Indian Nations Law Focus May 2013, Volume 8, Issue 5

U.S. DOE Announces $7 Million to Promote Clean Energy in Tribal Communities

The U.S. Department of Energy (DOE) recently announced up to $7 million in new funding opportunities to help deploy clean energy projects in tribal communities. These grants can help tribes reduce reliance on fossil fuels and promote economic development and energy independence.

The “Community-Scale Clean Energy Projects in Indian Country” ($2.5 to $4.5 million Brian L. Pierson total available funds) grant program will aid tribes in installing clean energy systems 414.287.9456 that reduce fossil fuel use by at least 15% in either new or existing tribal buildings. [email protected] Individual awards may range from $50,000 to $1.5 million, with a minimum 50% cost share required, and DOE anticipates making 10 to 20 awards.

The “Tribal Renewable Energy and Energy Efficiency Deployment Assistance” grant “The Godfrey & Kahn Indian program (approximately $2.5 million total funds available) will aid tribes in installing Nations Law Practice Group renewable energy and energy efficiency technology that reduce fossil fuel use in provides a full range of legal existing tribal buildings by at least 30%. Individual awards may range from $50,000 to services to Indian nations, $250,000, with a minimum 50% cost share required. DOE anticipates making 10 to 20 tribal housing authorities, tribal awards. More information on DOE’s funding announcement can be found here: http:// corporations and other Indian apps1.eere.energy.gov/news/progress_alerts.cfm/pa_id=871. country entities, with a focus on business and economic Godfrey & Kahn has assisted tribes with the preparation of renewable energy and development, energy and energy efficiency grant applications that have resulted in total awards of more than environmental protection, and $5 million. Godfrey & Kahn also assists tribes in packaging federal grants with other housing development.” grants and tax incentives, including the 30% federal tax credit for renewable energy projects, state and/or utility grants and New Market Tax Credits.

For more information about Godfrey & Kahn’s energy-related Indian country experience, or a free consultation, contact Indian Nations Law Practice Group leader Brian Pierson at 414.287.9456 or [email protected], or Environment and Energy Strategies Practice Group leader John Clancy 414.287.9256 or [email protected]. Godfrey & Kahn to Present on Financing Renewable Energy at National American Indian Housing Council Convention in Chicago May 22

The National American Indian Housing Council (NAIHC) is holding its annual convention and trade show at the downtown Sheraton in Chicago May 21-23, 2013. Godfrey & Kahn attorneys Brian Pierson and John Clancy will join with Kevin Fitzgibbons to present “Financing Wind, Solar and Bio-Power for Indian Housing” from 8:15-10:15 a.m. on Wednesday, May 22. Kevin is the immediate past administrator of the U.S. Department of Housing and Urban Development’s Eastern Woodlands Office of Native American Programs. The panel will describe successful

