ocus

Indian Nations Law Focus July 2019, Volume 14, Issue 7

What the Supreme Court Didn’t Decide

The Supreme Court’s 2018-19 term has ended. Tribes scored major victories in Washington State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000 (U.S. 2019), a treaty tax case, and Herrera v. Wyoming, 139 S.Ct. 1686 (2019), a treaty off-reservation hunting rights case. Those decisions are summarized in our April and June updates. Also worth noting are a couple of cases the Court chose not to decide:

Brian L. Pierson The outcome of Carpenter v. Murphy will determine whether the Creek and other 414.287.9456 Indian reservations within the former Indian Territory continue to exist in the State [email protected] of Oklahoma, a matter of tremendous significance. The Court heard arguments in November, requested supplemental briefing, which was completed in January, yet still couldn’t reach a decision. On June 27th, the case was “restored to the calendar for reargument” during the term beginning in October. Justice Gorsuch, who supported the tribal position in both the Cougar Den and Herrera cases, has recused himself from the case, which may account for the Court’s difficulty in deciding it.

On June 24, 2019, the Court denied the certiorari petition of the Poarch Band of Creek Indians in Poarch Band v. Wilkes. The Alabama Supreme Court had held that the Tribe’s sovereign immunity did not protect it from tort claims arising out of an automobile accident allegedly caused by a tribal employee. The Court had invited the Solicitor General of the United States to file a brief expressing the government’s view of the issue. The Solicitor filed a brief taking the unusual position that if the Tribe amended its tort claims law to provide for a tribal court forum for tort claims, as was purportedly under consideration, then the petition should be granted, the judgment vacated and the case remanded to the Alabama courts for further proceedings. If the Tribe did not enact the amendment, the Solicitor argued, the Court should deny the petition for certiorari because “[a]lthough the Alabama Supreme Court’s decision is erroneous, it is an outlier.” It is no wonder that the Tribe and the Wilkeses disagreed with the Solicitor’s advice and even less surprising that the Court ignored it and instead simply denied the petition.

The Tribe had little choice but to seek Supreme Court review since it would otherwise be stuck forever with diminished sovereign immunity. Attorneys representing tribes will nonetheless be forgiven for heaving a sigh of relief that the Supreme Court chose not to hear the case. The last time the Court upheld tribal sovereign immunity, in 2014 in Michigan v. Bay Mills, the vote was 5-4. The decision featured a footnote The Godfrey & Kahn Indian Nations Law Practice Group provides a full hinting at the tort exception embraced by the Alabama Supreme Court. The risks of range of legal services to Indian presenting the issue to the Court again are obvious. nations, tribal housing authorities, tribal corporations and other Indian Selected Court Decisions country entities, with a focus on business and economic development, energy and environmental protection, In United States v. Washington, 2019 WL 2608834 (9th Cir. 2019), the United and housing development. States and certain Washington tribes had sued the State of Washington in 1970

