The Supreme Court denied my cert. petition June 24, 2013. One way to look at this, of course, is four years of work down the drain. But that isn’t how I look at it.
I gained invaluable insight and experience. I know how to bring a civil rights and/or excessive force claim and have learned many of the nuances of qualified immunity and individual v. official capacity suits.
Based on this work, I have been receiving phone calls from potential clients around the region. At least twice in the past year, potential clients from different parts of the state have called me regarding off-reservation criminal arrests by tribal police.
A few choice samples:
- Murder. From an attorney in Oregon: Client, a non-tribal member, was driving through the Reservation in the passenger seat. Tribal cop pulled the car over, asked the driver, also a non-member, for his driver’s license. Driver complied. Cop went back to his squad car and ran the license. Cop walked back to the driver and shot him in the head. Killed him.
- Accidental Death. From an attorney in Seattle: (Attorney represents the estate). Client, a tribal member, went to a sweat lodge, run by another tribe. Tribal member overheated, had a heart attack, and died.
- False Arrest. From two or three recent potential clients:
- Scenario A. Potential client was buying gas miles from the Reservation, or otherwise minding his own business, when a tribal police officer arrested him for something or another.
- Scenario B. Potential client was on fee land within the exterior boundaries of the Reservation. Arrested by tribal police officers. Taken by the same officers to the local county jail.
The solution to all of these cases lies in the same legal framework that I developed in my Supreme Court case. It was not four years down the drain. It was an investment.
Posted in fee land, Indian Child Welfare Act, Sovereign immunity, state court jurisdiction v. tribal court jurisdiction, tribal jurisdiction, tribal jurisdiction over non-members, tribal jurisdiction over tribal members, tribal law enforcement, tribal police, Uncategorized
Tagged jurisdiction v. tribal court jurisdiction, Solicitor General Indian Law, Sovereign Immunity, state court jurisdiction v. tribal court jurisdiction, tribal court, tribal jurisdiction, tribal jurisdiction over non-members, Tribal Law, tribal law enforcement, tribal police, trust relationship, U.S. Supreme Court case, Uncategorized Tagged cert. petition of writ, Young v. Fitzpatrick Edit
The Ninth Circuit recently affirmed tribal court jurisdiction over a non-member. Water Wheel Camp Recreational Area and Robert Johnson v. Gary LaRance and Jolene Marshall, 09-17349 & 09-17357 (9th Cir. June 10, 2011). Water Wheel was a corporation that operated a campground and resort on a river bank within the Reservation of the Colorado River Indian Tribe. Johnson, a non-tribal ember, was the owner/operator/and alter ego of the resort. Gary LaRance and Jolene Marshall were tribal court judges.
Water Wheel had a thirty-two year lease on the property. Per the terms of the lease, the base rent was to be re-adjusted at year twenty-five to better reflect market conditions. However, when year twenty-five came around, the parties were unable to agree on a new base rent. Water wheel eventually stopped making the lease payments. When the lease expired, Water Wheel refused to vacate the property.
The tribe then brought an action in tribal court to evict Water Wheel. Water Wheel contested jurisdiction, asserting that the tribal court lacked jurisdiction
under U.S. v. Montana. Montana held that tribal court lacks jurisdiction over non-members unless: 1) the non-member had a consensual relationship with the tribe, or 2) the non-member’s conduct threatens the health and welfare, political integrity, or economic security of the tribe.
Johnson asserted that he did not have a consensual relationship with the Tribe because he did not understand that he, personally, would be dealing with the Tribe when he took over the lease and that he did not consent to tribal court
jurisdiction. However, the Court of Appeals held that Montana did not apply because tribal court jurisdiction rested on the Tribe’s inherent authority to exclude, not on Montana. The court reasoned that Montana and progeny, with one narrow exception, involved disputes between non-members and the Tribe arising from activity on non-tribal land within the Reservation. This dispute arose from activity on tribal land within the Reservation. Therefore, Montana did not apply. Tribal court jurisdiction flowed from its power to exclude and its inherent sovereignty over tribal land.
A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.