Recent Developments in Tribal Court Litigation 2021


Grant T. Christensen*

University of North Dakota
215 Centennial Dr.
Stop 9003
Grand Forks, ND 58201
(701) 777-2104
[email protected]

Ryan D. Dreveskracht

Galanda Broadman, PLLC
8606 35th Avenue NE, Ste. L1
Seattle, WA 98125
(206) 909-2843
[email protected]

Heidi McNeil Staudenmaier**

Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004-2202
(602) 382-6366
[email protected]

§ 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 citation to most relevant circuit and even district court cases in every volume.  This had resulted in a chapter that had grown to almost 70 pages in length and had increasingly made it difficult for the reader to identify the most recent cases.

To both be more consistent with the other chapters in this volume, and to focus on the cases decided in the last year, we decided to change the format of this chapter beginning with the 2019 Edition.  This chapter will continue with that format and focus on cases decided between Oct. 1, 2019 – Oct. 1, 2020.  While other chapters have arranged themselves by circuit, we will begin with a Supreme Court overview and then structure this chapter around sovereigns; Indian Tribes, the United States, and the fifty sister States.  Within each sovereign we now provide a more concise overview of each subject, 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 United States.[1] Much like federal and state governments, tribal governments are elaborate entities often consisting of executive, legislative, and judicial branches.[2]  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 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 law.[3]

Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government.[4]  Thus, state laws generally “have no force” in Indian Country.[5]  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 relations.”[6]

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 each year,[7] and 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 2019–2020 Term

The Supreme Court hears an average of between two and three new Indian law cases every year.[8] During the 2019-2020 term, the Court decided only a single Indian law case, but one of incredible importance to federal Indian law and to practitioners in Oklahoma or who regularly do business with the Five Tribes.

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).  McGirt is an extension of a case granted last term, Carpenter v. Murphy, where the Court deadlocked 4-4 after Justice Gorsuch was recused for having participated in a decision not to review the case en banc while still a member of the Tenth Circuit.  Instead of affirming the case by an equally divided Court, the Court ordered re-argument.  It then granted McGirt raising the same issue—whether the Muscogee (Creek) Reservation had been diminished.

Diminishment is discussed in more detail in Section 8.4.1, but, functionally, the question deals with whether an Indian tribe may continue to assert its inherent powers over land owned by non-members of the tribe but within the original boundaries of the reservation.  The presumption has always been that a reservation retains its Indian status (and is thus not diminished) unless Congress expressed its clear intent to diminish the reservation.  In order to determine Congressional intent the Court has traditionally looked at three factors: (1) the statutory language of the relevant allotment act(s), which opened the land on the reservation to non-Indian settlement, (2) the events surrounding passage of the act, and (3) the Indian character of the land.

In a 5-4 opinion authored by Justice Gorsuch, the Court in McGirt held that the Muscogee (Creek) reservation was not diminished, and it modified the test to virtually eliminate all but the first factor.

Justice Gorsuch opened the opinion with a line that will be cited in Indian law cases for generations: “On the far end of the Trail of Tears was a promise.” The opinion makes clear that Indian reservations remain intact unless modified by Congress and that, to “ determine whether a tribe continues to hold a reservation, there is only one place we may look: The Acts of Congress.” The Court expressly rejected the idea that the events surrounding passage, or the Indian character of the land must be considered, reasoning that, if the statutory language used by Congress is unambiguous, there is no need to look anywhere else for Congressional intent.  “When interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.  That is the only ‘step’ proper for a court of law.  *** Nor may a court favor contemporaneous or later practices instead of the laws Congress passed.  As Solem explained, ‘[o]nce a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.’”

As a result of the opinion, the entire Muscogee (Creek) reservation remains Indian country, and the tribal government may extend its inherent powers over even non-members of the tribe in some circumstances.  Moreover, the tribal courts may generally hear disputes arising on the reservation, even those concerning non-members.  The Muscogee (Creek) reservation includes the southern portion of the City of Tulsa, and the case sets a precedent that other members of the Five Tribes (Cherokee, Choctaw, Chickasaw, and Oklahoma Seminole) with similar treaty and allotment histories may also remain Indian country.

While the McGirt case was ostensibly a case about criminal jurisdiction, the conclusion that the reservation is undiminished will have potentially large consequences for everything from taxation and regulation[9] to forum selection and adjudicative powers for the tribal courts.

§ 1.2.2 Preview of the 2020-2021 Term

As of October 1, 2020, the Supreme Court has not granted certiorari to any Indian law case for the 2020–2021 term, although there is always the possibility that additional cases will be added to the docket and still decided before June 2021.  If any new cases are granted and decided, they will be included in next year’s volume.

There one was notable dissent from denial of cert. in a relevant Indian law case.  On Oct. 19, 2020, Justice Thomas dissented from the denial of cert. in Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies Inc. 592 U.S. ___ (2020).  The case is discussed in more detail in §8.5 below—but, briefly, the Supreme Court of Oklahoma had ruled that the Indian Gaming Regulatory Act preempted the State of Oklahoma’s ad valorem tax on gaming machines used exclusively on an Indian reservation at the tribal casino but owned by a non-Indian entity.  The County appealed the decision to the U.S. Supreme Court and the Court denied cert.

In his dissent from the denial of certiorari, Justice Thomas explained that he would have ordered the case considered.  In his short dissent, Justice Thomas explained that the Court has applied a “flexible” test to the preemption of state taxes on non-Indian property in Indian country and has provided little guidance other than that courts should “balance federal, tribal, and state interests.” He would have granted the case to clarify to what extent a state may tax non-Indian property in Indian country, and he noted that the clarity is particularly needed now because McGirt (discussed above) had enlarged Indian country substantially in Oklahoma.

§ 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 significant ways.[10]  It cannot be overemphasized that every tribal court is different and distinct from the next.[11]  For example, the qualifications of tribal court judges vary widely depending on the court.[12]  Some tribes require tribal judges to be members of the tribe and to possess law degrees, while others do not.[13]  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 law.[14]

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 previously, it would be wise to solicit common court practice from persons who regularly appear before the court.

Tribal court jurisdiction depends largely on (1) whether the defendant is a tribal member[15] and (2) whether the dispute occurred in Indian Country,[16] 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 reservation.[17] 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 the reservation.[18] Even in tribal court, claims against the tribe itself require a waiver of tribal immunity.[19] Indian tribes also generally have regulatory authority over tribal member and non-member activities on Indian land.[20]

In the “pathmaking” decision of Montana v. United States,[21] however, 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 delegation.”[22]  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 tribe.”[23]

These exceptions are “limited,” and the burden rests with the tribe to establish the exception’s applicability.[24]  The 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 community.”[25]  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 relevant.[26]

FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d 916 (9th Cir. 2019): FMC operated an elemental phosphorous plant, which produced 22 million tons of hazardous waste stored on fee land located within the Shoshone-Bannock Fort Hall Reservation.  In 1990, the EPA classified the site as a National Priority List Superfund Site under CERCLA and, in 1997, charged FMC with violating the Resource Conservation and Recovery Act (RCRA).  Consequently, FMC agreed to a Consent Degree in which it would obtain a permit from the tribe to continue storing the hazardous waste for $1.5 million per year, but it stopped paying in 2002 after ceasing active plant operations.

FMC had regularly applied to the Tribe’s Land Use Policy Commission for a use permit for the land.  The Commission provisionally granted a use permit but imposed an annual permit fee of at least $1.5 million and a one-time building permit fee.  FMC twice appealed to the Fort Hall Business Council, which affirmed the Commission’s decision.  FMC then appealed to the tribal court.

The tribal trial court and court of appeals held that the Tribe had regulatory and adjudicatory powers over FMC.  The appellate panel held that the Tribe had regulatory and adjudicatory jurisdiction under the second Montana exception because FMC’s storage threatened the welfare and cultural practices of the Tribe.  FMC then sued the Tribe in federal district court, which affirmed the Tribal Court but held that the judgment was enforceable under the first but not the second Montana exception.  FMC appealed to the Ninth Circuit.

The Ninth Circuit held that the Tribes had regulatory and adjudicatory jurisdiction under both Montana exceptions, that FMC was not denied due process, and that the Tribal Court of Appeals’ judgment was enforceable under principles of comity.  First, it held that, under the first Montana exception, FMC had entered into a consensual relationship with the Tribes when it negotiated and entered into the permit agreement.  The Consent Decree was a “sweetheart” business deal that was not the product of coercion, and, because of FMC’s long history of prior business dealings with the Tribe, it should have reasonably anticipated that its interactions with the Tribe might trigger tribal authority.

Second, the Ninth Circuit found that, under the second Montana exception, the storage of hazardous waste on the reservation constituted a threat to tribal natural resources and tribal self-governance, health, and welfare.  As noted by the EPA in the Tribal Court of Appeals’ evidentiary hearing, millions of tons of toxic, carcinogenic, and radioactive hazardous waste directly threatened the tribes’ political integrity, economic security, and health and welfare.  FMC petitioned to the Supreme Court of the United States for review and the Court called for the views of the Solicitor General.  As of this writing, the case has not yet been granted or denied.

Employers Mut. Cas. Co. v. McPaul, 804 F. App’x 756 (9th Cir. 2020): The Navajo Nation sued Employers Mutual Casualty Company (EMC) in tribal court, alleging that EMC failed to defend and indemnify its insureds after the insureds caused a gas leak on tribal lands.  The Navajo tribal court denied EMC’s motion to dismiss for lack of subject matter jurisdiction and the Navajo Nation Supreme Court denied a writ of prohibition.  EMC then sued Navajo Nation officials in federal district court, which granted summary judgment for EMC, concluding that the tribal court lacked jurisdiction.  The Navajo Nation officials then appealed to the Ninth Circuit.

The Ninth Circuit addressed each Montana exception in turn.  It dismissed the first exception because both parties stipulated that EMC’s relevant actions (which involved “negotiating and issuing general liability insurance contracts to non-Navajo entities”) occurred outside of tribal land.  It then rejected the second exception because EMC’s conduct took place outside the reservation and its refusal to defend and indemnify its insureds does not “imperil the subsistence of the tribal community.” Therefore, the Ninth Circuit affirmed the district court’s holding, recognizing that the tribal courts lacked jurisdiction under either of the two Montana exceptions.

Walker v. Boy, No. 19-0043, 2019 WL 5700770 (D. Mont. Nov. 4, 2019): Plaintiff, a member of the Gros Ventre Tribe, sued his former employer, the Rocky Boy Health Center, and its CEO, a member of the Assiniboine Tribe, in district court for gender discrimination and retaliation.  The health center is located on the Rocky Boy’s Indian Reservation on property held in trust by the federal government for the benefit of the Rocky Boy Chippewa Cree Tribe.  Defendants filed a motion to dismiss alleging that the Plaintiff had failed to exhaust his tribal court remedies, the federal court lacked subject matter jurisdiction over the claims, and the federal statutes cited in Plaintiff’s complaint were inapplicable and provided no basis for jurisdiction.

The district court held that Plaintiff had not exhausted his tribal court remedies because tribal jurisdiction was “colorable” for two reasons.  First, the claims were based on events that allegedly occurred on trust land within the exterior boundaries on the Reservation.  Second, the claims arose out of a consensual employment agreement between the Plaintiff and the tribal entity, which satisfied the first Montana exception even if the events had occurred off tribal land.  Thus, the district court granted Defendant’s motion to dismiss.

Rosebud Sioux Tribe v. Trump, 428 F. Supp. 3d 282 (D. Mont. 2019): Rosebud Sioux Tribe and Fort Belknap Indian Community sued President Trump and other government entities alleging that they violated various treaties, the Foreign Commerce Clause, the tribes’ inherent sovereign powers, and various federal statutes when the President issued a Presidential permit to build the Keystone XL oil pipeline.

The federal district court addressed several claims, the most relevant of which involves Defendant’s motion to dismiss.  It held that, because tribes have inherent authority to exclude non-Indians from their reservations, under Montana’s second exception, they may exercise civil authority over the conduct of non-Indians on fee lands when that conduct threatens the political integrity, economic security, or health and welfare of the tribe.  Therefore, because Rosebud alleges that Keystone will cross over tribal surface and mineral estates, the court determined that they alleged enough facts at this point in the litigation to support that they have jurisdiction over Keystone.

Gustafson v. Poitra, 2020 ND 9, 937 N.W.2d 524 (2020): The parties before the court were involved in three prior actions.  The first action involved a foreclosure on two parcels of Defendant’s property, where tribal jurisdiction was raised in the district court, but not the appeal.  The second case involved an action in which Plaintiff sued Defendants in district court claiming that one of the Defendant’s estates owed him money for maintenance and repairs, but the court vacated judgment on appeal because the district court lacked subject matter jurisdiction over the lease.  Finally, in the third action, Plaintiff sued two of the Defendants, alleging that Plaintiff was a non-Indian fee owner of two parcels within the Turtle Mountain Reservation.  There, the district court quieted title to the Plaintiff, and the North Dakota Supreme Court affirmed that the tribal courts lacked jurisdiction under either Montana exception.

In this action, Plaintiff sued Defendants in state court to evict them from the property in the prior quiet title action.  The district court determined that it had subject matter jurisdiction over the claim and granted the eviction.  Defendants appealed, arguing that the district court lacked jurisdiction over an eviction regarding non-Indian fee land located within the reservation, that the eviction should have been brought in tribal court, and that sending a North Dakota law enforcement officer onto the reservation to evict them was a clear violation of Montana.

On appeal, the Supreme Court of North Dakota held that Defendants failed both to meet their burden under either Montana exception or to explain how a district court lacked subject matter jurisdiction to grant a judgment of eviction.  The burden rested on the Tribe to establish that one of Montana’s exceptions applied to allow extension of tribal authority to regulate nonmembers on non-Indian fee land, and these limited exceptions should not be constructed in a way that swallows the rule.  The court found no discernable argument by Defendants addressing the first exemption, and although Defendants argued that Plaintiff’s use of a nonfederal law enforcement officer from a foreign jurisdiction to enforce the eviction harmed the political integrity and health and welfare of the tribe, they failed to provide legal support for this argument.  Thus, Defendants failed to meet their burden and the state had authority to enforce the eviction ordered by the district court.

Warfield for Cheryl Sam & Carleen Sam Bankr. Estates v. Ledbetter Law Firm PLC, No. 1 CA-CV 18-0636, 2019 WL 6215905 (Ariz. Ct. App. Nov. 21, 2019): The Tabaha family sued members of the Navajo Nation (Carleen and Cheryl Sam) for personal injury in the Navajo Nation District Court after the Sams injured them in a car accident on the Navajo Reservation.  The Sams’ insurance company, State Farm, retained the Ledbetter Law Firm, who attempted to settle with the Tabahas.  The Tabahas refused to accept a settlement, and Ledbetter recommended that the Sams declare bankruptcy.  The bankruptcy court then discharged the Sams’ personal liability for pre-bankruptcy debts.

Warfield, the trustee for the Sams’ bankruptcy estate, claimed that the orders enjoined the Tabaha family from collecting any debt from the Sams’ post-petition assets.  Ledbetter, on the other hand, claimed that the orders discharged any personal liability to the Tabaha family.  Warfield then sued State Farm and Ledbetter in Maricopa County Superior Court, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, aiding and abetting bad faith, legal malpractice, and punitive damages.  After the case transferred to Yavapai County, Ledbetter moved for summary judgment for lack of subject matter jurisdiction.  The trial court dismissed most of Warfield’s claims and granted Ledbetter’s motion for summary judgment for lack of subject matter jurisdiction.

On appeal, the Arizona Court of Appeals recognized that, because neither Warfield nor Ledbetter was a member of the Navajo Nation, jurisdiction presumptively lay in state court.  However, Ledbetter argued that the tribal court has exclusive jurisdiction over the claims because the Montana exceptions applied.  The court rejected this argument, holding that Montana never held that the tribal court has exclusive jurisdiction just because it establishes one of the Montana exceptions.  Rather, even if the tribal court has jurisdiction, it does not preempt state court jurisdiction unless it unduly infringes on tribal self-governance.  Because this case is between two non-Indians, the Arizona appellate court reasoned that the infringement test did not preclude state court jurisdiction.

