§ 1.1 Tribal Litigation & The Third Sovereign
We have been writing this annual update of cases relevant to tribal litigation for years. Recognizing that the average practitioner consulting this volume may not have much experience with federal Indian law, we have endeavored to provide historical context and citations to most relevant circuit and even district court cases in every volume. This resulted in a chapter that had grown to almost seventy pages in length and had increasingly made it difficult for the reader to identify the most recent cases.
Beginning with the 2019 Edition, we decided to change the format of this chapter to both be more consistent with the other chapters in this volume, and to focus on the cases decided in the last year. This chapter continues with that format and focuses on cases decided between Oct. 1, 2020, and Oct. 1, 2021. While other chapters have arranged themselves by circuit, we begin with a Supreme Court overview and then structure this chapter’s subsections around sovereigns: Indian Tribes, the United States, and the fifty sister States. Within each subsection we provide a concise overview with more limited and deliberate citation, followed by longer and more intentional discussion of recent cases. We hope the reader appreciates the change in format and we welcome comments via email to any of the chapter authors.
Retired Supreme Court Justice Sandra Day O’Connor has aptly referred to tribal governments as the “third sovereign” within the UnitedMuch like federal and state governments, tribal governments are elaborate entities often consisting of executive, legislative, and judicial Tribes are typically governed pursuant to a federal treaty, presidential executive order, tribal constitution and bylaws, and/or tribal code of laws, implemented by an executive authority such as a tribal chairperson, governor, chief, or president (similar to the U.S. president or a state’s governor), and a tribal council or senate (the legislative body). Tribal courts adjudicate most matters arising from the reservation or under tribal
Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of localThus, state laws generally “have no force” in Indian While in the eyes of federal and state government, tribes no longer possess “the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social
This chapter explores the repose of tribal sovereignty, federal plenary oversight of that sovereignty, and perennial state encroachment upon that sovereignty. Federal trial and appellate courts issue more than 650 written opinions in cases dealing with Indian law eachand settle, dismiss, or resolve without opinion countless others. This chapter introduces those cases most relevant to a business litigation focused audience.
§ 1.2 Indian Law & The Supreme Court
§ 1.2.1 The 2020–2021 Term
The Supreme Court hears an average of between two and three new Indian law cases everyDuring the 2020–2021 term, the Court decided two Indian law
United States v. Cooley, 141 S. Ct. 1638The U.S. Supreme Court declared unanimously that tribal police officers have the authority to temporarily detain and search non-Natives on public rights-of-way through Indian lands if they are suspected of violating federal or state This ruling is significant for Indian Country as it solidifies rights by tribes to exercise their sovereignty while removing previous limitations.
The Court’s decision reversed the Ninth Circuit Court of Appeals’ ruling that tribal safety patrol officers lacked the power to detain and search the defendant, Joshua James Cooley because he was aCooley was initially arrested on tribal lands after an officer searched his vehicle, where evidence was found leading to a federal drug and firearms possession Cooley moved to suppress the evidence found in the search, arguing the tribal police officer lacked the authority to investigate and detain him because he is a non-Native. The Ninth Circuit agreed and ruled in favor of Cooley.
In overturning the Ninth Circuit, the Supreme Court based its decision on the long-standing Federal Indian Law precedent of United States v. Montanastating that tribes do not have jurisdiction over non-Natives on reservations unless their behavior “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the The Court ruled that the power of tribal officers to detain and investigate non-Natives on highways running through tribal lands is an exercise of sovereign authority necessary to protect tribal communities against threats to their health and welfare. Justice Stephen Breyer wrote the opinion and stated that ruling otherwise “would make it difficult for tribes to protect themselves against ongoing threats” such as “non-Native drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal
Arguably, the most significant piece of Justice Breyer’s opinion is that the charges Cooley faced were not tribal allegations, but arose under “state and federal laws that apply whether an individual is outside a reservation or on a state or federal highway withinThis means there is now precedent in place authorizing tribal police officers to investigate and temporarily detain non-Native motorists if there is suspicion of state and federal crimes—and not simply alleged violations of tribal law.
Justice Alito wrote a one-paragraph concurrence clarifying when tribal police officers have authority on public rights-of-way. Essentially, he wrote tribal officers have the power to stop non-Natives if: (1) the officer has a “reasonable suspicion that the motorist may violate or has violated federal or state law;” (2) the search was necessary to protect themselves or others; and (3) the officer has probable cause to detain the motorist until a non-tribal officer arrives on the scene.
The Cooley decision is important for tribes to continue acting in a sovereign capacity to protect their tribal lands and those who live and travel within their boundaries.
Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434In a 6-3 decision, the Supreme Court held that Alaska Native Corporations (“ANCs”) are entitled to COVID-19 relief funds, solidifying that ANCs qualify as Indian tribes under the Coronavirus Aid, Relief and Economic Security (“CARES”) Act. In this ruling, SCOTUS reversed a unanimous Washington D.C. Circuit panel that initially sided with the Plaintiff tribes and against
Justice Sotomayor, writing for the majority, indicated ANCs qualify for funding under the CARES Act because in the Indian Self-Determination and Education Assistance Act (“ISDEAA”), which created a federal legal definition of “tribe,” ANCs were included. The opinion states: “under the plain meaning of ISDEAA, ANCs are Indian tribes regardless of whether they are also federally recognized ‘tribes’ or not.” Specifically, the ISDEAA defines an Indian tribe as “any Indian tribe, band, nation or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (“ANCSA”), which is recognized as eligible for the special programs and services provided by the United States to the Indians because of their status as Indians.” Therefore, since the ISDEAA includes ANCs in the definition of an Indian tribe, and the CARES Act is also a federal statute using the term Indian tribe for eligibility purposes, the Supreme Court held ANCs are eligible for CARES Act funds.
The Plaintiff tribes argued this decision would potentially open doors for other non-federally recognized Indian groups to be reorganized under the ISDEAA. However, the Court disagreed and stated that ANCs are “entities created by federal statute and granted an enormous amount of special federal benefits as part of a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else.” Justice Sotomayor further indicated that the “[C]ourt’s decision today does not vest ANCs with new and untold tribal powers, as respondents fear,” but “[i]t merely confirms the powers Congress expressly afforded ANCs and that the executive branch has long understood ANCs to possess.” Based on this ruling, ANCs are unambiguously “Indian tribes” under the ISDEAA.
Justice Gorsuch, joining with Justices Thomas and Kagan, writing for the dissent, indicated the “recognized as eligible” clause in the ISDEAA refers to the “government-to-government recognition that triggers eligibility for the panoply of benefits and services the federal government provides to Indians” and ANCs are not eligible for CARES Act funding. The dissent argued the plain meaning of the definition is far from clear and said “[e]ven if we could somehow set aside everything we know about how the term is used in Indian law and the CARES Act itself, it’s far from clear what plain meaning the court alludes to or how ANCs might fall within it.”
§ 1.2.2 Preview of the 2021–2022 Term
As of October 20, 2021, the Supreme Court has granted certiorari in two Indian law cases for the 2021–2022 term: Denezpi v. United States and Ysleta del Sur Pueblo v.In Denezpi v. United States, the case presents the following question: “Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?” In Ysleta del Sur Pueblo v. Texas, the case presents the following question: “Whether the Restoration Act provides the Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the Act’s legislative history, and this Court’s holding in California v. Cabazon Band of Mission or whether the Fifth Circuit’s decision affirming Ysleta I correctly subjects the Pueblo to all Texas gaming regulations.” If any new cases are granted and decided, they will be included in next year’s volume.
§ 1.3 The Tribal Sovereign
§ 1.3.1 Tribal Courts
More than half of the 574 federally recognized tribes have created their own court systems and promulgated extensive court rules and procedures to govern criminal and civil matters involving their members, businesses, and activity conducted on their lands. Notwithstanding federal restrictions on tribal adjudicatory power, tribes have extensive judicial authority. As the complexity of life on reservations has increased, so has Congress’s willingness to enhance and aid tribal courts’ adjudicatory responsibilities.
While tribal courts are similar in structure to other courts in the United States, the approximately 275 Indian courts currently functioning throughout the country are unique in many significantIt cannot be overemphasized that every tribal court is different and distinct from the For example, the qualifications of tribal court judges vary widely depending on the Some tribes require tribal judges to be members of the tribe or to possess law degrees, while others do Some tribal courts meet regularly and have a fairly typical court calendar, while others may meet on Saturdays or only a couple days a month in order to meet the more limited needs of a court system serving a smaller population or particularly isolated tribal community.
Tribal courts can have their own admissions rules and counsel should not assume that because they are licensed in the state where the tribal court is located that they can automatically appear in tribal court. While many tribes allow members of the state bar to join the tribal bar, often for a nominal annual fee, the requirements vary from one tribe to another. For example, the Navajo tribe has its own bar exam that tests knowledge of Navajo tribal
Counsel should keep this uniqueness in mind when addressing a tribal court orally or in writing. If counsel has never appeared before a particular tribal court, it would be wise to solicit common court practices from persons who regularly appear before the court.