Indian Nations Law Focus July 2019 | Page 1 to enjoin the State’s violation of by any party (including the party 2480154 (Fed.Cl. 2019), the Yomba the tribes’ treaty-reserved right seeking a determination) are in Shoshone Tribe, Shoshone to fish off reservation, within the conformity with [the Boldt Decision]; Tribe, the Duckwater Shoshone Tribe territories ceded by the tribes, at (2) Whether a proposed state and threemembers of the Western “usual and accustomed” (U&A) regulation is reasonable and necessary Shoshone Identifiable Group sued places, in common with the citizens for conservation; (3) Whether a the United States for allegedly of Washington. The litigation, often tribe is entitled to exercise powers mismanaging plaintiffs’ three tribal referred to as the “Boldt Litigation” of self-regulation; (4) Disputes trust funds, received as a result of after the district court judge who concerning the subject matter of this three separate cases before the Indian initially presided over it, resulted in case which the parties have been Claims Commission (ICC) and its numerous district, appellate and U.S. unable to resolve among themselves; successors for the government’s Supreme Court decisions establishing (5) Claims to returns of seized or taking of the plaintiffs’ ancestral lands the tribes’ off-reservation rights. damaged fishing gear or its value, in Nevada and without just In the instant case, the Skokomish as provided for in this injunction; compensation over a thirty-three- Tribe sought a ruling as part of a (6) The location of any of a tribe’s year period. In a 107-page decision, Boldt Litigation “subproceeding” U&A fishing grounds not specifically the Federal Claim Court determined that it enjoyed U&A fishing rights determined by [the Boldt Decision]; that the government had breached its in the Satsop River to the exclusion and (7) Such other matters as the fiduciary duty in some respects but of other tribes. The Squaxin Island, court may deem appropriate. … not in others: “Defendant, at all times Jamestown S’Klallam and Port The Boldt Decision also lays out during the approximately thirty-three- Gamble S’Klallam Tribes and the mandatory pre-filing requirements year investment period for the 326-K state of Washington disputed the before initiating a subproceeding. … Fund and twenty-one-year investment Skokomish’s Satsop River claim and The Boldt Decision mandates that period for the 326-A Funds, had the moved for summary judgment. The parties must attempt to resolve their fiduciary duty to prudently invest District Court granted their motion disputes with opposing parties at a plaintiffs’ tribal trust funds by using and the Ninth Circuit affirmed, meet-and-confer before initiating a combination of reasonable care, holding that the Skokomish Tribe an RFD. In particular, parties are skill, and caution, when trying to could not invoke the district court’s required to discuss “the basis for maximize the trust income, while continuing jurisdiction because the the relief sought” under ¶ 25(b) also reasonably managing any risk issue had already been resolved: (1)(A), and “whether earlier rulings of loss. Having extensively and “The U&A of the Skokomish Tribe of the court may have addressed or carefully reviewed the lengthy record was announced in six paragraphs resolved the matter in issue” under in this case, including the documents of the Boldt Decision that detailed ¶ 25(b)(1)(F). The Skokomish did not and expert reports in evidence, the the lineage, history, and customs abide by this provision. … At bottom, trial testimony, and the post-trial of the tribe. … The Skokomish the Skokomish attempt an end-run filings, the court finds that there were admit there was no ambiguity in around Judge Boldt’s unambiguous various times during the investment Judge Boldt’s determination. … determination of its U&A by arguing periods at issue for both the 326-K Judge Boldt also issued a permanent that the 1984 Subproceeding, dealing Fund and for the 326-A Funds when injunction, articulating rules under solely with primary fishing rights, the government’s investment of all which parties could invoke the somehow amended its U&A to three tribal trust funds fell below court’s continuing jurisdiction in include the Satsop River. Nothing the required standard of prudence.” future disputes. … Under Paragraph could be further from the truth. The The court determined that a hearing 25(a), later modified by an August 1984 Subproceeding had nothing would be held to determine damages. 23, 1993 Order (Case No. 70-9213, to do with the boundaries of the Dkt. # 13599), parties are authorized Skokomish’s U&A.” In Confederated Tribes and Bands of to invoke the continuing jurisdiction the Yakama v. Klickitat County, 2019 of the court to determine (1) Whether In Western Shoshone Identifiable WL 2570540 (E.D. Wash. 2019), the or not the actions intended or effected Group v. United States, 2019 WL State of Washington had retroceded