§ 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 party usually[27] is required to exhaust all options in the tribal court prior to challenging tribal jurisdiction in federal district court.[28] If tribal options are not exhausted prior to bringing suit in federal court, the federal court will likely dismiss[29] or stay[30] 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 matter jurisdiction.[31] Thus, non-Indian parties can challenge the tribal court’s jurisdiction in federal court.[32] 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 ruling.[33] Ordinarily, a federal court should abstain from hearing the matter “until after the tribal court has had a full opportunity to determine its own jurisdiction.”[34]  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 parties.”[35]

After the tribal court has ruled on the merits of the case[36] and all appellate options have been exhausted,[37] the non-tribal party can file suit in federal court, whereby the question of tribal jurisdiction is reviewed under a de novo standard.[38] The federal court may look to the tribal court’s jurisdictional determination for guidance; however, that determination is not binding.[39] If the federal court affirms the tribal court ruling, the nontribal party may not relitigate issues already determined on the merits by the tribal court.[40]

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’s jurisdiction.”[41]  Second, 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 delay.”[42]  Third, where the primary issue involves an exclusively federal question, exhaustion of tribal remedies may not be mandated.[43]

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 year.[44]

Magee v. Shoshone Paiute Tribes of Duck Valley Reservation, 19-0697, 2020 WL 2468774 (May 11, 2020 D. Nev.): The Duck Valley Tribe brought suit against their CFO for financial impropriety in tribal court.  The CFO claimed sovereign immunity based on his status as a tribal employee and asked for the case to be dismissed for lack of subject matter jurisdiction.  The Tribal Court denied the motion and the Tribal Appellate Court refused to hear the appeal because the trial court’s order was merely interlocutory.  The CFO then sought an order from the federal district court prohibiting the tribal court from continuing the proceedings on the basis of a lack of jurisdiction.

The district court held that the CFO had not yet exhausted all tribal remedies, and therefore, dismissed the federal action.  Federal courts give broad latitude to tribal courts to exercise authority under their jurisdiction.  The CFO asserted that the tribal suit was commenced in bad faith, and, therefore, falls within the bad faith exception to exhaustion.  The district court clarified that bad faith applies only to the tribal court acting in bad faith, not the parties in litigation.  With no alternative justification to assert bad faith, the court concluded there was no relevant exhaustion exception.

Hanson v. Parisien, No. 19-0270, 2020 WL 4117997 (July 20, 2020 D.N.D.): In a dispute about whether a non-Indian contractor had to pay TERO fees for work performed on the reservation the North Dakota Supreme Court ultimately held that exhaustion of tribal court remedies required of tribal administrative remedies, as well as judicial remedies.  In this case, a non-Indian contractor obtained a letter from tribal legal counsel advising that it would not owe TERO fees on a bid for services, but the TERO office ended up issuing a fee anyway.  The non-Indian contractor contested the fee in tribal court and prevailed, but, on appeal, the Turtle Mountain Court of Appeals reversed and remanded the case to the TERO Commission.  At that point the non-Indian contractor filed a suit in federal court.

The federal court held that the Plaintiffs had not yet exhausted their tribal remedies and therefore it was premature for the suit to be brought in federal court.  The Court reasoned that tribal exhaustion applies to administrative, as well as judicial, proceedings and is mandatory.  The federal court reasoned that the non-Indian contractor must first exhaust their tribal administrative remedies before seeking redress in the federal court and emphasized that additional tribal proceedings would assist in developing the factual record for the case, as well as provide additional expertise from the Tribe.  Therefore, the court dismissed the instant action as premature until all tribal avenues—administrative or judicial—have been exhausted.

Hengle v. Asner, 433 F.Supp. 3d 825 (E.D. Va. 2020): This class action suit is based off several payday loan companies created by the Habematolel Pomo of Upper Lake, a federally recognized Native American tribe.  With the help of their attorneys, the Tribe set up several companies that issued small payday loans ($1,000) to qualified buyers.  The loans had unusually high interest rates that violated usury laws in many states.  Plaintiffs filed a class action suit in district court with counts including RICO claims, usury violations, and declaratory judgment relief to nullify the loans.

In this case, Defendants filed a motion to compel arbitration pursuant to the loan contracts.  In addition to the arbitration clause, Defendants sought to have the claims adjudicated in the “Tribal Forum” as specified in the contract.  Stemming from the Tribal Forum Clause, the Defendants claimed there was a lack of exhaustion of tribal remedies before filing suit in federal court.  Plaintiffs countered that there is no comparable claim in a tribal court, so comity cannot apply.

The court denied the motion to compel arbitration and denied the claim seeking tribal exhaustion.  The Court reasoned that there was no basis for tribal court jurisdiction over non-members for loans that existed outside of the reservation so exhaustion would serve no purpose other than delay.

Corporation of President of Church of Jesus Christ of Latter-Day Saints v. BN, No. 19-0062, 2019 WL 5423937 (Oct. 23, 2019 D. Utah): A law suit was brought in Navajo tribal court on behalf of a Navajo minor who alleged that she was injured while participating in the Indian Student Placement Program, which placed tribal members with church families so that they can attend school.  The Church claimed that there was no tribal jurisdiction, since none of the placements took place on the reservation.  It sought a writ of prohibition from the Navajo Nation Supreme Court, holding that it did not have sufficient information to determine jurisdiction because no trial court record had yet been created.

The Church then sought an order from the federal district court that the tribal court had no jurisdiction.  It claimed that it had first sought the order from the Navajo Nation Supreme Court and so it had exhausted its tribal court remedies.  The District Court disagreed.  It held that the Navajo Nation had not yet had an opportunity “to determine its own jurisdiction.” “At minimum, exhaustion of tribal remedies means that tribal appellate courts must have the [full] opportunity to review the determinations of the lower tribal courts,” which includes complete appellate review.  Because the Navajo Nation Supreme Court did not yet decide its jurisdiction, the Church had not exhausted its tribal court remedies.

Clements v. Confederated Tribes of Colville Reservation, No. 19-0201, 2019 WL 6051104 (Nov. 15, 2019 E.D. Wash.): A non-Indian business entered into a contract to install fiber optic cable for the Confederated Tribes of the Coleville Reservation.  The contract stipulated the tribal court would govern all disputes under the contract.  The business then “walked off” the job and the Tribe brought suit in tribal court seeking the return of funds advanced for incomplete work.  The tribal court denied a motion to dismiss for lack of jurisdiction and the non-Indian business filed in federal court seeking a declaration that the tribal court lacked jurisdiction over the subject matter.

The federal court held that the Plaintiff had not exhausted its tribal court remedies; it had merely lost a preliminary motion to dismiss.  It further reasoned that tribal court jurisdiction was colorable under the first Montana exception because there was a contract for services between the Plaintiff and the Tribe.  In this case, the Tribal Court had yet to make any determination on jurisdiction.  It therefore dismissed the complaint until exhaustion of tribal court remedies could be completed.

§ 1.3.3 Tribal Sovereignty & Sovereign Immunity

An axiom in Indian law is that Indian tribes are considered domestic sovereigns.[45] Like other sovereigns, tribes enjoy sovereign immunity.[46] As a result, a tribe is subject to suit only where Congress has “unequivocally” authorized the suit or the tribe has “clearly” waived its immunity.[47] The U.S. Supreme Court, in a 2008 decision, pronounced that tribal sovereign immunity “is of a unique limited character.”[48]  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 reservation.”[49]

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 reservation.”[50]

Tribal immunity generally shields tribes from suit for damages and requests for injunctive relief,[51] whether in tribal, state, or federal court.[52] Sovereign immunity has been held to bar claims against the tribe even when the tribe is acting in bad faith.[53]

Tribes enjoy the benefit of a “strong presumption” against a waiver of their sovereign immunity.[54] Moreover, federal courts have made clear that simply participating in litigation does not waive the tribe’s sovereign immunity.[55] Any waiver of tribal sovereign immunity “cannot be implied but must be unequivocally expressed.”[56]

Exactly what contract language constitutes a clear tribal immunity waiver is somewhat unclear.[57] The Supreme Court in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma[58] ruled that the inclusion of an arbitration clause in a standard-form contract constitutes “clear” manifestation of intent to waive sovereign immunity.[59] 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 clause.[60] 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 immunity.[61]

Finally, waivers of immunity must come from a tribe’s governing body and not from “unapproved acts of tribal officials.”[62]  Attorneys 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 year.[63]

**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 8.3.4.

Drake v. Salt River Pima-Maricopa Indian Community, 411 F. Supp. 3d 513 (D. Ariz. 2019): Plaintiff, patron of Defendant’s casino, alleged Defendant violated the Americans with Disabilities Act (“ADA”) by not allowing her to bring her service dog inside casino.  Defendant asserted tribal sovereign immunity and moved to dismiss the case.  The Court granted Defendant’s motion to dismiss.

Relying on the language of the ADA, the Court stated, “Congress did not clearly waive tribal immunity [under the ADA], but did so with respect to the states’ sovereign immunity, demonstrat[ing] that the [Tribe’s] immunity should remain intact.”

Eglise Baptiste Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Fla., 19-62591, WL 43221 (S.D. Fla. Jan. 3, 2020): On July 26, 2014, Plaintiff Eglise Church’s pastor died.  After his death, Co-Defendant Auguste (pastor’s wife) and the board of directors of the Church contended for church leadership.  Id.  On September 29, 2019, during a church service, co-defendant Auguste entered the church property with six officers from the Seminole Police Department, expelled the congregation, changed the locks and security system of the church, and began occupying the church.

Eglise Church filed suit against the Seminole Tribe alleging interference with business relationships and the Tribe moved for dismissal on the basis of sovereign immunity.  The federal district court dismissed the complaint on the basis of tribal sovereign immunity.  It explained, “absent some definitive language making it unmistakably clear that Congress intended to abrogate tribal sovereign immunity … Defendant Seminole Tribe is entitled to immunity from suit in the instant action.”

Caddo Nation of Oklahoma v. Wichita & Affiliated Tribes, 786 Fed. Appx. 837 (10th Cir. 2019): Plaintiff Caddo Tribe brought suit against Defendant Wichita Tribe for alleged violations of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).  Wichita was in the process of building a Tribal History Center funded by the Department of Housing and Urban Development (HUD).  The district court denied Caddo’s temporary restraining order preventing construction of the History Center.  On appeal, the Tenth Circuit Court of Appeals held it lacked jurisdiction because the History Center was completed during the pendency of the appeal.  Caddo then filed an amended complaint and Wichita filed a motion to dismiss, arguing Caddo’s claims were mooted by completion of the History Center and the claims were also barred by tribal sovereign immunity.  The district court held the claims were mooted by construction of the History Center and Caddo appealed to the Tenth Circuit.

The Tenth Circuit first examined Wichita’s assertion that Caddo’s claim was barred by sovereign immunity, reasoning that “a ruling in [Wichita’s] favor would fully resolve the appeal.  The Court then held that the Wichita Tribe was barred from asserting tribal sovereign immunity against claims under the Administrative Procedures Act because the Tribe “accept[ed] and assum[ed] HUD’s rights, duties, and obligations to act in conformity with NEPA and NHPA.  Thus, the tribe waiv[ed] its sovereign immunity for just the type of APA-based suit at issue in [the] case.” However, the Court found Caddo’s claims were moot because the History Center had already been completed.

Eyck v. United States, 19-4007, WL 2770436 (D.S.D. May 28, 2020): Plaintiffs are parents of Eyck, who was a passenger in a car pursued by South Dakota Highway Patrol, Moody County Sheriffs, and Flandreau Tribal Police Officers.  No one in the car was Indian and the chase took place off tribal land.  Defendant Neuenfeldt, Chief of Police for the Flandreau Santee Sioux Tribe, was assisting County Sheriff Deputies on non-tribally-owned land.  The car chase ended with an accident that caused Eyck severe injuries and medical bills.  The Plaintiff brought suit against the pursuers and Defendant Nuenfeldt claimed sovereign immunity.

Although Neuenfeldt argued that he was acting as the Tribe’s Chief of Police (and exercising inherent powers of the Tribe) during the car chase, the Court held that Neuenfeldt could not assert tribal sovereign immunity as a defense.  It explained that Neuenfeldt was not exercising inherent sovereign powers of the Tribe during the chase because all persons involved were non-Indians and the chase took place entirely off tribal land.

Gilbert v. Weahkee, No. 19-5045, 2020 WL 779460 (D.S.D. 2020): Plaintiffs—Native Americans residing in Rapid City, SD—challenged the decision of the Indian Health Service to enter into a self-determination contract with the Great Plains Tribal Chairmen’s Health Board.  The contract at issue permitted the Health Board, a non-profit organization, to operate portions of IHS’s facilities in Rapid City.  The Health Board was established “to make known the needs and desires of the Indian people for assistance of the [IHS] in formulating programs and establishing services [on behalf of the United States in accordance with treaty obligations].” Plaintiffs argued the contract with the Health Board violated the Fort Laramie Treaty of 1868 and the Indian Self-Determination and Education Assistance Act (ISDEDA).  Defendants filed a motion to dismiss, arguing Plaintiffs failed to join the Health Board, that the Health Board was an indispensable party that could not be joined due to sovereign immunity, and thus the case must be dismissed.  The Court determined the Health Board was a tribal organization entitled to sovereign immunity under ISDEDA.  The Court dismissed the case after determining the Health Board was an indispensable party that could not be joined due to its sovereign immunity.

Genskow v. Prevost, No. 19-1474, 2020 WL 1676960 (E.D. Wis. 2020): The Court held Plaintiff’s claim against the Tribe, related to her expulsion from a tribal meeting, was barred by tribal sovereign immunity because “the exercise of federal jurisdiction over the Oneida Nation’s ability to conduct [a] meeting of its governing body on its own land would be a blatant violation of its sovereignty.” Further, the Court held the tribal police officer who was asked to eject Plaintiff from the tribal meeting was entitled to sovereign immunity as an “arm or instrumentality of the state.” Finally, the Court ruled the Tribe did not waive its federal sovereign immunity when its tribal police department was deputized by a neighboring county sheriff office and as part of the agreement with the sheriff office “waive[d] [its] sovereign immunity to allow enforcement of liabilities [arising from acts of tribal police officers] in the courts of the State of Wisconsin.”

Holtz v. Oneida Airport Hotel, No. 19-1682, 2020 WL 2085287 (E.D. Wis. 2020): The Court granted Defendant hotel’s motion to dismiss Plaintiff’s employment discrimination claims because the hotel shared in the tribal sovereign immunity of the Oneida Nation when it was owned and operated by the Oneida Nation for the benefit of the Oneida Nation.

Kiamichi River Legacy Alliance v. Bernhardt, No. 19-0108, 2020 WL 1465885 (E.D. Okla. 2020): Environmental organization brought action against Secretary of Interior and multiple Indian Tribes alleging that parties to a tribal water settlement did not consult with U.S. Fish & Wildlife as required by the Endangered Species Act.  The Court held Congress did not expressly waive tribal immunity when passing the Endangered Species Act and granted Tribes’ motions to dismiss because the Tribes were entitled to sovereign immunity.

§ 1.3.4 Tribal Corporations

A majority of non-Alaskan tribes are organized pursuant to the Indian Reorganization Act of 1934 (IRA).[64] Under 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 structure.[65] 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 charter.[66]

Through Section 17 incorporation, the tribe creates a separate legal entity to divide its governmental and business activities.[67] The Section 17 corporation has a federal charter and articles of incorporation, as well as bylaws that identify its purpose, much like a state-chartered corporation.[68] Section 17 incorporation results in an entity that largely acts like any state-chartered corporation.[69]

An Indian corporation may also be organized under tribal or state law.[70] If 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 entity).[71] Under federal common law, the corporation likely enjoys immunity from suit.[72] 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 court.[73]

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 corporations.[74]

** Some Cases Dealing with Tribal Corporations are discussed in 8.3.3 because they deal with whether a Tribal Corporation may assert their tribe’s sovereign immunity

Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen in & for Cty. of Mohave, 458 P.3d 102 (Ariz. 2020): The Arizona Supreme Court set forth its first-ever test to determine whether an entity is a subordinate economic organization of a tribe and entitled to sovereign immunity.  The plaintiff in this case was a white-water rafter that was injured on a boat operated by Hwal’Bay Ba: J Enterprises, Inc., d.b.a.  Grand Canyon Resort Corporation (“GCRC”).  “GCRC is a tribal corporation whose sole shareholder is the Hualapai Indian Tribe.” The Court decided to grant review here to finally create a state standard to determine when “a tribal entity enjoys sovereign immunity as a ‘subordinate economic organization’ of the tribe,” since this is “a recurring issue of statewide importance.”

