MEALEY’STMTM
Native American Law ReportMarch 2015 Volume 1, Issue #1
High Court Denies Certiorari In Case Involving Sale Of Interest In CasinoWASHINGTON, D.C. — The U.S. Supreme Court on Feb. 23 denied a petition for writ of certiorari in case forbreach of contract after the buyers and guarantors breached their payment obligations for the purchase of membershipinterest in a casino, leaving stand lower court decisions finding that the plaintiffs could not unilaterally modify theguaranty agreement and that the Indian tribe and its authority had not waived its defenses to the claims. SEE PAGE 4.
California Federal Judge: Water Right Reserved, But Land Act Extinguished ClaimRIVERSIDE, Calif. — A federal judge in California on March 20 granted partial summary judgment in favor ofthe Agua Caliente Band of Cahuilla Indians and the United States’ claim that the government implicitly reservedappurtenant water sources, including underlying groundwater, when it created the tribe’s reservation, but granted thedefendants partial summary judgment on the tribe’s aboriginal title claims, saying a land act effectively extinguishedany such right. SEE PAGE 10.
Government Asks Judge To Dismiss Indian Tribe’s ACA Employer Mandate ChallengeCHEYENNE, Wyo. — An Indian tribe waived its objections to the Patient Protection and Affordable Care Act(ACA)’s large employer mandate by not raising them during the rulemaking process, and its action runs afoul of theAnti-Injunction Act’s (AIA) bar on tax challenges taxes, the government told a federal judge on March 19. SEE PAGE 15.
Tribe Members’ Class Claims For Compensation Filed Too Late, Judge FindsSIOUX FALLS, S.D. — Class claims filed by four members of the Cheyenne River Sioux Tribe alleging that theUnited States violated its trust and fiduciary duties by taking their land without just compensation are barred by thestatute of limitations and because there is no waiver of sovereign immunity, a South Dakota federal judge ruledFeb. 26 in granting the government’s motion to dismiss the claims. SEE PAGE 21.
Chippewa Indian Tribe Opposes High Court Review Of Hunting DecisionWASHINGTON, D.C. — The Lac Courte Oreilles Band of Lake Superior Chippewa Indians on March 9 askedthe U.S. Supreme Court to deny a petition for writ of certiorari filed by the State of Wisconsin and leave intact aSeventh Circuit U.S. Court of Appeals decision finding that the tribe had met its burden to show that a total ban onthe nighttime hunting of deer was no longer necessary to ensure public safety. SEE PAGE 22.
Wyoming Federal Judge: Eagle Permit Violates Exercise Of ReligionCHEYENNE, Wyo. — Calling the issue one of first impression, a Wyoming federal judge on March 12 held thatthe First Amendment to the U.S. Constitution forbids the federal government from imposing the burden of law onone federally recognized Indian tribe’s free exercise of religion for the benefit of another Indian tribe. SEE PAGE 23.
Parties File Summary Judgment Motions In ‘Redskins’ Trademarks SuitALEXANDRIA, Va. — The owners of the Washington Redskins professional football team on Feb. 23 filed amotion for summary judgment in a Virginia federal court in its challenge to the cancellation of six federal trademarkregistrations relating to the team, while the defendants on Feb. 26 filed a motion for partial summary judgment, sayingthat there was no error committed in the cancellation of the marks because the evidence shows the marks ‘‘maydisparage’’ Native Americans. SEE PAGE 27.
Supreme Court Denies Review Of Ruling On Washington Escrow StatuteWASHINGTON, D.C. — The U.S. Supreme Court March 9 denied a petition for review of a ruling requiringa tobacco distributor owned by the Yakama Indian Nation to escrow funds to reimburse the State of Washingtonfor health care costs related to tobacco use. SEE PAGE 29.
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MEALEY’STMTM
Native American Law ReportMarch 2015 Volume 1, Issue #1
Cases in this Issue Page
Ted Gatzaros, et al. v. The Sault Ste. Marie Tribe of Chippewa Indians, et al.,No. 14-665, U.S. Sup. ........................................................................................ 4
Narragansett Indian Tribe v. State of Rhode Island, et al., No. 12-322, R.I. Sup..... 6Texas v. Ysleta Del Sur Pueblo, No. 99-320, W.D. Texas ........................................ 7State of Michigan v. Aaron Payment, et al., No. 1:12-cv-962, W.D. Mich. ............. 9Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District,
et al., No. 13-883, C.D. Calif. ....................................................................... 10Center for Biological Diversity v. United States Bureau of Land Management,
et al., No. 14-226, White Pine County, et al. v. United States Bureauof Land Management, et al., No. 14-228, D. Nev............................................. 12
Crow Allottees Association, et al. v. United States Bureau of Indian Affairs,No. 14-62, D. Mont., Billings Div ..................................................................... 13
Northern Arapaho Tribe, et al. v. Sylvia Burwell, et al., No. 14-247, D. Wyo......... 15Amy Coppe v. The Sac & Fox Casino Healthcare Plan, et al., No. 14-2598,
D. Kan................................................................................................................. 16Gila River Indian Community v. Sylvia Matthews Burwell, et al., No. 14-943,
D. Ariz. ................................................................................................................ 17Navajo Health Foundation — Sage Memorial Hospital Inc. v. Sylvia
Mathew Burwell, et al., No. 14-958, D. N.M.................................................... 19Casimir L. Lebeau, et al. v. United States of America, No. 14-4056, D. S.D........... 21State of Wisconsin, et al. v. Lac Courte Oreilles Band of Lake Superior
Chippewa Indians, et al., No. 14-792, U.S. Sup. ............................................... 22Northern Arapaho Tribe v. Daniel Ashe, in his official capacity of U.S. Fish &
Wildlife Service Director, No. 11-347, D. Wyo. ........................................... 23Jose Rojas v. James Heimgartner, No. 14-3178, 10th Cir. ........................................ 26Pro-Football Inc. v. Amanda Blackhorse, et al., No. 14-1043, E.D. Va.................... 27Confederated Tribes and Bands of the Yakama Indian Nation, et al. v. Robert
McKenna, No. 14-947, U.S. Sup. ...................................................................... 29State of New York v. Mountain Tobacco Co., et al., No. 12-6276, E.D. N.Y......... 30Western Sky Financial, et al. v. Deborah Jackson, et al., No. 14-991,
U.S. Sup. ......................................................................................................... 31Benjamin D. Harris v. Lake of the Torches Resort & Casino, No. 2014AP1692,
Wis. App., Dist. 3 ............................................................................................... 33Resources For Indian Student Education Inc. v. Cedarville Rancheria of
Northern Paiute Indians, et al., No. 14-2543, E.D. Calif. ................................. 35Navajo Nation v. San Juan County, No. 12-39, D. Utah ......................................... 37Eric Williams, et al. v. CashCall Inc., No. 14-903, E.D. Wis. ............................. 39Michelle Joan Roberts, et al. v. Robert Kelly, et al., Belmont, et al. v. Robert
Kelly, et al., Nos. 2013-CI-CL-003, 2014-CI-CL-007, Nooksack Tribal.......... 41Ronald D. Allen, Jr., et al. v. Robert H. Smith, et al., No. 13-55552, 9th Cir. ....... 42Ventura County Human Services Agency v. B.G., et al., No. B255712,
Calif. App., 2nd Dist., Div. 6 ............................................................................. 43
Published document is available at the end of the report. For other availabledocuments from cases reported on in this issue, visit www.mealeysonline.com or call1-800-MEALEYS.
In this Issue
GamingHigh Court Denies Certiorari In CaseInvolving Sale Of Interest In Casino ...................... page 4
Narragansett Indian Tribe’s Facial ChallengeTo Rhode Island’s Casino Act Fails........................ page 6
Texas Federal Judge Finds Tribe ViolatedInjunction Prohibiting Gaming.............................. page 7
Tribal Officers Claim Sovereign ImmunityIn Michigan Casino Dispute .................................. page 9
Water RightsCalifornia Federal Judge: Water RightReserved, But Land Act ExtinguishedClaim ................................................................... page 10
Nevada Federal Judge Dismisses 1 Count InChallenge To Water Pipeline Approval ................ page 12
Crow Water Allottees Lack Standing ForLegal Defense, Indian Affairs Says........................ page 13
Natural Resources Committee OutlinesProcess For Water Rights Settlements .................. page 14
Health CareGovernment Asks Judge To Dismiss IndianTribe’s ACA Employer Mandate Challenge ..............page 15
Plan Participant Need Not Exhaust TribalRemedies Under ERISA, Judge Rules .................. page 16
Breach Claim Dismissed; ReimbursementClaim Continues In Funding Dispute.................. page 17
New Mexico Federal Judge Declines ToTransfer Dispute Over Hospital Funding............. page 19
Land TakingTribe Members’ Class Claims For CompensationFiled Too Late, Judge Finds .........................................page 21
Regulation Of ActivityChippewa Indian Tribe Opposes High CourtReview Of Hunting Decision............................... page 22
Exercise Of ReligionWyoming Federal Judge: Eagle PermitViolates Exercise Of Religion ............................... page 23
10th Circuit Affirms Prison Did Not ViolateNative American’s Religious Rights ...................... page 26
TrademarksParties File Summary Judgment MotionsIn ‘Redskins’ Trademarks Suit ............................. page 27
TobaccoSupreme Court Denies Review Of RulingOn Washington Escrow Statute ........................... page 29
Judge: New York May Seek Discovery FromOwner Of Native American TobaccoCompany ............................................................. page 30
Tribal JurisdictionLoan Company Petitions High Court OverArbitration Ruling In Loan Dispute ..................... page 31
Wisconsin Appeals Court Affirms IndianTribe Did Not Waive SovereignImmunity............................................................. page 33
California Federal Judge Dismisses DisputeOver Pay For Lack Of Jurisdiction....................... page 35
VotingUtah Federal Judge Declines To DismissDispute Over Election DistrictBoundaries ........................................................... page 37
ArbitrationJudge Splits Arbitration Order For PlaintiffsIn Interest Rate Suit............................................. page 39
DisenrollmentParties To Maintain Status Quo PendingAppeal In Disenrollment Proceedings .................. page 41
Doctrine Of Ex Parte Young Does NotPermit Disenrollment Lawsuit, 9thCircuit Holds ....................................................... page 42
Family Law2 Minors Covered Under Indian ChildWelfare Act, California Appeals CourtRules .................................................................... page 43
Bureau Of Indian Affairs AnnouncesProposed Rule To Govern ChildWelfare................................................................. page 44
New Statute Provides For Same-SexMarriages In Tlingit, Haida Tribes ...................... page 45
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
Cite as Mealey’s Native American Law Report, Vol. 1, Iss. 1 (3/15) at p.___, sec.___. 3
News
High Court Denies CertiorariIn Case Involving SaleOf Interest In CasinoWASHINGTON, D.C. — The U.S. Supreme Courton Feb. 23 denied a petition for writ of certiorari incase for breach of contract after the buyers and guaran-tors breached their payment obligations for the pur-chase of membership interest in a casino, leavingstand lower court decisions finding that the plaintiffscould not unilaterally modify the guaranty agreementand that the Indian tribe and its authority had notwaived its defenses to the claims (Ted Gatzaros, et al. v.The Sault Ste. Marie Tribe of Chippewa Indians, et al.,No. 14-665, U.S. Sup.).
(Petition available. Document #96-150325-015B.)