Indian Nations Law Focus May 2013 | Page 1 renewable energy initiatives in Indian Energy Strategies Practice Group the tribe,” and (3) “[a]dditionally, country and discuss tax incentives leader John Clancy, 414.287.9256 or tribal laws may be fairly imposed and other funding sources that may [email protected]. on nonmembers if the nonmember enable tribes to convert to green consents, either expressly or through energy without spending tribal funds. Selected Court his or her actions.” For more information, visit: http:// Decisions naihc.net/index.php/events/annual- In U.S. v. Robertson, 709 F.3d 741 (8th convention. In Grand Canyon Skywalk Cir. 2013), Robertson, a member of Development, LLC v. ‘Sa’ Nyu Wa Inc., the Spirit Lake Tribe in North Dakota Godfrey & Kahn to 2013 WL 1777060 (9th Cir. 2013), the (Tribe), administered the Tribe’s Low Present on Financing plaintiff had entered into a business Income Home Energy Assistance Renewable Energy at agreement with the Hualapai Indian Program (LIHEAP). From 2007 Tribe (Tribe) pursuant to which the through 2011, Robertson approved Albuquerque Conference parties would develop a skywalk over applications for heating assistance June 11 the Grand Canyon, on trust land within by her adult daughters which did not the Tribe’s reservation, as a tourist disclose Robertson as a resident of The “Developing Tribal Energy attraction. When a dispute arose, the households that would receive this Resources and Economies the Tribe enacted a condemnation benefit, nor her substantial income. Conference” will be held June 10-12, ordinance and instituted proceedings Robertson was convicted of knowingly 2013 at Sandia Resort and Casino, to condemn the plaintiff’s property and willfully embezzling, stealing, Albuquerque, New Mexico. Godfrey rights. The plaintiff filed a suit in and misapplying tribal property & Kahn attorneys Brian Pierson and federal court to enjoin the Tribe from in violation of 18 U.S.C. § 1163. John Clancy will join with Forest enforcing its condemnation ordinance. On appeal, she contested the district County Potawatomi Attorney General The district court dismissed on the court’s refusal to instruct the jury on Jeffrey Crawford to present “Casino ground that the plaintiff was required her theory that she believed in “good Energy Consumption and the Seven to exhaust tribal court remedies. faith” that the household was under Generations Ethic” from 3:00 to The Ninth Circuit Court of Appeals the 150% threshold for benefits. The 4:30 pm on Tuesday, June 11. The affirmed, holding that plaintiffs had Eighth Circuit affirmed: “Robertson presentation will describe successful not shown that the Tribe’s bad faith knowingly approved applications Indian country projects and focus on justifying an exception to the rule that by her daughters that failed to financing strategies that enable tribes tribal remedies must be exhausted and disclose the facts most essential to to convert to cleaner, less expensive that there was no clear lack of tribal eligibility—how many people were energy using federal tax incentives and jurisdiction since (1) the skywalk was living in the household, and what was other non-tribal funding sources. For located on tribal trust land, the rule their combined income. Robertson more information, visit: http://www. of Montana v. U.S., restricting tribal was clearly aware of the importance regonline.com/builder/site/Default. jurisdiction over non-Indians, did not of those disclosures because her aspx?EventID=1155048 apply and the Tribe could exercise formal duties included verifying jurisdiction pursuant to its “inherent income disclosures and personally Godfrey & Kahn works with tribes powers to exclude and manage its reviewing numerous applications to maximize outside funding sources own lands” where there were no for completeness and accuracy. Her to finance green energy and promote competing state interests, and (2) even good faith theory ignored Robertson’s tribal energy independence. For more if Montana v. U.S. applied, the Tribe responsibilities as LIHEAP program information about Godfrey & Kahn’s could exercise jurisdiction under the Coordinator.” Indian country experience, or a free exceptions for “consensual” dealings In Bristol Bay Area Health consultation, contact Indian Nations with the Tribe and conduct that Corporation v. United States, 2013 Law Practice Group leader Brian “threatens or has some direct effect on WL 1715605 (Fed.Cl.), Bristol Bay Pierson at 414.287.9456 or bpierson@ the political integrity, the economic Area Health Corporation (Bristol Bay) gklaw.com, or Environment and security, or the health or welfare of