The six factors the Court settled on are: (1) The entity’s creation and business form, (2) the entity’s purpose, (3) the business relationship between the tribe and the entity, (4) the tribe’s intent to share immunity with the entity, (5) the financial relationship between the entity and the tribe, and (6) whether immunizing the entity furthers federal policies underlying sovereign immunity.  Applying the six factors to this case, the Arizona Supreme Court found that GCRC was not a subordinate economic organization of the Tribe.  Accordingly, GCRC did not have sovereign immunity.

Applied Scis. & Info. Sys., Inc. v. DDC Constr. Servs., LLC, No. 19-0575, 2020 WL 2738243 (E.D. Va. Mar. 30, 2020): The Navajo Nation’s governing body created the Dine Development Corporation (DDC), “a wholly-owned corporation of the Navajo Nation, to ‘facilitate economic development in and for the Navajo Nation and its citizens by, among other things, forming and assisting to capitalize subsidiary corporations.’” Pursuant to the Navajo Nation Limited Liability Company Act, DDC’s Board of Directors established a limited liability company, DDC 4C, which had a single member parent company—DDC—and “provide[d] construction development and management services, facilities operation and management services, and environmental remediation services.” The plaintiff sued DDC, claiming that it breached the parties’ settlement agreement and asset purchase agreement.

The court recognized that, unlike the tribe, “a tribally created entity is not given a presumption of immunity until it has demonstrated that it is in fact an extension or an ‘arm of the tribe.’” After extensive discussion of the purpose and history of the corporation the federal district court determined that the DDC was an arm of the tribe and, therefore, was immune from suit.  The Court placed special emphasis on the fact that DDC was created for the purpose of promoting tribal self-governance and economic development and that the Navajo Nation controls the Board and therefore has ultimate control of the corporation.

McCoy v. Salish Kootenai Coll., Inc., 785 F. App’x 414 (9th Cir. 2019): The Defendant in a civil action, the Salish and Kootenai Tribal College, claimed sovereign immunity from suit as an arm of the tribal government.  The district court found immunity proper and the Ninth Circuit affirmed.  The appellate court concluded that, while the fact that the College is incorporated under Montana law augers against immunity, all other factors weighed in favor of sovereign immunity because the tribe had “significant control over the College” and “the College is structured and operates for the benefit of” the tribe.

Cadet v. Snoqualmie Casino, No. 19-1953, 2020 WL 3469222 (W.D. Wash. June 25, 2020): Plaintiff brought suit against the Snoqualmie Casino, which was organized and operated under tribal laws and was “wholly owned and operated by the Tribe.” The court recognized that the tribe’s sovereign immunity would only extend to a tribal enterprise if that enterprise functioned as an arm of the tribe.

The court concluded that the Casino was an arm of the tribe and was “therefore immune from suit unless the Snoqualmie Tribal Council has expressly waived sovereign immunity.” The court came to this conclusion because “the Casino is owned and operated by the Tribe on tribal land, [] its purpose is to promote tribal prosperity by providing revenue for the Tribe, [and] the Tribe has intended to extend its sovereign immunity to its enterprises, including the Casino.”

In regard to a waiver of immunity, the Court concluded that the “waiver of sovereign immunity located within the Tort Claims Act does not unequivocally indicate that the Tribe has waived its immunity from suits filed in federal court; instead, the waiver provides a remedy to those who are harmed while on tribal grounds through the tribal court system.” Accordingly, the Casino, as an arm of the tribe, had “not unequivocally waived its sovereign immunity.”

Min Zhang v. Grand Canyon Resort Corp., No. 19-0124, 2020 WL 1000608 (C.D. Cal. Jan. 15, 2020): Plaintiff sued Hwal’bay Bay Enterprises, Inc., d.b.a. Grand Canyon Resort Corporation (“GCRC”).  GCRC was a wholly owned tribal corporation “organized under the laws and constitution of the Hualapai Tribe” and it filed a motion to dismiss by asserting sovereign immunity.

The district court held that GCRC was entitled to sovereign immunity as an “arm of the tribe.” The court explained that “GCRC was created solely under the laws of the Hualapai Indian Tribe as described by the Plan.” Further, GCRC’s purpose is “creating economic development opportunities for the Hualapai Indian Tribe through various commercial activities.” Having concluded that the tribal corporation was generally able to assert immunity the district court further held that despite the presence of a “sue and be sued” clause in a prior corporate charter, there is a “strong presumption against waiver of tribal sovereign immunity.” The court reasoned that the previous charter was “not operative in the Court’s determination of GCRC’s current status as an ‘arm of the tribe’ or its subsequent waiver of sovereign immunity.”

§ 1.4 The Federal Sovereign

§ 1.4 1 Indian Country & Land Into Trust

The IRA authorizes the Secretary of the Interior to take land into trust for the benefit of an Indian tribe’s reservation.[75] In 2009, however, the U.S. Supreme Court issued a landmark ruling reversing the Interior’s prior interpretation of the IRA, 25 U.S.C. § 465, now located at 25 U.S.C. § 5108, and limiting the Secretary’s ability to take land into trust on behalf of tribes.[76] Carcieri held that the Secretary may only acquire land in trust for tribes that (1) were “under federal jurisdiction” in 1934, and (2) currently enjoy federal recognition.[77] This effectively precludes certain tribes from avoiding state tax and regulatory compliance, or conducting gaming or other economic development activities on newly acquired or reacquired lands.

Despite the Carcieri ruling, Interior seems willing to issue final decisions on fee-to-trust applications by tribes that were recognized, restored, or reaffirmed after June 1934 on the basis that the tribe may have been under the jurisdiction of the United States in 1934 even if that recognition was not formally documented.[78] Interior will continue processing applications for tribes that have enjoyed uninterrupted, formal recognition since June 1934 and for tribes that can point to a non-IRA statute granting the Secretary acquisition authority.[79] In sum, any non-Indian party looking to enter into a joint venture with a tribe to develop Indian lands not yet in trust status must pause to consider the implications of Carcieri.[80]

In response to the Carcieri decision, in 2014, the Interior Department issued a Memorandum that provided guidance on the meaning of “under federal jurisdiction.”[81]  The Solicitor’s M-37029 Memorandum outlined a two-part test for interpreting the phrase “under federal jurisdiction.” The first part of this inquiry examines whether, before June 18, 1934, the federal government took an action or series of actions through a course of dealings or other relevant acts reflecting its obligation to, responsibility for, or authority over, an Indian tribe, bringing such tribe under federal jurisdiction.[82] The second prong examines whether this jurisdictional status remained intact in 1934.[83] Satisfying either prong will suffice to establish that the tribe was “under federal jurisdiction.” In a recent decision, Confederated Tribes of Grand Ronde Community of Oregon v. Jewell, the D.C. Circuit Court of Appeals upheld Interior’s application of the two-part test outlined in M-37029.[84] M-37029 appears to be a non-statutory Carcieri fix.

As if Carcieri were not complicated enough, in 2012, the U.S. Supreme Court issued its opinion in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.[85] In that case, a local landowner by the name of David Patchak launched a legal challenge against the Interior Secretary’s decision to take the tribe’s land into trust for the purpose of gaming.  Importantly, Patchak did not allege that he had a legal interest in the land to be taken into trust.  Rather, Patchak brought an action under the APA[86] asserting that the IRA did not authorize the Department of Interior to take land into trust for the tribe.  The remedy Patchak sought was the issuance of an injunction prohibiting Interior from taking the land into trust.  The basis for the injunction, in Patchak’s opinion, was that the requirements of the IRA were to be satisfied per the Supreme Court’s opinion in Carcieri.  Both the federal government and the tribe argued that only the Quiet Title Act (QTA)[87] could grant the waiver of sovereign immunity.  Under the theory advanced by the defendants, the APA waiver of sovereign immunity was negated.

The Court determined that the QTA only applies to quiet title actions where a person claims an interest in the property that conflicts with, or is superior to, the government’s claim in the property.[88] In addition, because the exception causing the APA waiver of sovereign immunity to be negated did not apply, the Court held Patchak had standing under the APA to pursue his challenge.

The result of this decision is that any party claiming harm to property nearby proposed trust land, even damage to an “aesthetic” interest, has legal standing under the APA to bring a lawsuit.  This creates considerable risk for casino developers because the statute of limitations under the APA is considerably longer than that of the QTA, creating much more time for a party to challenge Interior’s trust transaction.[89]

The Interior Department revised its land-into-trust regulations at Part 151 in response to the Patchak decision during the Obama Administration, in late 2013.[90] This “Patchak Patch” provides that if the Interior Secretary or Assistant Secretary approves a trust acquisition, the decision represents a “final agency determination” subject immediately to judicial review.[91] If a BIA official issues the decision, however, the decision is subject to administrative exhaustion requirements[92] before it becomes a “final agency action.”[93]  In this instance, parties must file an appeal of the BIA official’s decision within 30 days of its issue.[94] If no appeal is filed within the 30-day administrative appeal period, the BIA official’s decision becomes a “final agency action.” In October 2017, the Trump Administration’s Interior Department announced a consultation regarding a rulemaking that would reverse the “Patchak Patch,” and impose much newer criteria for off-reservation land-into-trust applications.  Assuming that rulemaking results in new Part 151 regulations, litigation will certainly follow.

A brief discussion of several of the year’s most prominent cases involving the diminishment of an Indian reservation and/or the taking of land into trust follow:[95]

** See the U.S. Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma holding that the Muscogee (Creek) Reservation was not diminished in 8.2.1.

Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020): In 2015, the Bureau of Indian Affairs (“BIA”) approved the Mashpee Wampanoag Indian Tribe’s (the “Tribe”) land-into-trust application for two parcels of land in Massachusetts.  The BIA concluded the Tribe was eligible to have land taken into trust under the Indian Reorganization Act.  Local non-tribal residents challenged the decision.  The federal district court found that the definition of Indian in the IRA is unambiguous and refers to the entire phrase “members of any recognized Indian tribe now under Federal jurisdiction,” and remanded the application to the BIA.

The First Circuit affirmed the decision, concluding that the Secretary did not have the authority to take the land into trust for the benefit of the Tribe.  Using the principles of statutory interpretation, focusing on the plain meaning, the Court found that “such” refers to the entire phrase including “now under federal jurisdiction.” The Court reasoned that the text lacks a natural break or connector like “or” that would suggest that “such” refers only to a portion of the phrase.  The Tribe argued that, in other cases, the Court found the word “such” to be ambiguous.  But the Court refused to adopt a per se rule for the word “such” because it reasoned that ambiguity depends on context.

Mashpee Wampanoag Tribe v. Bernhardt, No. 18-2242, 2020 WL 3037245 (D.D.C. June 5, 2020): Interior approved the Mashpee Wampanoag Tribe’s land-into-trust application for two areas of land in Massachusetts based on the second definition of “Indian” in the Indian Reorganization Act (“IRA).  The decision was challenged by local non-tribal residents, and the district court found that the Tribe’s members were not “Indian” under the second definition unless they also qualified under the first.  The court remanded the application to the Secretary.  The Secretary decided in 2018 (“2018 Decision”) that the Tribe did not qualify as “Indian” because they were not under federal jurisdiction in 1934.  The Tribe challenged the 2018 Decision, arguing it was arbitrary, capricious, and an abuse of discretion and contrary to law.

The federal district court agreed with the Tribe and remanded the application to the Secretary to reassess.  The Court noted that the 2018 Decision the Secretary repeatedly reasoned that specific pieces of evidence “in and of itself” did not establish federal jurisdiction.  The Court found that this analysis directly contradicts the Solicitor’s M-Opinion, which states that evidence “when viewed in concert” with other probative evidence may support a finding of federal jurisdiction.

Stand Up for California! v. U.S. Dep’t of Interior, 410 F. Supp. 3d 39 (D.D.C. 2019): The Wilton Rancheria Tribe of California submitted a land-into-trust application for land in Elk Grove, California to be used for a casino.  Residents of Elk Grove and an advocacy organization (collectively “Stand Up”) challenged the Bureau of Indian Affairs on five counts.  The Court addressed the first two counts in a different case, finding that the Department had the authority to take the land into trust.  The BIA then accepted Wilton’s application.  The Court addressed the remaining three counts in this case.

A brief history of Wilton is necessary to understand the case.  In 1958, under the California Rancheria Act, the government distributed rancheria lands to various tribes, including Wilton, and then terminated them.  Then in 1994, Congress enacted the Federally Recognized Indian Tribe List Act (“List Act’) which repudiated those terminations and authorized the Secretary to decide whether previous federal recognition supports current recognition.  In 2009, the Department and Wilton entered a stipulated judgment in court that restored Wilton as a federally recognized tribe.

The Court quickly dismissed Count III finding that the plain language of the Stipulated Judgment restored Wilton’s status to what it was before the CRA, meaning Wilton qualified as “Indian” under the Indian Reorganization Act.  For Count IV, Stand Up argued that Wilton could not qualify as a “restored tribe” and Elk Grove could not qualify as a “restored land” to meet the Indian Gaming Regulatory Act (“IGRA”) “restored land” exception.  The Court easily found Wilton qualified as a “restored tribe” based on its previous federal recognition, CRA termination, and Stipulated Judgment restoration.  The Court also found that Elk Grove qualified as a “restored land” because it met all three criteria required in the IGRA.  First, Elk Grove was in the same state as Wilton.  Second, Wilton demonstrated a significant historical connection to Elk Grove by showing it was previously occupied by ancestors of Wilton members, is near historic village sites, and is within a few miles of the last reservation and a historical burial site.  Third, Wilton demonstrated a temporal connection between the date of acquisition and restoration in two independently sufficient ways.  First, Wilton included Elk Grove in its “first request for newly acquired lands” since restoration, and second, Wilton’s application for Elk Grove was submitted within 25 years of restoration.

Finally, Count V challenged the Department’s compliance with the National Environmental Policy and the Administrative Procedure Act.  The Court found that the Department complied with the NEPA when it detailed water analysis and mitigation measures, went beyond NEPA requirements to address public safety risks for a nearby propane facility, and addressed the need for a parking structure and its environmental impacts.  As for the APA, the Court noted it was suspicious that Interior made its decision within 40 hours but found no evidence of bad faith.  The Court accordingly affirmed the right of Interior to take the land into trust for the benefit of the Tribe.

Cherokee Nation v. Bernhardt, No. 12-0493, 2020 WL 1429946 (N.D. Okla. Mar. 24, 2020): The Cherokee Nation of Oklahoma and Cherokee Nation Entertainment, LLC, the Nation’s gaming enterprise, challenged the Assistant Secretary of Indian Affairs of the Department of the Interior’s decision to take a little over two acres of land in Oklahoma into trust for gaming purposes for the benefit of the United Keetoowah Band of Cherokee Indians (the “UKB”).

The Indian Gaming Regulatory Act (“IGRA”) generally bans gaming on lands taken into trust unless an exception permits the land acquisition.  One exception is if the tribe has no reservation and the lands are in Oklahoma “within the boundaries of the Indian tribe’s former reservation, as defined by the Secretary.” The Secretary promulgated a regulation defining “former reservation” as “lands in Oklahoma that are within the exterior boundaries of the last reservation that was established by treaty, Executive Order, or Secretarial Order for an Oklahoma tribe.” Here, the Secretary read the IGRA to give him the authority to determine the existence of a former reservation.  Thus, although the Secretary had previously recognized that the same land was the former reservation of the Nation, he concluded that it was also the former reservation of the UKB.