Membership Interest SoldTed and Maria Gatzaros owned a substantial member-ship interest in Monroe Partners, an entity that owned50 percent of Greektown Casino LLC, the operator ofGreektown Casino in Detroit. When the Gatzarosesdecided to sell their interest, Monroe agreed to redeemit for $265 million, to be paid to the Gatzaroses overtime in a series of ‘‘liquidation payments.’’ To accom-plish the redemption, the Gatzaros and Monroeentered into an ‘‘Amended and Restated Limited Lia-bility Company Redemption Agreement’’ on July 28,2000. The redemption agreement identified the‘‘Redemption Amount’’ as $265 million.
Contemporaneously with the redemption transaction,Monroe sold the Gatzaroses’ redeemed member-ship interest to Kewadin Greektown Casino for $265million. Monroe accomplished the sale of the Gat-zaroses’ interest through an ‘‘Amended and RestatedLimited Liability Company Subscription Agreement’’executed by Monroe and Kewadin on July 28, 2000.The subscription agreement defined the ‘‘SubscriptionAmount’’ as ‘‘the Redemption Amount,’’ in other words,
$265 million. In the subscription agreement, Kewadinagreed to pay Monroe the amounts owed to the Gat-zaroses under the redemption agreement as those pay-ments came due. The subscription agreement requiredKewadin to obtain a limited guaranty agreement fromthe Sault Ste. Marie Tribe of Chippewa Indians andthe authority binding them, with certain conditions pre-cedent, to pay the subscription amount in the eventthat Kewadin defaulted on its obligations under thesubscription agreement.
On the day the redemption and subscription agree-ments were executed, the tribe and the authority exe-cuted the guaranty agreement. The tribe and theauthority agreed to pay the subscription amount ifKewadin defaulted on the subscription agreement.
Recovery Sought
The Gatzaroses received most of the payments due tothem under the redemption agreement, but Kewadinultimately breached its payment obligation under thesubscription agreement with Monroe. Monroe in turnbreached its payment obligation to the Gatzarosesunder the redemption agreement. On May 29, 2008,Kewadin and Monroe filed for Chapter 11 bankruptcyprotection in the U.S. Bankruptcy Court for the East-ern District of Michigan.
In 2012, the Gatzaroses attempted to recover nearly $74million in principal and interest still owed to them underthe redemption agreement. The Gatzaroses’ counselnotified the tribe and the authority by letter that theGatzaroses, standing in the shoes of Monroe as third-party beneficiary to the guaranty agreement, were mod-ifying and accelerating the funding obligations of theguaranty agreement. The Gatzaroses eliminated limita-tions that had set the necessary conditions precedent onthe obligation of the tribe and the authority to pay underthe guaranty agreement if Kewadin defaulted on thesubscription agreement. The Gatzaroses declared the
Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
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remaining amount of the debt, plus attorney fees, im-mediately due and owed to them from the tribe andthe authority.
The Gatzaroses justified their unilateral action bypointing to ‘‘paragraph 8’’ of the guaranty agreement,which included various waivers by the tribe and theauthority. As third-party beneficiaries of the guarantyagreement, the Gatzaroses contended that they maystep into the shoes of Monroe and modify, accelerateand enforce the terms of the funding obligation withoutnotice and without affecting the obligation of the tribeand the authority to pay under the guaranty agreement.The Gatzaroses also contended that the tribe and theauthority waived all defenses because the guarantyagreement says the tribe and the authority ‘‘uncondi-tionally and irrevocably waive each and every defenseand setoff of any nature which, under principles ofguaranty or suretyship, would operate to impair ordiminish in any way the obligation of the Sault Tribeand the Authority under this Guaranty Agreement.’’
Case DismissedIn November 2012, the Gatzaroses sued the tribe andKewadin in the Wayne County Circuit Court, seekingdeclaratory relief concerning their rights under theguaranty to modify the funding obligations so theywere no longer subject to limitations that prevent repay-ment of the debt. The Gatzaroses also claimed that thedefendants had waived all of their contractual defenses.
The defendants removed the case to the U.S. DistrictCourt for the Eastern District of Michigan.
In July 2013, the District Court granted the defen-dants’ motion to dismiss for failure to state a claim.
In an August 2014 divided opinion, the Sixth CircuitU.S. Court of Appeals affirmed the District Court’sdecision, saying the Gatzaroses could not unilaterallymodify the guaranty agreement because the tribe andthe authority did not agree in writing to the modifica-tion, as the guaranty requires, and that they miscon-strue the meaning of the waiver language. The majorityalso said it found no merit in the Gatzaroses’ conten-tions that the tribe and the authority waived all defensesthey may have to the claims.
Judge Eric L. Clay dissented, saying the majority wasable to uphold the District Court’s ruling only by
‘‘uncritically construing all disputed issues in Defen-dants’ favor.’’ The judge said that because he disagreedwith the majority’s characterization of the guaranty’slanguage, he dissented.
High Court Review Sought
In December, the Gatzaroses filed a petition for writof certiorari with the Supreme Court, presenting fivequestions for review:
� ‘‘Whether the Majority Opinion of the UnitedStated Court of Appeals for the Sixth Circuit con-flicts with the decisions of this Supreme Courtand other Circuit Courts of Appeals, therebychanging the well-established rules of contractand construction which require specific contractprovisions govern over general provisions to re-solve disputes caused by two conflicting contractprovisions?’’
� ‘‘Whether the Majority Opinion is in direct con-flict with the decisions of this Supreme Court,other Circuit Courts of appeals and the fundamen-tal rules of contract construction which requirethe application of extrinsic evidence when there isan ambiguity caused by conflicting contractuallanguage?’’
� ‘‘Whether the Majority Opinion, in upholding thejudicial rewriting of paragraph 8 of the Guaranty, isin direct conflict with the decisions of this SupremeCourt and the other Circuit Courts of Appealswhich have held the courts must give effect tocontracts as written by the parties, and cannot re-write them?’’
� ‘‘Whether the Majority’s failure to find the Respon-dents waived their contract defenses contradictsestablished case law in the other Circuit Courts ofAppeals that a guaranty is a contract which mustbe enforced as written?’’
� ‘‘Whether the Majority’s Opinion conflicts with thewell-settled standard for reviewing a Motion to Dis-miss under Fed. Civ. R. 12(b)(6) when it failed to viewthe facts in the light most favorable to the Petitionersor accept their well-pled allegations?’’
CounselThomas L. Stroble and Mitchell H. Boardman ofStroble Law in Bloomfield Hills, Mich., represent theGatzaroses.
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Grant S. Cowan of Frost Brown Todd in Cincinnatiand David A. Lerner of Plunkett Cooney in BloomfieldHills represent the defendants.
(Additional document available. Sixth Circuit opinion.Document #96-150325-016Z.) �
Narragansett Indian Tribe’sFacial Challenge To RhodeIsland’s Casino Act FailsPROVIDENCE, R.I. — The Rhode Island SupremeCourt on March 4 rejected the Narragansett IndianTribe’s challenge to the constitutionality of theRhode Island 2011 Casino Act, which resulted in theremoval of gaming machines from which the tribereceived income (Narragansett Indian Tribe v. Stateof Rhode Island, et al., No. 12-322, R.I. Sup.; 2015R.I. LEXIS 29).
(Opinion available. Document #96-150325-074Z.)
Twin River is a state-licensed gambling facility inRhode Island where video lottery terminal (VLT)machines are used. By statute, the tribe is entitled toreceive 0.17 percent of net terminal income from theauthorized VLT machines at Twin River up to a max-imum of $10,000,000 per year.
The 2011 Casino Act provides for the establishmentof state-authorized table games at Twin River. As aresult of the proposed establishment of table games,approximately 200 VLT machines were removedfrom Twin River.
The tribe filed a complaint against the State of RhodeIsland, seeking a declaration that the Casino Act vio-lates Article 6, Section 15, of the Rhode Island Con-stitution, which provides that ‘‘[a]ll lotteries shall beprohibited in the state except lotteries operated by
the state . . . and all shall be subject to the prescriptionand regulation of the general assembly.’’ The tribe alsoasserted that the Casino Act is unconstitutionallyvague and in violation of the nondelegation doctrinein Article 6, Sections 1 and 2, in that ‘‘it delegatescertain legislative powers to a private corporation with-out adequate legislative standards or safeguards speci-fied in the statute.’’
UTGR Inc., which operates Twin River, intervened asa defendant.
The Washington County Superior Court ruled thatalthough the tribe had standing, it failed to meet itsburden of proving beyond a reasonable doubt thatthe Casino Act is facially unconstitutional.
‘Operational Control’In January 2014, the Rhode Island Supreme Courtheld that the tribe had demonstrated ‘‘an injury infact’’ sufficient to maintain standing.
In the instant opinion, the Supreme Court affirmedpartial summary judgment in favor of Rhode Islandand UTGR.
The Supreme Court rejected the tribe’s argument basedon the nondelegation doctrine, saying that ‘‘regulationand operation are not mutually exclusive.’’ The courtnoted that the Casino Act gave the state the ‘‘power toterminate or suspend any casino gaming activities,’’which is ‘‘essential to the exercise of operationalcontrol.’’
In addition, the Casino Act provided that the stateshall ‘‘[h]old all other powers necessary and proper tofully effectively execute and administer the provisionsof’’ the Casino Act.
Facial ChallengeThe court also rejected the tribe’s facial challengebased on vagueness because vagueness claims must beevaluated based on the statute as applied to the factsof the case.
Similarly, because the tribe presented a facial challengeto the Casino Act, the Supreme Court declined toaddress the tribe’s argument that the statute ‘‘allowsthe State to potentially delegate disproportionatepower to a private entity to operate what is supposed
E M A I L T H E E D I T O R
email editor cheryl keely [email protected]
Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
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to be a State entity, in violation of the Rhode IslandConstitution.’’ The Supreme Court commented thatquestions regarding the operation of the Casino Actare properly raised in the as-applied challenge to thestatute that is pending in the Superior Court.
Justice Gilbert V. Indeglia wrote the court’s opinion andwas joined by Chief Justice Paul A. Suttell and JusticesFrancis X. Flaherty and William P. Robinson III.
The tribe is represented by William P. Devereaux ofPannone Lopes Devereaux & West. The state is repre-sented by Michael W. Field of the Office of the Attor-ney General. All are in Providence. �
Texas Federal Judge FindsTribe Violated InjunctionProhibiting GamingEL PASO, Texas — A federal judge in Texas onMarch 6 granted the state’s motion for contemptby the Ysleta del Sur Pueblo Indian tribe and its agentsfor violating an injunction prohibiting gaming deviceson the reservation in violation of state law without courtapproval of any modifications to the order (Texas v.Ysleta Del Sur Pueblo, No. 99-320, W.D. Texas;2015 U.S. Dist. LEXIS 28026).
(Opinion available. Document #96-150325-035Z.)
Gaming ActivitiesIn 1987, Congress passed the Restoration Act, grantingthe Ysleta del Sur Pueblo Indian tribe full federal truststatus. Under the act, the tribe is restricted from con-ducting gaming operations on its lands. Though the actdoes not grant Texas civil or criminal regulatory juris-diction over the tribe’s gaming activities, Texas is notprecluded ‘‘from bringing an action in the courts of theUnited States to enjoin violations of [§ 1300g-6(a)]’’ ofthe act.