Indian Nations Law Focus May 2013 | Page 2 sued in the Court of Federal Claims, from plaintiffs’ delay in commencing Land), with $25,000 withdrawn from alleging that the government breached suit, (3) the Borough qualified as its main investment account. In 2006, a statutory and contractual duty when a “museum” for purposes of the the Nation requested that the Park City it entered into contracts with plaintiff NAGPRA, and (4) the plaintiffs were Land be accepted in trust for gaming under the Indian Self-Determination entitled to repatriation of Thorpe’s purposes under discretionary authority and Education Assistance Act remains: “The [NAGPRA] recognizes granted to the Secretary of the (ISDEAA) for plaintiff to provide the importance of compliance with Interior under Section 5 of the Indian health care services to tribal members Native American culture and tradition Reorganization Act. In 2008, the but failed to pay plaintiff for certain where dealing with the remains of one Nation changed its position, asserting contract support costs from fiscal years of Native American heritage, and this that acquisition of the property in trust 1993 through 1999. The court denied is a case which fits within the reach of was mandatory under the Settlement the government’s motion to dismiss, this congressional purpose.” Act. The State of Kansas objected, holding that (1) the question whether arguing that the Nation had used the six-year statute of limitations was In Poulson v. Tribal Court for the the entire appropriated $100,000 to tolled was not ripe for determination, Ute Indian Tribe of the Uintah and purchase the Shriner Tract, property in (2) the plaintiffs’ claims for contract Ouray Reservation, Not Reported Kansas City that had generated lengthy support costs were sufficiently in F.Supp.2d, 2013 WL 1367045 litigation. When the Secretary had plausible to survive a motion to (D.Utah), the Ute Indian Tribe gave not acquired the Park City Land by dismiss, and (3) additional discovery notice to Edson Gardner and Lynda 2011, the Nation sued seeking a court was necessary to determine whether Kozlowicz that their licenses to order that the Secretary immediately the plaintiffs’ claims were barred practice as lay advocates before the take the land into trust under the by res judicata based on a previous Ute Tribal Court would be suspended mandatory acquisition provisions of settlement. for 90 days. They attempted to the Settlement Act. The court rejected challenge the suspension by bringing a the Nation’s argument, agreeing that In Thorpe v. Borough of Thorpe, petition for habeas corpus relief under the delays were caused by legitimate 2013 WL 1703572 (M.D.Pa. 2013), the Indian Civil Rights Act (ICRA), questions surrounding the source following the death in 1953 of the but the court dismissed for lack of of funds used to acquire the land. famous athlete, Jim Thorpe, his jurisdiction, observing that “[t]he The court also rejected the Nation’s wife had entered into an agreement temporary suspension of one’s license breach of fiduciary duty theory on the pursuant to which adjoining to practice as a tribal court advocate ground that no fiduciary obligation communities in Pennsylvania would is simply not the ‘custody’ required to attached to land not yet in trust. The consolidate as “Borough of Thorpe” sustain habeas corpus proceedings.” Department of Interior was ordered to and the athlete would be interred in In Wyandotte Nation v. Salazar, Not make periodic reports on its progress a mausoleum there. Jim Thorpe’s in reaching a final decision. sons and the Sac and Fox Tribe Reported in F.Supp.2d, 2013 WL (collectively, Plaintiffs), of which 1497821 (D.Kan.), Congress had In Jones v. Norton, 2013 WL 1336125 Thorpe was a member, sued in federal enacted Public Law 98–602 in 1984 (D.Utah), Murray, a member of the court to return Thorpe’s remains to the (Settlement Act), providing for the Ute Indian Tribe, was shot to death Sac and Fox reservation in Kansas, appropriation and distribution of within the boundaries of the Uintah where Thorpe was born, alleging money in satisfaction of judgments and Ouray Indian Reservation after a violations of the Native American awarded to the Wyandotte Nation lengthy police chase involving state, Graves Protection and Repatriation (Nation) by the Indian Claims county, and city agencies. His estate Act (NAGPRA). On cross-motions, Commission and the Court of Claims sued under the Civil Rights Act of the district court granted summary and directing that $100,000 be used for 1871, 42 U.S.C. § 1983, alleging that judgment to the Plaintiffs, holding the purchase of real property “which the defendants’ pursuit violated the that (1) the “probate exception” to shall be held in trust by the Secretary Bad Men clause of the Ute Treaty federal jurisdiction was inapplicable, for the benefit of such Tribe.” In 1992, of 1868 (Treaty), which gives tribal (2) laches did not apply because the the Nation purchased 10.5 acres of members a right to be free from Borough did not suffer any prejudice land near Park City, Kansas (Park City harms caused by “bad men among the