The Court held, among other things, that the Secretary’s determination was arbitrary and capricious.  The Court reasoned that the plain language of the IGRA gives the Secretary the authority to determine only the boundaries of the former reservation, not the existence of a former reservation.  The Court further reasoned that, even if it accepted the Secretary’s interpretation, because no reservation had ever been established by treaty, Executive Order, or Secretarial Order for the UKB the land cannot have been its former reservation.  Therefore, Court would have found that the Secretary abused his discretion because he ignored his own regulation.

Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt, No. 18-2035, 2020 WL 1065406 (D.D.C. Mar. 5, 2020): The Sault Ste. Marie Tribe of Chippewa Indians submitted a land-into-trust application to the Department of the Interior for parcels of land in Michigan to develop a casino.  The basis of the application was the Michigan Indian Land Claims Settlement Act (“MILCSA”).  Section 108 of this Act directs the Secretary to transfer the Tribe’s share of damages from lands stolen in the 1800s into a Self-Sufficiency Fund, notes that the Secretary has no responsibility for the use of the Funds nor does use require the Secretary’s approval, and that the Secretary shall take any land into trust that the Tribe acquires using the Fund.  Section 108 also deems the Tribe’s board of directors the “trustee” of the Fund to administer it for one of the listed purposes including for “enhancement of tribal lands.”  The Department denied the Tribe’s application because it found that the Tribe did not establish that the land would be used for the “enhancement of tribal lands.” The Tribe challenged the Department’s authority to decide if the land was acquired for a proper purpose.

The Court found that Congress vested the Tribe’s leaders, rather than the Department, with the power to determine whether the land was acquired for a permissible purpose under the MILCSA.  The Court reasoned that the plain language of Section 108 required the Secretary to take the lands the Tribe acquired with the Fund into trust and left no room for discretion.

Independently sufficient, the Court found that the Tribe acquired the land for “enhancement of tribal lands.”  The Court reasoned that the Department erroneously interpreted “enhancement” as only an increase in value of landholdings rather than an increase in value or amount.  However, the Court refused to order the Department to take the Tribe’s land into trust because the Department had not yet determined whether the Tribe acquired the land with Fund income.  Therefore, the Court set aside the Department’s decision and remanded it for a determination as to the income question.

§ 1.4.2 Federal Approval for Reservation Activity

Due to the unique trust status of Indian lands, contracts involving those lands are subject to various forms of federal oversight.  The Secretary of the Interior must approve any contract or agreement that “encumbers Indian lands for a period of seven or more years,” unless the Secretary determines that approval is not required.[96]  Federal regulations explain that “[e]ncumber means to attach a claim, lien, charge, right of entry, or liability to real property.”[97]  Encumbrances may include leasehold mortgages, easements, and other contracts or agreements that, by their terms, could give to a third party “exclusive or nearly exclusive proprietary control over tribal land.”[98]

Per Section 81’s year 2000 revisions, the Interior Secretary will not approve any contract or agreement if the document does not (1) set forth the parties’ remedies in the event of a breach; (2) disclose that the tribe can assert sovereign immunity as a defense in any action brought against it; and (3) include an express waiver of tribal immunity.[99]  Leaseholds for Indian lands, which typically run 25 years, also require secretarial approval.[100]  Failure to secure secretarial approval could render the agreement null and void.[101]  Therefore, if the transaction implicates tribal lands, counsel should analyze whether the Secretary must approve the underlying contract or lease.[102] Regardless of whether Secretary approval is necessary, all parties should be careful how they draft agreements which may encumber the land.[103] If the contract pertains to a tribal casino, the parties must also consider whether the contract should be submitted to the National Indian Gaming Commission (NIGC) for approval pursuant to the Indian Gaming Regulatory Act (IGRA).[104]  Any “management agreement” for a tribal casino or “contract collateral to such agreement” requires NIGC approval to be valid and enforceable.[105]  The NIGC has recently found that certain consulting, development, lease, and financing documents that confer management authority to the consultant, developer, landlord, or lender thereby constitute a management contract that is void unless approved by the NIGC.

Non-Indian contractors must also consider whether they need to obtain an Indian Traders License from the BIA and/or a tribal business license to properly do business with a tribe.[106]  Federal regulations do not preclude certain tribes from imposing additional fees on non-Indian contractors.[107]  Failure to obtain appropriate licenses could subject the contractor to a fine or forfeiture, if not tribal qui tam litigation.[108]

With much tribal and media fanfare, in 2012, President Obama signed into law the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act.[109] As noted above, prior to the passage of this bill, under 25 U.S.C. § 415 every lease of a tribe’s lands must undergo federal review and approval by the Secretary of the Interior under a sprawling, burdensome set of regulations.[110] The HEARTH Act changes that scheme of Indian land leasing by allowing tribes to lease their own land.  The Act gives tribal governments the discretion to lease restricted lands for business, agricultural, public, religious, educational, recreational, or residential purposes without the approval of the Secretary of the Interior.  Tribes are able to do so with a primary term of 25 years, and up to two renewal terms of 25 years each (or a primary term of up to 75 years if the lease is for residential, recreational, religious, or educational purposes).

There are some caveats, though.  First, before any tribal government can approve a lease, the Secretary must approve the tribal regulations under which those leases are executed (and mining leases will still require the Secretary’s approval).  Second, before the Secretary can approve those tribal regulations, the tribe must have implemented an environmental review process—a “tribal,” or “mini” National Environmental Policy Act—that identifies and evaluates any significant effects a proposed lease may have on the environment and allows public comment on those effects.  The HEARTH Act authorizes the Interior Secretary to provide a tribe, upon the tribe’s request, with technical assistance in developing this regulatory environmental review process.  HEARTH Act implementing regulations went into effect in 2013.[111]  As of October 2018, the BIA lists twenty-six tribes whose regulations have been approved to exercise the enhanced rights of sovereignty associated with taking control over the leasing of tribal land.[112]

The following highlights several of the more relevant cases decided in the last year.[113]

State v. Ysleta Del Sur Pueblo, 955 F. 3d 408 (5th Cir. 2020): The Attorney General, on behalf of the State of Texas, brought action against federally recognized Indian tribe, the Yselta del Sur Pueblo, seeking to enjoin the tribe from operating certain gaming activities.  This case posed the question which federal law governs the legality of the Pueblo’s gaming operations—the Restoration Act (which bars gaming that violates Texas law) or the Indian Gaming Regulatory Act (which establishes Federal standards for gaming on Indian lands).  The Court concluded that the Restoration Act controls.  In 1987, Congress passed, and President Reagan signed, the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act.  But the Pueblo’s “restoration” came with a catch: In exchange for having its federal trust status restored, the Pueblo agreed that its gaming activities would comply with Texas law.  Not all tribes fall under the Restoration Act, many tribes conduct gaming operations under the less restrictive Indian Gaming Regulatory Act (IGRA).

The Fifth Circuit affirmed the district court’s conclusion that the Restoration Act governs gaming by the relevant Tribe.  As held in Ysleta I, Texas gaming law “functions as surrogate federal law” on the land of Restoration Act tribes.  Therefore, the Pueblo are subject to Texas’ regulations.  The Restoration Act governs the legality of the Pueblo’s gaming activities and prohibits any gaming that violates Texas law.

§ 1.4.3 Labor and Employment Law & Indian Tribes

When Indian tribes act as commercial entities and hire employees, they are not subject to the same labor and employment laws as nontribal employers.  For example, state labor laws and workers’ compensation statutes are inapplicable to tribal businesses.[114] Moreover, tribal employers may not be subject to certain federal labor and employment laws.[115]

Tribal employers are ordinarily exempt from antidiscrimination laws.  Both Title VII of the Civil Rights Act of 1964[116] and the Americans with Disabilities Act[117] expressly exclude Indian tribes,[118] and state anti-discrimination laws usually do not apply to tribal employers.[119] In addition, tribal officials are generally immune from suits arising from alleged discriminatory behavior.[120]

The circuits remain severely split regarding the application of federal regulatory employment laws to tribal employers.  The Eighth and Tenth Circuits have refused to apply to tribes such laws as the Occupational Safety and Health Act (OSHA),[121] the Employee Retirement Income Security Act (ERISA),[122] the Fair Labor Standards Act (FLSA),[123] the National Labor Relations Act (NLRA),[124] and the Age Discrimination in Employment Act (ADEA),[125] because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance.[126]

Conversely, the Second, Seventh, and Ninth Circuits have applied OSHA and ERISA to tribes.[127] Moreover, the Seventh and Ninth Circuits lean toward application of FLSA to tribes.[128] These circuits reason that, because Indian tribes are not explicitly exempted from these statutes of general applicability, the laws accordingly govern tribal employment activity.[129] Following this reasoning, the Department of Labor has stated that the FMLA[130] applies to tribal employers.[131] However, aggrieved employees may experience difficulty enforcing federal employment rights due to the doctrine of sovereign immunity.[132] For example, the Second Circuit has held that, because Congress did not explicitly authorize suits against tribes in the language of the FMLA or the ADEA, tribal employers cannot be sued for money damages in federal court by employees under these statutes.[133]

Questions remain concerning whether federal statutes of general applicability extend beyond the labor and employment arena where they do not affirmatively contemplate whether Indian tribes govern tribal or reservation-based activities.  For example, do federal franchise laws apply in Indian Country? What about the federal Copyright Act or other federal intellectual property statutes? What about Sarbanes-Oxley? While subject to the split in circuits discussed immediately above, it is unclear in which federal jurisdictions a court would hold that such federal laws apply to tribes.[134]

In the last year, federal courts have continued to decide cases involving the application of federal labor and employment rules to tribal employers.  More generally, courts have grappled with how to apply statutes of general applicability to tribal sovereigns.  Several of the most prominent cases from the last year are discussed below:[135]

Tsosie v. Arizona Public Service, No. SC-CV-03-15, 2020 WL 3265425 (Navajo 2020).  The Arizona Public Service (“APS”) terminated Eldon Tsosie from his employment at the Four Corners Power Plant, a coal-fired generating plant located on trust land within the Navajo Reservation.  APS had a lease with the Navajo Nation for the development of the plant subject to the Four Corners Generating Preference Plan for hiring Native Americans.  The Preference Plan included provisions on selection, goals, training, recruiting, advertising, and dispute resolution, and was approved by the Navajo Nation Council.  The Preference Plan required any employment concerns to be resolved by an “Advisory Committee” having at “least two members of the Navajo Nation government.”

Tsosie filed a Complaint with the Navajo Nation Labor Commission “claiming APS terminated his employment…in violation of the Navajo Preference in Employment Act (“NPEA”).”  The NPEA requires employers provide “just cause” when terminating employees.  After unsuccessful settlement negotiations, the NNLC granted APS’s Motion to Dismiss, noting the Council had the authority to approve the alternative dispute process; Four Corners Generating Preference Plan.

Tsosie appealed and the Supreme Court of the Navajo Nation relied on the “Navajo Fundamental Law” to conclude the Council had the duty and authority to approve the lease and its amendments with APS.  The Supreme Court noted employment is “central to living a good life”; therefore, “the duty and authority to legislate or regulate employment relationships cannot be delegated or handed over wholesale to a non-Navajo entity.”  The Court reasoned that the Council “did not waive Navajo law but approved an alternative process…in adherence with Navajo law.”  Ultimately, the Court affirmed the Labor Commission’s dismissal because “the Council found a viable solution to ensure the Four Corners’ operation for jobs and economic development for the Navajo people,” in adherence to Navajo Fundamental Law.

Wilhite v. Littlelight, No. 19-0020, 2020 WL 1332231 (D. Mont. 2020):  Tammy Wilhite was fired from the Awe Kualawaache Care Center where she worked as a registered nurse.  The Care Center, owned by the Crow Tribe of Indians, “is a long-term nursing facility that provides 24-hour medical services exclusively to members of the Crow and Northern Cheyenne Tribes,” and operates under a “638 contract” between the Tribe and the federal government.  The contract provides for tribal administration of programs previously operated by the Bureau of Indian Affairs.

A patient confided in Wilhite that he was molested while being transported, allegedly by an individual related to Defendant Catolster.  Wilhite reported the incident to Catolster, but no action was taken, so Wilhite reported the incident to law enforcement.  After an investigation, the Montana Department of Public Health and Human Services substantiated the allegations in a report, which was made available to Catolster.  Wilhite was then terminated.  Wilhite subsequently brought this suit for wrongful termination alleging that she was fired for reporting “patient abuse to law enforcement.”

Wilhite’s initial claim was dismissed on the basis of sovereign immunity, and she filed a second action under the Federal Tort Claims Act directly against the individuals involved in the decision to terminate her employment.  The Defendants filed two motions to dismiss, arguing first that “Wilhite failed to state a claim upon which relief can be granted because her claim [was] barred by the [FTCA],” and, second, that the claim was “precluded by the doctrine of res judicata.”

The federal district court denied both motions.  It first held that the Defendant did not follow the proper procedure for invoking immunity FTCA and there was no basis to sustain the motion to dismiss for failure to state a claim.  The court then concluded that Wilhite’s first case was dismissed on the basis of sovereign immunity and so did not reach the merits required to qualify as preclusive.  The court relied on the Ninth Circuit’s two-part test to determine whether a Tribal employee’s actions are covered by the FTCA, which stated “first…courts must determine whether the alleged activity is…encompassed by the relevant federal contract or agreement,” and “[s]econd, courts must decide whether the allegedly tortious action falls within the scope of the tortfeasor’s employment under state law.” Because the previous ruling did not adequately address these issues, the Defendants’ motion was denied.

Janiver v. Seminole Hard Rock Hotel Casino, No. 19-62204, 2020 WL 509997 (S.D. Fla. 2020):  This claim arose from a complaint purporting to “allege a cause of action for employment discrimination based on race and national origin under Title VII.”  The Plaintiff alleged that, in response to her interest in a customer service representative position with the Seminole Tribe, an employee in human resources told her she “can only work in the back to do dishes” because she was Black and from Haiti.  The Plaintiff brought a suit against the Seminole Hard Rock Hotel Casino, which was removed to the District Court for the Southern District of Florida.  The Defendant filed a motion to dismiss because the proper defendant was the Seminole Tribe of Florida.

The Court granted the dismissal.  It held that the Seminole Tribe “is a federally recognized Indian tribe exempt from suit under Title VII” and that the Tribe did not waive immunity so there was no subject matter jurisdiction.  The Court also explained that the Plaintiff “failed to allege that she properly and timely exhausted her administrative remedies prior to filing the suit,” which is required before bringing an action under Title VII, “and that Plaintiff’s Complaint otherwise failed to state an actionable claim.” In denying the Plaintiff’s Motion to Reopen the Case, the court reiterated that Title VII does not apply to Indian tribes so there is no subject matter jurisdiction.

Thurmond v. Forest County Potawatomi Community, No. 18-1047, 2020 WL 488864 (E.D. Wis. 2020):  The Plaintiff filed a complaint against the Forest County Potowatomi Community and several employees of the Potowatomi Bingo Casino, alleging “the defendants discriminated against him based on his race and his verbal tic.” The defendants filed a motion to dismiss the complaint for failure to state a claim because “federal laws don’t apply to Indian tribes or their employees.”

Although it was unclear in the complaint, the court assumed that the Plaintiff was alleging either a violation of his civil rights under 42 U.S.C. § 1983, a violation of Title VII, or a violation of the Americans with Disabilities Act (the “ADA”).  As to the § 1983 claim, the court noted the Plaintiff can only sue the Defendants if they were “acting under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” The court rejected this argument because the Defendants were “a sovereign Indian tribe and employees of that tribe” and were not employees of Wisconsin, of a territory, or of the district.  Furthermore, the Court recognized “an Indian tribe is not a ‘person’ subject to suit under § 1983.”

As to the Title VII claim, the court noted a person cannot sue an Indian tribe for violating Title VII, “even if the tribe discriminated against him in his employment based on his race,” because Title VII specifically says, “the term ‘employer’…does not include…an Indian tribe.”  The court further noted “a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer.”