Tribal court jurisdiction depends largely on: (1) whether the defendant is a tribaland (2) whether the dispute occurred in Indian particularly lands held in trust by the United States for the use and benefit of a tribe or tribal member, or fee lands within the boundaries of an Indian These two highly complex issues should be analyzed first in any tribal business dispute.
In the context of a tribe’s civil authority, the important distinction is between tribal members and non-members (whether or not the non-member is an Indian). Generally, tribal courts have jurisdiction over a civil suit by any party, member, or non-member against a tribal member Indian defendant for a claim arising on theEven in tribal court, claims against the tribe itself require a waiver of tribal Indian tribes also generally have regulatory authority over tribal member and non-member activities on Indian
In the “path-making” decision of Montana v. Unitedhowever, the U.S. Supreme Court held that a tribal court cannot generally assert jurisdiction over a non-tribal member when the subject matter of the dispute occurs on land owned in fee by a non-member, explaining that “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of tribes, and so cannot survive without express Congressional To help lower courts determine when the assertion of tribal power is necessary, the Court articulated two exceptions: (1) a tribe may have civil authority over the activities of non-tribal persons who enter into consensual relations with the tribe or its members via a commercial dealing, contract, lease, or other arrangement; or (2) the tribe has civil authority over non-Indians when their actions threaten or have a direct effect upon the “political integrity, the economic security, or the health or welfare of the
These exceptions are “limited,” and the burden rests with the tribe to establish the exception’sThe first exception specifically applies to the “activities of non-members,” and the second exception is extremely difficult to prove, as it must “imperil the subsistence of the tribal These exceptions have, oddly, become known as the “Montana rule.”
There are new opinions issued every year on the limits of tribal court jurisdiction that are built upon Montana and its exceptions. This section highlights a couple of the most
Smith v. Landrum, 334 Mich.App. 511, 965 N.W.2d 253 (Mich. Ct. App. Oct. 29, 2020). Plaintiffs, who were not American Indians, brought quiet title action seeking a prescriptive easement over land located on the L’Anse Indian Reservation and owned by a non-Indian Defendant. Previous owners in the chain of title were tribal members, but the land was transferred to non-Indians in 2012. At the time of the dispute, the land was not held in trust for the tribe or any tribal member. At the trial level, Defendant argued on his motion for summary disposition that the state court lacked subject-matter jurisdiction to impose the easement, even when the current landowner and parties were non-Indians. In contrast, Plaintiffs argued that the state court had subject-matter jurisdiction because “the land [was] owned in fee simply by Defendant, and [was] not held in trust by the United States government for an Indian person.” The trial court opined that either tribal court, or a federal district court, had jurisdiction over the dispute, however, the Michigan Court of Appeals disagreed.
On appeal, the court addressed whether a state court had subject-matter jurisdiction to decide such an easement dispute when Plaintiffs and Defendant were non-Indians and the land was located on an Indian reservation. In deciding this issue, the court relied on the Williamsand the Montana rule. Williams and its progeny provide that a state may assert jurisdiction over a dispute involving a non-Indian and arising within an Indian reservation if: “(1) the state’s exercise of authority is not preempted by incompatible federal law; and (2) the state’s exercise of authority does not infringe on the right of reservation Indians to make their own laws and be ruled by With neither party raising any issues of federal preemption, the court turned to the second Montana exception in addressing the second Williams prong. The court concluded that “the exercise of state jurisdiction over this easement dispute would in no way interfere with the tribe’s power to control and govern its members and internal Neither party was an Indian, and the land was neither land held in trust for the tribe nor owned by an Indian. Accordingly, the court held that the presumption was against tribal jurisdiction, and the state court had jurisdiction to decide the easement dispute.
Ute Indian Tribe of the Uintah & Ouray Rsrv. v. McKee, 482 F. Supp. 3d 1190 (D. Utah 2020). The Ute Indian Tribe of the Uintah and Ouray Indian Reservation sued Gregory McKee and associated companies, who owned land on the reservation that was not owned or held by the Tribe, to enforce the Tribal Court’s judgment. The Tribal Court found that Mr. McKee and the associated companies had failed to prove their right to use water the United States owned in trust for the Tribe, awarding the Tribe $142,718 in damages for water misappropriation. Both parties moved for summary judgment. The district court denied the Tribe’s motion and granted the non-members’ motion. In concluding that it had jurisdiction over the suit, the district court relied on MacArthur v. San Juanfor the proposition that enforcing a tribal court order rests on the Tribe’s regulatory and adjudicatory authority, which is “a matter of federal law giving rise to subject matter
Moving on, the court determined that the Tribal Court lacked jurisdiction to decide the water misappropriation dispute. Mr. McKee was not a member of the Tribe, and the tribal resources were on land held in fee by non-members. Accordingly, the Tribe would have authority to regulate non-members’ conduct only pursuant to the Montana exceptions. The land in question was conveyed by the United States to Mr. McKee’s predecessors in interest, including an easement binding him and the associated companies at the time of the dispute. Additionally, Mr. McKee leased a separate parcel of land from the Tribe, consenting to Tribal jurisdiction over his use of the leased property. However, the court concluded that neither Montana exception supports jurisdiction in this case.
Focusing on Montana’s first exception, the court disagreed with the Tribe’s argument that the existing easement created a consensual relationship between Mr. McKee and the Tribe. Neither Mr. McKee nor the Tribe were parties to the conveyance, and the record showed no evidence that the parties ever entered into an agreement relating to the easement. Additionally, the court could not construe the existing lease to confer Tribal jurisdiction over conduct “wholly unrelated to theThe Tribe presented no evidence that Mr. McKee used the disputed water on the leased land. Turning to the second exception, the court reasoned that the diversion of a total of $142,718 worth of water over sixteen years did not meet the threshold of “catastrophic for tribal In summary, the Tribe failed to prove that either Montana exception applied. Because the Tribe lacked authority to regulate the disputed water diversion, the district court found that the Tribal Court lacked jurisdiction over the dispute in the first instance. Accordingly, the court granted Mr. McKee’s motion for summary judgment.
McCormick, Inc. v. Fredericks, 946 N.W.2d 728 (N.D. 2020). In 2010, McCormick and Fredericks created Native Energy Construction wherein Fredericks was the majority owner. Fredericks also served as Native Energy’s President, while McCormick and Northern Improvement provided management services to Native Energy for a 5% management fee. In 2014, the parties executed a purchase agreement for Fredericks’s purchase of McCormick’s interest in Native Energy. However, Fredericks could not complete the purchase and the business was involuntarily dissolved in May 2015. In 2016, McCormick, individually and derivatively on behalf of the entities, brought an action against Fredericks, alleging breach of contractual and fiduciary duties, conversion, and other claims. Fredericks filed counterclaims for similar allegations and requested a judicially supervised winding up of Native Energy. A three-day trial followed in 2018, where the jury found Fredericks breached his fiduciary duties and awarded McCormick damages. However, Fredericks argued that the district court lacked jurisdiction to decide his counterclaim related to the management fee.
Regarding his counterclaim, Fredericks asserted that the Three Affiliated Tribes of the Fort Berthold Reservation had jurisdiction because “the management fee agreement was a contract made on the reservation between  McCormick, a non-Indian, and Fredericks, a tribal member.” The Supreme Court of North Dakota disagreed, finding that Fredericks failed to show how the Montana exception applied. In relevant part, the Court found that Fredericks had not claimed that the management fee involved “a consensual relationship with the tribe.” Instead, Fredericks’ claims arose from his ownership interest in Native Energy, a North Dakota LLC. Accordingly, the district court had jurisdiction to decide the parties’ claims, and the Court had jurisdiction to decide the appeal.
Big Horn Cty. Elec. Coop., Inc. v. Big Man, 526 F.Supp.3d 756 (D. Mont. Feb. 26, 2021). Big Horn County Electric Cooperative (“BHCEC”) filed an action against Big Man and several Judges and Justices of the Crow Tribal Health Board (“Tribal Defendants”). BHCEC sought declaratory and injunctive relief in response to a civil action brought against BHCEC in Crow Tribal Court. BHCEC provided electrical service to Big Man, an enrolled member of the Crow Tribe, but terminated that service in January 2012. Big Man sued BHCEC in Tribal Court, alleging that BHCEC’s actions violated the Crow Law and Order Code, which prohibited such termination during certain winter months. BHCEC filed suit in the district court, asserting that the Crow Tribal Court lacked jurisdiction over BHCEC, a non-Indian entity. Magistrate Judge Cavan found that the land was tribal trust land and subject to tribal jurisdiction, and that, even if the land was alienated to non-tribal members, Montana exceptions allowed the Tribe to exercise jurisdiction. BHCEC timely objected, but after examining the issues, the district court adopted Judge Cavan’s recommendations in full.