Indian Nations Law Focus May 2013 | Page 3 whites” while on tribal land. The court v. McKenna, 2013 WL 1403342 Apache Tribe v. Jones that “[a]bsent dismissed, holding that the Treaty (E.D.Wash. 2013), 46 states had express federal law to the contrary, “only secures a right to seek redress sued the tobacco industry to recover Indians going beyond reservation from the United States Government— smoking-related health costs. boundaries have generally been held it does not secure a right to be free Pursuant to their Master Settlement subject to non-discriminatory state from the torts of private individuals.” Agreement with the participating law otherwise applicable to all citizens cigarette manufacturers, the states of the State.” The court rejected the In City of New York v. Golden Feather agreed to require non-participating Nation’s argument that cigarettes Smoke Shop, Inc., 2013 WL 1334220 manufacturers to make payments were reservation-generated: “When (E.D.N.Y.), the City of New York into an escrow account to cover their taking into account the manufacturing (City) sued numerous individuals share of the relevant costs. King process and the amount of non-trust- and businesses engaged in the sale of Mountain Tobacco Company (King land tobacco that is used in King cigarettes from the Poospatuck Indian Mountain), owned by a member of the Mountain’s products, the Court finds Reservation in Mastic, New York Confederated Tribes and Bands of the that the cigarettes and roll-your-own (Reservation), where members of the Yakama Nation (Nation), engaged in tobacco products produced by King Unkechauge Indian Nation reside, a multistate business that involved (1) Mountain are not principally generated for violations of the Contraband growing tobacco on the reservation, from the use of reservation land and Cigarette Trafficking Act (CCTA), amounting to about 37% of the resources.” and New York’s Cigarette Marketing tobacco contained in the finished Standards Act (CMSA), arising cigarettes, (2) shipping tobacco In Timbisha Shoshone Tribe v. U.S. out of bulk re-sales of cigarettes to Tennessee to be threshed, (3) Dept. of the Interior, 2013 WL on which New York State and City shipping tobacco to North Carolina, 1451360 (E.D.Cal.), leaders of a taxes had not been paid (unstamped where the tobacco was blended with faction of the Timbisha Shoshone cigarettes) to the public, either directly North Carolina-grown tobacco, (4) Tribe (Tribe) sued the Department or through trafficker intermediaries. transporting the blended tobacco on of Interior (DOI), DOI officials The City moved for summary its trucks from North Carolina back and members of the Tribal Council judgment, a permanent injunction to Washington, (5) advertising its currently recognized by the DOI, against defendants’ purchase, receipt, cigarettes in multiple states through challenging the DOI’s recognition possession, sale, distribution, offer and trade shows and the Internet, and of those officials on the ground that advertisement of unstamped cigarettes, (6) selling its cigarettes (through a they were elected in violation of the as well as for damages, civil penalties distributor) to retail stores throughout Tribe’s constitution. The district court and attorney’s fees. Defendants cross- Washington and other states, where dismissed, holding that the tribal moved for summary judgment, arguing the cigarettes were ultimately sold officials were indispensable parties that the City could not establish to consumers. After initially making who could not be joined because of proximately caused harm to the City escrow payments, King Mountain their immunity, rejecting the plaintiffs’ and their alleged good faith belief that changed its position and, joined by the argument that the tribal officials could their conduct was legal. The Court Nation, sued the Washington attorney be sued under the Ex Parte Young ruled for the City, (1) permanently general, arguing that the restrictions doctrine: “Plaintiffs do not make any enjoining defendants’ “purchase, placed on King Mountain violated the claims that the members of the 2011 receipt, possession, sale, distribution, 1855 treaty between the United States Elected Council themselves violated offer and advertisement of unstamped and the Nation, which provided that federal law to get elected. Rather, cigarettes-even to tribe members for the reservation would be set aside “for Plaintiffs’ claims focus on the DOI’s personal use”; (2) awarding damages the exclusive use and benefit” of the alleged wrongdoing. In cases where as against certain defendants; (3) Nation and that members of the Nation courts found Tribal officials were awarding civil penalties against other would have the right “in common not immune, the officials themselves defendants; and (4) awarding the City with citizens of the United States, engaged in acts that violated federal attorney’s fees. to travel upon all public highways.” law. … Because Plaintiffs do not allege any members of the 2011 In King Mountain Tobacco Co., Inc. The federal district court disagreed, citing the holding of Mescalero Elected Council violated federal

