Mealey's Native American Law : Mealey's : Legal News & Analysis

Mealey's Native American Law

July 13, 2023
Tribes To Dismiss Opioid Cases After $70.94M Settlement With Drugmaker Allergan

CLEVELAND — Fifteen Native American tribes and health care organizations and drugmaker Allergan Finance LLC have asked the opioid multidistrict litigation court to dismiss the tribes’ claims pursuant to a $70.94 million settlement agreement.
July 11, 2023
10th Circuit Affirms Approval Of Gambling Operations On Land Purchased By Tribe

DENVER — The secretary of Interior did not act arbitrarily or capriciously in taking land purchased by the Wyandotte Tribe into trust and approving it for gaming operations because the secretary adequately considered evidence showing that the land was purchased using funds awarded to federal defendants by Congress for settlement of a land claim, the majority of a 10th Circuit U.S. Court of Appeals panel found in affirming the secretary’s decision.
July 11, 2023
United States Seeks Dismissal Of Crow Members’ Water Rights Act Lawsuit

WASHINGTON, D.C. — The U.S. Department of the Interior has moved to dismiss a year-old lawsuit by six members of the Crow Tribe alleging that the Crow Tribe Water Rights Settlement Act of 2010 improperly seeks to take their water rights without due process or just compensation.
July 11, 2023
Tribal Business Council’s Sovereign Immunity Refuted In Supreme Court Petition

WASHINGTON, D.C. — Sovereign immunity does not bar fraud and racketeering claims leveled against an Indian tribe’s business council by a tribal member and her company because the council waived its immunity in a mandatory arbitration clause in the parties’ joint venture agreement, the company and owner tell the U.S. Supreme Court in a petition for a writ of certiorari.
July 11, 2023
10th Circuit: Reclamation Took ‘Hard Look’ At Utah Water Exchange Contract

DENVER — A divided 10th Circuit U.S. Court of Appeals panel on July 10 affirmed a trial court ruling that the U.S. Bureau of Reclamation took the required “hard look” at a proposed water contract between the agency and Utah and provided a reasoned explanation concluding that the contract did not require an environmental impact statement (EIS) for any effect on water or fish resources in the Green River Basin.
July 10, 2023
Attorney Loses Fee Bid In Another Appeal In California Tribe’s Leadership Row

SAN DIEGO — In a long-running tribal leadership battle that has made six previous trips to California appeals courts, another panel of appellate judges turned back challenges by an attorney for one of the tribal factions to the dismissal of his suit seeking payment for representing the group, finding that the federal government did not grant the faction “ostensible authority” to enter into the fee agreement on behalf of the tribe.
July 10, 2023
Arizona Federal Judge: Telecom Company Is Not An Arm Of The Navajo Nation

PHOENIX — A telecommunications company, one of its managers and his wife are not entitled to tribal sovereign immunity against claims that the manager made unwelcome suggestive comments and physical contact to another employee at a work dinner because the factors of the “arm of the tribe” test weigh against immunity for the company, an Arizona federal judge found in denying the defendants’ motion to dismiss.
July 10, 2023
7th Circuit: Tribal Immunity Bars Employment Claims Against Health Center

CHICAGO — A health center and five of its employees are entitled to tribal sovereign immunity against claims of retaliation brought by a former employee who alleged that she was fired for whistleblowing because the center is an “arm of the tribe” that established it, a Seventh Circuit U.S. Court of Appeals panel found in affirming a Wisconsin federal judge’s decision to grant the center and its employees’ motion to dismiss.
July 07, 2023
Tribe, Fishermen Withdraw Injunction Motion After New Klamath Water Plan Posted

SAN FRANCISCO — A California federal judge has confirmed the withdrawal of a motion by the Yurok Tribe and two fishermen’s nonprofit organizations to enjoin the U.S. Bureau of Reclamation from supplying irrigation water from the Klamath Project until water flows are ensured for endangered salmon.
July 07, 2023
Right Of Way Smoking Ban Row With Oil Company Sent Back To Tribal Court

ST. LOUIS — An Eighth Circuit U.S. Court of Appeals panel ruled that a federal judge erred by enjoining Indian landowners, a tribal judge and tribal court from prosecuting claims against an energy company for violating a ban on smoking on a right of way granted to the company that ran through the landowners’ property, ruling that the energy company must first exhaust its remedies before the tribe’s appellate court.
July 07, 2023
7th Circuit: Inter-Tribal Council Has Sovereign Immunity From Employment Claims

CHICAGO — A federal trial court properly dismissed the claims of a man who alleged that he was improperly fired by a nonprofit consortium of federally recognized Indian tribes because the consortium maintains the sovereign immunity of its members, a Seventh Circuit U.S. Court of Appeals panel held in affirming the trial court’s decision.
July 07, 2023
No Need For Supreme Court Review Of Tribe’s Petition Over Fish Passage, Seattle Says

WASHINGTON, D.C. — A Washington Indian tribe fails to present an issue that is worthy of U.S. Supreme Court consideration in its efforts to have a fish passageway built at one of Seattle’s hydroelectric dams, so its petition for certiorari should be denied, the city and its hydroelectricity agency say in an opposition brief filed July 6 at the request of the court.
July 06, 2023
Native Alaskans, Others Say Willow Project Wrongly Approved, Federal Law Violated