The district court agreed with Judge Cavan’s conclusion that Big Man’s homesite was properly considered tribal land, rejecting BHCEC’s objections on this issue. The homesite was “designated tribal trust land owned by the Tribe and held in trust by the UnitedAccordingly, the Tribe had the right to condition BHCEC’s conduct therein. However, the district court also stated that even if the land was alienated from the Tribe’s control, the Tribe had jurisdiction to adjudicate the dispute under both Montana exceptions. Pursuant to the first exception, the court concluded that BHCEC “[had] chosen to avail itself of the Tribe’s customer base and in doing so created a consensual Similarly, the court found that termination of electric service during the winter months “had a direct effect on the health and welfare of the Tribe and therefore satisfie[d] the second Montana Termination of electric service during the cold winter months would “clearly imperil the health and welfare of any Tribal member who obtain[ed] the service from BHCEC—a class of approximately 1,700 members —and therefore the Tribe The court granted Tribal Defendants’ motion for summary judgment, but BHCEC filed an appeal with the Ninth Circuit, which remains unresolved at the time of this writing.
§ 1.3.2 Exhaustion of Tribal Court Review
The doctrine of exhaustion of tribal remedies reflects the ongoing tension between tribal and federal courts. If a tribal court claims jurisdiction over a non-Indian party to a civil proceeding, the partyis required to exhaust all options in the tribal court prior to challenging tribal jurisdiction in federal district If tribal options are not exhausted prior to bringing suit in federal court, the federal court will likely or the case.
Ultimately, the question of whether a tribal court has jurisdiction over a nontribal party is one of federal law, giving rise to federal questions of subject matterThus, non-Indian parties can challenge the tribal court’s jurisdiction in federal Pursuant to this doctrine, a federal court will not hear a matter arising on tribal lands until the tribal court has determined the scope of its own jurisdiction and entered a final Ordinarily, a federal court should abstain from hearing the matter “until after the tribal court has had a full opportunity to determine its own And again, notwithstanding a provision that appears to vest jurisdiction with an arbitrator, several federal courts have ruled that a tribal court should be “given the first opportunity to address [its] jurisdiction and explain the basis (or lack thereof) to the
After the tribal court has ruled on the merits of theand all appellate options have been the non-tribal party can file suit in federal court, whereby the question of tribal jurisdiction is reviewed under a de novo The federal court may look to the tribal court’s jurisdictional determination for guidance; however, that determination is not If the federal court affirms the tribal court ruling, the nontribal party may not relitigate issues already determined on the merits by the tribal
There are several exceptions to the exhaustion doctrine. First, federal courts are not required to defer to tribal courts when an assertion of tribal jurisdiction is “motivated by a desire to harass or is conducted in bad faith . . . or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’sSecond, when “it is plain that no federal grant provides for tribal governance of non-members’ conduct on land covered by Montana’s main rule,” exhaustion “would serve no purpose other than Third, where the primary issue involves an exclusively federal question, exhaustion of tribal remedies may not be
Because litigation is expensive, the question of whether the defendant is required to exhaust their tribal court remedies before challenging the jurisdiction of the tribal court is regularly litigated. Several of these cases were decided in the last
Cross v. Fox, 497 F. Supp. 3d 432 (D.N.D. 2020). Plaintiffs were members of the Mandan, Hidatsa, and Arikara Native American Tribes (“MHA”) and have diagnosed health problems that limit their mobility. Plaintiffs brought action against tribal officials in federal district court asserting that the rule requiring non-residents of the tribal reservation to return to the reservation to vote, while permitting residents of the reservation to vote by absentee ballot, impermissibly burdened their ability to vote, in violation of the Indian Civil Rights Act (“ICRA”) and the Voting Rights Act (“VRA”).
The Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction and a failure to exhaust tribal remedies. Plaintiffs argued that because the federal district court has jurisdiction over their federal statutorily-based VRA claims, they should be relieved of tribal exhaustion requirements for the ICRA claims. Plaintiffs argued that the district court should excuse tribal exhaustion on the basis that the MHA Tribal Court is not an adequate judicial forum to hear their claims.
In its analysis, the district court outlined the principles underlying the tribal court exhaustion requirement and highlighted that “even where a federal question exists, due to considerations of comity, federal court jurisdiction does not properly arise until available remedies in the tribal court system have beenThis is to ensure certain interests of both tribal and federal courts are advanced including: “(1) supporting tribal self-government and self-determination; (2) promoting the orderly administration of justice in the federal court by allowing a full record to be developed in the Tribal Court; and, (3) providing other courts with the benefit of the tribal courts’ expertise in their own Thus, the District Court declined to waive exhaustion, holding that this was purely an intra-tribal dispute into which it would not interject itself.
United States v. Hump, No. 3:19-CV-03020-RAL, 2021 WL 274436 (D.S.D. Jan. 27, 2021). The United States moved for summary judgment in a lawsuit that it brought against Defendants David and Karen Hump (“the Humps”). In 1974, Congress authorized the creation of the Indian Loan Guarantee and Insurance Program (“ILGP”), which allowed the Secretary of Interior to guarantee up to ninety percent of the unpaid principal and interest due on loans made by lenders to qualified Indian borrowers. If a borrower defaults on a loan guaranteed by the ILGP, the lender can submit a claim for loss to the Department of Interior (“DOI”).
In 2004, Farmers State Bank of Faith, South Dakota (“the Bank”) sought loan guarantees from the DOI under the ILGP for loan funds issued to the Humps to acquire interests in Indian trustThe DOI issued loan guarantees in February 2004, and the Bank consolidated the Humps’ earlier notes. The Humps filed for Chapter 12 bankruptcy in October 2005. Id. The Bank submitted a claim for a loss for $1,411,362.25 to the DOI, and in 2007, the DOI paid the Bank’s claim. Once their Chapter 12 Reorganization Plan was confirmed in 2007, the Humps executed and delivered a promissory note to the United States to repay the loan by September 2034. The promissory note allowed for acceleration of the entire debt in the event of default.
The Humps defaulted on their Promissory note, making their final payment in December 2014. In 2018, the DOI accelerated and declared the remaining debt ($1,211,782.16) immediately due. After all other efforts to collect failed, the United States brought this action to foreclose the mortgage, sell the property, and collect any remaining deficiency.
The Humps challenged this action, in part, claiming that the United States had not fulfilled its requirement to first exhaust tribal court remedies. The Court disagreed, stating that exhaustion of tribal court remedies was not necessary in the current case. The Court held that the United States was not required to exhaust its remedies in tribal court because tribal self-government and self-determination were not implicated in this matter. Rather, this was a dispute between the United States and individuals who have defaulted on a loan guaranteed by the federal government under a federal program. Although the Indian trust land was located within Cheyenne River Sioux Indian Reservation, the Tribe was not involved in this action in any capacity.
JW Gaming Dev., LLC v. James, No. 3:18-CV-02669-WHO, 2021 WL 2531087 (N.D. Cal. June 21, 2021). Plaintiff JW Gaming Development, LLC (“JW Gaming”) previously obtained a judgment that defendant Pinoleville Pomo Nation (“PPN”), a federally recognized tribe, was liable for breaching a loan agreement by failing toShortly after judgment was entered, PPN constituted its Tribal Court for the first time. PPN filed a civil complaint in the Tribal Court that sought to: “(1) declare the judgment issued in this case invalid; (2) limit and control—indeed, vitiate—the scope of enforcement of that judgment; and (3) impose roughly eleven million dollars in liability on JW Gaming for alleged fraud stemming from the same loan agreement PPN argued that the Tribal Court did not have authority to issue any injunction.
Before consideration of the motions filed by JW Gaming, the district court needed to address whether JW Gaming needed to exhaust its tribal court remedies as PPN claimed. The Court stated that the requirement of tribal court exhaustion is not absolute and that there are several exceptions under which the movant need not exhaust tribal court remedies before seeking or obtaining injunctive relief in federal
Here, the Promissory Note in the dispute included a waiver of tribal court exhaustion, and the Court asked two questions: “Can exhaustion be waived in this case? And if it can be, has it been waived here?” The Court concluded that the answer to both was “yes.”
To answer the first question, the Court relied on the Supreme Court ruling in Merrion v. Jicarilla Apachewhich established that a tribe, as a sovereign, can waive its rights to exercise one of its sovereign powers. However, PPN did not contest that exhaustion could be waived, but instead argued that no waiver occurred. To address this second question of waiver, the Court deferred to the Supreme Court and Ninth Circuit which have both uniformly laid out the standard for waiver of sovereign powers as requiring the power be “expressly waived in unmistakable terms within the contract” at The district court held that the Promissory Note provision was an express, clear, and unequivocal waiver and therefore, exhaustion of tribal court remedies had been waived and was not required in this case.