In 1993, the tribe opened the Speaking Rock Casinoand Entertainment Center on its reservation in El Paso.Speaking Rock began as a bingo hall, but it quicklyexpanded to a full-service casino, offering a wide varietyof gambling activities played with cards, dice and balls.
In September 1999, the State of Texas sued the tribeand various agents of the tribe in the U.S. District
Court for the Western District of Texas, seeking toenjoin the defendants from continuing to operate thegambling activities at Speaking Rock in violation ofthe Texas Penal Code and the Restoration Act.
The District Court issued its original injunction inSeptember 2001. In the order issuing the injunction,the court found that the tribe was conducting illegalgambling operations in violation of the Texas PenalCode and the Restoration Act. The court enjoinedthe tribe, Tigua Gaming Agency, Tribal Council ofthe Ysleta del Sur Pueblo, the tribal governor, the triballieutenant governor and the gaming commissionerfrom operating a number of gaming activities playedwith cards, dice, balls or any other gaming device. Theinjunction had the ‘‘practical effect of prohibiting illegalas well as legal gaming activities by the [tribe].’’
Modification RequestsIn October 2001, the defendants moved for a new trialand to amend judgment, asserting that the originalinjunction was overly broad. In November 2011, thecourt denied the motion. After an unsuccessful appealof the court’s refusal to modify the original injunction,the tribe ceased operation of the prohibited gamblingactivities at Speaking Rock in February 2002.
Less than a month later, Pueblo representatives sub-mitted an emergency motion for clarification of anorder granting summary judgment and injunction.The representatives sought a declaration that the useof certain electronic gaming devices and third-partysweepstakes would not violate the original injunction.In May 2002, the court modified its original injunctionto allow the third-party sweepstakes, but denied thetribe’s request to conduct its own sweepstakes absenta ‘‘firm and detailed proposal showing that said sweep-stakes would be in compliance with Texas law.’’
In September 2003, the defendants filed a secondemergency motion for clarification of the summaryjudgment and injunction order, seeking approval fora tribal sweepstakes promotion. The defendants soughtpermission to conduct a ‘‘Running Bear Prepaid PhoneCard Sweepstakes,’’ which centered around sweepstakesentries granted in connection with the purchase of pre-paid phone cards, as well as the related use of thosecards in ‘‘sweepstakes validation terminal[s].’’ Thecourt rejected the proposal on the grounds that thephone cards were ‘‘geared towards inducing purchasers
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to participate in the sweepstakes contest so that theTribe will receive financial gain.’’
Contempt
Despite the court’s rejection of the proposal, the tribebegan operating electronic gaming devices at SpeakingRock in 2008. The tribe issued prizes won in the formof Visa debit cards.
Texas moved for contempt for violation of the 2001injunction.
In 2009, the court issued its second contempt order.After finding that the Visa debit card was the ‘‘equiva-lent of money’’ under the Texas Penal Code, the courtheld the individuals in contempt for operation of illegal‘‘gambling devices’’ in violation of the modifiedinjunction.
Simultaneous to the 2008 contempt proceedings, thedefendants filed their third emergency motion for clar-ification of order granting injunction. The motionsought a declaration that the tribe’s ‘‘Texas Reel Skill’’sweepstakes would not violate the modified injunction.In August 2009, The court rejected the proposal, find-ing that the tribe’s ‘‘representations of value’’ were ‘‘notindistinguishable’’ from the Visa debit cards and, there-fore, did not purge the illegality of the tribe’s gamingdevices. The court also found that the Texas Reel Skillssweepstakes was distinguished from the first proposalprimarily ‘‘by the substitution of prepaid internet accesscards for prepaid phone cards,’’ which is a ‘‘distinctionwithout a legal difference.’’
Less than a week after the court issued the order, thedefendants filed a proposal seeking approval for thetribe to conduct a sweepstakes in which participantsobtained entries through ‘‘various free methods orthrough a donation to the Tribe.’’ The court refusedpermission to conduct the sweepstakes described in theproposal, finding that the proposal lacked sufficientlydetailed information regarding the proposed use of elec-tronic gaming devices.
Order Violated
In spite of the order, the tribe did not cease sweepstakesoperations at Speaking Rock, and at some time between2010 and 2012, the tribe opened a second sweepstakesoperation at the Socorro Entertainment Center.
In September 2013, the State of Texas filed its secondmotion for contempt for violation of the 2001 in-junction order. After a serious of amendments, thestate filed the instant motion for contempt in March2014, asserting that the defendants are in violation ofthe modified injunction for operating an unauthorizedtribal sweepstakes, for operating illegal lotteries underTexas law and for operating illegal gambling devicesunder Texas law.
Following a show-cause hearing, Judge KathleenCardone granted the contempt motion, holding thatthe defendants are in contempt for operating un-approved tribal sweepstakes. Judge Cardone said thatcontrary to the defendants’ argument, the modifiedinjunction is not ambiguous and that the court‘‘made clear that in order to offer any gaming on itslands, the Tribe must first ‘petition the Court for amodification of any of the terms of the [Original][I]njunction that they believe might limit their abilityto participate in any legal gaming activity for which theyhave qualified under Texas law.’ ’’
Judge Cardone also held that the tribe’s sweepstakesare not national third-party vendor sweepstakes suchas those permitted under the modified injunction.The current sweepstakes are prohibited conduct, mean-ing the defendants are in contempt of the modifiedinjunction, the judge added.
LotteriesJudge Cardone said that because she found the defen-dants in contempt for operating tribal sweepstakeswithout approval, she need not reach the issue ofwhether the current sweepstakes are prohibited lotteriesunder Texas law. But because the court provided thedefendants with the opportunity to submit to the courta detailed sweepstakes proposal, Judge Cardone notedthat the current sweepstakes may potentially fall withinthe provisions of the Sweepstakes Act. As such, in anyproposal submitted to the court, the defendants mustaddress whether provisions of the Sweepstakes Actapply to the gaming operations submitted in the pro-posal, she added.
Any response the state makes should address the lawthat separates a legal promotional sweepstakes froma prohibited lottery under state law and how any pro-posal by the defendants does or does not comply withthat state law, Judge Cardone said. To date, evidence
Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
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submitted by the state has fallen short of the standardrequired, she added.
William T. Deane of the Office of the Attorney Generalin Austin, Texas, represents Texas. Justin J. Solimonand Randolph Barnhouse of Luebben Johnson & Barn-house in Albuquerque, N.M., and Richard AndrewBonner of Kemp Smith in El Paso represent thedefendants.
(Additional documents available: Contempt brief.Document #96-150325-036B. Blue Stone opposi-tion brief. Document #96-150325-037B. Puebloopposition brief. Document #96-150325-038B.) �
Tribal Officers ClaimSovereign Immunity InMichigan Casino DisputeGRAND RAPIDS, Mich. — Claims by the State ofMichigan that Indian tribal officers violated a 1993compact with the state by seeking to expand casinogambling operations outside the tribe’s reservationshould be dismissed because the ‘‘tribal officers re-main cloaked in the sovereign immunity of the Tribeitself,’’ the officers argue in a March 20 brief filed inMichigan federal court (State of Michigan v. AaronPayment, et al., No. 1:12-cv-962, W.D. Mich.).
(Brief in support of motion to dismiss available.Document #96-150325-061B.)
Land Trusts
The Sault Ste. Marie Tribe of Chippewa Indians oper-ates five casinos on Indian lands in the Upper Peninsulaof Michigan pursuant to a class III gaming compactbetween the state and the tribe entered into under theIndian Gaming Regulatory Act (IGRA).
In 2012, Michigan sued the tribe and 13 tribal officersin the U.S. District Court for the Western District ofMichigan, alleging that the tribe’s submission to theDepartment of the Interior to have nontribal landtaken into trust pursuant to the Michigan IndianLand Claims Settlement Act (MILCSA) violated thegaming compact with the state. The court dismissedall claims against the individual defendants without
prejudice but entered a preliminary injunction againstthe tribe barring it from filing its trust submission.
The Sixth Circuit U.S. Court of Appeals reversed anddissolved the injunction, finding that the District Courtlacked jurisdiction based on sovereign immunity. TheSixth Circuit also said that the issue of whether casinogambling on nontribal land violates the IGRA compactif the tribe’s trust submission is successful ‘‘is not ripefor adjudication because it depends on contingentfuture events that may never occur.’’
After the District Court dismissed the action, the tribein June 2014 filed two applications with the Depart-ment of the Interior to have two properties taken intotrust to operate casinos on the land. In response, thestate on Feb. 3 filed an amended complaint, again alle-ging breach of contract/compact claims but namingonly the tribal officers as defendants. The named defen-dants are Aaron Payment, Lana Causely, Cathy Abram-son, Keith Massaway, Dennis McKelvie, JenniferMcLeod, Debra Ann Pine, D.J. Malloy, CatherineHollowell, Darcy Marrow, Denise Chase, Bridget Sor-enson and Joan Anderson.
(Amended complaint available. Document #96-150325-062C.)
Sovereign ImmunityThe defendants, again arguing that the action shouldbe dismissed because the claims are barred by sovereignimmunity, say that the District Court ‘‘should reject theState’s naked effort to make an end-run around IGRAand the Sixth Circuit’s decision.’’
‘‘The Tribe itself, of course, is immune from suit atthis time, as the Sixth Circuit held and as this Courtrecognized in dismissing all claims against the Tribe.The State may not circumvent the Tribe’s immunityby changing the caption of its complaint to sue tribalofficers for the same alleged breach of compact,’’ thedefendants say.
Also, the defendants argue, the action should be dis-missed because the tribe itself is a party to the allega-tions but is immune to the claims.
‘‘The core allegation underlying each of the State’sfour claims is that the Tribe’s MILCSA submissionsbreached the gaming compact between two parties,
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the State and the Tribe. It is a matter of both law andcommon sense that such a compact dispute cannotproperly be litigated when one contractual party (theTribe) is not present in the case because it is immune,’’the defendants say. ‘‘The complaint should thus bedismissed for failure to join a necessary party.’’
The suit also should be dismissed ‘‘under simple andblack-letter rules of contract and tort law’’ for failure tostate a claim under Federal Rule of Civil Procedure12(b)(6), the defendants say.
CounselThe defendants are represented by Seth P. Waxman,Danielle Spinelli, Kelly P. Dunbar and MatthewGuarnieri of Wilmer Cutler Pickering Hale and Dorrin Washington, D.C., and R. John Wernet Jr. of SaultSte. Marie Tribe of Chippewa Indians in Sault Ste.Marie, Mich.
The state is represented by Assistant Attorneys GeneralKelly Drake and Nate Gambill and Special AssistantAttorney General Louis B. Reinwasser of the MichiganDepartment of Attorney General, Environment, NaturalResources and Agriculture Division, in Lansing, Mich. �
California Federal Judge:Water Right Reserved, ButLand Act Extinguished ClaimRIVERSIDE, Calif. — A federal judge in California onMarch 20 granted partial summary judgment in favorof the Agua Caliente Band of Cahuilla Indians and theUnited States’ claim that the government implicitlyreserved appurtenant water sources, including under-lying groundwater, when it created the tribe’s reserva-tion, but granted the defendants partial summaryjudgment on the tribe’s aboriginal title claims, sayinga land act effectively extinguished any such right (AguaCaliente Band of Cahuilla Indians v. Coachella ValleyWater District, et al., No. 13-883, C.D. Calif.).