Finally, as to the ADA claim, the court noted the ADA specifically excludes Indian tribes from the definition of employer, and that “individuals who do not otherwise meet the statutory definition of ‘employer’ cannot be held liable under the ADA.” As such, even if the plaintiff was discriminated against based on a disability, he “cannot state an ADA claim.”

§ 1.4.4 Federal Court Jurisdiction

Federal court jurisdiction is limited to cases that invoke a federal court’s limited subject matter jurisdiction.  Such cases may involve a federal question[136] or claims that are brought involving diversity of citizenship.[137] Litigation that arises from a deal with a federally recognized tribe, or otherwise has federal overtones, does not necessarily present a federal question that will allow a federal district court to assume jurisdiction,[138] nor does the possibility that a tribe may invoke a federal statute in its defense confer federal court jurisdiction.[139] Moreover, courts have generally held that a tribe is not a citizen of any state for diversity purposes and, therefore, cannot sue or be sued in federal court based on diversity jurisdiction.[140] However courts are split on whether a business incorporated under federal statute, state law, or tribal law can qualify for diversity jurisdiction.[141] Because the potential judicial forums for commercial litigation arising out of Indian Country are likely restricted to state or tribal court, choosing federal court as the choice of venue may not make sense.

The following highlights several of the more relevant cases decided in the last year.[142]

Landreth v. United States, 797 F. App’x 521 (Fed. Cir. 2020):  Plaintiff Landreth brought an action against the United States as a trustee for the Quinault Indian Nation.  The Tribe had allegedly been asserting jurisdiction and control over Lake Quinault, forcing out the public owners, and restricting all uses of the lake for non-tribal members.  Landreth brought claims for deprivation of property rights by the Tribe’s trespassory actions, conversion of Lake Quinault, tortious interference with property, private nuisance, violations of the U.S. Constitution, and violations of various federal and Washington state laws.  The government filed a motion to dismiss for lack of subject matter jurisdiction, which the Claims Court granted.

The Federal Circuit affirmed.  It held that Landreth’s complaint failed to allege a taking by the United States sufficient to confer Tucker Act jurisdiction on the Claims Court because the complaint failed to mention the Takings Clause of the Fifth Amendment.  The court found that every alleged wrongful act was committed by the Tribe, not the United States, and the complaint did not allege sufficient facts to establish the responsibility of the United States for actions taken by the Tribe.  While there is a “general trust relationship between the United States and the Indian people,” Landreth did not demonstrate why the United States, as trustee, should be liable for the alleged wrongful acts of the Tribe.  Even if the United States was responsible for the alleged wrongful acts of the Tribe, the Federal Circuit held that the complaint failed to allege a valid takings claim under the Fifth Amendment.

Gila River Indian Cmty. v. Cranford, No. 19-0407, 2020 WL 2537435 (D. Ariz. May 12, 2020):  The Gila River Indian Community (“GRIC”) alleged that the defendants unlawfully irrigated their lands with well water from the Gila River, in derogation of GRIC’s rights.  GRIC’s complaint asserted four separate bases for jurisdiction, including subject-matter jurisdiction under 28 U.S.C. §§ 1362 and 1331.  The defendants filed a Rule 12(b)(1) motion to dismiss for lack of jurisdiction.

The federal district court found jurisdiction to be proper. § 1362 provides that district courts have original jurisdiction over “all civil actions, brought by any Indian tribe or band with a governing body duly recognized . . . wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Claims brought by a tribe to protect its federally derived property rights, including “possessory rights of the tribes to tribal lands” granted and governed by federal treaties and laws, are within the scope of § 1362.  The Court concluded that GRIC’s claims for water rights, rights which are held in trust by the United States and derived from federal law, are within the scope of § 1362.

The district court further held that § 1331 also conferred federal jurisdiction over the action.  It reasoned that a case brought by an Indian tribe to protect its water rights would “nearly always require recourse to federal law” as “[t]ribal water rights are created by the federal government and rooted in federal law.” Because the GRIC’s rights to the land, and the water rights appurtenant to the land, were granted and governed by federal law, the Tribe’s claim raised a federal question.

Leachmand v. United States, No. 19-0082, 2020 WL 1511262 (D. Mont. Mar. 30, 2020):  Members of the Fort Peck Indian Reservation brought a civil case in Fort Peck Tribal Court for breach of contract and other claims.  The tribal trial court ruled in favor of the tribal members, but the Tribal Court of Appeals reversed, finding that the tribal trial court had violated the appellee’s rights to due process and equal protection.

The tribal members then filed a claim in federal court under the Federal Tort Claims Act against the United States (“Government”) because the federal Bureau of Indian Affairs funded the Fort Peck Tribal Court.  The Government filed a motion to dismiss for lack of subject matter jurisdiction and the federal district court dismissed the complaint with no leave to amend.

The Court explained that, even if there was subject matter jurisdiction over the Government to hear the claims, the complaint had to be dismissed because Montana, the state in which the underlying contract dispute arose, recognized judicial immunity for members of the judiciary “for damages arising from the lawful discharge of an official duty associated with judicial actions of the court.” Thus, Montana’s judicial immunity would bar Plaintiffs from pursuing monetary damages against a federal judicial officer acting in their official capacity.  Here, even if the Government set up, funds, and administers the Fort Peck Tribal Court, the Tribal Court judge was protected by judicial immunity.  Given that the United States was exempt from suit under the theory of sovereign immunity and the Tribal Court judge had judicial immunity, the district court dismissed the case for lack of subject matter jurisdiction.

Cherokee Nation v. Dep’t of Interior, No. 19-2154, 2020 WL 224486 (D.D.C. Jan. 15, 2020):  This case arose from the Cherokee Nation’s request for an accurate accounting of its Trust Funds held by the Department of the Interior and other federal defendants (collectively, the “Government”).  The Government filed a motion to dismiss on jurisdictional grounds, arguing that sovereign immunity barred the lawsuit and that the Nation failed to set forth any relevant federal statutes for its claims.  The district court denied the Government’s motion, finding the Nation had met its burden at this stage of the litigation.

The Court found that there was federal question jurisdiction under 28 U.S.C. § 1331 because district courts have original jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States.  The D.C. Circuit has consistently interpreted the United States’ duties regarding Indian trust accounts “in light of the common law of trusts and the United States’ Indian policy” and that this case specifically involved trust accounting claims under statute, common law, and the Administrative Procedure Act (“APA”).  The Court further recognized that § 702 of the APA waived the Government’s immunity from actions when the requested relief is nonmonetary.  Accordingly, the Court found it had subject matter jurisdiction over the suit.

Ysleta Del Sur Pueblo v. City of El Paso, 433 F. Supp. 3d 1020 (W.D. Tex. 2020):  The Ysleta Del Sur Pueblo (“Pueblo”), a federally recognized Indian tribe, sought judicial confirmation of the Pueblo’s title to certain real property in Texas, claiming that the 1751 Spanish Land Grant vested ownership rights in the Pueblo.  Pueblo asked the Court to enter declaratory judgment that the City of El Paso had no estate, right, title, or interest in the property at issue.  The City filed a motion for summary judgment, which the district court construed as a motion to dismiss for lack of subject-matter jurisdiction and a motion for summary judgment in the alternative.

Pueblo asserted that the Court had subject-matter jurisdiction under 28 U.S.C. § 1331 and under § 1362 for civil lawsuits brought by Indian tribes.  The court held that § 1362 would provide a jurisdictional basis for a tribe’s claims only if the claims satisfied the “arising under” requirement of § 1331.  Pueblo invoked the Treaty of Guadalupe Hidalgo for their suit, asserting that the right to the property at issue derived from the 1751 Spanish Land Grant that was allegedly “recognized by federal law, and the laws of Spain and Mexico, and preserved by the United States in the Treaty of Guadalupe Hidalgo.”

The Court ruled that the claim did not raise a federal question because (1) the cause of action was not based on federal law, but rather state law; and (2) the Pueblo’s asserted right to the property at issue was not a federally derived right with a substantial federal issue.  Because an action to quiet title is rooted in state law, and the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction.

Kangarlou v. Locklear, No. 18-2286, 2019 WL 5964008 (D. Nev. Nov. 13, 2019): Locklear, a member of the Lumbee Tribe of North Carolina, assaulted Kangarlou on the gaming floor of the Mirage Casino while he was attending a conference on behalf of the Lumbee Land Development, Inc. Kangarlou sued Locklear for assault and battery and sued the Lumbee Tribe (a non-federally recognized Tribe), Lumbee Land Development, Inc., and Lumbee Tribe Holdings, Inc. for negligence.

The district court held that “the presence of an unincorporated tribe destroys diversity.” Because an unincorporated Indian tribe is not a citizen of any state under 28 U.S.C. § 1332(a)(1), a tribe cannot sue or be sued in diversity “because they are not citizens of any state.” However, if an Indian tribe incorporates, it “may have state citizenship for diversity of citizenship purposes.  As “the parties are not diverse within the meaning of § 1332(a)(1) because an Indian tribe is not a citizen of any state,” there is not complete diversity of the parties.  Thus, because Kangarlou joined the unincorporated Lumbee Tribe in this suit, diversity was destroyed, and the complaint was dismissed with leave to amend.

Toahty v. Kimsey, No. 19-01308, 2019 WL 5104742 (D. Or. Oct. 11, 2019):  Pro se plaintiff Toahty brought a case for sexual misconduct, sexual harassment, and retaliation against Kimsey, the Tribal Employment Rights Ordinance Division’s Assistant Director with the Confederated Tribes of Grande Ronde.  Toahty alleges he was subject to sexual misconduct and harassment by Kimsey and that, when he reported this conduct to the T.E.R.O., he was subjected to retaliation.

The court found that there was no federal question jurisdiction, as Toahty failed to cite any federal law or constitutional provision in his complaint.  Even if he was able to assert a claim for employment discrimination, “Title VII excludes Indian tribes,” and civil liability for employment discrimination does not extend to individual agents of the employer.  Toahty’s complaint also failed to allege diversity of citizenship.  The Tribe was not a citizen of any state, so it could not be sued in diversity.  Accordingly, the court dismissed the complaint without prejudice.

§ 1.5 The State Sovereign

With billions of dollars being exchanged in Indian Country, state government is naturally looking for a piece of the action, giving rise to tax clashes between tribes and their business partners, and states and counties.  These conflicts are primarily decided under the “federal preemption doctrine,” which asks whether a state’s attempted regulation or taxation of non-Indian activities in Indian Country is preempted by federal statutes or treaties, taking into account overarching notions of tribal sovereignty.[143]

Generally, state taxes apply to everyone “outside a tribe’s reservation” and are “federally preempted only where the state law is contrary to express federal law.”[144]  Within Indian Country, on the other hand, “the initrequently dispositive question in Indian tax cases is who bears the legal incidence of the tax.”[145]  When the legal incidence falls on tribes, tribal members, or tribal corporations,[146] “[s]tates are categorically barred” from implementing the tax.[147]

When the legal incidence falls on non-Indians, however, a more nuanced analysis applies.  Although, historically, the U.S. Supreme Court asked whether any assertion of state power on Indian land would impinge on the tribal right to make its own laws and be ruled by them, in recent years, the High Court has moved away from that inherent tribal sovereignty analysis in favor of a federal preemption regime.[148] Because Congress does not often explicitly preempt state law,[149] the Supreme Court and the lower federal courts engage in a balancing act to determine whether tribal self-governance rights, bolstered by federal laws, preempt state laws.[150] This balancing act weighs a state’s interest in policing non-Indian conduct against combined federal and tribal interests in regulating affairs that arise out of tribal lands within the state’s boundaries.[151]

In New Mexico v. Mescalero Apache Tribe,[152] the Supreme Court explained that “state jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests embodied in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”[153]  In Mescalero, the Court held that New Mexico could not impose its own fishing and hunting regulations on non-Indians on the reservation because of strong federal interests in “tribal self-sufficiency and economic development” and a lack of state interests.[154]

When non-Indian parties operate in Indian Country, lawyers must proactively evaluate whether, or to what extent, a state or local government’s interest in policing or taxing conduct that relates to neighboring tribal lands outweighs relevant federal and tribal interests pertaining to that same conduct arising within those lands.

The issues of preemption and infringement are regularly litigated in the federal courts.  The following highlights several of the more relevant cases decided in the last year.[155]

Cayuga Nation v. Tanner, No. 14-1317, 2020 WL 1434157 (N.D.N.Y. Mar. 24, 2020): In 2003, the Cayuga Nation purchased, in fee simple by indenture deed, a parcel of land in the Village of Union Springs within the bounds of the Cayuga Historic Reservation.  After the Nation began renovating the parcel to contract a gaming facility under the Indian Gaming Regulatory Act, the Village sought to apply its local laws and ordinances to the development.

In 2019, the Nation filed an amended complaint seeking declaratory and injunctive relief against the Village and its officials and argued that all local regulation was preempted by IGRA.  The federal court agreed.  The court reasoned that the parcel qualifies as “Indian lands” because the unrestricted language of the IGRA includes all lands within the limits of any Indian reservation.  Second, in evaluating the jurisdictional requirement for IGRA Class II gaming, the court rejected the claim that Sherrill precluded the Nation from exercising any sovereignty over the parcel.  The court noted that Sherill’s advice to pursue the land-into-trust process was not the exclusive means for establishing IGRA jurisdiction on repurchased historic reservation land.  Instead the court concluded that an Indian Tribe is not required to exercise exclusive governmental authority to satisfy the jurisdiction requirement; some jurisdiction, even if concurrent with state and local authorities satisfies this test.  Because the Nation exercised concurrent jurisdiction over the parcel the IGRA applied and preempted the Village from regulating the Tribe’s gaming activities via local laws and ordinances.

Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142 (9th Cir. 2020): The Interstate Commerce Commission Termination Act of 1995’s preemption clause is only applicable to state laws and actions; however, it does not repeal the Indian Right of Way Act nor abrogate the Treaty of Point Elliot.

Over a century ago, a predecessor to BNSF Railway Co. built a railroad across the Swinomish Indian Tribal Community without the Tribe’s consent.  Litigation ensued and resulted in a Settlement Agreement and an Easement Agreement.  Subsequently, BNSF obtained a right-of way (ROW) across the reservation under the Indian Right of Way Act of 1948.  The ROW incorporated the easement terms which included a daily maximum of one train in each direction with a maximum of 25 railcars and an annual reporting requirement detailing the cargo carried by the trains.  However, BNSF failed to comply with these terms.

The Tribe filed suit in 2015 seeking a declaratory judgment that BNSF breached the Easement Agreement, injunctive relief limiting the train traffic in accordance with the Agreement, and damages for both trespass and breach of contract.  BNSF contended that the Tribe’s claims were pre-empted by the Interstate Commerce Commission Termination Act of 1995 (ICCTA).  The district court ruled against BNSF on the breach of contract claim.

After hearing BNSF’s interlocutory appeal, the Ninth Circuit held that the ICCTA does not preclude the use of injunctive relief to enforce the terms of the Easement Agreement.  First, the court noted that the ICCTA only preempts “actions by states or localities” or “all state laws”.  The ICCTA’s preemption applies to the regulation of railroads; however, ROW easements are a voluntary agreement and not regulation, even in a state-law context.  Further, there is nothing in the legislative language or history to suggest that Congress intended the ICCTA to repeal the Indian Right of Way Act, nor to abrogate the Treaty of Point Elliot.  Because it does not repeal the Indian Right of Way Act, nor abrogate the Treaty of Point Elliot, the Tribe has a right to pursue injunctive relief to enforce the terms of the Easement Agreement.

Herpel v. Cty. of Riverside, 258 Cal. Rptr. 3d 444 (Cal. App. 2020):  The Agua Caliente Band of Cahuilla Indians has reservation land spread across three cities in Riverside County.  Some land is owned in trust by the federal government for the benefit of the Tribe and some is owned in trust for the benefit of individual Tribe members (Allotted Land).  Plaintiffs each hold a leasehold or other possessory interest in Allotted Land.  Plaintiffs filed a class action suit contending that the County’s possessory interest tax is preempted by federal law.  The trial court entered judgement in favor of the defendants and the plaintiffs appealed.