Fettig v. Fox, No. 1:19-CV-096, 2020 WL 9848691, (D.N.D. Nov. 16, 2020), report and recommendation adopted, No. 1:19-CV-00096, 2020 WL 9848706 (D.N.D. Dec. 3, 2020). Plaintiffs are members of the Mandan, Hidatsa, and Arikara Native American Tribes (“MHA”) who own a beneficial interest in land Allotments 1110A and 1111A held in trust by the United States and located within the exterior boundaries of the Fort Berthold Indian Reservation (“Fort Berthold”). Defendants include the MHA Nation’s Section 17 Corporation and tribal office holders. Plaintiffs primary complaint was that Defendants in 2013 installed an underground water pipeline (the “2013 Pipeline”) across Allotments 1110A and 1111A without first securing an easement from the United States acting in its trust capacity through the Department of the Interior’s (“DOI”) Bureau of Indian Affairs (“BIA”). Plaintiffs allege that the 2013 Pipeline is a trespass. Plaintiffs also allege that defendants temporarily ran an aboveground pipeline across their allotments without first obtaining an easement.
Defendants argued in their brief that this was a purely tribal dispute and the action should be dismissed for failure to exhaust tribal court remedies. However, Defendants also claimed in their brief that the United States owned the 2013 Pipeline. The district court therefore analyzed the question of the necessity of tribal exhaustion through both lenses—if the United States owned it and if the Tribe or one of its entities owned it.
If the United States did own the pipeline, the court stated that this would be straight forward. It would not be a purely tribal dispute and there would be no tribal remedies to exhaust with respect to Plaintiffs’ request for injunctive relief. After all, the United States did not consent to be sued in tribal court.
If the 2013 Pipeline was owned by the Tribe or one of its entities, the court contends that an argument can be made that tribal court exhaustion is not required. Specifically the court states that, “federal law has left no room for tribal court adjudication when it comes to a request for injunctive relief in a situation where an allottee’s land is being used for right-of-way purposes without the requisite grant of right-of-way—either by an easement granted by the United States or a federal court condemnation judgment. And, if that is the case, tribal-court exhaustion arguably would not be required due to the tribal court's lack of power to adjudicate the dispute and requiring exhaustion would serve no purpose other than
Despite this analysis, the Court ultimately withheld a decision on the question of tribal-court exhaustion on the basis that the tribal defendants committed on the record to the court that if it required BIA exhaustion, they would not make the argument for tribal-court exhaustion and would allow the BIA’s consideration of the issues to play
Loonsfoot v. Brogan, No. 2:21-CV-89, 2021 WL 1940400 (W.D. Mich. May 14, 2021). This was a habeas corpus action brought by two pretrial detainees under 25 U.S.C. § 1303. Petitioners were detained by Respondent Baraga County Sheriff Joseph Brogan pursuant to orders from the Keweenaw Bay Indian Community Tribal Court and are enrolled tribal members of the Keweenaw Bay Indian Community Ojibwa tribe of Michigan.
While the Court acknowledged that it considers habeas petitions filed by persons under the custody of a state or the United States, the Keweenaw Bay Indian Community was neither. Petitioners asked the Court to order their release from pretrial detention and argued that their attempts to exhaust their remedies in tribal courts were futile.
The Court found that Petitioners had not given the tribal trial court, nor the tribal appellate court, an opportunity to resolve the constitutional issues they raised in their habeas petition. Further, Petitioners did not allege any facts to support the inference that exhaustion would be futile. On this basis, the Court dismissed the petition without prejudice.
Ledford v. Ledford, No. 1:20-CV-00170-MR-DSC, 2021 WL 2014871 (W.D.N.C. May 19, 2021). Plaintiff, who was not tribally affiliated, brought action against her stepson and his sons, who are all members of the Eastern Band of Cherokee Indians (EBCI). Plaintiff’s deceased husband (Defendants’ father and grandfather and EBCI member) attempted to leave Plaintiff a life estate in the home they shared. The home is a part of the EBCI reserve, and in subsequent judicial proceedings the Tribal Council of the EBCI invalidated the life estate provision of the will and evicted Plaintiff. Plaintiff alleged that Defendants provided false testimony that contributed to the Tribal Council’s decision and brought this action in Federal Court alleging subject matter jurisdiction based upon diversity of citizenship. Defendants moved to dismiss for several reasons including Plaintiff’s failure to exhaust tribal remedies.
The district court held that Plaintiff had not shown that the court’s exercise of jurisdiction would be proper in part due to her failure to exhaust tribal remedies. Specifically, Plaintiff had the opportunity to challenge Tribal Council’s decision on her husband’s will under Cherokee Code § 117-40 and failed to properly do so. She also had the opportunity to appeal her eviction order from the Tribal Court to the Cherokee Supreme Court under Cherokee Code § 7-2(e) and again failed to properly do so. Thus, Defendants’ Motion to Dismiss was granted and the Complaint dismissed with prejudice.
Becker v. Ute Indian Tribe of Uintah & Ouray Rsrv., 11 F.4th 1140 (10th Cir. 2021). The dispute involved a former land division manager for the Ute Indian Tribe, asserting that the Ute courts have the authority to decide whether the tribe’s employment agreement with him was valid. The Tenth Circuit panel overturned a Utah federal judge’s ruling that the tribe had waived the requirement that Plaintiff had to exhaust tribal remedies for his claims that the tribe breached his contract by failing to pay him monthly compensation after his employment was terminated. The Tenth Circuit concluded that the questions the tribe had raised regarding the validity of the agreement, as well as the threshold question of whether the tribal court has jurisdiction over the parties’ dispute, must be resolved in the first instance by the tribal court itself.
The court further held that the waiver provision in the agreement would only have been applicable if the agreement was determined to be valid; however, the tribe asserted nonfrivolous challenges to the validity of the agreement. The court ruled that tribal exhaustion did not apply to Plaintiff’s claims and noted that although there are some exceptions to the exhaustion rule, Plaintiff had not shown that they should apply in this case. The court remanded the case to be dismissed.
§ 1.3.3 Tribal Sovereignty & Sovereign Immunity
An axiom in Indian law is that Indian tribes are considered domesticLike other sovereigns, tribes enjoy sovereign As a result, a tribe is subject to suit only where Congress has “unequivocally” authorized the suit or the tribe has “clearly” waived its The U.S. Supreme Court, in a 2008 decision, pronounced that tribal sovereign immunity “is of a unique limited Unlike the immunity of foreign sovereigns, the immunity enjoyed by sovereign tribal governments is limited in scope and “centers on the land held by the tribe and on tribal members within the
Nontribal entities must be aware that, absent a clear and unequivocal tribal immunity waiver, tribes and tribal entities may not be subject to suit should a deal go bad. With regard to contracts, “[t]ribes retain immunity from suits . . . whether those contracts involve governmental or commercial activities and whether they were made on or off a
Tribal immunity generally shields tribes from suit for damages and requests for injunctivewhether in tribal, state, or federal Sovereign immunity has been held to bar claims against the tribe even when the tribe is acting in bad
Tribes enjoy the benefit of a “strong presumption” against a waiver of their sovereignMoreover, federal courts have made clear that simply participating in litigation does not waive the tribe’s sovereign Any waiver of tribal sovereign immunity “cannot be implied but must be unequivocally
Exactly what contract language constitutes a clear tribal immunity waiver is somewhatThe Supreme Court in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of ruled that the inclusion of an arbitration clause in a standard-form contract constitutes “clear” manifestation of intent to waive sovereign In C & L Enterprises, the tribe proposed that the parties use a standard-form contract that contained an arbitration clause and a state choice-of-law Although the contract did not clearly mention “immunity” or “waiver,” the Supreme Court believed the alternative dispute resolution (ADR) language manifested the tribe’s intent to waive
Finally, waivers of immunity must come from a tribe’s governing body and not from “unapproved acts of tribalAttorneys must evaluate a tribe’s structural organization to determine precisely which tribal agents have authority to properly waive tribal sovereign immunity or otherwise bind the tribal entity by contract. If attorneys do not have a working knowledge of pertinent tribal documents, they risk leaving their clients without an enforceable deal. Below are summaries from some of the most relevant sovereign immunity cases of the last
**Immunity may be asserted by tribal corporations, as well as tribal governments. Some recent sovereign immunity cases dealing with tribal corporations are collected and discussed in § 1.3.4.
Engasser v. Tetra Tech, Inc., No. 219CV07973ODWPLAX, 2021 WL 911887 (C.D. Cal. Feb. 9, 2021). The court held that when a tribe enters into a Professional Services Agreement (“PSA”) that includes a Dispute Resolution provision, this does not act as a waiver of tribal sovereign immunity. In previous cases, courts have come to this conclusion where “the dispute resolution procedure was not binding, the tribe did not unequivocally submit to a court’s jurisdiction, or the tribe expressly retained its sovereignHere, the PSA clearly stated that nothing in the PSA acts as a waiver of sovereign immunity. Additionally, the provision did not contemplate binding arbitration, nor did it “reflect an unequivocal intent to submit to the jurisdiction of a particular Accordingly, because the PSA did not act as a clear and unequivocal waiver of tribal sovereign immunity, the tribal entity was immune from suit for lack of jurisdiction.