Indian Nations Law Focus May 2013 | Page 4 law, the council members retain their Secretary-Indian Affairs had not In Inetianbor v. CashCall, Inc., 2013 immunity from suit as tribal officials.” considered the National Indian Gaming WL 1325327 (S.D.Fla.), Inetianbor had Commission’s (NIGC) determination entered into a consumer payday loan In U.S. v. Washington, 2013 WL of the Tribe’s reservation at the time of agreement with Western Sky Financial, 1334391 (W.D.Wash.), a sub- the ROD in 2010, the DOI moved to LLC (Western Sky), for $2,525 with proceeding of treaty rights litigation remand. The court denied the motion an annual interest rate of 135%. The initiated in 1970, 19, joined by the but permitted the DOI to consider loan agreement provided that the laws United States, sought a determination whether it wished to withdraw and jurisdiction of the Cheyenne River that the State of Washington (State) the ROD in light of the NIGC Sioux Tribe (Tribe) would govern, had a duty under the 1855 Treaty of determination. The DOI moved instead that the borrower would consent to Point Elliot to preserve fish runs, and to submit a supplemental ROD. The the sole subject matter and personal an injunction compelling the State to court rejected the attempt, remanded jurisdiction of the Cheyenne River repair or replace culverts that impede with an order to issue a new ROD Sioux Tribal Court and that disputes salmon migration to or from spawning within 60 days and dismissed the case. would be subject to arbitration in that grounds. In a 24-page ruling, the court court. When Western Sky continued granted the requested relief: “The In Mitchell v. Seneca Nation to submit negative credit information State’s duty to maintain, repair or of Indians, 2013 WL 1337299 about him to credit agencies after replace culverts which block passage (W.D.N.Y.), Mitchell, a member he had allegedly paid off the loan, of anadromous fish does not arise of the Seneca Nation of Indians Inetianbor sued Cashcall, Western from a broad environmental servitude (Nation), was indicted by a federal Sky’s loan servicer, in state court. against which the Ninth Circuit Court grand jury on criminal charges of Cashcall removed to federal court and of Appeals cautioned. Instead, it is a fraud and misconduct stemming from sought an order compelling Inetianbor narrow and specific treaty-based duty his involvement in a sale of land to to arbitrate. Inetianbor sought to that attaches when the State elects to the Seneca Niagara Falls Gaming avoid arbitration on the grounds that block rather than bridge a salmon- Corporation, a Nation-controlled the interest rate charged by Western bearing stream with a roadbed. The business. While the case was pending, Sky was usurious, the tribal court roadbed crossing must be fitted with the Nation Council passed a resolution lacked jurisdiction, Western Sky used a culvert that allows not only water prohibiting Mitchell from entering tribal law to evade state and federal to flow, but which insures the free any Nation buildings or business consumer protection laws and the passage of salmon of all ages and life except to appear in court to defend agreement was unconscionable. The stages both upstream and down. That himself and to attend scheduled court ruled that Inetianbor had failed to passage is best facilitated by a stream health care appointments at Nation overcome the preference for enforcing simulation culvert rather than the less- clinics, suspending and holding in arbitration clauses and must submit effective hydraulic design or no-slope escrow annuity payments due to the case to arbitration. After Tribal culvert.” Mitchell pending resolution of the Judge Demery informed Inetianbor by criminal charges and any related civil letter that the Tribe “does not authorize In Clark County v. Secretary of proceedings, revoking Mitchell’s Department of Interior, D.D.C. Arbitration as defined by the American Nation-issued business license and Arbitration Association” (AAA), the 2013, Clark County challenged the prohibiting Nation-licensed businesses 2010 Record of Decision (ROD) of court agreed to reopen the case, noting from doing business with Mitchell. that “Plaintiff has made a showing that the Department of Interior Assistant Mitchell sued in federal court under Secretary – Indian Affairs taking land the arbitration forum specified in the the habeas corpus provisions of the subject arbitration agreement is not into trust for the Cowlitz Tribe (Tribe), Indian Civil Rights Act, 25 U.S.C. which had been acknowledged by the available. CashCall has not offered any § 1302. On the Nation’s motion, the evidence in rebuttal.” federal government in 2002, finding Court dismissed for lack of subject that the Tribe was under federal matter jurisdiction, holding that In Oglala Sioux Tribe v. Schwarting, jurisdiction in 1934, as required by the “Mitchell is not subject to custody 894 F.Supp.2d 1195 (D. Neb. Supreme Court’s Carcieri decision. restrictions sufficient to obtain a writ 2012), the Oglala Sioux Tribe sued After learning that the Assistant of habeas corpus.” manufacturers, distributors, and