(Opinion in Section D. Document #96-150325-063Z.)
Water RightsThe Agua Caliente Band of Cahuilla Indians have livedin the Coachella Valley, which sits to the east of the San
Jacinto Mountains in southern California, since beforeAmerican or European settlers arrived in the area nowknown as California. The tribe has used surface waterand groundwater resources there for ‘‘cultural, domesticand agricultural subsistence purposes.’’
In May 1876, President Ulysses S. Grant establishedthe tribe’s reservation in an executive order. The reser-vation was expanded by President Rutherford B. Hayesin September 1877. The United States, pursuant tostatute, holds the lands of the reservation in trust forthe tribe.
In May 2013, the Agua Caliente sued the CoachellaValley Water District (CVWD) and the Desert WaterAgency (DWA) in the U.S. District Court for the Cen-tral District of California, seeking a declaration thattheir federal reserved water rights, which arise underthe doctrine of Winters v. United States (207 U.S.564 [1908]) extend to groundwater. The Agua Calienteclaim that the ‘‘establishment of the Reservation pur-suant to federal law impliedly reserved to the Tribe andits members the right to surface water and groundwatersufficient to accomplish the purposes of the reservation,including establishing a homeland for the Tribe andits members.’’ The Agua Caliente contends that thosereserved rights ‘‘are the most senior’’ in the region, and,as such, the Ague Caliente may prevent CVWD andDWA from adversely affecting the quantity and qualityof their water.
In June 2014, the court granted the United States’motion to intervene as a plaintiff in its capacity forthe tribe’s reservation. The United States’ complaintin intervention asserts claims materially similar to thetribe’s complaint regarding the claim for a declarationof federally reserved water rights, but it does not, how-ever, assert a claim regarding aboriginal water rights.
Phase IThe parties agreed to trifurcate the action into threephases. Phase I seeks to resolve the primarily legal ques-tions regarding the existence of the Agua Caliente’sfederal reserved rights to groundwater under the Win-ters doctrine and the tribe’s aboriginal rights to ground-water. Phase II, contingent to an extent on Phase I’sresolution, seeks to address the ownership of certain‘‘pore space’’ beneath the reservation, the legal questionof whether a right to quantity of groundwater encom-passes a right to water of a certain quality and some of
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the equitable defenses asserted by the CVWD andDWA. In Phase III, if necessary, the court will under-take the fact-intensive task of quantifying the AguaCaliente’s rights to groundwater and pore space andcrafting appropriate injunctive relief.
All four parties moved for summary judgment pertain-ing to Phase I. The Agua Caliente argued that federallaw recognizes the tribe’s reserved right to groundwaterand that it also holds aboriginal title to land in theCoachella Valley to which groundwater rights attach.The United States’ motion echoes the tribe’s Wintersrights argument and emphasizes the supremacy of fed-eral water rights over those created by state law but doesnot claim tribal aboriginal title on the Agua Caliente’sbehalf.
CVWD argued that Congress extinguished any abori-ginal groundwater rights and that Winters rights impli-citly reserved for the tribe do not extend to groundwater,and even if they do extend to groundwater, the purposesof the Agua Caliente’s reservation will not ‘‘entirely fail’’without a reserved right to groundwater. DWA’smotion parallels CVWD’s motion.
Reserved RightsJudge Jesus G. Bernal held that the tribe’s federalreserved water rights may include groundwater, butits aboriginal right of occupancy was extinguishedlong ago, such that the tribe has no derivative right togroundwater.
‘‘For over a century, the Supreme Court has held thatwhen the United States ‘withdraws its land from thepublic domain and reserves it for a federal purpose, theGovernment, by implication, reserves appurtenantwater then unappropriated to the extent needed toaccomplish the purposes of the reservation,’ ’’ JudgeBernal said, citing Cappaert v. United States (426U.S. 128, 138 [1976]). ‘‘Impliedly reserved water rights‘vest[] on the date of the reservation and [are] superiorto the rights of future appropriators,’ ’’ the judge added.‘‘Winters rights arise under federal law, and are thusan exception to the normal rule that assigns waterresources regulations to the states.’’
‘‘The federal government intended to reserve water forthe Tribe’s use on its reservation,’’ Judge Bernal said.‘‘Rights to the groundwater underlying the reservationare appurtenant to the reservation itself. Accordingly,
the Court concludes the federal government impliedlyreserved groundwater, as well as surface water, for theAgua Caliente when it created the reservation. Whethergroundwater resources are necessary to fulfill the re-servation’s purpose, however, is a question that mustbe addressed in a later phase of this litigation.’’
Judge Bernal held that the tribe and the United Stateswere entitled to partial summary judgment on thePhase I issue of whether the tribe’s federally reservedwater rights encompass groundwater underlying thereservation.
Aboriginal Right
The tribe also asserted an aboriginal right to usegroundwater beneath the Coachella Valley, with apriority date of time immemorial. The tribe arguedthat federal law recognizes certain rights connected tooriginal Indian occupancy lands and that lands en-compassed by the Treaty of Guadalupe Hidalgo fallunder the original occupancy doctrine. Further, thetribe contends that is has continuously and exclusivelyoccupied the Coachella Valley, which was ceded aspart of the Treaty of Guadalupe Hidalgo, so it possessesan aboriginal right to groundwater underlying itsreservation.
The defendants countered that Congress, via the LandClaims Act of 1851 statute, required the presentationof land claims in California to a commission for vali-dation and that the tribe did not assert such a claim,so the land the tribe occupied in the Coachella Valleyreverted to public domain. As such, the tribe’s claim toan aboriginal occupancy fails, the defendants said.
Judge Bernal agreed with the defendants, sayingthe tribe admitted that no claim was filed on its behalfas part of the claims process under the act. As such, likethe Indians in all other cases interpreting the act, theAgua Caliente’s aboriginal claim was effectively extin-guished after the two-year claims window closed, andits territory subsumed within the public domain, thejudge added.
Judge Bernal granted partial summary judgment to thedefendants regarding the tribe’s aboriginal title claim.
He then certified the order for interlocutory appeal,should the parties seek review.
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AttorneysEmil W. Herich and Catherine F. Munson of Kilpa-trick Townsend and Stockton in Beverly Hills, Calif.,David J. Masutani of AlvaradoSmith in Los Angeles,Heather Whiteman Runs Him and Steven C. Mooreof Native American Rights Fund in Boulder, Colo., andMark H. Reeves of Kilpatrick Townsend and Stocktonin Augusta, Ga., represent the Agua Caliente. DaronT. Carreiro, F. Patrick Barry and Yosef M. Negose ofthe U.S. Department of Justice in Washington, D.C.,represent the United States.
Steven B. Abbott, Gerald D. Shoaf and Julianna K.Strong of Redwine & Sherrill in Riverside representthe CVWD. Roderick E. Walston and Gene Tanakaof Best Best and Krieger in Walnut Creek, Calif., Ste-ven George Martin of Best Best in San Diego andArthur L. Littleworth and Piero C. Dallarda of BestBest in Riverside represent DWA.
(Additional documents available: Coachella summaryjudgment brief. Document #96-150325-064B. Uni-ted States summary judgment brief. 96-150325-065B. Desert Water agency summary judgmentbrief. Document #96-150325-066B. Agua Calientesummary judgment brief. Document #96-150325-067B.) �
Nevada Federal Judge Dismisses1 Count In Challenge ToWater Pipeline ApprovalLAS VEGAS — A Nevada federal judge on Feb. 24dismissed one count of a consolidated action broughtagainst the federal government for its approval of asouthern Nevada water pipeline project (Center forBiological Diversity v. United States Bureau of LandManagement, et al., No. 14-226, White Pine County,et al. v. United States Bureau of Land Management,et al., No. 14-228, D. Nev.; 2015 U.S. Dist. LEXIS2355).
(Opinion available. Document #95-150312-009Z.)
The federal government granted a right of way to theSouthern Nevada Water Authority to construct a pipe-line to carry groundwater from other parts of Nevada toClark County, Nev. Two separate lawsuits challenging
the government’s authority were filed in the U.S.District Court for the District of Nevada by the Centerfor Biological Diversity and by White Pine County and11 other plaintiffs including Native American tribes,water authorities, environmental and advocacy groups.The cases were consolidated.
The United States moved to dismiss parts of one com-plaint. Judge Andrew P. Gordon erroneously denied themotion as moot but then reinstated it and ruled on it.
Native American, Water RightsThe federal government moved to dismiss on threegrounds. First, it said that one count relies on the Amer-ican Indian Religious Freedom Act, which it says givesno judicially enforceable rights.
Second, the federal government said it does not owe anyenhanced trust duties to a Native American tribe underthe Federal Land Policy and Management Act (FLPMA),the National Environmental Policy Act (MEPA) or theNational Historic Preservation Act (NHPA). It arguedthat compliance with the statutes fulfills the government’sobligations.
Finally, the federal government said there is no law im-posing on it a trust duty to manage or mitigate adverseeffects on a tribe’s reserved water rights.
Plaintiffs Clarify ClaimsIn response, the plaintiffs said they do not assert aclaim under the American Indian Religious FreedomAct or on reserved water rights. Instead, the plaintiffssaid they are claiming that the federal government’sfailure to consider the tribes’ religious and ceremonialpractices and reserved water rights violated the NationalEnvironmental Policy Act.
They said they are not asserting a claim for an in-dependent breach of fiduciary duty. They said theyare alleging that under the Federal Land Policy andManagement Act, the National Environmental PolicyAct or the National Historic Preservation Act, the gov-ernment must fulfill its statutory duties with specialconsideration for the tribes’ interests.
Judge Gordon said that since the plaintiffs clarified theyare not asserting independent claims under the Amer-ican Indian Religious Freedom Act or for reserved waterrights, he denied the motion to dismiss those counts.
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No Enhanced ObligationsWith respect to enhanced trust obligations, JudgeGordon said the government acts not as a private trus-tee but as a sovereign interest. ‘‘[T]he federal govern-ment’s compliance with the FLPMA, NEPA, ANDNHPA satisfies its general trust obligations to Indiantribes,’’ the judge held.
The plaintiffs argued that there is an open questionabout whether the federal government has to take spe-cial consideration of tribal interests when complyingwith applicable statutes and regulations. ‘‘Yet, the pre-vailing rule of law remains that the federal government’strust obligation is satisfied by compliance with generalstatutes and regulations not aimed at protecting Indiantribes unless some statute or regulation imposes uponthe government a specific duty with respect to Indians,’’the judge wrote.
The judge said ‘‘the complaint does not identify anyspecific duty the Treaty [Treaty of Peace and Friend-ship with the Goshute Shoshone Indians in 1863] orany related statute or regulation imposes on the federalgovernment.’’ He said the applicable count in the com-plaint seeks to impose enhanced statutory duties on thegovernment beyond what the FLPMA, NEPA andNHPA already require.
CounselThe Center for Biological Diversity is represented byMarc D. Fink of Duluth, Minn., and Julie Cavanaugh-Bill of the Cavanaugh-Bill Law Offices in Elko, Nev.
The United States is represented by Maureen E.Rudolph of the U.S. Justice Department in Washing-ton, D.C., and Luther L. Jajek of the Justice Depart-ment in Denver.