Indian Nations Law Focus July 2019 | Page 2 “full civil and criminal jurisdiction” County, 2019 WL 8620412 (E.D. Section 4.8 supports this reading, under Public Law 280 to the Tribe Wash. 2019) (denying county’s delineating Plaintiffs’ available in 2014 to the Confederated Tribes motion to dismiss for failure to remedies if the constitutional right of and Bands of the Yakama (Tribe). state a claim and failure to join exclusivity is lost, and undermining After the county officials arrested indispensable parties, and holding Plaintiffs’ claims that the right is and charged a tribal member for that tribes could seek injunction inextricably woven into the fabric of assaulting a nonmember within an against the county: “Merely because the agreement. Section 4.8(b) more area of the reservation known as the County may not be able to prevent closely supports Plaintiffs’ reading Tract D, the Tribe sued to enjoin the Department of the Prosecuting of the Compact. Nevertheless, this state enforcement and moved for Attorney or the Sheriff’s Office from provision—although ensuring the injunctive relief. Relying on its recent arresting or prosecuting enrolled Compact does not preclude the Yocha interpretation of the retrocession, the Yakama Members does not mean that Dehe Nation from invoking court “viewed the plain language an injunction against the County is the Compacts’ dispute resolution of Governor Inslee’s retrocession inappropriate.”) provisions—does not give Plaintiffs’ proclamation, DOI’s acceptance of right of exclusivity an enforceable retrocession, and federal and state In Yocha Dehe Wintun Nation foothold in the Compact. Nor could law governing the retrocession v. Newsom, 2019 WL 2513788 it. Basic contract principles explain process as properly establishing the (E.D. Cal. 2019), the Yocha Dehe that, to be a legally-enforceable limitations of the States’ retrocession. Wintun Nation, Sycuan Band of agreement, a contract must be Reading the plain language of the the Kumeyaay Nation, and Viejas supported by consideration.” Governor’s use of the sentence Band of Kumeyaay (Tribes) sued ‘The State retains jurisdiction over the State and governor of California, In Commonwealth v. Wampanoag criminal offenses involving non- contending the Defendants breached Tribe of Gay Head (Aquinnah), 2019 Indian defendants and non-Indian their gaming compacts with the WL 2525470 (D. Mass. 2019), the victims’ in context, both historical Tribes by not enforcing the state’s Commonwealth of Massachusetts, and in the context of the entire ban on “banking and percentage the Town of Gay Head, the Taxpayers’ retrocession proclamation, made clear card games” against cardrooms in Association of Gay Head, Inc. and that the State retained jurisdiction in California’s non-tribal casinos. The the Wampanoag Tribal Council of two areas—over criminal offenses plaintiffs relied on references in the Gay Head, Inc. had entered into a involving non-Indian defendants compact preamble to “exclusive Settlement Agreement to resolve the and over criminal offenses involving rights the Tribe will enjoy under this Tribe’s land claims. The Town and non-Indian victims. Accordingly, the Compact” and “the exclusive rights the Taxpayers’ Association conveyed Court found that Plaintiff failed to enjoyed by the Tribe to engage in the to the Wampanoag Tribal Council establish success on the merits of its Gaming Activities” and a provision in approximately 485 acres of land claims because Defendants City of the compacts that provided recourse (Settlement Lands) to be held “in the Toppenish and Yakama County have if “the exclusive right of Indian same manner, and subject to the same criminal jurisdiction over offenses tribes to operate Gaming Devices laws, as any other Massachusetts committed by or against non-Indians in California is abrogated.” The corporation.” The Settlement within the Yakama Reservation. federal district court dismissed: “The Agreement provided that “[u]nder Consistent with this Court’s prior Court finds that neither the terms in no circumstances, including any ruling in Confederate Tribes v. City the Preamble nor those in Section future recognition of the existence of Toppenish, the Court again rejects 4.8 create an enforceable right of of an Indian tribe in the Town of Plaintiff’s argument that Defendants exclusivity. A plain reading of the Gay Head, shall the civil or criminal no longer have criminal jurisdiction Preambles exposes these paragraphs jurisdiction of the Commonwealth over Indians within the Yakama as merely recognizing the veneer of ... over the settlement lands ... be Reservation following retrocession.” exclusivity given by the California impaired or otherwise altered” and See also, Confederated Tribes and constitution to the Class III gaming that “no Indian tribe or band shall Bands of the Yakama v. Klickitat rights conferred by the Compact. ever exercise sovereign jurisdiction”

Indian Nations Law Focus July 2019 | Page 3 over those lands, which would have appealed those portions of the of Appeals for the Intertribal Court be “subject to all Federal, State, judgment that provided that it must of Southern California. At about the and local laws, including Town comply with state and local permitting same time, RMCA filed an ex parte zoning laws.” Congress approved and other regulatory requirements. motion seeking a federal court order the settlement in the 1987 federal Instead, it only appealed those enjoining the Tribe from enforcing Settlement Act, which provided portions addressing gaming issues. the April tribal court judgment. The that “[e]xcept as otherwise expressly An amended final judgment in favor district court denied the motion for provided in this subchapter or in of the Tribe as to the gaming issues failure to exhaust tribal remedies: the State Implementing Act, the is of course required. The remainder “Based on the record before this settlement lands and any other land of the judgment, however, will be Court, the tribal appellate court has that may now or hereafter be owned reinstated in substance. If the Tribe not conducted any review of the issues by or held in trust for any Indian tribe seeks to construct and operate a of tribal jurisdiction or a stay of the or entity in the town of Gay Head, gaming facility, it need not comply tribal court’s April 2019 Judgment. Massachusetts, shall be subject to the with state and local gaming laws, RMCA fails to establish that the tribal civil and criminal laws, ordinances, but it must comply with all state and court’s decisions on jurisdiction or the and jurisdiction of the Commonwealth local laws and regulations of general motion to stay would not be subject of Massachusetts and the town of Gay applicability to the construction and to tribal appellate review during tribal Head, Massachusetts (including those operation of a commercial building.” court proceedings.” laws and regulations which prohibit or regulate the conduct of bingo or any In Rincon Mushroom Corporation v. In Stathis v. Marty Indian School, other game of chance).” The Tribe Mazzetti, 2019 WL 2341376 (S.D. 2019 WL 2528032 (S.D. 2019), argued in subsequent litigation that Cal. 2019), Rincon Mushroom Stathis had been employed as the the 1988 Indian Gaming Regulatory Corporation of America (RMCA) high school principal at the Marty Act (IGRA) effectively repealed the operated a mushroom factory on fee Indian School (MIS) in Marty, Settlement Act’s gaming prohibitions. land within the boundaries of the South Dakota, on the Yankton Sioux The district court granted judgment reservation of the Rincon Band of Indian Reservation. The school was to the Commonwealth that the Luiseno Mission Indians (Tribe). chartered by the Yankton Sioux Tribe Tribe was subject to state and local When the Tribe sought to regulate the and operates under a constitution permitting requirements (such as factory, Rincon sued tribal officials, approved by the Yankton Sioux Tribal building permits, zoning, regional in their official capacities, in federal Business and Claims Committee that commission approval, and the like) court, asserting ten causes of action, designates MIS as “a legal entity of not directly involving gaming and that including contract, tort and claims the Yankton Sioux Tribe, from whom the IGRA did not repeal the gaming under the Racketeering Influenced Marty Indian School, Inc. has been prohibitions of the Settlement Act. and Corrupt Organizations (RICO) delegated authority to operate and The Tribe appealed the IGRA issue, Act. In 2010, the district court, without maintain the Marty Indian School.” but not the more general ruling on addressing whether the Tribe had After MIS terminated Stathis’s non-gaming regulations, to the First jurisdiction, dismissed for failure to employment, he sued MIS and other Circuit, which reversed, holding that exhaust tribal remedies. The Ninth parties in state court for breach the IGRA superseded the Settlement Circuit partially affirmed in 2012 but of contract, breach of settlement Act’s gaming prohibitions and held that the action in the district court agreement, wrongful termination, remanding “for entry of judgment should be stayed pending exhaustion. libel and slander, and requested in favor of the Tribe.” On remand, In April 2019, the Intertribal Court punitive damages. The circuit court the district court held that the Tribe of Southern California held that the dismissed Stathis’s complaint on the had not appealed the portion of the Tribe had jurisdiction and ordered grounds of tribal sovereign immunity, judgment confirming the Tribe’s RMCA to comply with tribal immunity of tribal officials and subjection to state law generally and regulations. RMCA filed an appeal, employees, federal preemption, and that it was not entitled to judgment accompanied by a motion to stay the infringement of tribal sovereignty. on that issue: “[T]he Tribe could tribal court judgment, with the Court The South Dakota Supreme Court