Muscogee (Creek) Nation v. Poarch Band of Creek Indians, 525 F.Supp.3d 1359 (M.D. Ala. Mar. 15, 2021). Here, the court considered a tort-of-outrage claim where Defendants knowingly excavated Plaintiffs’ sacred burial grounds after Defendants came to own the land containing such burials. Both sides of the suit included tribal entities. Defendants included tribal officials named in their official capacity. Because precedent is silent regarding whether sovereign immunity applies when tribal entities exist on both sides of a lawsuit, the district court held that sovereign immunity is still applicable unless waived by either side. With no explicit waiver present, both tribes could still assert sovereign immunity. To determine whether such immunity also applied to the individual tribal officials, the court looked to Idaho v. Coeur d’AleneIdaho v. Coeur d’Alene Tribe explains that certain suits may be subject to tribal sovereign immunity, regardless of whether they are brought against the sovereign or its officials, so long as they invoke “special sovereignty Where the relief sought would effectively result in the tribe’s loss of title for lands it has long held as its own, such special sovereignty interests bar the claim.
Here, Plaintiffs asked the court “to order [Defendants] to cease the activities [they] currently carr[y] out [on the property], alter the site drastically at the [P]laintiffs’ direction to transform it back into the condition in which they desire it to remain, and then leave the landIn light of this, the court found that the conditions in this case were sufficiently similar to those in Coeur d’Alene, thus invoking special sovereignty interests. Accordingly, the claims against Defendants were dismissed on tribal sovereign immunity grounds.
Weaver v. Gregory, No. 3:20-CV-0783-HZ, 2021 WL 1010947 (D. Or. Mar. 16, 2021). Eric Weaver (“Plaintiff”) filed suit against Ron Gregory (“Defendant”) alleging that he was subjected to retaliation after reporting harassment and discrimination during his time as a tribal police officer. Plaintiff sued Defendant individually, not in his official capacity as a member of the Warm Springs Tribe. While Plaintiff contended that the tribe waived its sovereign immunity under Chapter 390 of the Warm Springs Tribal Code, the court found that such chapter is only applicable to “activities by the Warm Springs law enforcement personnel conducted under SB 412—i.e., the enforcement of criminal and traffic laws of the State of
Here, Plaintiffs’ alleged harassment on the job did not implicate such laws. Additionally, the court refused Plaintiffs interpretation of precedent that the location of the tortious actions, whether on or off tribal land, makes a difference. However, to the extent Plaintiff’s claims were made against Defendant in his individual capacity, those were not protected under tribal sovereign immunity. Because recovery against Defendant for his individual actions does not “disturb the sovereign’s property,” those claims couldThe claims against Defendant in his official capacity as a tribal authority, though, were barred under tribal sovereign immunity.
Jensen v. Budreau, No. 20-CV-997-BBC, 2021 WL 1546055 (W.D. Wis. Apr. 20, 2021). Defendants were the tribal entity Red Cliff Band of Lake Superior Chippewa and a patrol officer who works for the tribe’s police department. Plaintiff contended that Defendants violated her Fourth and Fifth Amendment rights by failing to give her medical care or allow her to rinse her eyes after being sprayed with pepper spray. Plaintiff pointed out that pursuant to Wis. Stat. §§ 165.92(3), “unless otherwise provided in a joint program plan under § 165.90(2)” or an agreement between the tribe and state, “a tribe is liable for all acts and omissions of its law enforcement officers while they are acting within the scope of their employment.” Additionally, under § 165.92(3m)(a), where a tribal law enforcement officer enforces laws of the state, the tribe must: “waive sovereign immunity ‘to the extent necessary to allow the enforcement in the courts of this state of its liability’ . . . or maintain adequate liability insurance that provides that the insurer will waive the sovereign immunity defense up to the limits of the insurance policy.” Accordingly, two actions were relevant. First, the tribe had an agreement with the state that did not modify the tribe’s liability. Second, Defendants’ attorney submitted a claim to the tribe’s insurance company, thus suggesting that the tribe may have waived its immunity at least in part. The court found that neither of these actions were compelling. Because a waiver must be expressly given, the court held that the circumstances were not sufficient to overcome tribal sovereign immunity, and the claims were barred.
Self v. Cher-Ae Heights Indian Cmty. of Trinidad Rancheria, 274 Cal. Rptr. 3d 255 (2021), review denied (Apr. 28, 2021). Plaintiffs were two individuals who commonly used a parcel of coastal land for recreational and business purposes. Plaintiffs brought this suit after Defendant Cher-Ae Heights Indian Community of the Trinidad Rancheria (“Cher-Ae”) acquired such parcel of land in fee absolute. During the process of entering the land into trust, Plaintiffs initiated a quiet title suit to a public easement for vehicle access and parking on the property. Plaintiffs asserted that the “immovable land” exception should apply here to bar a tribal sovereign immunity defense, but the court disagreed. The Supreme Court explained the immovable land exception in State of Georgia v. City ofdescribing that “when a state purchases real property in another state, it is not immune to suit over rights to the property.” However, the Supreme Court has never extended this exception to tribes.
Here, the court offered three reasons why it should be deferential to Congress to determine whether immunity is available under these circumstances. First, it has been the Supreme Court’s standard practice to defer to Congress regarding tribal immunity. Second, Congress has long been deeply entrenched in the public policy of supporting tribal land acquisition. Finally, the facts here operate as a “poor vehicle for extending the immovable property rule to tribes” because Plaintiffs do not claim any ownership interest in the property; they are mainly pursuing anAccordingly, the court found that tribal sovereign immunity “bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe,” and Plaintiffs’ claims failed for lack of
Dutchover v. Moapa Band of Paiute Indians, No. 219CV01905KJDBNW, 2021 WL 1738869 (D. Nev. May 3, 2021). In this case, Plaintiff alleged that he was wrongfully harassed and retaliated against while working as a police officer for the Moapa Tribal Police Department. Dismissing the Plaintiff’s complaint, the court held that the tribe did not expressly waive its sovereign immunity, and so the suit was barred. Furthermore, the court reasoned that simply entering into a federal contract and “enacting, promoting, and adhering to federal law, including Title VII” does not in itself waiveHere, Defendants funded Plaintiff’s employment with a federal grant and had policies in place offering protection “similar to those offered by Title Ultimately, these actions, considered together, were not sufficient to waive sovereign immunity.
Great Plains Lending, LLC v. Dep’t of Banking, No. 20340, 2021 WL 2021823 (Conn. May 20, 2021). Great Plains Lending (“GPL”) and Clear Creek were created by the Otoe-Missouria Tribe of Indians (“Tribe”) to offer lending services. After an investigation, the Department of Banking allegedly found that loans offered by the entities violated Connecticut’s usury and banking laws. Accordingly, the Department’s commissioner issued temporary cease and desist orders, orders for restitution to Connecticut residents, and a notice of intent for permanent cease and desist letters, as well as to impose civil penalties. To determine whether such actions could proceed against the tribal entities, this case contemplated three primary questions concerning tribal sovereign immunity under the arm of the tribe doctrine. First, which party bears the burden of proof to establish that the entity is an arm of the tribe? Second, what legal standard governs that inquiry? Lastly, to what extent does a tribal officer share the tribe’s immunity for his actions connected to the business entity?
Considering the first inquiry, the court found that the burden rests on the party seeking immunity under the arm of the tribe doctrine. A tribe itself does not share in this burden when establishing its own sovereign immunity, but entities seeking immunity by extension bear the burden of “demonstrating the existence of that relationship and the entity’s ultimate entitlement to share in tribal sovereignThe court reasoned this approach by noting that the entity seeking immunity will have the best access to evidence for proving the relationship.
Next, the court turns its attention to determining which test is proper for an arm of the tribe inquiry. Ultimately, the multi-pronged test in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino &is found to be the most fitting. This test called courts to consider several factors when determining if a sufficient relationship exists between the entity and the tribe: (1) method of creation; (2) purpose; (3) control; (4) tribal intent; and (5) financial relationship. The court slightly altered the test, explaining that the sixth factor, tribal policy, should color the consideration of the remaining five factors.
Ultimately, the court found that all five factors weigh in favor of extending tribal sovereign immunity to Great Plains: the entity was created under tribal law for the purpose of generating revenue for the Tribe, the entity’s officers are appointed by the tribal council and the entity is ultimately controlled by tribal officials, the Tribe unequivocally voiced its intent to extend immunity to the entity, and the Tribe wholly owns and acts as primary beneficiary of the entity. Overall, the entity promotes tribal self-governance and economic development, and denying sovereign immunity would directly interfere with the policies of the Tribe. On the other hand, there was much less evidence detailing a relationship between Clear Creek and the Tribe. Accordingly, tribal sovereign immunity extended to Great Plains, but may not necessarily extend to Clear Creek.