White Pine County and other defendants are repre-sented by White Pine County District Attorney KellyC. Brown of the District Attorney’s Office in Ely, Nev.,and Simeon M. Herskovitz of Advocates for Commu-nity and Environment in El Prado, N.M. �
Crow Water Allottees LackStanding For Legal Defense,Indian Affairs SaysBILLINGS, Mont. — The U.S. government on Feb. 25asked a Montana federal court to enter judgment
against water rights allottees of the Crow Native Amer-ican tribe, arguing that the court lacks jurisdiction andthat there is no obligation by the government to providethe plaintiffs with legal representation (Crow AllotteesAssociation, et al. v. United States Bureau of IndianAffairs, No. 14-62, D. Mont., Billings Div.).
(Brief available. Document #95-150312-016B.)
In May, the Crow Allottees Association and 35 indivi-dual members sued the U.S. Bureau of Indian Affairs(BIA) and the judges of the Montana Water Court inthe U.S. District Court for the District of Montana.The plaintiffs want the BIA to provide them with legalrepresentation under terms of the Crow Tribal Com-pact, which provides them with reserved water rightson the Crow reservation in Montana.
The plaintiffs say their water rights have been recog-nized in subsequent legislation and agreements, includ-ing the Crow Act of 1920, the 1999 Crow Compactand the Crow Tribal Water Rights Settlement of 2010.
The Crow Allottees say the most recent compactrequires the Crow tribe to develop a water code withintwo years but does not specify protection of the allot-tees’ rights. They say that since their rights are not beingdistinguished from other rights, they cannot be ade-quately represented by the Tribal Administration andwant the BIA to provide them with legal representation.
Stay Pending Dismissal MotionThe complaint alleges that the BIA is in breach of itsfiduciary duties and that the allottees are being denieddue process by not being represented in the process ofdeveloping a tribal water code.
Water Court Judges Russell McElyea and DouglasRitter have moved to dismiss the claims against them.
On Feb. 4, the parties said they agreed to stay proceed-ings in the case so the court can hear the BIA’s motionfor judgment on the pleadings under Federal Rule ofCivil Procedure 12(c). They said the outcome of thedispositive motion may affect the need for discovery.
On Feb. 6, Judge Susan P. Watters stayed discoveryand ordered briefing on the BIA’s dismissal motion.
Underlying Case Must ConcludeIn its Feb. 25 motion for judgment, the BIA says theplaintiffs have not pleaded any injury that establishes
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their standing. It says the U.S. Interior Department’swaiver of the allottees’ claims will not be effective untilthe Water Court proceedings are resolved.
The BIA says that once the waiver becomes effective,the allottees will receive ‘‘substitute resources equal to orgreater than the value of the waived claims.’’ ‘‘To claimany injury now is speculative and cannot establishstanding,’’ the government says.
The BIA says the allottees have not identified anywaiver of sovereign immunity by the federal govern-ment. It says that to invoke the federal AdministrativeProcedure Act, a plaintiff must challenge a final agencyaction or a failure to perform an enforceable legal duty.‘‘The Plaintiffs have done neither here,’’ the agency says.
No Duty To DefendFinally, the BIA says the allottees fail to state a claimbecause they do not allege any violation of law. It saysthe allottees claims violations of a federal duty to pro-vide independent counsel but says none of the citedlaws creates such a duty.
The allottees are represented by Hertha L. Lund ofLund Law in Bozeman, Mont.
The BIA is represented by John C. Cruden and Ty Bairof the U.S. Justice Department in Washington, D.C.The Water Court is represented by Jeffrey M. Doudof the Montana Attorney General’s Office in Helena,Mont. �
Natural Resources CommitteeOutlines Process ForWater Rights SettlementsWASHINGTON, D.C. — Rob Bishop, chairmanof the U.S. House of Representatives Committee onNatural Resources, sent a letter dated Feb. 26 to Attor-ney General Eric Holder and Sally Jewell, secretary ofthe Interior, outlining the process the committeeintends to follow when considering future Indianwater rights settlements.
(Letter available. Document #96-150325-025X.)
The House Natural Resources Committee has primaryauthorizing jurisdiction over the legislative resolution
of Indian water rights claims within the House ofRepresentatives. The United States has a longstandingpolicy that disputes regarding Indian water rightsshould be resolved through negotiated settlementrather than through litigation, and the Department ofJustice and Department of the Interior play key rolesin negotiating and developing settlements regardingthe claims before they are considered by Congress,Bishop says in the letter.
The executive branch is charged with implementingexisting Indian water rights settlement criteria andprocedures designed to meet the goal of implementingthe settlements, Bishop says. If crafted correctly, thesettlements can provide relief to the United Statesfrom burdensome legal obligations that benefit allAmerican taxpayers, Bishop says.
The letter outlines the process the committee intendsto follow when considering future Indiana water rightssettlements and to inform the attorney general andsecretary of the assistance the committee will needfrom them and their designees.
As part of the process, Bishop says that the departments‘‘must convey support for and forward the settlementsand the proposed authorizing legislation, specificallyincluding federal spending levels, before any Commit-tee consideration takes place.’’
Outline Of Actions
Also, the committee has outlined the following pro-cesses it intends to follow when considering futureIndian water right settlements:
� Holder and Jewell ‘‘will provide a statement to theCommittee affirming that each proposed settlementresolution transmitted by your Department willadhere to the current criteria and procedures.’’
� The departments are to ‘‘specifically affirm tothe Committee that a settlement meets Criteria 4and 5(a) and (b) [as included in the Federal Reg-ister] to ensure that the American taxpayer isderiving benefits from any such settlement priorto Committee consideration. Related to such adetermination, both Departments will be expectedto affirm that a particular settlement represents anet benefit to the American taxpayer as comparedto the consequences and costs of not settling
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litigation, and specifically support the federal fin-ancial authorization included in the proposedlegislative text.’’
� ‘‘For settlement legislation to be considered, theAttorney General or his/her designee must haveconveyed to a court and all settling parties haveagreed, in writing, to the settlement pending a leg-islative resolution before it is forwarded to theCommittee for it to be considered.’’
� ‘‘Both Departments and the settling parties musthave approved, in writing, the legislative textneeded to codify the settlement before it is trans-mitted to the Committee and have provided thatproposed text to the relevant court.’’
� ‘‘Based on precedent, the Committee requests thatthe Department of Justice consent to being availableto testify if any legislative text is considered by theCommittee related to such proposals.’’
� ‘‘Both Departments must list the legal claims beingsettled in any document transmitting legislativetext.’’
� ‘‘Such settlements and proposed legislation shall notinclude financial authorizations for claims alreadysettlement by Congress or claims that have no legalbasis.’’ �
Government Asks JudgeTo Dismiss Indian Tribe’sACA Employer Mandate ChallengeCHEYENNE, Wyo. — An Indian tribe waived itsobjections to the Patient Protection and AffordableCare Act (ACA)’s large employer mandate by not rais-ing them during the rulemaking process, and its actionruns afoul of the Anti-Injunction Act’s (AIA) bar ontax challenges taxes, the government told a federal judgeon March 19 (Northern Arapaho Tribe, et al. v. SylviaBurwell, et al., No. 14-247, D. Wyo.; 2015 U.S. Dist.LEXIS 30480).
(Memo available. Document #93-150325-017B.)
The Northern Arapaho Tribe sued the U.S. Depart-ment of Health and Human Services, Sylvia Burwell,secretary of the Health and Human Services, the U.S.Department of Treasury and Jacob Lew, secretary of
the Department of Treasury, seeking an exemptionfrom the ACA’s large-employer mandate.
Northern Arapaho Tribe operates several businesses,including a casino, convenience store, gas station andgrocery store. The ACA defines employers with morethan 50 full-time employees as large employers andrequires them to provide health insurance plans orface ‘‘assessable payment’’ tax. Northern Arapahoemploys more than 900 people.
Employer MandateThe Northern Arapaho Tribe discovered after theACA’s passage that its employees could find moreaffordable insurance through the federal exchangeand offered to pay up to 80 percent of the employees’costs in obtaining insurance through the exchange.
In January 2015, the ACA’s large employer mandatebecame effective. The tribe filed suit, arguing thatany insurance coverage it offered employees would beinferior to that which they could obtain through theexchange. The challenged regulations are at 26 Code ofFederal Regulations Sections 54.4980H-1, 301.6045-1and 1.6055-1.
The tribe moved for a preliminary injunction, whichwas denied in February.
Anti-InjunctionThe government then moved for dismissal, arguing thatas Judge Scott W. Skavdahl found in denying the tribean injunction, the AIA bar on lawsuits involving taxesforecloses on the suit. Section 4940H repeatedly usesthe term ‘‘tax,’’ the government argues.
The U.S. Supreme Court has repeatedly made this barclear, the government argues. The concurring opinionin Hobby Lobby Stores Inc. v. Sebelius (723 F.3d 1144[10th Cir. 2013]) finding that the AIA was nonjurisdic-tional did not ‘‘disturb settled circuit law on this point’’and is not binding on the court because it was joined byonly three of the eight justices, the government argues.
ACA PurposeFurther, the tribe has not stated a claim on which reliefcan be granted, the government argues. The tribewaived its challenge by not raising the issues it nowcomplains of during the notice-and-comment periodof the rulemaking process, the government argues.
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Additionally, the regulations are ‘‘consistent with thelanguage, structure and purpose of the ACA,’’ the gov-ernment argues. Section 4980H applies to all largeemployers, including governments, the governmentargues. Section 4980H’s purpose was to help employersprovide adequate insurance coverage, and there is noreason to assume that Congress wanted to excludeIndian tribes from that goal, the government argues.Had it wanted to do so, Congress was more than cap-able of excluding Indian tribes from the mandate, thegovernment argues.
Andrew W. Baldwin, Janet E. Millard, Kelly A. Rudd,Mandi Anne Vuinovich and Berthenia S. Crocker ofBaldwin, Crocker & Rudd in Lander, Wyo., representthe tribe. Benjamin C. Mizer, Sheila M. Lieber, AliceS. LaCou, Christopher A. Crofts, Nicholas Vassalloand Jacek Pruski of the U.S. Department of Justicein Washington, D.C., represent the government. �
Plan Participant Need NotExhaust Tribal RemediesUnder ERISA, Judge RulesKANSAS CITY, Kan. — A participant in a nongovern-mental health need not exhaust tribal remedies prior tobringing a claim for recovery of health benefits underthe Employee Retirement Income Security Act, a fed-eral judge in Kansas ruled March 13 (Amy Coppe v.The Sac & Fox Casino Healthcare Plan, et al., No. 14-2598, D. Kan.; 2015 U.S. Dist. LEXIS 30992).
(Memorandum and order available. Document #54-150408-022Z.)
Amy Coppe, a participant in the Sac & Fox CasinoHealthcare Plan, sued the plan and Benefit Manage-ment Inc., the plan’s third-party administrator, (collec-tively, the plan) asserting that the defendants wrongfullydenied her claim for medical benefits under ERISASection 502(a)(1)(B).
The plan moved to dismiss or for a stay for failure to ex-haust tribal remedies. The plan asserted that the casinois a noncorporate operating arm of the Sac and FoxNation of Missouri, a federally recognized Indiantribe, that the money to fund the plan came from thecasino’s general operating expenses, that the plan was
managed by the tribe’s council members and thata judgment against the plan would likely come di-rectly from the tribal treasury or the casino’s generaloperating fund.
