single-family residence. Land is within the Fort Hall Indian Reservation.

The Tribe’s Land Use Commission ordered him to stop and eventually sued him in Tribal Court.

Evans filed suit in federal court; Tribe claimed Evans had to exhaust in Tribal Court first.

The District Court ruled with the Tribe; the Ninth Circuit reversed.

Evans v. Shoshone Bannock Tribes, 13-35003 (9th Cir. 12/05/2013) The Tribe argued that it had authority to zone non-Indian

land pursuant to Brendale. Ninth Circuit disagreed because Evans’ land was in a relatively open part of the reservation near a municipal airport; very different than facts in Brendale.

Next, the Tribe argued that under the second Montana exception that Evans’ activity “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

Evans v. Shoshone Bannock Tribes, 13-35003 (9th Cir. 12/05/2013)

Three allegations: 1) Ground water contamination; 2) improper disposal of debris; 3) increased risk of fire.

The Court said that some harm is not enough; the activity must “imperil the subsistence” of the tribal community. Plains Commerce, 554 U.S. at 341 (quoting Montana, 450 U.S. at 566)).

Fort Yates Public School District #4 v. Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)

The School District, Tribe and State entered Joint Powers agreement under which two school boards—state and tribal—operate elementary, junior high and high schools.

CMB and AK were in a fight (or AK “attacked” CMB). AK suspended for 10 days and CMB obtained tribal court restraining order against AK.


AK violated restraining order several months later. AK suspended again for 10 days.

CMB’s mother, Murphy, filed suit in Tribal Court against the School District alleging 1) breach of duty to provide a safe learning environment; 2) negligent training/hiring; and 3) failure to respect a tribal court restraining order.


School District filed suit in federal court seeking 1) declaration that tribal court doesn’t have jurisdiction and 2) injunction stopping tribal court from proceeding.

District Court ruled in favor of Murphy. Montana does not apply. Allegations arose on tribal lands + the Joint Powers agreement represents a consensual agreement under the 1st Montana exception.


The Court shares the tribal court's concern that if the tribal court lacks jurisdiction over civil claims such as these, tribal members may be left without recourse against non-Indian entities that operate on the reservation when they have legitimate grievances.

The tribal court ought to be afforded the opportunity and tasked with the responsibility of adjudicating civil problems involving its tribal members against the School District who has entered into a contractual arrangement to collaboratively operate schools on tribal trust land.


Even if Montana applied, the Court would still rule that the Tribal Court has jurisdiction as Joint Powers Agreement is a consensual relationship and the causes of action are related to the nature of the relationship.

Las Vegas Paiute Tribe v. Phebus, 2:13-cv-02000-RCJ-CWH, (D.NV. March 24, 2014)

Christopher Phebus disenrolled in 1999 from the Tribe. Since 1999 prosecuted in Paiute Tribal Court for various crimes.

Phebus appealed one of the convictions and the Tribal appellate court ruled that the tribal trial court did not have jurisdiction over Phebus.

The Tribe then filed a declaratory action in federal court seeking ruling that it did have criminal jurisdiction over Phebus.


District Court agreed that Phebus’ disenrollment created legal issues with respect to the Tribe’s claim of criminal jurisdiction over him.

Federal law (statutes, Duro, Lara, etc.) is based on political affiliation. If race (being Indian) is issue, then equal protection problems.


District Court found that in order to exercise jurisdiction in a criminal matter against Phebus, an element of the crime includes showing that he is Indian.

Therefore, the tribal trial court must find beyond a reasonable doubt that Phebus is Indian.

Lightfoot v. Jewell et al., 13-2985 (D. Minn) Competing jurisdiction case. Sheryl Lightfoot, KB member and Ken Thomas,

Shakopee Sioux member, both filed for divorce in separate courts.

Lightfoot filed in Canada; Thomas in the SMSC Tribal Court.

Lightfoot then filed in federal court for a preliminary injunction against the Tribal Court to stop its proceedings.

Lightfoot alleged that the domestic relations code violated PL 280.

Lightfoot noted that under tribal law, Thomas’ $64,000/mo tribal income would be considered non-marital property.

Lightfoot v. Jewell et al., 13-2985 (D. Minn) Court denied the request for injunction in December, 2013.

Letter to Court on September 8, 2014: Tribal Court and Canadian judge held a joint motion hearing. Both judges agreed to bifurcate the proceedings. Custody and parenting time issues will go forth in British

Columbia; spousal support, property division, and the end of the marital relationship issues will go forward in tribal court.

Parties then reached agreement on child custody issues. Litigating spousal support and property. Two-day trial in

October.

Time permitting: Wisconsin Safe Haven and ICWA / WICWA

https://docs.legis.wisconsin.gov/misc/lc/study/2014/1198

Memo No. 2 “The Safe Haven Law and the Indian Child Welfare Act” (October 9, 2014).




Attorney Paul Stenzelwww.paulstenzel.com

414-534-5376

Case Law Update Forest County Potawatomi Tribal Court Law Day April 30, 2015.

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