ANCHORAGE, Alaska — A Native American group and environmental organizations filed an amended complaint in Alaska federal court seeking declaratory and injunctive relief against federal agencies for their decision to approve the Willow Master Development Plan for the hydraulic fracturing operation referred to as the Willow Project, arguing that the plan was wrongly approved because it violates multiple federal laws.
June 28, 2023
Dismissal Of DUI Case Reversed By Tribe’s Appeals Court Due To Virus Closures

PABLO, Mont. — A Montana Indian tribe’s appellate court reversed the dismissal of a woman’s drunken driving charges for lack of a speedy trial, finding that the tribe had the authority to close the tribal court due to the COVID-19 pandemic and that the defendant “was not unduly burdened in the legal sense by any pandemic-related delays of her criminal trial.”
June 27, 2023
Expert Testimony Admissible But Lay Witness Testimony Leads To Reversal

DENVER — The 10th Circuit U.S. Court of Appeals on June 26 reversed a man’s conviction for sexually abusing his stepdaughters after finding that the trial court erred in allowing the girls’ mother to testify on their credibility but found no error in allowing other expert testimony.
June 23, 2023
Federal Judge: Trespassing Pipeline On Tribal Land Must Be Shut Down In 3 Years

MADISON, Wis. — An Indian tribe is entitled to permanent injunctive relief and monetary damages for the past and continued trespass of an oil pipeline that crosses the tribe’s reservation because it runs along easements that have expired and the threat of rupture has increased due to the movement of a river, a Wisconsin federal judge held in ordering the pipeline’s owner and operator to cease operations on the reservation within three years.
June 22, 2023
Split Supreme Court Denies Navajo Nation’s Bid For Water Accounting

WASHINGTON, D.C. — The United States does not have a duty under an 1868 peace treaty to take “affirmative steps” to provide a water supply for the Navajo Nation, the U.S. Supreme Court held June 22 in a 5-4 decision, reversing a Ninth Circuit U.S. Court of Appeals ruling.
June 21, 2023
New York Federal Judge: State Can Regulate Fishing Practices Off Reservation Land

CENTRAL ISLIP, N.Y. — The Unkechaug Indian Nation’s off-reservation fishing practices are subject to New York regulations that protect the American eel species because the regulations are not preempted by federal law, an order signed by a colonial administrator granting fishing rights is not a treaty in effect today and the nation is not entitled to relief under the free exercise clause of the First Amendment, a New York federal judge held in granting summary judgment in favor of a state agency that enforces the regulations.
June 19, 2023
Until State Remedies Exhausted, Federal Judge Won’t Hear Indian Country Arguments

MUSKOGEE, Okla. — A prisoner who argues that Oklahoma does not have jurisdiction over him because he is an Indian and his crimes were committed in Indian country must exhaust all state remedies before seeking habeas relief in federal court, an Oklahoma federal judge held in granting a warden’s motion to dismiss the prisoner’s petition for a writ of habeas corpus.
June 19, 2023
Judgment Granted To Insurer In Row With Assignees Over Policy’s Fraud Exclusion

MIAMI — A Florida federal judge granted an insurer’s cross-motion for summary judgment in a suit filed against it by assignees of its insured, an attorney who settled an underlying lawsuit filed against him by the assignees, finding that the insurance policy at issue excluded coverage for the insured’s fraudulent conduct that resulted in his disbarment.
June 19, 2023
2nd Circuit Affirms Conviction Of Man Who Defrauded Indian Agency

NEW YORK — The Second Circuit U.S. Court of Appeals upheld the conviction and one-year federal prison sentence for a man who conspired to issue bonds to defraud a Native American organization, ruling that the defendant’s law-of-the-case doctrine argument “defies logic and the clear law of this Circuit.”
June 15, 2023
Supreme Court: Bankruptcy Code Abrogates Tribe’s Sovereign Immunity

WASHINGTON, D.C. — In an 8-1 ruling, the U.S. Supreme Court on June 15 found that the U.S. Bankruptcy Code abrogates tribal sovereign immunity in the case of a man who had obtained a loan from a tribe’s lending business and then filed for bankruptcy protection.
June 15, 2023
Supreme Court Upholds Constitutionality Of Indian Child Placement Law

WASHINGTON, D.C. — The Indian Child Welfare Act (ICWA), a 1978 federal law designed to keep Native American adoptive and foster children with their Indian tribes, does not violate the U.S. Constitution and is consistent with Congress’ authority, a divided U.S. Supreme Court held June 15.
June 14, 2023
Death, Injury Suit Over Washout On Reservation Correctly Dismissed, Panel Says

ST. PAUL, Minn. — A North Dakota federal court lacked jurisdiction under the discretionary function exception of the Federal Tort Claims Act (FTCA) to hear a suit filed against the United States for the deaths of two people and injuries to two others after a road culvert on an Indian reservation was washed away in heavy rains and they unknowingly drove off the road and into the floodwaters below, the Eighth Circuit U.S. Court of Appeals held in affirming dismissal of the action.
June 13, 2023
Florida Panel: Tribe Not Shown To Have Waived Immunity From COVID-Related Tort Claim

WEST PALM BEACH, Fla. — A Florida appellate court granted the Seminole Tribe’s petition to prohibit a trial court from proceeding with a negligence claim brought by a patron who said he contracted COVID-19 at the tribe’s casino, finding that the patron failed to demonstrate that the tribe waived sovereign immunity because the patron failed to follow the pre-suit procedures laid out in the compact in which the tribe waived its sovereign immunity for tort claims committed at its gaming facilities.