‘Preemptive Intent’In ruling that tribal courts do not have jurisdiction overERISA actions, U.S. Judge Richard D. Rogers of theDistrict of Kansas initially noted that the plan did notallege that it is a ‘‘governmental plan’’ within the mean-ing of ERISA Section 3(32).
Judge Rogers then concluded that ‘‘tribal rights to makelaws governing members and to regulate activity uponthe reservation does not exclude federal authority asexpressed in ERISA to occupy and preempt the fieldof ERISA rights enforcement for nongovernmentalplans.’’ The judge noted that ‘‘if an ERISA claim wasbrought in tribal court against a nonmember defen-dant or if an ERISA claim against a nongovernmentalERISA plan had to be brought first in tribal court, . . .[t]he power of an ERISA defendant to remove theaction to federal court, as exists for state court ERISAdefendants, would not be present. And, the right of anERISA plaintiff to choose a federal forum at the outsetof an action would be infringed.’’
This conclusion is true even as to members of a tribebecause of ‘‘the preemptive intent of Congress in pas-sing ERISA,’’ the judge said.
Access To Federal CourtsJudge Rogers also rejected the plan’s argument thatERISA does not provide for federal preemption of ben-efit claims under Section 502(a)(1)(B) because statecourts have concurrent jurisdiction over such claims.
‘‘The key point is that access to a federal forum mustbe allowed to ERISA defendants and plaintiffs andthat such access via removal would be denied toERISA defendants if tribal courts had jurisdictionto decide ERISA claims, and such access for ERISAplaintiffs would be denied or at least infringed if caseswere forced to be brought initially in tribal court,’’ thejudge said.
Because the court held that the tribal court lacks jur-isdiction, the judge said that he did not need to con-sider exhaustion of tribal court remedies as a matterof comity.
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Coppe is represented by Dean Nash and Brian Fran-ciskato in Kansas City, Mo. The plan is representedby Christopher C. Halbert of Halbert, Dunn & Hal-bert in Hiawatha, Kan., and Joseph V. Messineo ofFredericks Peebles & Morgan in Omaha, Neb. �
Breach Claim Dismissed;Reimbursement ClaimContinues In Funding DisputePHOENIX — A federal judge in Arizona on March 6dismissed a breach-of-trust claim from a dispute overthe funding for contract health care services the GilaRiver Indian Community provided to members of theTohono O’odham Reservation but allowed a claim forreimbursement to continue (Gila River Indian Com-munity v. Sylvia Matthews Burwell, et al., No. 14-943,D. Ariz.; 2015 U.S. Dist. LEXIS 27595).
(Opinion available. Document #96-150325-031Z.)
Final Offer RejectedGila River Indian Community is a federally recognizedIndian tribe. Until 1995, Indian Health Services (IHS)provided health care for community members andoperated a hospital in Sacaton, Ariz. The communitythen entered into a self-governance contract with IHSpursuant to the Indian Self-Determination and Educa-tion Assistance Act (ISDEAA). The contract allowedthe community to take control of its health care servicesand the hospital, with the support of federal funds. In2002, the community entered into a self-governance‘‘compact’’ with IHS pursuant to ISDEAA amend-ments that Congress had passed. The compact grantedthe community greater autonomy in providing healthcare services.
Since the community assumed control of its healthcare services, members of the Tohono O’odham Reser-vation have received care at the community’s hospital.as well as contract health care services paid by thecommunity. The funding agreements — which wereentered into annually by the community and IHSunder the self-governance contract and compact —never specifically identified funding for the contracthealth care services for Tohono O’odham members.
In 2013, the community requested and IHS agreedto additional funding for contract health care services
for Tohono O’odham members. For the 2014 fundingagreement, the community again requested additionalfunding for the services, but IHS declined the requestand also declined to delineate what portions of the2014 funding agreement were allocated to health careservices for Tohono O’odham members.
On Nov. 15, 2014, the community sent IHS a ‘‘FinalOffer,’’ which contained an amendment to the 2014funding agreement. The proposed amendment re-quired IHS to delineate what amounts in the fundingagreements from 1996 to 2014 were allocated to healthcare services for Tohono O’odham members. If IHSfailed to do this, or evidence showed that the fundinghad been deficient, the amendment required an addi-tional $963,114 for the 2014 funding agreement andreimbursement for the deficiencies in the previousfunding agreements.
IHS rejected the final offer and the proposed amendment.
Claims Dismissal SoughtFurther negotiations failed, and the community suedSylvia Matthews Burwell, secretary of Health andHuman Services, and Yvette Roubideaux, acting direc-tor for IHS, in the U.S. District Court for the Districtof Arizona. In its amended complaint, the communityseeks injunctive and declaratory relief for violation of25 U.S. Code Section 458aaa-6 for failing to approvethe amendment to the 2014 funding agreement, vio-lation of 25 U.S. Code Section 458aaa-6 for failingto sever the portions of the amendment that wereacceptable to the defendants and for breach of varioustrust duties owed to the community. The communityalso claimed that it was entitled to reimbursementfor fund spent on health care services for Tohono O’od-ham members.
The defendants moved to dismiss the community’sbreach-of-trust claim and its request for reimbursement,arguing that the court lacked subject matter jurisdictionover the claims. Other than the reimbursement remedy,the defendants did not ask the court to dismiss thecommunity’s claims for violation of the ISDEAA.
JurisdictionAt the outset, Judge David G. Campbell noted thatbecause Burwell and Roubideaux were being sued intheir official capacities, sovereign immunity may barportions of the suit. The ISDEAA does contain a waiver
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of sovereign immunity. Under the statute, the federalgovernment waives its immunity and grants districtcourts ‘‘original jurisdiction over any civil action orclaim against the appropriate Secretary arising under[the ISDEAA].’’ The statute also grants district courts,subject to the provisions of the Contract Disputes Act(CDA), jurisdiction ‘‘over any civil action or claimagainst the Secretary for money damages arisingunder contracts authorized by this subchapter.’’ Thewaiver of immunity extends to claims arising underself-governance compacts, Judge Campbell said.
Under Federal Rule of Civil Procedure (FRCP)12(b)(1), defendants may move to dismiss a case forlack of subject matter jurisdiction. A FRCP 12(b)(1)jurisdictional attack may be facial or factual, JudgeCampbell said. Although the parties’ briefing is difficultto characterize, Judge Campbell said it appears thatthe defendants have mounted a facial attack on subjectmatter jurisdiction. Regardless, the central issues arewhether the community has pleaded a cognizablebreach-of-trust claim and whether its claim for reim-bursement may be asserted only under the CDA,Judge Campbell said.
Breach Of TrustThe community has not pleaded a viable breach-of-trust claim, so the claim must be dismissed because itdoes not fall within the limited waiver of sovereignimmunity and for failure to state a claim, Judge Camp-bell said.
Judge Campbell said he could not accept the commu-nity’s argument that it can sustain a breach-of-trustclaim for two reasons. First, United States v. NavajoNation (547 U.S. 488, 506, S. Ct. 1079 [2003]) makesclear that a mere substantive source of statutory regu-latory duties is not sufficient to give rise to a breach-of-trust claim, Judge Campbell said.
The statutes and regulations in this case ‘‘simply donot give the federal government full responsibility tomanage Indian resources for the benefit of Indians,’’Judge Campbell said. ‘‘Nor can the government’s generaltrust obligations provide the missing elements of Com-munity’s breach-of-trust claim’’ because Navajo makes‘‘clear that the general trust obligation can ‘reinforce theconclusion that the relevant statute or regulation im-poses fiduciary duties,’’’ but ‘‘it is not sufficient to sup-port that conclusion in the absence of comprehensive
statutes and regulations. Thus, the Community’s argu-ment that the general trust relationship is recognizedin the ISDEAA or other Indian health care legislationdoes not enable him to find a cognizable breach-of-trustclaim,’’ Judge Campbell said.
The judge said he could not conclude ‘‘that the statutesand regulations relied on by the Community show thatthe United States has accepted trust responsibilities forthe healthcare related duties the Community seeks toenforce.’’
Further, ‘‘[t]his case does not involve a traditional cor-pus,’’ Judge Campbell said. ‘‘There is no property ormoney held in trust by the federal government for thebenefit of the Community. THIS case does involveappropriations Congress makes to IHS, part of whichare used to fund tribal self-governance compacts forhealthcare.’’
‘‘A congressional appropriation of government funds isqualitatively different from the tribal-owned real prop-erty managed by the government on behalf of Indiantribes,’’ Judge Campbell said. ‘‘The appropriation con-sists of moneys of the United States, and cannot be saidto constitute property of the tribes when it has not beenset aside in trust as tribal property.’’
ReimbursementJudge Campbell held, however, that the community’sreimbursement claim complies with the statutoryrequirements asserting a claim under the ISDEAA;therefore, it cannot be dismissed at this stage of thelitigation on the ground that it may be brought onlyunder the CDA.
The ISDEAA allows an Indian tribe to bring suit infederal court for IHS’s failure to accept a final offer,Judge Campbell said. The community submitted afinal offer to defendants, which IHS rejected. The com-munity then filed this lawsuit, claiming that the def-endants improperly rejected the final offer and theproposed amendment, the judge said. The comm-unity’s actions closely track the requirements of theISDEAA, which states that the community may‘‘directly proceed to initiate and action in a Federaldistrict court pursuant to section 450m-1(a) of THIStitle,’’ the judge added.
Linus Everling and Thomas L. Murphy of the GilaRiver Indian Community in Sacaton, Robert Richard
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Yoder of Yoder & Langford in Phoenix and Vernle C.Durocher Jr. of Dorsey & Whitney in Minneapolis rep-resent the community. Adam Ryan Smart of the U.S.Attorney Office in Phoenix represents the defendants.
(Additional documents available: Amended com-plaint. Document #96-150325-032C. Dismissalbrief. Document #96-150325-033B. Oppositionbrief. Document #96-150325-034B.) �
New Mexico Federal JudgeDeclines To Transfer DisputeOver Hospital FundingALBUQUERQUE, N.M. — A federal judge in NewMexico on Feb. 5 declined to dismiss or transfer adispute over the pulling of funding for a hospital pro-viding health care services on the Navajo Reservation,saying that although many of the events giving riseto the dispute occurred in Arizona, the court theplaintiffs filed the case in was more convenient for theparties and for obtaining documents (Navajo HealthFoundation — Sage Memorial Hospital Inc. v. SylviaMathew Burwell, et al., No. 14-958, D. N.M.; 2015U.S. Dist. LEXIS 19611).
(Opinion available. Document #96-150325-010Z.)
Hospital TurnaroundNavajo Health Foundation — Sage Memorial HospitalInc. is a private nonprofit corporation that has ownedand operated a health care facility in Ganado, Ariz.,which lies within the Navajo Reservation, since 1974.The Navajo Nation Council designated Sage Hospitalas a ‘‘tribal organization’’ for the purpose of contractingwith the U.S. Department of Health and Human Ser-vices (HHS). HHS Secretary Sylvia Mathews Burwellis responsible for conducting all HHS duties, includingcontracting on behalf of the United States with tribalorganizations to provide health care to Native Ameri-cans. The Indian Health Service (IHS) is a divisionof the HHS that is the principal health care providerfor members of federally recognized American Indiantribes. Yvette Roubideaux is IHS’s acting directingand is responsible for contracting with tribal organiza-tions to provide health care to American Indians.John Hubbard Jr. is the area director of the Navajo-area IHS. Frank Dayish is the contracting officer for
the Navajo-area IHS. Dayish is responsible for negotia-ting and maintaining IHS’s contracts throughout theNavajo Reservation, including its contract with SageHospital. Dayish has the authority to sign Indian SelfDetermination and Education Assistant Act (ISDEA)contracts and funding agreements with Sage Hospitaland to award funds under those agreements.