Indian Nations Law Focus July 2019 | Page 4 Indian Nations Practice affirmed solely based on lack of subject matter jurisdiction based on federal Group Members preemption under the rule of White Mountain Apache v. Bracker: “The nature of this case presents the question whether a non-Indian may sue a tribal entity, tribal Mike Apfeld, Litigation employees, and tribal members in state court for contractual and other civil claims [email protected] which arose from conduct that occurred on the reservation. There are two distinct Marvin Bynum, Real Estate barriers to a state’s assumption of jurisdiction over reservation Indians: infringement [email protected] and preemption. ... it is well settled that civil jurisdiction over activities of non- John Clancy, Environment & Energy Indians concerning transactions taking place on Indian lands presumptively lies in Strategies the tribal courts unless affirmatively limited by a specific treaty provision or federal [email protected] statute. ... The [circuit] court concluded, among other things, that it lacked jurisdiction Todd Cleary, Employee Benefits over Stathis’s complaint based on both the grounds of infringement and federal [email protected] preemption. We agree with the circuit court’s determination that it lacked jurisdiction Shane Delsman, Intellectual Property on the ground of federal preemption. As only one ground is necessary to deprive [email protected] this Court of subject matter jurisdiction, we decline to make a conclusion regarding Arthur Harrington, Environment & Energy infringement. … Together, the Self-Determination Act and the Tribally Controlled Strategies Schools Act show a clear intent of Congress to preempt state court entanglement into [email protected] the education of Indians living on the reservation. MIS is a legal entity of the Yankton Lynelle John, Paralegal Sioux Tribe. According to its own constitution, MIS was chartered by the tribe to Menominee Tribe maintain and continually upgrade the educational process for children living on the [email protected] Yankton Sioux Reservation in the Marty community. The ability of MIS and the tribe Brett Koeller, Corporate to resolve disputes regarding employment contracts is inherently part of maintaining [email protected] an educational process. State court action in this dispute is preempted by federal law, Michael Lokensgard, Real Estate and therefore, the circuit court did not err in dismissing Stathis’s complaint on that [email protected] basis.” (Internal quotations, citations and emendations omitted.) Carol Muratore, Real Estate [email protected]

Andrew S. Oettinger, Litigation [email protected]

Brian Pierson, Indian Nations [email protected]

Jed Roher, Tax & Employee Benefits [email protected]

Jonathan Smies, Litigation [email protected]

Timothy Smith, Tax & Employee Benefits [email protected]

Mike Wittenwyler, Government Relations [email protected]

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