The Bracker interest test calls for courts to inquire into the “state, federal, and tribal interests at stake” to determine whether “in the specific context, the exercise of state authority would violate federal law.” In considering the federal interests, the court noted that the regulations governing the Long-Term Leasing Act do not signal an intent by Congress to exclude state taxation, but instead a simple purpose of removing restrictions that disadvantage tribal economic development.  In evaluating the Tribe’s interest, the court noted that the tax does not fall on the Tribe and that there is no evidence to suggest that the Tribe would be negatively affected if it imposed its own tax in addition to state or local tax on parcel holders.  Lastly, in evaluating the state’s interest, the court noted that the state interest in funding state services that have a substantial connection with on-reservation activity (police, fire, health and sanitation, road maintenance, etc.) is sufficient to justify the County possessory interest tax.

Video Gaming Techs., Inc. v. Rogers Cty. Bd. of Tax Roll Corr., 2019 OK 83, cert. denied, No. 19-1298, 2020 WL 6121479 (U.S. Oct. 19, 2020): Plaintiff owns Video Gaming Technologies Inc. (VGT), a non-Indian Tennessee corporation authorized to do business in Oklahoma.  The Plaintiff leased electronic gaming equipment to Cherokee Nation Entertainment (CNE), a business entity of the Cherokee Nation.  CNE gaming facilities are all located on tribal trust land.  Plaintiff sought relief from assessment of ad valorem taxes on the leased equipment imposed by Rogers County.  The district court found for the defendant, holding that Oklahoma’s tax statutes were not preempted by the IGRA.  Plaintiffs appealed contending that the taxes on equipment are indeed preempted by federal law.

The Oklahoma Supreme Court noted that, because the gaming equipment is used exclusively in a tribal gaming operation, it is “inextricably intertwined” with the regulation of gaming activities, and, therefore, IGRA applies to the dispute.  Next, the Court went on to apply the Bracker interest test.  Evaluating federal interests, the court noted that in enacting the IGRA Congress had a strong interest in prevention of corruption through the oversight over gaming and gaming equipment.  In evaluating the Tribe’s interest, the court noted that the tax burden will ultimately fall on the Nation because the County may seize property when taxes are not paid; thus, the County’s remedy for delinquent taxes would directly impact the Nation’s economic well-being.  Lastly, in evaluating the state’s interest, the court noted that the County provides no evidence that the taxes fund any regulatory services or function to VGT; an interest in revenue is insufficient to justify taxation.

The Oklahoma Supreme Court ultimately concluded that the state’s interests fail the Bracker test; because the IGRA’s comprehensive regulations occupy the field of ad valorem taxes imposed on gaming equipment used exclusively in tribal gaming, the present taxation of gaming equipment is preempted.  The Supreme Court denied cert. on October 19, 2020 over a dissent from denial of certiorari by Justice Thomas.  (See discussion of the denial of cert. in §8.2.2 above).

New York v. Mountain Tobacco Co., 942 F.3d 536 (2d Cir. 2019): Mountain Tobacco Company (MTC) shipped unstamped and untaxed cigarettes from the Yakama Indian Reservation in Washington State to Indian Reservations in New York State.  New York brought suit to enjoin MTC from making these shipments, claiming that they violated state and federal law. The district court granted partial summary judgment for the State on claims that MTC violated state laws on cigarette sales, enjoined future violations, and ruled that the injunction is not a violation of the Dormant Commerce Clause.  MTC appealed arguing that New York’s enforcement violates the Dormant Commerce Clause and that the injunction violates the Indian Commerce Clause and the Yakama Treaty of 1859.  The State cross-appealed claiming that the cigarette shipments were interstate commerce under Prevent All Cigarette Trafficking Act (PACT) and that MTC does not qualify for the “an Indian in Indian country” exception under the Contraband Cigarette Trafficking Act (CCTA).

The Second Circuit Court of Appeals ruled that there was no violation of the Dormant Commerce Clause because a lack of universal enforcement across in-state and out-of-state entities “does not bespeak discrimination.” Next, the court held that the state tax was not a violation of the Indian Commerce Clause because the tax falls on non-Indian consumers and New York’s stamping regime does not place an undue burden on MTC.  Despite these initial findings the Court ultimately held that the imposition of the State tax was preempted by the CCTA.  MTC is a business organized under Yamaka law, located on the Yakima reservation, and owned by a Yakima tribal member.  It is exempt from the CCTA under the “Indian in Indian Country” exception.  While the term “Indian” has not been defined by the CCTA, the court “decline[d] to interpret § 2346(b)(1) to mean that an “Indian” is not a “person,”” In turn, “person” has been defined to include corporations; therefore, MTC fits within this interpretation of the exception.

§ 1.6 Conclusion

Economic growth and development throughout Indian Country have spurred many businesses to engage in business dealings with tribes and tribal entities.  Confusion may arise during these transactions because of the unique sovereign and jurisdictional characteristics attendant to business transactions in Indian Country.  As a result, these transactions have prompted increased litigation in tribal and nontribal forums.  Accordingly, counsel assisting in these transactions, or any subsequent litigation, should conduct certain due diligence with respect to the pertinent tribal organizational documents and governing laws that may collectively dictate and control the business relationship.

To maximize the client’s chances of a successful partnership with tribes and tribal entities, counsel should ensure that the transactional documents contain clear and unambiguous contractual provisions that address all rights, obligations, and remedies of the parties.  Therefore, even if the deal fails, careful negotiation and drafting, and, in turn, thoughtful procedural and jurisdictional litigation practice, will allow the parties to more expeditiously litigate the merits of any dispute, without jurisdictional confusion.  As business between tribes and nontribal parties continues to grow, ensuring that both sides of the transaction fully understand and respect the deal will lead to a long-lasting and beneficial business relationship for all.

*        Grant Christensen is an Associate Professor of Law at the University of North Dakota School, the director of the law school’s Indian Law Certificate program, an Affiliated Associate Professor of American Indian Studies, and an Associate Justice on the Standing Rock Sioux Tribe’s Supreme Court. He is also one of the ABA Business Law Section’s Business Law Fellows for the 2018-2020 term. In addition to his J.D., Grant also holds an LL.M. in Indigenous Peoples Law and Policy from the University of Arizona and was a Fulbright Scholar. Before arriving at North Dakota, he taught Federal Indian Law at the University of Oregon as a Visiting Professor and at the University of Toledo as a Lecturer. Grant is the co-chair of the Tribal Court Litigation Subcommittee.

        Ryan D. Dreveskracht is an attorney with Galanda Broadman PLLC. Ryan practices out of the firm’s Seattle office, focusing on representing businesses and tribal governments in complex litigation. He is also devoted to defending individuals’ constitutional rights and handles civil rights and intentional tort cases.

**        Heidi McNeil Staudenmaier is a Senior Partner with Snell & Wilmer LLP in Phoenix, Arizona, where her practice emphasizes Gaming Law, Native American Law, and Business Litigation. She has been recognized in Best Lawyers in America for many years and was named Best Lawyers “Phoenix Native American Law Lawyer of the Year” for 2015 & 2017 and “Phoenix Gaming Law Lawyer of the Year” for 2011, 2016, 2018 & 2020. Heidi is listed in Southwest Super Lawyers, Chambers Global and Chambers USA (Leading Lawyers for Business) for Native American Law and Gaming/Licensing. She is a member of the ABA Business Law Section’s Executive Council, Past Chair of the Business and Corporate Litigation Committee, an active member of the Gaming Law Committee, Past Editor-in-Chief of Business Law Today, Past Editor of the “Annual Review of Recent Developments in Business & Corporate Litigation,” and a former Section Fellow. Heidi received the prestigious Business Law Section Jean Allard Glass Cutter Award in 2019. Also, in 2019, she was inducted into the Maricopa County Bar Association Hall of Fame, named among the “Women Achievers of Arizona”, honored as Greater Phoenix Chamber Athena Finalist, and received the University of Iowa College of Law Alumni Service Award. In addition, she has been recognized among the AZ Business Leaders 2020 and 2021.

[1]        The Honorable Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 TULSA L.J. 1 (1997).

[2]        Jack F. Williams, Integrating American Indian Law into the Commercial Law and Bankruptcy Curriculum, 37 TULSA L. REV. 557, 560 (2001).  See also Frank Pommersheim, What Must Be Done to Achieve the Vision of the Twenty-First Century Tribal Judiciary, 7 Kan. J.L. & Pub. Pol’y 8, 11-12 (1997).

[3]        Frank Pommersheim, What Must Be Done to Achieve the Vision of the Twenty-First Century Tribal Judiciary, 7 Kan. J.L. & Pub. Pol’y 8, 17 (1997).

[4]        Worcester v. Georgia, 31 U.S. (1 Pet.) 515, 559 (1832).

[5]        Id.

[6]        United States v. Kagama, 118 U.S. 375, 381-82 (1886).

[7]        Grant Christensen, A View from American Courts: The Year in Indian Law 2017, 41 Seattle U.L. Rev. 805 (2018).

[8]        Id. at 811.

[9]        See, e.g., Oneida Nation v. Vill. of Hobart, 968 F.3d 664, 667 (7th Cir. 2020).


[11]       Id.

[12]       B.J. Jones, Role of Indian Tribal Courts in the Justice System, NATIVE AMERICAN MONOGRAPH SERIES, Mar. 2000, at 6, (last visited Oct. 13, 2019).

[13]       Id.; Steven J. Gunn, Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders, 34 N.M. L. REV. 297, 306 (2004).

[14]       Kristen Carpenter and Eli Wald, Lawyering for Groups: The Case of American Indian Tribal Attorneys, 81 FORDHAM L. REV. 3085 (2013).

[15]       See Montana v. United States, 450 U.S. 544, 566 (1981) (“Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations . . . .” (emphasis added)); Means v. Navajo Nation, 432 F.3d 924, 930 (9th Cir. 2005) (holding that the tribe had jurisdiction over defendant because he was an Indian by political affiliation).

[16]       Indian Country includes: (1) all land within the limits of any Indian reservation, (2) “dependent Indian communities” within the borders of the United States, and (3) all Indian allotments, including rights-of-way. 28 U.S.C. § 1151 (2000).  “Although [that] definition by its terms relates only to . . . criminal jurisdiction . . . it also generally applies to questions of civil jurisdiction. . . .” Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998).

[17]       “The ownership status of land . . . is only one factor to consider in determining whether [tribal courts have jurisdiction over non-members].  It may sometimes be a dispositive factor.” Nevada v. Hicks, 533 U.S. 353, 360 (2001) (emphasis added).

[18]       Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011); see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (“We have repeatedly recognized the Federal Government’s long-standing policy of encouraging tribal self-government. . . . This policy reflects the fact that Indian tribes retain ‘attributes of sovereignty over both their members and their territory . . . .’”) (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)).

[19]       Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, No. 2:16-cv-232, 2017 U.S. Dist. LEXIS 64193 (W.D. Mich. Apr. 27, 2017) (a non-Indian sued the tribe in tribal court but provided notice in a letter to a customer representative and not to the tribal Secretary as required under the tribe’s waiver authority.  The tribal trial court and appellate court upheld dismissal and the federal district court affirmed.).

[20]       Water Wheel, 642 F.3d 802; Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) (power to tax transactions on trust lands).  Indian land in this context includes land owned by the tribe or its members as well as land owned in fee by the United States but held in trust for the benefit of the tribe or its members.  Notably, the land beneath a navigable waterway is not “Indian land,” Montana v. United States, 450 U.S. 544 (1981); neither is land owned by the United States but with a right of way granted to a state for the purposes of the construction and use of a state highway, Strate v. A-1 Contractors, 520 U.S. 438 (1997).

[21]       Montana v. United States, 450 U.S. 544 (1981).

[22]       Id.

[23]       Plains Commerce, 554 U.S. 316 (2008).  Although Montana originally pertained to civil jurisdiction over non-Indians on non-Indian fee lands within reservation boundaries (450 U.S. at 564), the Ninth Circuit Court of Appeals has previously maintained “that the general rule of Montana applies to both Indian and non-Indian lands.” Ford Motor Company v. Todeecheene, 394 F.3d 1170, 1178-79 (9th Cir. 2005), overruled on other grounds, 488 F.3d 1215 (9th Cir. 2007).  More recently, however, the Ninth Circuit has indicated a reversion to its original rule.  See Water Wheel, 642 F.3d 802.

[24]       Plains Commerce, 554 U.S. at 340.

[25]       Id. It appears, however, that courts have become more sympathetic to the second exception as of late.  See, e.g., Knighton v. Cedarville Rancheria of N. Paiute Indians, 922 F.3d 892, 905 (9th Cir.), cert. denied, 140 S. Ct. 513 (2019); Norton v. Ute Indian Tribe of the Uintah & Ouray Reservation, 862 F.3d 1236, 1246 (10th Cir. 2017).

[26]       Charlene Smith helped to research and summarize the cases in this section.  Charlene is a rising third year law student at the University of Southern California Gould School of Law and expects to graduate in May 2021.

[27]       Exhaustion is not always required.  See Nat’l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 857 n.21 (1985) (“We do not suggest that exhaustion would be required where 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’s jurisdiction.”).

[28]       Id. at 857. (“Until petitioners have exhausted the remedies available to them in the Tribal Court system . . . it would be premature for a federal court to consider any relief.”); Progressive Advanced Ins. Co. v. Worker, No. CV-16-08107-PCT-DJH, 2017 U.S. Dist. LEXIS 19283 (D. Ariz. February 8, 2017) (Judge Humetewa writes: “Progressive issued an insurance policy that listed a tribal member as a named insured and covered vehicles that were kept on tribal lands . . . however Progressive never mailed anything to an address on tribal lands.  To the extent that factor is dispositive, it may be that the tribal court lacks jurisdiction.  But this is a question that must be answered first by the tribal courts of the Navajo Nation.”).

[29]       Whitetail v. Spirit Lake Tribal Ct., Civ. No. 07-0042, 2007 U.S. Dist. LEXIS 87312, at *4-*5 (N.D. Nov. 28, 2007).  The doctrine applies even to federal habeas corpus actions filed under 25 U.S.C. § 1303. See, e.g., Valenzuela v. Silversmith, No. 11-2212, 2012 WL 5507249 (10th Cir. Nov. 14, 2012).

[30]       See Rincon Mushroom, 490 Fed. Appx. 11, 13 (9th Cir. 2012) (“[H]old[ing] that the district court abused its discretion in dismissing the case rather than staying it.”); but see Progressive Advanced Ins. Co. v. Worker, No. CV-16-08107-PCT-DJH, 2017 U.S. Dist. LEXIS 19283 (D. Ariz. February 8, 2017) (dismissing the case); Window Rock Unified School District v. Reeves, 2017 U.S. App. LEXIS 14254 (9th Cir. August 3, 2017) (same).

[31]       Nat’l Farmers Union, 471 U.S. at 852.

[32]       Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (“If the Tribal Appeals Court upholds the lower court’s determination that the tribal courts have jurisdiction, petitioner may challenge that ruling in the District Court.”).

[33]       See Ford Motor Co. v. Todecheene, 474 F.3d 1196, 1197 (9th Cir. 2007), amended and superseded by 488 F.3d 1215, 1216 (9th Cir. 2007); Duncan Energy Co., Inc. v. Three Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294, 1300 (8th Cir. 1993); Plains Commerce Bank, 128 S. Ct. at 2726.  It is unclear whether state courts must likewise abstain from hearing a matter arising on tribal lands until the tribal court has determined the scope of its own jurisdiction and entered a final ruling.  In Drumm v. Brown, 245 Conn. 657, 716 A.2d 50 (Conn. 1998), the Connecticut Supreme Court held that “[o]ur analysis, which is based primarily on the three United States Supreme Court exhaustion cases, persuades us that the courts of this state must apply the exhaustion of tribal remedies doctrine.” 245 Conn. at 659.  However, the Drumm court found that exhaustion was not required in the absence of a pending action in tribal court.  Id. at 684.

[34]       Nat’l Farmers Union, 471 U.S. at 857; see, e.g., Evans v. Shoshone-Bannock Land Use Policy Comm’n, 4:12-CV-417-BLW, 2012 WL 6651194 (D. Idaho Dec. 20, 2012) (requiring plaintiff to exhaust its tribal court remedies).