From 1947 to 2007, Sage Hospital’s facilities ‘‘grewincreasingly obsolete, and the quality of its healthcareservices plummeted.’’ By 2007, Sage Hospital was fight-ing multiple regulatory and financial battles to stayafloat. Sage Hospital worked to turn its operationsaround, and by September 2009, the hospital receivedits unconditional Arizona Department of Health Ser-vices license and Centers for Medicare and MedicaidServices certification. The hospital received severalother awards. In September 2013, the Arizona Depart-ment of Health Services licensed Sage Hospitalthrough Sept. 30, 2016. In March 2014, the JointCommission on Accreditation of Health Care Organi-zations granted the hospital ‘‘Critical Access HospitalAccreditation,’’ stating that it did not identify anyareas for improvement. The hospital also received anunqualified — or ‘‘clean’’ — audit from its independentauditors every year from 2007 to 2013.
Support PulledDespite the hospital’s accomplishments, IHS failedto provide full contract support to the hospital. InOctober 2003, the Navajo Nation Council renewedSage Hospital’s tribal organization status through2005. In June 2005, the council reaffirmed the hos-pital’s tribal organization status, authorizing Sage Hos-pital to manage and operate contracts through IHSthrough Sept. 30, 2020. Soon after receiving tribalorganization status through Sept. 30, 2020, Sage Hos-pital entered into a contract with IHS that becameeffective in 2009. The contract was extended through2013. In an Aug. 22, 2013, letter to IHS, Sage Hospitaloffered two proposals — to extend IHS’s contract withSage Hospital through Sept. 30, 2016, and to approvean annual funding agreement for the 2014 fiscal yearwith no material changes in Sage Hospital’s budget,services or programs for the 2013 fiscal year.
IHS did not accept either of the proposals but in-stead chose to fund Sage Hospital on a monthly basiswhile conducting a performance monitoring review andforensic audit. IHS conducted the review, and Moss
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Adams LLP, an independent accounting firm, con-ducted the audit. Sage Hospital contends that it wassupposed to be provided draft reports for review so itcould correct errors and discuss any adverse findingsbefore IHS finalized the report. The hospital said, how-ever, that it never received any documents, despite ask-ing for the draft reports.
In September 2014, IHS informed Sage Hospital thatit would not renew the hospital’s contract. The declina-tion stated that Sage Hospital’s board of directors wasmisusing government funding and providing inade-quate care to patients. Sage Hospital demanded thatIHS rescind the declination, but IHS did not.
After issuing the declination, IHS told Sage Hospital’ssupplier — without notifying Sage Hospital — toimmediately stop delivering pharmaceuticals to thehospital. IHS also informed the public through mediaadvisories that IHS would be changing how it providedhealth care services to beneficiaries in the Granado Ser-vice area who were formerly served by Sage Memorialbecause IHS was no longer funding the hospital.
Dismissal, Transfer Sought
In October 2014, Sage Hospital sued Burwell,Roudbideaux, Hubbard and Dayish in the U.S. DistrictCourt for the District of New Mexico, contending thatIHS’s declination of its contract proposal violated 25U.S. Code Section 450f(b)(2) and 25 Code Federal
Regulation Sections 900.32 and 900.33 and thatIHS’s declination of the contract proposal for fiscalyear 2015 — to the extent that it was substantiallythe same as the fiscal year 2014 proposal — violated25 U.S. Code Section 450f(b)(2) and 25 Code FederalRegulation Sections 900.32 and 900.33. Sage Hospitalsought immediate injunctive relief and said that be-cause it is entitled to immediate injunctive relief toreverse the declination and to compel Burwell toaward and fund the three-year contract proposal itsubmitted, the defendants are required to pay thehospital the full amount requested in the fiscal year2014 additional funding agreement. Sage Hospitalalso said IHS violated 41 U.S. Code Section 7103(f)(3).
In November, the defendants asked the court to dis-miss the case for improper venue under Federal Ruleof Civil Procedure 12(b)(3) or to transfer the case tothe U.S. District Court for the District of Arizonaunder 28 U.S. Code Section 1401(a).
Transfer DeniedJudge James O. Browning denied the defendants’motion to dismiss, finding that the District of NewMexico is a proper venue for the case pursuant toSection 1391(e)(1)(A) because Dayish is domiciled inNew Mexico. The District of New Mexico, however,is not a proper venue for the case under Section1391(e)(1)(B) because a ‘‘substantial part of the eventsor omissions giving rise to the claim’’ did not occur inNew Mexico, the judge added.
However, the judge declined to transfer the case, sayingSage Hospital filed the suit in the District of NewMexico and the court is a more convenient forum forthe witnesses, the parties and for obtaining the relevantdocuments than the District of Arizona.
Paul E. Frye of Frye Law Firm in Albuquerque rep-resents Sage Hospital. Angela M. Belgrove and PaulaR. Lee of the U.S. Department of Health and HumanServices in San Francisco and Karen Grohman of theU.S. Attorney’s Office in Albuquerque represent thedefendants.
(Additional documents available: Complaint. Docu-ment #96-150325-011C. Dismissal brief. Document#96-150325-012B. Opposition brief. Document#96-150325-013B. Reply brief. Document #96-150325-014B.) �
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Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
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Tribe Members’ Class ClaimsFor Compensation FiledToo Late, Judge FindsSIOUX FALLS, S.D. — Class claims filed by fourmembers of the Cheyenne River Sioux Tribe allegingthat the United States violated its trust and fiduciaryduties by taking their land without just compensationare barred by the statute of limitations and becausethere is no waiver of sovereign immunity, a SouthDakota federal judge ruled Feb. 26 in granting thegovernment’s motion to dismiss the claims (CasimirL. Lebeau, et al. v. United States of America, No. 14-4056, D. S.D.; 2015 U.S. Dist. LEXIS 23093).
(Decision available. Document #96-150325-054Z.)
Oahe Dam ProjectSioux Tribe members Casimir L. Lebeau, ClarenceMoretenson, Raymond Charles Handboy Sr. and Fred-die Lebeau filed a class complaint April 11, 2014,against the United States of America in the U.S. DistrictCourt for the District of South Dakota, alleging claimsfor breach of trust, breach of fiduciary duty andaccounting.
The plaintiffs owned land that was taken by the UnitedStates in the 1940s for the Oahe Dam project on theMissouri River. Construction of the dam flooded370,000 acres in North Dakota and South Dakota,including 104,420 acres in the Cheyenne River SiouxIndian Reservation. About half of that land was ownedby the Cheyenne River Sioux Tribe, and the otherhalf was owned by individual members of the tribe.More than 180 tribal families were forced to leavetheir homes because of the dam.
In 1954, Congress passed an act to provide compen-sation to the tribe and individual landowners for thetaking of their land. In 2000, Congress passed theCheyenne River Sioux Tribe Equitable CompensationAct (CRSTECA), which recognized that the 1954act did not provide adequate compensation to thetribe for the land flooded by the dam. The CRSTECAappropriated money for a trust fund that provided addi-tional compensation to the tribe.
The plaintiffs assert that the taking of their land withoutproper compensation violates the trust and fiduciaryduties the United States owed to them and to all other
individual landowners whose land was taken. They alsoallege that their claims fall under the Indian TrustAccounting Statute and that a constructive trust existswith respect to the money that would provide justcompensation for the taking of their land. The plaintiffsalso assert that they are entitled to an accounting.
‘Sympathetic Claims’On July 14, the United States moved to dismiss thecomplaint for lack of jurisdiction and failure to state aclaim. The plaintiffs filed their opposition to the motionon Sept. 8.
(Memorandum in support of motion to dismissavailable. Document #96-150325-055B. Oppositionmemorandum available. Document #96-150325-056B.)
Judge Karen E. Schreier reluctantly granted the motion,finding that the plaintiffs waited too long to bring theirclaims and that the United States had not waived itssovereign immunity.
‘‘Plaintiffs’ claims accrued decades ago and are thereforebarred by the statute of limitations. As this court statedin 2013, it is sympathetic to the claims made by plain-tiffs. But even sympathetic claims must comply withjurisdictional requirements,’’ the judge said, referringto her ruling in a previous case that individual tribemembers were not entitled to money from the trustcreated by the CRSTECA. ‘‘Because there is no validwaiver of sovereign immunity, this court has no juris-diction to entertain this suit. Plaintiffs may deservecompensation, but that compensation must comefrom Congress.’’
Trust ObligationJudge Schreier rejected the plaintiffs’ argument thatbecause the 1868 Treaty of Fort Laramie, the GeneralAllotment Act and the Act of March 2, 1889, impose atrust obligation on the United States to prevent thealienation of land, the laws are sufficient to supportthe breach of trust and fiduciary duty claims.
‘‘Even if the United States had a trust obligation orfiduciary duty to plaintiffs as to their land, any breachof trust or fiduciary duty would have occurred and beenknown to plaintiffs when their land was flooded,’’ thejudge said. ‘‘Plaintiffs do not present any argumentor evidence to show that they were unaware of the
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alienation of their land at the time it occurred orthat the flooding of their land was somehow concealedfrom them. Thus, any claim plaintiffs had relating toa breach of trust or fiduciary duty based on the aliena-tion of their land accrued no later than when the landwas flooded because all events fixing liability hadoccurred and the plaintiffs knew of their claim.’’
The plaintiffs had argued that tribal landowners did notreceive fair value for their land even though similarlysituated white landowners did receive fair value, and the1954 act imposed a trust obligation on the UnitedStates to pay just compensation for the plaintiffs’ land.
‘‘But any compensation decisions would have beenknown to plaintiffs at the time the United States madeits payments to them. In fact, plaintiffs indicate thatthey signed statements accepting the values even thoughthey thought at the time the values were too low.Thus, plaintiffs’ claims based on unfair compensationaccrued at that time because all facts fixing the UnitedStates’ liability had occurred,’’ Judge Schreier held.
CounselThe plaintiffs are represented by Judith K. Zeiglerof Judith K. Zeigler Law in Sioux Falls and VernleC. Durocher, Kristin M. Stastny and Forrest K. Tah-dooahnippah of Dorsey & Whitney in Minneapolis.
The United States is represented by U.S. AttorneyBrendan V. Johnson and Assistant U.S. AttorneyCamela C. Theeler in Sioux Falls; Acting AssistantAttorney General Sam Hirsch of the U.S. Departmentof Justice Environment and Natural Resources Divi-sion in Washington, D.C.; Devon Lehman McCuneof the Department of Justice Environment and NaturalResources Division in Denver; and Kenneth Daltonand Ericka Howard of the U.S. Department of theInterior in Washington.
(Additional document available. Complaint. Docu-ment #96-150325-057C.) �
Chippewa Indian TribeOpposes High Court ReviewOf Hunting DecisionWASHINGTON, D.C. — The Lac Courte OreillesBand of Lake Superior Chippewa Indians on March 9
asked the U.S. Supreme Court to deny a petition forwrit of certiorari filed by the State of Wisconsin andleave intact a Seventh Circuit U.S. Court of Appealsdecision finding that the tribe had met its burden toshow that a total ban on the nighttime hunting of deerwas no longer necessary to ensure public safety (Stateof Wisconsin, et al. v. Lac Courte Oreilles Band ofLake Superior Chippewa Indians, et al., No. 14-792,U.S. Sup.).