In light of this determination, the court chose to extend partial immunity to John R. Shotton as chairman of the Tribe. The court stated that such immunity extends where the Tribe is the real party in interest, which is the case here, and the individual was acting in his capacity as a tribal official. There was no evidence in the record that Shotton’s activities went beyond the scope of his tribal authority, so he was afforded immunity from the civil penalties sought against him. However, tribal sovereign immunity does not protect against injunctive relief ordered by the Department, so he may be enjoined from “violating Connecticut usury and banking laws in connection with his duties for the [T]ribe and theMoreover, the judgment was reversed insofar as it required further proceedings to determine whether Great Plains was an arm of the Tribe, but the judgment is granted insofar as it requires further proceedings to make such a determination for Clear Creek and Shotton’s involvement with the latter entity.
Cayuga Indian Nation of New York v. Seneca Cty., New York, 978 F.3d 829 (2d Cir. 2020), cert. denied, No. 20-1210, 2021 WL 2301979 (U.S. June 7, 2021). In this case, Appellees are a tribe (“Cayuga”) who refused to pay taxes on acquired parcels of land located in Seneca County. Appellants (“Seneca County”) pursue two main arguments: (1) that Cayuga was subject to such taxes under the “immovable property exception” to tribal sovereign immunity; and (2) that the U.S. Supreme Court case City of Sherril v. Oneida Indian Nation of Newended immunity for tax foreclosure actions, like the one here.
To the first argument, the court noted that the issue here is beyond the scope of the exception. The exception has been interpreted in the past to solely apply where there are “competing claims to a right or interest in realHere, the main claim involved money, not property, and the remedy sought for such financial debt merely implicated property. Additionally, a plain reading of the Restatement (Second) of Foreign Relations Law of the United States also denies application of the exception; no case since the Restatement’s inception has applied the exception where a foreign sovereign’s nonpayment of taxes was at issue.
Turning to Seneca County’s second argument, the court agreed with past courts’ interpretation that “Sherrill does not strip tribes of their immunity from suit in tax foreclosureBecause the right to impose taxes on tribes for acquired land and a tribe’s right to immunity from suit are distinct, a party may demand compliance with state laws while also facing limitations in the ways that it may enforce such laws. Here, satisfactory avenues existed that Seneca County may pursue to collect the taxes, aside from the remedy of foreclosure. Seneca County may “enter into an agreement with the tribe ‘to adopt a mutually satisfactory regime for the collection of this sort of tax’” or Seneca County may seek legislation. Accordingly, because such alternatives existed and are feasible, Seneca County is barred from seeking foreclosure for Cayuga’s nonpayment of taxes under tribal sovereign immunity, and the district court’s judgment to that effect is affirmed.
Dotson v. Tunica-Biloxi Gaming Comm’n, 835 F. App’x 710 (5th Cir. 2020), cert. denied, No. 20-7721, 2021 WL 2405253 (U.S. June 14, 2021). Here, the court held that the Tunica-Biloxi Gaming Commission was an arm of the Tunica-Biloxi Tribe of Louisiana. As such, the Commission was sheltered from suit regarding alleged violations of gaming regulations and laws, fabricating evidence, falsifying documents, defaming Plaintiff, lying under oath, and falsifying error codes on a slot machine. While Plaintiff contended that the suit could move forward because he sued a casino employee, a specific official, this argument was not persuasive to the court. Here, the court refused to consider whether a suit may be brought solely against a tribal official, instead focusing on the person’s immunity under the arm of the tribe doctrine. Because tribal sovereign immunity extended to the Gaming Commission, and accordingly to its employees, the suit could not move forward against an employee in his/her official capacity with the Commission. Accordingly, the district court’s dismissal of Plaintiff’s claims was affirmed.
Ledford v. E. Band of Cherokee Indians, No. 1:20-CV-00005-MR-WCM, 2020 WL 6693133 (W.D.N.C. Nov. 12, 2020), aff'd as modified, 845 F. App’x 260 (4th Cir. 2021). April Ledford (“Plaintiff”) filed suit against the Eastern Band of Cherokee Indians (“Defendant”) under the Indian Civil Rights Act of 1968 (“ICRA”), alleging that Defendant violated her due process rights by terminating a life estate she held in Cherokee, North Carolina. Considering Defendant’s Motion to Dismiss for lack of subject-matter jurisdiction and Plaintiff’s amended complaint, the court held that Defendant did not expressly waive sovereign immunity. First, the court stated Defendant did not waive its tribal sovereign immunity simply by breaking its own laws, “acting beyond the scope of its authority, or acting in bad faith.” Additionally, contrary to Plaintiff’s interpretation, it was not Congress’s intention to pass the ICRA as a vessel for such claims. Because both arguments failed, Defendant’s motion was granted, and Plaintiff’s complaint was dismissed.
State ex rel. Workforce Safety & Ins. v. Cherokee Servs. Grp., LLC, 955 N.W.2d 67 (N.D. 2021). In this case, Workforce Safety and Insurance (“WSI”) sent a cease and desist letter to Hudson Insurance to stop writing workers’ compensation coverage in North Dakota. Hudson Insurance provides such coverage to the Cherokee Nation and several Cherokee entities. Additionally, WSI brought action against several Cherokee entities and Steven Bilby (the executive manager of the entities), alleging that they were liable for unpaid workers’ compensation premiums. While the Cherokee Nation owns no sovereign land in North Dakota, tribal sovereign immunity may still extend if the arm of the tribe doctrine applies. To make such determination, the court adopted the six-prong test laid out in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and
Initially, the court established that the Cherokee Nation made no waiver of its immunity. Turning back to the test, the court stated that the following non-exhaustive factors should be analyzed to decide whether the Cherokee Nation’s immunity extends to the Cherokee entities, and accordingly, Hudson Insurance and Bilby: (1) how the economic entities are created; (2) their purpose; (3) their structure, ownership, and management, including the extent of tribal control; (4) the tribe’s intent to share its immunity; (5) the financial relationship between the tribe and entities; and (6) the policy behind tribal sovereign immunity, and whether recognizing immunity in this case would further such policy. Ultimately, the court did not itself employ the test, instead reversing the lower judgment and remanding the issue of whether immunity extends under the arm of the tribe doctrine to the administrative law judge.
§ 1.3.4 Tribal Corporations
A majority of non-Alaskan tribes are organized pursuant to the Indian Reorganization Act of 1934Under Section 16 of the IRA, a tribe may adopt a constitution and bylaws that set forth the tribe’s governmental framework and the authority given to each branch of its governing A tribe may also incorporate under Section 17 of the IRA, under which the Secretary of the U.S. Department of the Interior issues the tribe a federal commercial
Through Section 17 incorporation, the tribe creates a separate legal entity to divide its governmental and businessThe Section 17 corporation has a federal charter and articles of incorporation, as well as bylaws that identify its purpose, much like a state-chartered Section 17 incorporation results in an entity that largely acts like any state-chartered
An Indian corporation may also be organized under tribal or stateIf the entity was formed under tribal law, formation likely occurred pursuant to its corporate code; but it could have also occurred by tribal resolution (i.e., specific legislation chartering the Under federal common law, the corporation likely enjoys immunity from However, it is unclear whether a tribal corporation’s sovereign immunity is waived through state incorporation such that the entity may be sued in state
Therefore, when negotiating a tribal business transaction, counsel should consult the tribe’s governmental and corporate information—for example, treaty or constitution, federal or corporate charters, tribal corporate code—which, taken together, identify the entity with which you are dealing, the authority of that entity, and any applicable legal rights and remedies.
There are comparatively few cases decided on the basis of tribal corporate formation, but tribal corporations are often able to claim immunity from suit. In addition to IRA Section 17 entities, Native Alaskan communities are organized as corporations under some unique provisions within the Alaska Native Claims Settlement Act. Below find a discussion of recent cases dealing with tribal
** Some Cases Dealing with Tribal Corporations are discussed in 1.3.3 because they deal with whether a Tribal Corporation may assert their tribe’s sovereign immunity
Jim v. Shiprock Associated Sch., Inc., 833 F. App’x 749 (10th Cir. 2020). Plaintiff (Ms. Kim Jim) sued her employer (Shiprock Associated Schools, Inc.), a private corporation that served the Navajo Nation, for discrimination under Title VII. The employer-corporation moved for summary judgment, claiming the protection of Title VII’s “exception for IndianThe district court determined that the employer was an Indian tribe, granting summary judgment based on the Title VII Plaintiff appealed the district court’s decision, the Tenth Circuit affirmed.
The central issue of the case was whether the district court properly characterized the corporation as an Indian tribe. The Tenth Circuit reviewed the district court’s determination de novo, explaining that “[w]hether an entity is a tribal entity depends on the context in which the question isAlthough the Tenth Circuit had not previously addressed tribal characterization in the context of Title VII, it found that “courts elsewhere have considered an entity an ‘Indian tribe’ under Title VII when a tribe created and controlled the enterprise” in question.
