DC Circuit: Gerald Hawkins v. Debra Haaland

 

Concurrent procedural regulation of waters reserved to the Tribe in a treaty with the Federal Government isn't an unlawful delegation constituting a procedural injury to those holding inferior rights to take the water, since the Tribe's treaty right to ensure sufficient water levels requires no concurrence from the Federal Government.  Even absent the concurrent regulation procedures, the Tribe's right to the water would remain, leaving the plaintiffs without a possibility for redress sufficient to justify Article III standing.

Gerald Hawkins v. Debra Haaland

Eleventh Circuit: James Clay, et al. v. Commissioner of Internal Revenue

 

Agreement on taxation of ceded land is subject to the court's plain meaning reading; the member of the tribe that is party to the accord has no power to define a contrary reasonable reading.

Casino revenues did not arise from the land in question.

In the absence of a formal lease, the tax court determination that the lands were not leased by the tribe is supported by substantial evidence.  Tribe has not identified any statutory basis for the claimed exemption for profits from leased lands.

James Clay, et al. v. Commissioner of Internal Revenue

Second Circuit: Perkins v. Commissioner

 

Treaty with Indian nation guaranteeing free use and enjoyment of land did not create a presumption of immunity from tax as an analogue to the general exemption in later private allotment Act.

Treaty with Indian nation guaranteeing freedom from taxes and assessments on the land, construed as the nation would have understood it, does not except usage and extraction by members of the tribe from taxation -- it merely addresses the possessory interest.

Perkins v. Commissioner

Fourth Circuit: Darlene Gibbs v. Haynes Investments, LLC

Delegation clause in arbitration agreement can be judicially reviewed where the challenge is to that clause specifically, and the challenge is made with sufficient force and specificity.

Tribal arbitration agreement is a prospective waiver of federal statutory rights where it indicates that tribal law will preempt contrary federal law.

Tribal code with civil damages provision allowing compensation of actual harm doesn't sufficiently vindicate RICO treble damages right.

Darlene Gibbs v. Haynes Investments, LLC

Third Circuit: Christina Williams v. Medley Opportunity Fund II, LP

Reference to delegation clause in challenge to validity of an arbitration agreement is sufficient to merit review of the validity of the clause, even where the agreement elsewhere specifies that the enforceability of the agreement is a matter for arbitration.

Where parties do not provide court with the substance of the Tribal law selected by the agreement's choice of law provision, the law of the forum is used to assess which statutory claims might be raised against the agreement.

Choice of law terms in an arbitration agreement do not necessarily expand the range of claims that can be raised under the arbitrability sections of the agreement.

Where an arbitration agreement clearly waives federal rights, it need not explicitly do so to be an impermissible prospective waiver for reasons of public policy.

Waiver sufficiently central to the arbitration process to strike the entire agreement.

Christina Williams v. Medley Opportunity Fund II, LP

DC Circuit: Ho-Chunk, Inc. v. Jeff Sessions

Corporations incorporated under tribal law and wholly owned by the tribe are subject to the tobacco recordkeeping laws, as the reservations are within the states, and the act does not base its jurisdiction on a territorial determination.

Tribes and tribal instrumentalities are persons, given the Definitions Act.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A1C437A21B393451852582BF005095BB/$file/17-5140-1738923.pdf

Eleventh Circuit: USA v. Sally Jim

Where gambling revenues are used for the welfare of tribe members, statute requiring tax payments on Indian gambling business prevails over earlier statute exempting Indian general welfare payments from taxation.

Refusal to amend monetary judgment against an intervenor of right was not an abuse of discretion.

http://media.ca11.uscourts.gov/opinions/pub/files/201617109.pdf

Ninth Circuit: TIFFANY AGUAYO V. S.M.R. JEWELL

Tribe Law, Administrative


Although the agency acted according to a broad vesting statute, the decision is reviewable under the APA, since it centers on the agency's acceptance of a certain constitution by the band, although specific review of the legitimacy of the constitution is time-barred.

As there was a rational basis for the agency's hands-off approach at the time of the constitution's adoption, the agency's decision not to intervene in a present membership dispute was not arbitrary or capricious.

No general trust obligation, &c, &c.



TIFFANY AGUAYO V. S.M.R. JEWELL

Eighth Circuit: United States v. Santana Drapeau

FRE, Tribe Law

No plain error/abuse of discretion in allowing testimony on priors, since there was no proof of prejudice given the curative instruction, and the testimony might somehow have been relevant.

 Uncounseled tribal court convictions are valid predicates



United States  v.  Santana Drapeau

Fourth Circuit:James Hayes v. Delbert Services Corporation

Arbitration, Choice of Law, Tribe Law

Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.

Not severable from arbitration provision.

No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.

http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf

Eighth Circuit: United States v. Justin Janis

Tribe Law, Agency

While tribal police, as a class, are considered federal employees as a matter of law, as they are enforcing order pursuant to a contract with the BIA, the question of whether any person is acting as a tribal officer is a question of fact to be resolved at trial.

http://media.ca8.uscourts.gov/opndir/16/01/143888P.pdf

Sixth Circuit: Norbert Kelsey v. Melissa Pope

Habeas: Tribes - Crim

Native American tribes have extraterritorial criminal jurisdiction over their members.

Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.

Presumption against implicit divestment by Congressional act.

As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.

Tribal court's exercise of jurisdiction was routine common law decisionmaking.

http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf

Tenth Circuit: Jones v. Norton

S1983 -- Fourth Amendment.
Where the forensic evidence tends to indicate that the plaintiff's theory of the incident is not supported, summary judgment for the deft is appropriate.

Treaty with the tribe does not confer a right that can be remedied by S1983, as the treaty right of action lies only against the USA.

Assertions of general racism against tribe members were insufficient to prevent summary judgment on conspiracy.

Motions to amend state law tort IIED claims were either untimely by the scheduling order or would not have related back.

No spoiliaton, as FBI had custody, and police manipulation of corpse was immaterial.

As plaintiffs did not timely object to magistrate's order of costs, it is not appealable.

https://www.ca10.uscourts.gov/opinions/14/14-4040.pdf

Eleventh Circuit: Miccosukee Tribe of Indians of Florida v. Billy Cypress, et al.

Tribe law - RICO, embezzlement.

No genuine issue of nonjusticibility, as the actions specified in the indictment appear to be outside of tribal law.

Itemization of fraudulent contacts is insufficient for 9(b) pleading specificity -- a theory of the specific fraud must also be outlined.

http://media.ca11.uscourts.gov/opinions/pub/files/201412115.pdf