[35]       See, e.g., Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1421 (8th Cir. 1996).

[36]       Iowa Mutual, 480 U.S. at 16.

[37]       See id. at 17 (“At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.”); see also Whitetail v. Spirit Lake Tribal Ct., No. 07-0042, 2007 U.S. Dist. LEXIS 87312, at *4 (D.N.D. Nov. 28, 2007) (declining review of the case because the plaintiff had failed to exhaust his tribal court remedies).

[38]       See Nat’l Farmers Union, 471 U.S. at 853 (reasoning that “a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction”).

[39]       Iowa Mutual, 480 U.S. at 19.

[40]       Id. (“Unless a federal court determines that the Tribal Court lacked jurisdiction . . . proper deference to the tribal court system precludes relitigation of issues raised . . . and resolved in the Tribal Courts.”).  A thorough analysis of post-judgment proceedings is beyond the scope of this chapter, but there is case law on the issue.  See, e.g., AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 903-904 (9th Cir. 2002); Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006), cert. denied, 549 U.S. 1167 (2007); Brenner v. Bendigo, No. 13-0005, 2013 WL 5652457 (D.S.D. Oct. 15, 2013); Bank of America, N.A. v. Bills, No. 00-0450, 2008 WL 682399, at *5 (D. Nev. Mar. 6, 2008); First Specialty Ins. Corp. v. Confederated Tribes of Grand Ronde Community of Oregon, No. 07-0005, 2007 WL 3283699, at *4 (D. Or. Nov. 2, 2007); U.S. ex rel. Auginaush v. Medure, No. 12-0256, 2012 WL 5990274 (Minn. Ct. App. Dec. 3, 2012).

[41]       Nat’l Farmers Union, 471 U.S. at 857 n.21.

[42]       Nevada v. Hicks, 533 U.S. 353, 369 (2001); Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997).

[43]       El Paso Natural Gas v. Neztsosie, 526 U.S. 473 (1999).

[44]       Megan Carrasco helped to collect and summarize the cases in this section. Megan is a rising third year law student at the Sandra Day O’Connor College of Law at Arizona State University.  She expects to graduate in May 2021.

[45]       25 U.S.C. § 450 (2000).

[46]       See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57-58 (1978).

[47]       Tribal immunity can be abolished via federal statute.  Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007) (“[The] cornerstone of federal subject matter jurisdiction is statutory authorization.”); E.F.W. v. St. Stephen’s Indian High School, 264 F.3d 1297, 1302 (10th Cir. 2001) (“Tribal sovereign immunity is a matter of subject matter jurisdiction.”); McClendon v. United States, 885 F.2d 627, 629 (9th Cir. 1989) (“The issue of sovereign immunity is jurisdictional in nature.”).  Tribal immunity can be voluntarily waived. Kiowa Tribe of Okla. v. Mfg. Techs., 523 U.S. 751, 755-56 (1998); Filer v. Tohono O’odham Nation Gaming Enters., 129 P.3d 78, 83 (Ariz. Ct. App. 2006) (applying for a liquor license did not waive the tribe’s sovereign immunity); Seminole Tribe of Fla. v. McCor, 903 So. 2d 353, 359-60 (Fla. Dist. Ct. App. 2005) (purchasing liability insurance is not a clear waiver of a tribe’s sovereign immunity); Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1234 (11th Cir. 2012) cert. denied, 133 S. Ct. 663, 184 L. Ed. 2d 462 (U.S. 2012) (tribe did not waive its immunity from private tort actions by applying for a state liquor license).

[48]       Plains Commerce Bank v. Long Family Land & Cattle, 554 U.S. 316 (2008).

[49]       Id.

[50]       Kiowa Tribe v. Mfg. Tech., Inc., 523 U.S. 751, 760 (1998).  Constitution provides a basis for suits to enforce state election and campaign finance laws).  The U.S. Supreme Court has yet to take a position on this matter.

[51]       Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

[52]       Id.; United States v. Oregon, 657 F.2d 1009, 1013 (9th Cir. 1981); Filer, 129 P.3d at 86; Bellue v. Puyallup Tribe of Indians, No. 94-3045 (Puyallup 1994); Colville Tribal Enter. v. Orr, 5 CCAR 1 (Colville Confed. 1998).

[53]       Miccosukee Tribe of Indians v. Tein, 2017 Fla. App. LEXIS 11442 (Fla. App. August 9, 2017) (even evidence of vexatious and bad faith litigation did not amount to a waiver of immunity, and “even where the results are deeply troubling, unjust, unfair, and inequitable”).

[54]       In re Greektown Holdings, LLC, No. 12-12340, 2012 WL 4484933 (E.D. Mich. Sept. 27, 2012), aff’d, 728 F.3d 567 (6th Cir. 2013) (holding that for Congress to waive the tribe’s immunity the waiver must be “express, unequivocal, unmistakable, unambiguous, clearly evident in statutory language, and allow the Court to conclude with perfect confidence that Congress intended to waive sovereign immunity”).  See also Demontiney v. United States ex rel. Bureau of Indian Affairs, 255 F.3d 801, 811 (9th Cir. 2001); Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 551 (N.M. Ct. App. 2004) (reasoning that ambiguity within an immunity waiver should be interpreted in favor of the tribe).

[55]       Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206 (11th Cir. 2012) cert. denied, 133 S. Ct. 843 (2013) (Indian tribe’s removal of action to federal court did not waive its sovereign immunity).  But see Guidiville Rancheria of California v. United States, 2017 U.S. App. LEXIS 14394 (9th Cir. August 4, 2017) (holding that by raising the issue of attorney’s fees was sufficient to constitute a waiver its right to claim sovereign immunity on the issue of attorney’s fees when defendant subsequently claimed for fees against the tribe).

[56]       Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (internal quotation marks and citations omitted); see also Gilbertson v. Quinault Indian Nation, 495 F. App’x 779 (9th Cir. 2012) (language in the Quinault Indian Nation’s employee handbook indicating that employees were protected by Title VII was not a sufficiently clear waiver of the Nation’s sovereign immunity).

[57]       E.g., Memphis Biofuels, L.L.C. v. Chickasaw Nation Indus., Inc., 585 F.3d 917 (6th Cir. 2009) (holding that the presence of a sue-and-be-sued clause in the charter of a tribal corporation, alone, was “insufficient” to waive the corporation’s immunity because it made approval by the corporation’s board of directors a prerequisite to legal action by the corporation); accord Ninigret Dev. Corp v. Narragansett Indian Wetuomuck Hous. Auth, 201 F.3d 21, 30 (1st Cir. 2000) (holding that “the enactment of such an ordinance . . . does not waive a tribe’s sovereign immunity [where the ordinance] authorize[d] the [tribal corporation] to shed its immunity ‘by contract’” because “these words would be utter surplusage if the enactment of the ordinance itself served to perfect the waiver”); cf. Rosebud Sioux Tribe v. Val-U Constr. Co., 50 F.3d 560, 562 (8th Cir. 1995) (holding that the mere presence of an arbitration provision in the agreement represented a waiver of immunity from a judgment being enforced in federal court).

[58]       C & L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2001).

[59]       Id. at 418; see Trump Hotels and Casino Resorts Dev. Co. v. Rosow, No. X03CV034000160S, 2005 Conn. Super.  LEXIS 1224, at *41 (Conn. Super. Ct. May 2, 2005) (concluding that the tribe “clearly and unequivocally waived sovereign immunity” in its contract).

[60]       C & L Enterprises, 532 U.S. at 415-16.

[61]       Id. at 423.

[62]       Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 114 (S.D. 1998) (holding that chairman of tribal business committee did not have authority to waive immunity); see also Sandlerin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286-87 (11th Cir. 2001) (reasoning that the tribal chief did not have authority to waive the tribe’s immunity through contract where the tribal code provided procedure for effecting a waiver); Chance v. Coquille Indian Tribe, 963 P.2d 638, 639 (Or. 1998) (reasoning that the tribal corporation president did not have authority to bind the corporation to a contract waiving tribal immunity); Harris v. Lake of the Torches Resort and Casino, 363 Wis. 2d 656 (2015) (holding that a third-party workers compensation administrator lacked the authority to waive the tribe’s immunity).  But see Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 407 (Colo. App. 2004) (holding that the tribal chief financial officer had apparent authority to waive immunity when the tribal law was silent).

[63]       John Habib helped to research and summarize the cases in this section.  John is a rising third-year law student at the Sandra Day O’Connor College of Law, Arizona State University, and expects to graduate in May 2021.

[64]       25 U.S.C. §§ 461-79 (2000).

[65]       Id. § 476.

[66]       Id. § 477.

[67]       Id.

[68]       Id.

[69]       See Jack F. Williams, Integrating American Indian Law into the Commercial Law and Bankruptcy Curriculum, 37 Tulsa L. Rev. 557, 562-63 (2001).

[70]       Id. at 563.

[71]       Id.

[72]       Native American Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1295 (10th Cir. 2008) (holding that, because the tribal enterprise was not a corporation with a “sue-and-be-sued clause,” the tribal enterprise was immune from suit, as it did not explicitly waive its sovereign immunity).  C.f. Grand Canyon Skywalk Dev. LLC v. Cieslak, 2015 U.S. Dist. LEXIS 73186 (D. Nev. June 5, 2015) (holding that, while sovereign immunity may protect the tribal corporation, it does not extend to an employee of the tribal corporation to allow the employee to refuse to comply with a federal subpoena).

[73]       See Seaport Loan Products et al. v. Lower Brule Community Development Enterprise LLC, 2013 NY slip op. 651492/12 [Sup Ct. NY County 2013] (concluding that an independent, state-incorporated, for-profit tribal enterprise that was principally operating in the financial services markets, with separate assets, liabilities, purposes, and goals could not claim immunity); Arrow Midstream Holdings v. 3 Bears Construction LLC, 873 N.W.2d 16 (N.D. 2015) (holding that a corporation wholly owned by tribal members but incorporated under state law was a non-member entity for the purposes of litigation and therefore subject to state jurisdiction).

[74]       Jada Allender helped to research and summarize the cases in this section.  Jada is a rising third year law student at the Sandra Day O’Connor College of Law, Arizona State University, and expects to graduate in May 2021.

[75]       25 U.S.C. § 463 (2000); see TOMAC v. Norton, 433 F.3d 852, 866-67 (D.C. Cir. 2006) (upholding Congress’s delegation of power to the Secretary to acquire land in trust for the tribe under § 1300j-5).

[76]       Carcieri v. Salazar, 555 U.S. 379 (2009).

[77]       Id. at 386.

[78]       Record of Decision, Trust Acquisition of, and Reservation Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe (Dec. 2010), groups/mywcsp/documents/text/idc012719.pdf.  The Cowlitz Indian Tribe was not federally recognized until 2002, but, in 2010, the BIA nonetheless approved a fee-to-trust application, determining that the tribe was “under Federal Jurisdiction” in 1934, even though the federal government did not believe so at that time.  Id.  The D.C. District Court upheld the BIA’s Record of Decision, Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 75 F. Supp. 3d 387 (D.D.C. 2014) and the D.C. Circuit upheld the District Court, Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552 (D.C. Cir. 2016); see also Record of Decision, Trust Acquisition and Reservation Proclamation for 151 Acres in the City of Taunton, Massachusetts, and 170 Acres in the Town of Mashpee, Massachusetts, for the Mashpee Wampanoag Tribe (Sept. 2015),  Although the Interior Department did not federally acknowledge the Mashpee Wampanoag Tribe until 2007, Interior applied M-37029 Memorandum’s two-part test to determine that the Tribe was “under federal jurisdiction” in 1934, which provided the legal basis for the trust acquisition outlined in the 2015 Record of Decision and circumvented the Tribe’s Carcieri issues.  However, the District Court of Massachusetts rejected the Secretary’s interpretation and has returned the decision to take land into trust on behalf of the Mashpee to the Secretary of Interior.  Littlefield v. U.S. Dept. of Interior, 2016 U.S. Dist. LEXIS 98732 (D. Mass. July 28, 2016).

[79]       BIA Weighs Land-Into-Trust after Supreme Court Ruling, (Mar. 26, 2009) 013782.asp (last visited Oct. 20, 2017).

[80]       See, e.g., Stand Up for California! v. U.S. Dept. of Interior, No. 12-2039, (D.D.C. Sept. 6, 2016) (challenging the Department’s fee-to-trust decision for the benefit of the North Fork Rancheria of Mono Indians on the basis that the tribe wasn’t a “federally recognized tribe under jurisdiction” in 1934 as required under Carcieri).

[81]       Memorandum from Hilary C. Tompkins, U.S. Dep’t of the Interior, Office of the Solicitor, to Sally Jewell, Secretary of the Interior, U.S. Dep’t of the Interior (Mar. 12, 2014) (hereinafter “M-37029 Memorandum”).

[82]       Id.

[83]       Id.

[84]       Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 850 F.3d 552 (D.C. Cir. 2016); see also Stand Up for California! v. U.S. Dept. of Interior, No. 12-2039, (D.D.C. Sept. 6, 2016); Citizens for a Better Way v. U.S. Dep’t of the Interior, No. 12-3021, ECF No. 168 (E.D. Cal. Sept. 24, 2015); No Casino in Plymouth v. Jewell, No. 12-1748, ECF No. 100 (E.D. Cal. Sept. 30, 2015); Cnty. of Amador v. Dep’t of Interior, No. 12-1710, ECF No. 95 (E.D. Cal. Sept. 30, 2015).

[85]       Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012).

[86]       5 U.S.C. §§ 551-59.

[87]       28 U.S.C. § 2409a.

[88]       The decision thus did not upset the rule that the “QTA provides the exclusive remedy for claims involving adverse title disputes with the government.” McMaster v. United States, 731 F.3d 881, 899 (9th Cir. 2013).

[89]       The statute of limitations under the APA is six years.  See, e.g., Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Salazar, No. 12-3021, 2013 WL 417813, at *4 (E.D. Cal. Jan. 30, 2013) (holding that under Patchak, “federal district courts do have the power to strip the federal government of title to land taken into trust for an Indian tribe under the APA so long as the claimant does not assert an interest in the land.”).

[90]       Land Acquisitions: Appeals of Land Acquisitions, 78 Fed. Reg. 67,928, 67,929 (Nov. 13, 2013) (codified at 25 C.F.R. pt. 151).

[91]       See 25 C.F.R. § 2.6(c).

[92]       See 25 C.F.R. Part 2.

[93]       Id.

[94]       See 25 C.F.R. § 2.9.

[95]       Delilah Cassidy helped to research and summarize the cases in this section.  Delilah is a 2021 Juris Doctor and Master of Sports Law and Business candidate at Arizona State University, Sandra Day O’Connor College of Law.

[96]       25 U.S.C. § 81 (2000) (Section 81).  For a list of contracts that are exempt from secretarial approval, see 25 C.F.R. § 84.004 (2008).

[97]       25 C.F.R. § 84.004.

[98]       Id.

[99]       25 U.S.C. § 81.

[100]     Id. § 415.

[101]     Id. § 81.

[102]     The approval process for alternative energy projects on tribal lands has been particularly burdensome.  See Ryan Dreveskracht, The Road to Alternative Energy in Indian Country: Is It a Dead End?, 19 INDIAN L. NEWSL. 3 (2011).  For a jurisdictional analysis of the complications created by real property transactions in Indian Country see Grant Christensen, Creating Brightline Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property, 35 AM. INDIAN L. REV. 527 (2011).

[103]     Outsource Servs. Mgmt. v. Nooksack Bus. Corp., No. 74764-9-I, 2017 Wash. App. LEXIS 709 (Wash. App. April 3, 2017) (tribal business defaulted on a $15 million loan secured by future profits generated from tribal land on which the tribe intended to build a casino.  When the tribe subsequently used the land—not for a casino but for other revenue raising operations—the creditor sought those profits to satisfy the loan obligation.  The tribe claimed that the Creditor’s attempt would unlawfully encumber their lands in violation of 25 U.S.C. 81.  The court disagreed, holding that “[t]he pledged security is not a legal interest in the land itself.  Nor does [creditor]’s right interfere with the tribe’s exclusive proprietary control over the land” and that “[b]ecause the tribe retains complete control over the casino building and property and can use the facilities for any purpose, there is no encumbrance for purposes of Section 81, and thus the agreements did not require preapproval.”).