On appellate review, the Court first found that the corporation was created by the Navajo Nation. The Court cited the Navajo Nation’s statutes which empower the tribe to establish local schoolUnder this authority, the Court reasoned, “the Navajo Nation’s Board of Education empowered the corporation to operate educational The Court further noted that the corporation must operate such educational programs “under the Tribally Controlled Schools Act [(25 U.S.C. §§
Due to the corporation’s educational purpose, the Court explained that it “acts through a local school board whose members are elected under the Navajo Election Code,” which requires each board member to be “enrolled in the NavajoIn addition to the board members, the Navajo Nation, the Court noted, “comprise[d] over 98% of the students and roughly 80% of the school
Despite what the Court categorized as “the heavy involvement of tribal members,” Plaintiff argued that the corporation was not a tribal entity because: (1) “some students and employees [were] not members of an Indian tribe”; and (2) “the corporation was formed under state law.” The Court, however, concluded that each of “these observations do little to diminish the role of the Navajo Nation.”
The Court then found that the corporation “operate[d] under tribal oversight” because the school board, which was under the control of the corporation, remained ultimately “accountable to the Navajo Nation for educational
Accordingly, the Court affirmed the district court’s determination that the corporation was “an ‘Indian tribe’ under Title VII” because the corporation served the Navajo community, obtained its governing board from the Navajo Nation, followed Navajo law, and oversaw schools populated by Navajo students and staffed by Navajo employees.
Nguyen v. Cache Creek Casino Resort, No. 2:20-cv-1748-TLN-KJN PS, 2021 WL 22434 (E.D. Cal. Jan 4, 2021), adopted in full, No. 2:20-cv-01748-TLN-KJN, 2021 WL 568212 (E.D. Cal. Feb. 16, 2021) (appeal filed). Plaintiff (Hung M. Nguyen) sued defendant Cache Creek Casino Resort, an enterprise controlled by the Yocha Dehe Wintun Nation (“the Tribe”), regarding Plaintiff’s detainment and ejection from the Casino’s premises. Cache Creek entered a special appearance to contest the court’s subject matter jurisdiction, arguing that “as an enterprise wholly owned by a sovereign tribal entity, the court has no power to rule on [Plaintiff’s]The central issue before the Court was “whether a tribal entity can be sued in federal court,” which “involves examining whether: (A) the enterprise ‘functions as an arm of the tribe;’ and (B) the tribe has waived its
The Court first explained that, in the Ninth Circuit, courts “consider five factors when ‘determining whether an entity is entitled to sovereign immunity as an arm of the tribe: (1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe's intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and theApplying the five factors to this case, the Court determined that Cache Creek Casino was an arm of the Yocha Dehe Wintun Nation. The Court came to this conclusion because the Cache Creek Casino was wholly owned and operated by the Tribe, governed by a tribal council, and generated revenue for the benefit of the Tribe.
The Court then determined that Plaintiff had failed to provide “evidence that the Tribe [had] ‘unequivocally expressed’ an intent to waive its immunity to suit in a federalConsequently, the Tribe’s immunity remained intact, the court lacked subject-matter jurisdiction, and Plaintiff’s claims had to be dismissed.
Dutchover v. Moapa Band of Paiute Indians, No. 219CV01905KJDBNW, 2021 WL 1738869 (D. Nev. May 3, 2021). Plaintiff (Eddie Dutchover) sued the Moapa Band of Paiute Indians (“the Tribe”), eight individual Tribe members, the Moapa Tribal Council, and Moapa Tribal Enterprises for the hostile work environment Plaintiff endured as a police officer with the Moapa Tribal Police Department.
Plaintiff recounted various incidents of derogatory name-calling and disparate treatment, arguing that the Tribe member’s hostility occurred because of his “Caucasian/Hispanic” race. Due to the racial nature of the allegations, Plaintiff brought several claims alleging violations of Title VII, Equal Protection, and the Civil Rights Act of 1871. The Tribe, claiming sovereign immunity, moved to dismiss the case.
In response, Plaintiff argued “that there is a corporate entity created by the Tribe that runs the police department, is the actual employer, and does not enjoy sovereignThe Tribe argued “that there is no corporate entity that runs the police department, but if there were, it would be an arm of the Tribe and enjoy sovereign The Court agreed with the Tribe.
The Court explained that “certain factors” are considered “[t]o determine if an entity is an arm of a tribe that enjoys sovereign immunity”; specifically, “courts consider: (1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and theApplying these factors to the case, the Court concluded that “whatever corporation may exist to manage the police department would be an arm of the Tribe that enjoys sovereign
The Court reached its conclusion because there was no evidence that the Tribe intended to create a corporate entity that would not share in the Tribe’s immunity and “[m]any of the defendants s[a]t on the Tribe’s governing board, indicating that the Tribe ha[d] involvement and control over any such corporateConsequently, the claims against the Tribe and the corporate entity Plaintiff alleged to have controlled the police department were dismissed.
State ex rel. Workforce Safety & Ins. v. Cherokee Servs. Grp., LLC, 955 N.W.2d 67 (N.D. 2021). Workforce Safety Insurance (“WSI”) initiated an administrative proceeding against Cherokee Services Group, LLC; Cherokee Nation Government Solutions, LLC; Cherokee Medical Services, LLC; Cherokee Nation Technologies, LLC (collectively referred to as the “Cherokee Entities”); Steven Bilby, the executive general manager of the Cherokee Entities; and Hudson Insurance Company (“Hudson”) for unpaid workers’ compensation premiums under North Dakota’s workers’ compensation laws. WSI ordered the Cherokee Entities to pay the unpaid premium and determined that Bilby was personally liable for any balance that remained unpaid. WSI also ordered Hudson to cease and desist from writing workers’ compensation coverage in North Dakota.
Following WSI’s issued order, the Cherokee Entities, Bilby, and Hudson requested an administrative hearing. During the hearing, WSI’s collections supervisor did not dispute that the Cherokee Entities wholly owned by the Cherokee Nation acted as an arm of the tribe. Consequently, the administrative law judge (“ALJ”) reversed WSI’s decision, concluding the Cherokee Entities and Bilby are protected by tribal sovereign immunity. Additionally, the ALJ found that WSI had no authority to issue cease and desist orders to insurance companies like Hudson. WSI appealed the ALJ’s order to the district court. The district court concluded that the Cherokee Entities and Bilby were not entitled to sovereign immunity. The district court also held that WSI has authority to issue a cease and desist order to Hudson. The Cherokee Entities, Bilby, and Hudson appealed the district court judgment.
On appeal, the Cherokee Entities argued that the Cherokee Nation is entitled to tribal sovereign immunity and the sovereign immunity extends to the Cherokee Entities as arms of the tribe. Tribal sovereign immunity, the Cherokee Entities claimed, would preclude WSI from enforcing workers’ compensation laws against them. The Supreme Court of North Dakota first noted that it has “previously concluded [that] state charted corporations and business owned by tribal members are not arms of the tribe”; however, because “the Cherokee Entities are organized under the laws of the Cherokee Nation,” an analysis “to determine whether an entity qualifies as an arm of the tribe” may
The Supreme Court of North Dakota adopted the Tenth Circuit’s “non-exhaustive six-part test to determine whether a tribal entity qualifies as an arm of theSpecifically, “[t]he test examines: (1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; (5) the financial relationship between the tribe and the entities; and (6) the policies underlying tribal sovereign immunity and its connection to tribal economic development, and whether these policies are served by granting immunity to the economic Looking to these factors, the Court concluded that the ALJ found that the Cherokee Entities are wholly owned by the Cherokee Nation, which only addressed the first step of the test. Consequently, the Court remanded to the ALJ to make further findings, consider all the factors given in the test, and determine whether the Cherokee Entities qualify as an arm of the Cherokee Nation entitled to sovereign immunity.
Manzano v. S. Indian Health Council, Inc., No. 20-CV-02130-BAS-BGS, 2021 WL 2826072 (S.D. Cal. July 7, 2021). Plaintiff (Carolina Manzano) sued her former employer, South Indian Health Council, Inc. (“SHIC”), alleging harassment and wrongful termination. SHIC was formed by seven tribes—the Barona Band of Mission Indians, the Campo Band of Mission Indians, the Ewiiaapaayp Band of Kumeyaay Indians, the Jamul Indian Village of California, the La Pasta Band of Mission Indians, the Manzanita Band of the Kumeyaay Nation, and the Viejas Band of Kumeyaay Indians—to provide health care to the Native and non-Native residents of its service area.
SHIC initially began as a satellite operation of the Indian Health Council in Pauma Valley, operating out of trailers on the Sycuan reservation. In 1982, SHIC incorporated as a nonprofit corporation and moved to the Barona Reservation. In 1987, SHIC’s Board of Directors acquired land in Alpine, California, which was placed into federal trust and remained the entity’s permanent location. SHIC’s health services were provided under self-determination contracts with the Indian Health Services, a federal agency within the Department of Health and Human Services, which recognized SIHC as a tribally-operated service unit. In response to Plaintiff’s suit, SHIC moved to dismiss, claiming entitlement to tribal sovereign immunity.