Indian Nations Law Focus May 2013 | Page 5 retailers of beer and other alcoholic arbitration were denied, Cashcall a writ of mandamus and injunction beverages, alleging that the sale of the moved for a stay pending appeal of barring the irrigation districts from beverages in Whiteclay, a town located the denial of its motion to dismiss, executing the Agreement. The Montana outside the tribe’s reservation, caused arguing that Section 16(a)(1)(A) of Supreme Court reversed, holding that harm on the reservation. The district the Federal Arbitration Act mandated the district court had issued relief based court dismissed for lack of subject a stay. The federal bankruptcy judge on grounds not argued, that the Montana matter jurisdiction, holding that disagreed and denied the motion: statutes cited by the plaintiffs did not (1) diversity jurisdiction was lacking “[T]he Court believes a stay of the apply to the Agreement and that the because a tribe is not a resident of any matter will unnecessarily hamper an determination of the plaintiffs’ water state for purposes of 29 U.S.C. § 1332, efficient administration of Plaintiff’s rights was the subject of the pending (2) a federal criminal statute, 18 U.S.C. bankruptcy estate. Permitting a stay compact negotiations: “Without any § 1161, that prohibited the introduction throughout a potentially protracted determination of the water issues on of alcohol into Indian country, did appeals process would only serve to the merits, which the District Court not authorize private suits, and (3) 28 upend the countervailing policy of the admittedly and properly did not do U.S.C. § 1362 authorizes suits by tribes bankruptcy code with respect to all in this proceedings, no grounds exist without regard to the dollar limits that parties involved.” for its conclusion that the Water Use otherwise apply but does not remove the Agreement will take away those water requirement that the tribe demonstrate a In Western Montana Water Users rights.” federal question. Ass’n, LLC v. Mission Irr. Dist., 2013 WL 1428631 (Mont.), 2013 MT 92, In State v. Scott, 2013 WL 1342219 In the case of In re Moses, 2013 WL the Confederated Salish and Kootenai (S.D.), 2013 S.D. 31, Scott was 1405575 (Bkrtcy.E.D.N.C.), Moses, a Tribes (Tribes) had entered into the convicted after an Indian member North Carolina resident, had entered Hellgate Treaty with the United States of the jury venire panel was stricken into a consumer loan agreement with in 1855, creating the Flathead Indian because, according to the prosecutor, he Western Sky Financial, LLC, (Western Reservation in Montana. Congress “just didn’t get a good feeling from her Sky), a South Dakota company, for a authorized allotment of the Reservation response” to his question and because loan in the amount of $1,500. Western for homestead purposes in 1904 and, he allegedly had information that the Sky assigned Plaintiff’s loan to Cashcall, in 1908, authorized the Secretary of prospective juror “was charged or at Inc. (Cashcall). The loan agreement the Interior to construct the Flathead least investigated for like threatening provided that the loan would be subject Indian Irrigation Project (FIIP), which behavior on a phone.” Defense solely to the laws and jurisdiction of provided individual tribal members and counsel argued that the strike violated the Cheyenne River Sioux Tribe of the non-tribal members on the Flathead the holding of Batson v. Kentucky Cheyenne River Indian Reservation, that Reservation with water for irrigation. prohibiting a prosecutor’s use of a the borrower consented to the Cheyenne After the Tribes claimed aboriginal peremptory challenge to exclude jurors River Sioux Tribal Court’s sole subject water rights, they negotiated a compact based solely on their race, but the trial matter and personal jurisdiction and with the United States and the State of court overruled the defense’s objection that any dispute would be resolved by Montana settling their claims. When on the ground that the strike was not arbitration conducted by the Cheyenne the United States and irrigation districts part of a “pattern.” The South Dakota River Sioux Tribal Nation. Moses filed within the Reservation entered into a Supreme Court remanded to the trial a Chapter 13 bankruptcy petition. When Water Use Agreement (Agreement) court “to make specific findings on the Cashcall filed a proof of claim for as part of the implementation of basis for the State’s ‘feeling’ toward $1,929, Moses initiated an adversary the Compact, the Western Montana Juror Laroche and the validity of the proceeding against Cashcall seeking Water Users Association, a group of State’s claim that Juror Laroche had a declaration that the loan agreement landowners claiming water rights, been charged with or investigated for was invalid and damages for violations sued in state court, contending that criminal behavior. If the court finds of North Carolina consumer protection the Agreement must be submitted to a no racial motivation, the judgment laws. After its motion to withdraw the vote of all irrigators and approved by will stand affirmed, subject to Scott’s proof of claim and its motion to dismiss a court pursuant to Montana law. The right to appeal this finding. If the court or stay the adversary action pending state district court granted the plaintiffs concludes that Scott proved purposeful