[104]     25 U.S.C. §§ 2701-21 (1988).  The jurisdictional and regulatory powers of the NIGC have received criticism in several court decisions.  In October 2006, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the IGRA did not confer authority upon the NIGC to promulgate operational control regulations for Class III gaming operations.  See Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 140 (D.C. Cir. 2006) and Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 383 F. Supp. 2d 123, 137 (D.D.C. 2005). The Colorado River Indian Tribes cases are significant because some Indian tribes have interpreted the trial court’s decision to mean that the NIGC has no regulatory authority whatsoever over Class III gaming. Indeed, in the wake of the decision, several tribes advised the NIGC that they believe the decision strips the NIGC of all regulatory power over Class III gaming and therefore will not permit any NIGC auditors or other oversight into their casinos. As a result, the NIGC filed a petition for a panel rehearing in late December 2006.  This petition was denied per curiam on Dec. 27, 2007. Colo. River Indian Tribes, 466 F.3d 134 (denying the motion for rehearing).

[105]     25 U.S.C. § 2711; First Am. Kickapoo Oper. v. Multimedia Games, Inc., 412 F.3d 1166, 1172 (10th Cir. 2005); United States v. President, 451 F.3d 44, 50 n.5 (2d Cir. 2006).

[106]     25 U.S.C. § 264 (1882); 25 C.F.R. §§ 140-41 (1996).  “Trading” is broadly defined as “buying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services.” 25 C.F.R. § 140.5(a)(6) (1984).  For an example of tribal business license requirements, see NAVAJO NATION CODE, 5 N.N.C. § 401, et seq. (2005).

[107]     25 C.F.R. § 252.11(a).

[108]     See 25 C.F.R. § 140.3. Dahlstrom v. Sauk-Suiattle Indian Tribe, NO. C16-0052JLR, 2017 U.S. Dist. LEXIS 40654 (W.D. Wash. March 21, 2017) (a former employee brought a qui tam action against the tribe and against a medical clinic for filing false claims through the Indian Health Service (IHS)).  The court barred the action against the tribe; “Like a state, a Native American tribe ‘is a sovereign that does not fall within the definition of a ‘person’ under the FCA.’”  However, the court held that the medical clinic was not “an arm of the tribe” and so it was ineligible to claim sovereign immunity.

[109]     Pub. L. No. 112-151 (2012).

[110]     Any failure of a federal agency to complete its obligations in relation to Indian lands can be catastrophic to businesses operating under federal permits.  See, e.g., Tribe v. U.S. Forest Serv., No. 13-0348, 2013 WL 5212317 (D. Idaho Sept. 12, 2013).

[111]     25 C.F.R. § 162.

[112]     United States Department of Interior, HEARTH ACT of 2012, (last visited Oct. 28, 2018).

[113]     Kaitlyn Salmans helped to research and summarize the cases in this section.  Kaitlyn is a rising third year law student at Moritz College of Law, Ohio State University, and expects to graduate in May 2021.

[114]     See, e.g., Middletown Rancheria of Pomo Indians v. Workers’ Comp. Appeals Bd., 71 Cal. Rptr. 2d 105, 114-15 (Cal. Ct. App. 1998) (holding that the Workers’ Compensation Board has no jurisdiction over tribe); Tibbets v. Leech Lake Reservation Bus. Comm’n, 397 N.W.2d 883, 890 (Minn. 1986) (holding Minnesota workers’ compensation law inapplicable to tribal employer); see generally New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332-33 (1983) (discussing applicability of state laws to tribes).

[115]     See generally Steven G. Biddle, Indian Law Theme Issue: Labor and Employment Issues for Tribal Employers, 34 ARIZ. ATT’Y 16 (1998) (discussing the applicability of federal labor and employment laws to tribal employers); but see State ex rel. Indus. Comm’n v. Indian Country Enters., Inc., 944 P.2d 117 (Idaho 1997) (applying 40 U.S.C. § 290 to require the application of state workers’ compensation laws to tribal companies incorporated under state law); State ex rel. Workforce Safety & Ins. v. J.F.K. Raingutters, 733 N.W.2d 248, 253-54 (N.D. 2007) (same); Martinez v. Cities of Gold Casino, Pojoaque Pueblo, and Food Industries Self-Insurance Fund, No. 28,762, slip op. at ¶ 27 (N.M. Ct. App. filed Apr. 24, 2009) (holding that a tribal corporation waived immunity from claims brought under the Workers’ Compensation Act by voluntarily complying with other provisions of the act and submitting to the jurisdiction of the Workers’ Compensation Administration).

[116]     42 U.S.C. §§ 2000e-2000e-17 (1991).  Bruguier v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 237 F. Supp. 3d 867 (W.D. Wis. 2017) (“Title VII expressly does not authorize suits against tribes; “the term employer . . . does not include . . . an Indian tribe . . . .”).

[117]     Id. §§ 12101-12117 (1990).

[118]     Id. §§ 2000e(b)(1), 12111(5).  Additionally, discrimination based on tribal affiliation is often not considered unlawful national origin discrimination.  See, e.g., E.E.O.C. v. Peabody W. Coal Co., No. 12-17780, 2014 WL 6463162 (9th Cir. Nov. 19, 2014) (discrimination based on tribal affiliation as it relates to lease agreements containing a Navajo reference in hiring provision does not constitute unlawful national origin discrimination but is a political classification and, thus, not within the scope of Title VII of the Civil Rights Act).  See also Morton v. Mancari, 417 U.S. 535 (1974) (holding that the United States Department of Interior may affirmatively hire and promote American Indians because the preference is based on a political classification (membership in a federally recognized tribe) and not a racial classification and is, therefore, subject only to rational basis scrutiny to avoid constitutional challenge).

[119]     See, e.g., ARIZ. REV. STAT. ANN. § 41-1464 (2005) (exempting tribes from Arizona’s discrimination laws).  Even if a state’s antidiscrimination laws do not provide an express exemption, the doctrine of sovereign immunity will ordinarily operate to achieve the same effect.  See Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 554 (N.M. Ct. App. 2004) (affirming dismissal of employee’s state law discrimination claim based on tribal employer’s sovereign immunity); see also Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 67-68 (1st Cir. 2005) (discussing the probable inapplicability of state antidiscrimination laws to a tribal employer).

[120]     See Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985) (extending the tribe’s sovereign immunity to tribal officials acting in a representative capacity).

[121]     29 U.S.C. §§ 651-78 (1998).

[122]     Id. §§ 1001-61.  Congress amended ERISA in 2006 to apply Indian tribal commercial enterprises, but tribal governments remain exempt.  29 U.S.C. §§ 1002(32) (as amended by Pension Protection Act of 2006, 29 U.S.C. § 1002(32)).

[123]     Id. §§ 201-19.

[124]     Id. §§ 151-69.

[125]     Id. §§ 621-34.

[126]     NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1200 (10th Cir. 2002) (holding NLRA inapplicable to tribes); EEOC v. Fond du Lac Heavy Equip. & Const. Co., 986 F.2d 246, 248 (8th Cir. 1993) (refusing to apply the ADEA to an Indian employed by the tribe); Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709, 712 (10th Cir. 1982) (holding OSHA inapplicable to the tribe partly because enforcement “would dilute the principles of tribal sovereignty and self-government recognized in the treaty”).

[127]     Menominee Tribal Enter. v. Solis, 601 F.3d 669 (7th Cir. 2010) (applying OSHA); Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683, 683 (9th Cir. 1991) (applying ERISA); U.S. Dep’t of Labor v. OSHA Rev. Comm’n, 935 F.2d 182, 182 (9th Cir. 1991) (applying OSHA); Smart v. State Farm Ins., 868 F.2d 929, 935 (7th Cir. 1989) (stating the “argument that ERISA will interfere with the tribe’s right of self-government is over-broad,” and applying ERISA); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116-17 (9th Cir. 1985) (right of self-government is too broad to defeat applicability of OSHA); see also Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (following Ninth and Seventh Circuits to apply OSHA).

[128]     See Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490, 493-94 (7th Cir. 1993) (holding that the tribe’s law enforcement officers were exempt from FLSA, but noting that not all employees of tribes are exempt); Solis v. Matheson, 563 F.3d 425, 434-35 (9th Cir. 2009) (applying FLSA to retail business on tribal land because business did not involve tribal self-governance and was not protected by treaty rights).

[129]     Reich, 4 F.3d at 493-94; Lumber Indus. Pension Fund, 939 F.2d at 683; U.S. Dept. of Labor, 935 F.2d at 182; Smart, 868 F.2d at 935; Donovan, 751 F.2d at 1113; see also Mashantucket Sand & Gravel, 95 F.3d at 174.

[130]     29 U.S.C. §§ 2601-54 (1993).

[131]     The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180 (Jan. 6, 1995).

[132]     Casino Pauma v. NLRB, 888 F.3d 1066 (9th Cir. 2018).

[133]     Chayoon v. Chao, 355 F.3d 141, 142-43 (2d Cir. 2004); Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84-86 (2d Cir. 2001).

[134]     Cf. Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F. Supp. 2d 1131, 1131 (N.D. Okla. 2001) (holding that the federal Copyright Act of 1976 was inapplicable to tribes).

[135]     Chase Colwell helped to research and summarize the cases in this section.  Chase is a rising third year law student at the Sandra Day O’Connor College of Law, Arizona State University, and expects to graduate in May 2021.

[136]     28 U.S.C. § 1331 (“Federal Question: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).

[137]     Id. § 1332 (“Diversity of Citizenship: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—(1) citizens of different states . . . .”).

[138]     See Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 945 (9th Cir. 2004) (dismissing a complaint against the Navajo Nation that sought enforcement of an arbitration agreement for lack of federal question jurisdiction); accord, TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (“The federal courts do not have jurisdiction to entertain routine contract actions involving Indian tribes.”); Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir. 1980) (finding “no reason to extend the reach of the federal common law to cover all contracts entered into by Indian tribes”). See also Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1089 (9th Cir. 2007) (holding that a federal court may review a denial of sovereign immunity by interlocutory appeal).

[139]     See Ysleta Del Sur Pueblo, 181 F.3d at 681 (holding that “an anticipatory federal defense is insufficient for federal jurisdiction”).

[140]     See Payne v. Miss. Band of Choctaw Indians, 159 F. Supp. 3d 724, 726-27 (S.D. Miss. 2015); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir. 2002); Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997); Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Gaines v. Ski Apache, 8 F.3d 726, 728-29 (10th Cir. 1993); Oneida Indian Nation v. Cnty. of Oneida, 464 F.2d 916, 923 (2d Cir. 1972), rev’d and remanded on other grounds, 414 U.S. 661 (1974); Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1040-41 (8th Cir. 1974); Tenney v. Iowa Tribe of Kan., 243 F. Supp. 2d 1196, 1198 (D. Kan. 2003); Victor v. Grand Casino-Coushatta, No. 02-2348, 2003 U.S. Dist. LEXIS 24770, at *4 (D. La. Jan. 21, 2003); Worrall v. Mashantucket Pequot Gaming Enter., 131 F. Supp. 2d 328, 329-30 (D. Conn. 2001); Barker-Hatch v. Viejas Group Baron Long Capitan Grande Band of Digueno Mission Indians of the Viejas Group Reservation, 83 F. Supp. 2d 1155, 1157 (D. Cal. 2000); Abdo v. Fort Randall Casino, 957 F. Supp. 1111, 1112 (D.S.D. 1997); Calvello v. Yankton Sioux Tribe, 899 F. Supp. 431, 435 (D.S.D. 1995); Whiteco Metrocom Div. v. Yankton Sioux Tribe, 902 F. Supp. 199, 201 (D.S.D. 1995); Weeder v. Omaha Tribe of Neb., 864 F. Supp. 889, 898-99 (N.D. Iowa 1994); GNS, Inc. v. Winnebago Tribe, 866 F. Supp. 1185, 1191 (D. Iowa 1994). But see Cook, 548 F.3d at 723 (holding that, for diversity purposes, a tribal corporation is “a citizen of the state where it has its principal place of business”). Cf. R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 1983) (stating that the tribal corporation had its principal place of business in Montana); R.C. Hedreen Co. v. Crow Tribal Hous. Auth., 521 F. Supp. 599, 602-03 (D. Mont. 1981) (stating that a tribal corporation had its principal place of business in Montana and “[a]ccordingly, it is a citizen of the state for purposes of diversity jurisdiction”); Parker Drilling Co. v. Metlakatla Indian Cmty., 451 F. Supp. 1127, 1138 (D. Alaska 1978) (“As [the tribal corporation’s] only major business activities, and situs, are located in Alaska, it is an Alaskan corporation for diversity purposes.”).

[141]     See Inglish Interests LLC v. Seminole Tribe of Florida, 2011 U.S. Dist. LEXIS 6123 (M.D. Fla. January 21, 2011) (describing this split).

[142]     Caitlin White helped to research and summarize the cases in this section.  Caitlin is a rising third year law student at the Sandra Day O’Connor College of Law at Arizona State University and expects to graduate in May 2021.

[143]     White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).

[144]     Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973); Cabazon Band of Mission Indians v. Smith, 388 F.3d 691, 694-95 (9th Cir. 2004).

[145]     Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101 (2005).

[146]     There has been some question as to what exactly constitutes a tribally owned corporation.  The general rule is that “[a] subdivision of tribal government or a corporation attached to a tribe may be so closely allied with and dependent upon the tribe that it is effectively an arm of the tribe.  It is then actually a part of the tribe per se” and is nontaxable.  Uniband, Inc. v. C.I.R., 140 T.C. 230, 252 (U.S. Tax Ct. 2013) (quotation omitted).  Although preemption of state taxes “is most assured for tribal corporations organized pursuant to federal or tribal law,” Cohen’s Handbook of Federal Indian Law § 8.06 (2012 ed.), “the mere organization of such an entity under state law does not preclude its characterization as a tribal organization as well.”  Duke v. Absentee Shawnee Tribe of Okla. Housing Auth., 199 F.3d 1123, 1125 (10th Cir. 1999).

[147]     Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101 (2005); see also Bercier v. Kiga, 103 P.3d 232, 236 (Wash. Ct. App. 2004) (“[T]he State may not tax Indians or Indian tribes in Indian country . . . .”) (citing Wash. Admin. Code § 458-20-192(5)); Pourier v. S. D. Dept. of Revenue, 658 N.W.2d 395, 403 (S.D. 2003), aff’d in relevant part and rev’d in part on other grounds on reh’g, 674 N.W.2d 314 (S.D. 2004) (“If the legal incidence of a tax falls upon a Tribe or its members . . . the tax is unenforceable.”).  See also Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324, 1345-46 (11th Cir. 2015) (reaffirming the legal incidence test but determining that a gross receipts tax more properly fell on utility companies instead of the tribe and, therefore, the tax was not preempted).

[148]     See McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172-73 (1973).

[149]     Williams v. Lee, 358 U.S. 217, 220 (1959); but see 25 C.F.R. § 162.415(c) (“Any permanent improvements” on business leased Indian land “shall not be subject to any fee, tax, assessment, levy, or other such charge imposed by any State or political subdivision of a State, without regard to ownership of those improvements.”).  See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (“Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and “[state] jurisdiction is pre-empted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”).

[150]     Bracker, 448 U.S. at 143.

[151]     Id. at 144; see also Aroostook Band of Micmacs v. Ryan, No. 03-0024, 2007 WL 2816183, at *4, *9-11 (D. Me. Sept. 27, 2007) (discussing whether federal law or state law affects the Aroostook Band, even though the tribe is exempt from state civil and criminal laws).

[152]     New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

[153]     Id. at 334.

[154]     Id. at 344.

[155]     Martyna Sawicka helped to research and summarize the cases in this section.  Martyna is a rising second year law student at the University of Arizona James E. Rogers College of Law and expects to graduate in May 2022.


Connect with a global network of over 30,000 business law professionals


Login or Registration Required

You need to be logged in to complete that action.