The central issue before the Court was whether SICH, as a tribal organization but not a tribe itself, was entitled to sovereign immunity. First, the Court noted that “[t]ribal sovereign immunity ‘extends to business activities of the tribe, not merely to governmentalThe Court then explained that when a tribe does establish “an entity to conduct certain activities,” the entity is entitled to immunity only “if it functions as an arm of the
To determine whether an entity is considered an arm of the tribe, the Court explained that the following factors are relevant: “(1) the method of creation of the entity; (2) its purpose; (3) its structure, ownership, and management, including the amount of control the tribe has over the entity; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and theApplying these factors to the case, the Court concluded that SIHC is an arm of the tribe and entitled to tribal sovereign immunity.
With regards to SIHC’s method of creation, the Plaintiff argued “that SIHC’s articles of incorporation do not describe SIHC as a tribal corporation or specify any tribal status or affiliation,” and, therefore, should not be viewed favorably for purposes of the five-factorThe Court disagreed, concluding that “articles of incorporation that are silent regarding sovereign immunity are not dispositive of an entity’s claim to Additionally, the Court addressed Plaintiff’s argument “that SICH’s incorporation solely under state law defeats a favorable finding on [the first] factor,” explaining that the “case law is indeterminate on this Specifically, the Court noted that some “[c]ourts have held that an entity’s state incorporation does not preclude tribal status  where the entity is also incorporated under tribal law,” whereas other courts, outside the context of sovereign immunity, “have held that incorporation does not change an entity’s tribal Consequently, the Court found that “[b]ecause the majority of case law does not consider state incorporation detrimental to tribal status,” SIHC’s state incorporation did not weigh against its claim of
Big Sandy Rancheria Enterprises v. Bonta, 1 F.4th 710 (9th Cir. 2021). In July 2018, Big Sandy Rancheria Enterprises (“Big Sandy”), a federally charted tribal corporation wholly owned and controlled by the Big Sandy Rancheria of Western Mono Indians (“the Tribe”), sued the Attorney General of California (“Attorney General”) and the Director of the California Department of Tax and Fee Administration (“the Director”), seeking declaratory and injunctive relief. Specifically, Big Sandy, a wholesale cigarette distributor, challenged California’s cigarette excise tax as applied to its distribution business, arguing that tribal sovereignty preempted the law. Big Sandy was chartered under section 17 of the Indian Reorganization Act (“IRA”) and its controlling Tribe was federally recognized.
The Director and Attorney General moved to dismiss Big Sandy’s tax claim on jurisdictional grounds under the Tax InjunctionThis Act prohibits district courts from “enjoining, suspending or restraining the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such Although the Director and Attorney General acknowledged the existence of an exemption to the Tax Injunction Act available to Indian Tribes, each asserted that Big Sandy was not itself an Indian tribe or band and, therefore, could not invoke the federal courts’ jurisdiction under 28 U.S.C. § 1362. In response, Big Sandy argued that it was a federally recognized Indian tribe, rather than merely a federally-chartered corporation wholly owned by a federally recognized Indian tribe. The district court agreed with the Director and Attorney General, dismissing Big Sandy’s tax claim for lack of jurisdiction. Big Sandy appealed.
The central issue before the Ninth Circuit with regards to Big Sandy’s tax claim was whether Big Sandy’s status “as [an] ‘incorporated tribe’ under section 17 of the [IRA]” equated to being considered “an ‘Indian tribe or band’ for jurisdictionalThe Ninth Circuit, considering the relevant statutory language, legislative history, and circuit precedent narrowly construing § 1362, concluded that Big Sandy was “not an ‘Indian tribe or band’ within the meaning of § Specifically, while reviewing numerous authorities, the Court found support for “the district court’s construction of ‘Indian tribe or band’ as [being] limited to ‘the Tribe in its constitutional form,’ as distinct from its corporate The Court also noted that “the Tribe, not [Big Sandy], appears on the Federally Recognized Indian Tribes List,” and that Big Sandy failed to “allege that the federal government, in issuing the Tribe a section 17 charter, recognized [Big Sandy] as a distinct political entity or Instead, the Court determined that section 17’s “incorporated tribe” language merely “suggests that the entity is an arm of the Consequently, the district court was found to have properly dismissed Big Sandy’s claim.
Great Plains Lending, LLC v. Dep't of Banking, No. 20340, 2021 WL 2021823 (Conn. May 20, 2021). On May 4, 2011, the Otoe-Missouria Tribe of Indians (“the Tribe”), through the Tribal Council, adopted the Otoe-Missouria Tribe of Indians Limited Liability Company Act (“the LLC Act”) and the Otoe-Missouria Tribe of Indians Corporations Act (“the Corporations Act”). The Tribe created Great Plains Lending LLC (“Great Plains”) and American Web Loan, Inc., doing business as Clear Creek Lending (“Clear Creek”) (collectively, “Tribal Entities”), pursuant to the LLC Act and the Corporations Act, respectively. John R. Shotton, chairman of the Tribe served as secretary and treasurer of both Tribal Entities.
Following an investigation by the Department of Banking (“Department”), the Commissioner of Banking (“Commissioner”) found that the Tribal Entities “had violated Connecticut’s banking and usury laws by making small consumer loans to Connecticut residents via the Internet without a license to doOn October 24, 2014, the Commissioner issued temporary cease and desist orders to the Tribal Entities and Shotton (collectively, “Plaintiffs”), orders that restitution be made to the Connecticut residents, and a notice of intent to issue permanent cease and desist orders, as well as impose civil penalties. Plaintiffs responded by filing a motion to dismiss the administrative proceedings for a lack of jurisdiction. The Commissioner denied the motion to dismiss. On administrative appeal, the trial court determined that the Tribal Entities possessed sovereign immunity in the administrative proceeding and remanded the case back to the Commissioner. The Commissioner, however, once again denied Plaintiff’s motion to dismiss, concluding that the entities had failed to demonstrate they were arms of the Tribe. Plaintiffs appealed.
On appeal, the trial court rendered judgment sustaining the appeal and remanded the case to the Commissioner for further proceedings regarding Plaintiff’s entitlement to tribal sovereign immunity. Plaintiffs appealed, claiming that the trial court should have rendered judgment in their favor as a matter of law. The Commissioner and Department (collectively, “Defendants”), cross appealed, challenging the legal standard adopted by the trial court and its decision to remand the case for further administrative proceedings. The Supreme Court of Connecticut granted review to address three significant issues of first impression with respect to whether a business entity shares an Indian tribe’s sovereign immunity as an arm of the tribe. Specifically, the Court “consider[ed]: (1) which party bears the burden of proving the entity’s status as an arm of the tribe; (2) the legal standard governing that inquiry; and (3) the extent to which a tribal officer shares in that immunity for his or her actions in connection with the business
With respect to the second consideration, the Court adopted the first five Breakthrough factors, which included: “(1) the method of creation of the economic entities, (2) the purpose of those entities; (3) the structure, ownership, and management of the entities, including the amount of control the tribe has over them; (4) the tribe’s intent with respect to sharing its sovereign immunity; [and] (5) ‘the financial relationship between the tribe and theUnder the first factor, the Court focused on the law under which the Tribal Entities were formed, finding that “[b]ecause both entities were created under tribal law on the [T]ribe’s own initiative,” the factor weighed heavily in favor of arm of the tribe Applying the remaining four factors, the Court found “that Great Plains [was] an arm of the tribe entitled to tribal immunity” but that, with regards to Clear Creek, a remand for further proceedings was necessary because the record was “insufficient to support a similar
Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434 (2021). On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), allocating eight billion dollars “of monetary relief to ‘TribalUnder the CARES Act, the term “Tribal government” was defined as “the ‘recognized governing body of an Indian tribe.’” “Indian tribe,” in turn, was defined under the CARES Act by reference to its definition in the Indian Self-Determination and Education Assistance Act ISDA defined “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as
On April 23, 2020, the Treasury Department determined that Alaska Native corporations (“ANCs”), while not federally recognized tribes, were eligible for CARES Act relief and set aside more than five-hundred million dollars for them. Despite ISDA’s express inclusion of ANCs in the definition of “Indian tribe,” several federally recognized Indian tribes challenged the Treasury Department’s determination, “arguing that only federally recognized tribes are Indian tribes under ISDA” and, thus, “under the CARESThe district court disagreed, “ultimately enter[ing] summary judgment for the Treasury Department and the ANCs.” The court of appeals reversed, concluding that “the recognized-as-eligible clause is a term of art requiring any Indian tribe to be a federally recognized tribe.” The Supreme Court of the United States granted certiorari to “determine whether ANCs are eligible for the CARES Act funding set aside by the Treasury Department.”
The central question before the Court was whether ANCs satisfy ISDA’s definition of Indian tribe. Justice Sotomayor, writing for the majority, concluded that “[u]nder the plain meaning of ISDA, ANCs are Indian tribes, regardless of whether they are also federally recognizedConsequently, the court of appeals was reversed, and the ANCs were found to be entitled to CARES Act funding.