Indian Nations Law Focus May 2013 | Page 6 discrimination or the court is unable to sole Indian on the panel, disclosed that two Indian Nations Team Members reach a conclusion because of the passage prospective witnesses were friends of her Mike Apfeld, Litigation of time, Scott’s conviction should be father “kind of.” Although she claimed she [email protected] vacated and a new trial ordered.” could be impartial, the prosecutor struck Peggy Barlett, Debtor-Creditor Member of the Sault Ste. her from the jury, stating that “I am aware Marie Chippewa Tribe In City of Duluth v. Fond du Lac Band that family ties, especially in the Ho- [email protected] of Lake Superior Chippewa, 2013 WL Chunk traditional culture, are extremely John Clancy, Energy & Environmental 1500884 (Minn.App.), the City of Duluth strong, and I do not accept her explanation [email protected] (City) and the Fond du Lac Band of Lake she doesn’t socialize with them and can be Todd Cleary, Employee Benefits [email protected] Superior Chippewa (Tribe) had entered fair. I can’t take the risk that she’s going into an agreement in 1986 pursuant to place more credit on their testimony Jessica Franklin, Environmental [email protected] to which the City would support the because of her at least acquaintance with acquisition of land by the United States Rufino Gaytán, Employment them and the fact that they are friends of [email protected] in trust for the Tribe for gaming purposes her father.” Snow was convicted but the and would share gaming revenues. The Arthur Harrington, Energy & court of appeals reversed, holding that the Environmental agreement provided that the acquisition prosecution’s explanation for the strike was [email protected] of additional land by the Tribe, and the not race neutral and violated the holding Brett Koeller, Business & Corporate declaration of such land as “reservation,” of Batson v. Kentucky prohibiting a [email protected] would require the City’s approval. A prosecutor’s use of a peremptory challenge Michael Lokensgard, Real Estate 1994 “umbrella agreement” resolving a to exclude jurors based solely on their race: [email protected] subsequent dispute between the parties “Here, the prosecutor linked his doubts Carol Muratore, Real Estate [email protected] provided for federal court jurisdiction as to Whiteeagle’s ability to fairly weigh over disputes arising under the umbrella testimony due to his belief that ‘family Dave Navarre, Business, Mergers & agreement. When the Tribe purchased Acquisitions, Private Equity ties, especially in the Ho–Chunk traditional [email protected] land in 2011 and applied to the Secretary culture, are extremely strong,’ thereby Brian Pierson, Federal Indian & Tribal of the Interior to place it in trust, the City demonstrating that the strike was based on Indian Nations Team Leader, Lead sued for injunctive relief, contending Contact a prohibited characteristic.” [email protected] that the application breached the parties’ agreement. The district court dismissed the Marlene Prahl, Paralegal [email protected] City’s claim for lack of jurisdiction, but the John Reichert, Banking & Financial Minnesota Court of Appeals reversed and Institutions remanded: “The 1994 umbrella agreement [email protected] and exhibits, however, do not control or Jed Roher, Tax address the trust application which is at the [email protected] heart of this litigation.” Christopher Smessaert, Litigation [email protected]

In State v. Snow, 2013 WL 1338034 (Wis. Mike Wittenwyler, Government Relations App.), Snow, a tribal member (affiliation [email protected] unstated), was charged with operating a Roxana Wizorek, Intellectual Property “motor vehicle with a prohibited alcohol [email protected] concentration.” During jury selection, Whiteeagle, a Ho-Chunk member and the

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