(Opposition brief available. Document #96-150325-068B.)
In 1991, the U.S. District Court for the Western Dis-trict of Wisconsin upheld a state statute, through theapplication of Wisconsin Administrative Code SectionNR 13.54, prohibiting members of several WisconsinIndian tribes from hunting deer at night outside thetribes’ reservations.
Several Wisconsin Indian tribes moved the DistrictCourt under Federal Rule of Civil Procedure 60(b)(5)to relieve them from the final judgment on the groundthat its continued enforcement would be ‘‘no longerequitable.’’
The District Court denied the motion.
Comparative EvidenceIn reversing and remanding, the Seventh Circuit said,‘‘The burden of production should be placed on thestate, for as the record stands the evidence presentedby the tribes that night hunting for deer in the cededterritory is unlikely to create a serious safety problemprovides a compelling reason for vacating the 1991judgment that prohibited Indians from hunting deerat night in that territory.’’
The panel commented that it would leave to the Dis-trict Court the decision whether to invite the parties tosubmit evidence from Oregon, Washington, Minne-sota and Michigan, which are states that allow Indiansto hunt deer at night.
Burden ShiftedIn January, the state filed a petition for writ of certiorariwith the Supreme Court, saying that the Seventh Cir-cuit’s opinion shifted the burden to the nonmovingparty to justify an underlying judgment that nighthunting of deer was fundamentally unsafe. The state
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asked the court to determine whether Rule 60(b)(5)permits such a shift.
The state says that it does not and that the SeventhCircuit’s decision ‘‘undermines the proper function ofthe Rule, is in conflict with this Court’s and othercircuits’ precedent, and introduces an improperlyexpansive approach to reopening judgments withinthe Seventh Circuit and, potentially, in other circuits.’’
‘‘The Rule is an extraordinary remedy that reflects thevalue our legal system places on finality. The presump-tion against reopening an earlier judgment is enforcedby keeping the burden of proof where it belongs (on themovant), keeping the focus of the substantive inquirywhere it belongs (on whether circumstances outsidethe movant’s control have changed significantly sincethe entry of judgment), keeping the primary decision-making duties where they belong (with the districtcourt whose decision is reviewed for abuse of discre-tion), and keeping the fact-finding duties where theybelong (in the trial court),’’ the state says. ‘‘The SeventhCircuit’s approach turns these imperatives on theirheads. If allowed to stand, it threatens to generate futurevexatious relitigation and uncertainty in a variety ofcontexts. That is especially true for the States, whichare commonly parties to judgments and consent decreeswith ongoing effect, including those involving Indiantribes.’’
Petition Opposed‘‘The Seventh Circuit’s unanimous decision was basedon the unique factual circumstances presented in thiscase,’’ the tribe says in its opposition brief. ‘‘It does notpose an issue of national importance, it does not createa circuit split in authority, and it is not at odds withany precedent of this Court. Consequently, there is noreason to grant review over this interlocutory appeal.’’
A closer examination of the state’s argument reveals thatthe state ‘‘simply disagrees with the Seventh Circuit’sapplication of the traditional Rule 60(b)(5) standard,which is insufficient grounds for granting certiorari,’’the tribe says.
Precedent establishes that a party is entitled to relieffrom a final litigated judgment under Rule 60(b)(5)if the movant can establish new facts or laws that, ifthey had been before the lower court in the originalpetition, would have produced a decision in favor of
the moving party, the tribe says, adding that those arethe circumstances of the present case.
Also, contrary to the state’s argument, the SeventhCircuit’s decision does not shift the burden of provingchanged circumstances to the nonmoving party, thetribe says. The Seventh Circuit believed that the tribehad established the existence of changed circumstances,the tribe says. Rather than compelling the DistrictCourt to reopen the final judgment, the Seventh Cir-cuit noted that the court could, on remand, permit theintroduction of evidence of safety of nighttime deerhunting in other jurisdictions. If the District Courtdid so, however, the Seventh Circuit indicated thatthe burden of production should be shifted to thestate to produce the evidence, the tribe says. ‘‘Thismade sense, because the Tribes had already met theirburden.’’
The tribes are represented by James Henry SchlenderJr. of the Lac Courte Oreilles Legal Departmentin Hayward, Wis. Wisconsin is represented by DianeL. Milligan of the Office of the Attorney General, Wis-consin Department of Justice, in Madison, Wis.
(Additional document available. Petition for writ ofcertiorari. Document #96-150325-073B.) �
Wyoming Federal Judge:Eagle Permit ViolatesExercise Of ReligionCHEYENNE, Wyo. — Calling the issue one of firstimpression, a Wyoming federal judge on March 12held that the First Amendment to the U.S. Constitu-tion forbids the federal government from imposingthe burden of law on one federally recognized Indiantribe’s free exercise of religion for the benefit of an-other Indian tribe (Northern Arapaho Tribe v. DanielAshe, in his official capacity of U.S. Fish & WildlifeService Director, No. 11-347, D. Wyo.; 2015 U.S.Dist. LEXIS 31435).
(Opinion in Section A. Document #96-150325-040B.)
Eagle PermitIn 2009, the Northern Arapaho Tribe (NAT) and thechairman of the Northern Arapaho Business Council
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filed an application for a permit with the U.S. Fish andWildlife Service to take bald eagles within the WindRiver Reservation, pursuant to the Bald and GoldenEagle Protection Act (BGEPA). While processing theapplication, the service learned that the EasternShoshone Tribe (EST) objected to the NAT’s takingeagles within the Wind River Reservation based oncultural and religious grounds. The two tribes sharethe reservation. A series of letters and meetings fol-lowed, but no decision was rendered on the permit.
In November 2011, the NAT sued the service inthe U.S. District Court for the District of Wyoming,alleging that ‘‘Defendants have failed or refused to issuea federal permit to allow the taking of an eagle bymembers of the Northern Arapaho Tribe for traditionalNative American religious purposes.’’
More letters were exchanged between the NAT andservice and the EST and the service. Finally, inMarch 2012, the service decided to issue the NAT apermit to take two bald eagles within Wyoming butoutside of the Wind River Reservation because doingso ‘‘would allow the NAT to take a live eagle forreligious purposes in a manner that would avoid . . .burdening the religious and cultural beliefs and prac-tices of the EST.’’
In March 2012, the NAT filed an amended complaint,alleging that the service denied its permit applicationby excluding the Wind River Reservation from the areawhere the take could occur. The NAT alleged that theservice’s refusal to all eagle take within the Wind RiverReservation violated the Religious Freedom RestorationAct (RFRA), the free exercise clause and the Adminis-trative Procedure Act (APA).
In May 2012, the NAT filed a motion on its RFRAclaim. In November 2012, the court held that the ser-vice ‘‘did not violate RFRA because it advanced andbalanced its compelling interests via the least restrictivemeans.’’
The NAT moved for reconsideration, which wasdenied.
Permit ChallengedOn March 22, 2013, the parties filed a joint stipulationfor stay of proceedings. When the first permit wasissued, if the tribe were to take an eagle pursuant to
the permit within Wyoming but outside of the WindRiver Reservation, the tribe would have violated statelaw absent a separate exemption from the state.
In February 2013, the state Legislature amendedWyoming Statute Annotated Section 23-3-101 to pro-vide a new exception to the prohibition on takingeagles within Wyoming: ‘‘Any person who takes aneagle is guilty of a high misdemeanor . . . unless thetaking is authorized by federal law or commissionrules adopted in compliance within federal law.’’ Thesame month, the service issued a new permit for thetribe to take up to two eagles during the period ofMarch 1, 2013, to Feb. 28, 2014. The second permitcontained the same location restriction as the first. Asa result, the parties requested the state ‘‘to allow theparties to consider the possible effects of the recentlyenacted amendment’’ on the tribe’s remaining claims.
The court stayed the proceedings and then extendedthe stay. During this time, the service filed supplementsto the administrative record concerning the secondpermit issued. The service stated that ‘‘Based on dis-cussions during consultations with the EST, and asconfirmed by the EST Attorney General in court pro-ceedings, USFWS finds that the EST has a sincerereligious and cultural belief in protecting eagles. Allow-ing taking on the Wind Reservation would burden theEST’s religious and cultural beliefs.’’
In October 2014, the NAT moved for summaryjudgment, and the service cross-moved for summaryjudgment.
Not Arbitrary, CapriciousJudge Alan B. Johnson said he must determine whetherthe service’s informal adjudication of the NAT’s permitapplication was arbitrary or capricious in violation ofthe APA. The NAT argued that the service incorrectlyinterpreted 50 Code of Federal Regulation Section22.22 as allowing the service to consider the cultureand religion of the EST and that the service’s conclu-sion that eagles taken by the NAT offends the cultureand religion of the EST is not supported by substantialevidence.
Judge Johnson held that the service’s interpretation ofSection 22.22 was not plainly erroneous or inconsistentwith the regulation. When an administrative agency isinterpreting its own regulations, a reviewing court must
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give considerable deference to that interpretation, JudgeJohnson said. The service interpreted its own regulationand in particular the phrase ‘‘among other criteria’’ toinclude considerations such as the federal government’scompelling interests under the RFRA, and such aninterpretation is not plainly erroneous or inconsistentwith the regulation, Judge Johnson said.
Further, the service’s factual conclusion that the eagletake by the NAT offends the culture and religion ofthe EST was not arbitrary or capricious, Judge Johnsonsaid. It appears that the service examined the data ithad before it concerning the EST’s cultural or religiousobjection to the NAT taking eagles on the reservation,Judge Johnson said. Although the administrative recordis sparse, there is evidence of a cultural or religiousobjection on the part of the EST, so the service’s factualconclusion regarding the EST’s cultural or religiousobjection was not arbitrary or capricious.
Constitutional ViolationNext, Judge Johnson said he must consider whether theservice’s informal adjudication of the permit applicationviolated the NAT’s right to free exercise under the FirstAmendment. First, the judge held that NAT’s chal-lenge is to the service’s constitutional decision andnot a challenge to the BGEPA itself.
Judge Johnson went on to find that the service’s infor-mal adjudication of the permit application was faciallydiscriminatory and thus subject to strict scrutiny. Assuch, the service’s decision to limit the area where theNAT could take bald eagles because of the cultural orreligious objection of the EST must be justified by acompelling interest and must be narrowly tailored toadvance that interest, the judge said.
Although in his November 2012 order, Judge Johnsonsaid the ‘‘current permit reflects the least restrictivemeans of furthering the [defendants’] compelling inter-ests,’’ two U.S. Supreme Courts cases since then meanhe must reconsider the holding of that order. JudgeJohnson said it would be clearly erroneous and resultin manifest injustice if he ignored the Supreme Court’sholdings in Burwell v. Hobby Lobby Stores Inc. (134S. Ct. 2751, 189 L. Ed 2d 675 [2014]) and Holt v.Hobbs (135 S. Ct. 853, 190 L. Ed. 2d 747 [2015]).
Judge Johnson went on to say that in light of thoseSupreme Court decisions, the decision to limit theNAT’s permit to areas outside of the Wind River
Reservation is not justified by a compelling interestand he must depart from the holding of the November2012 order.
Burden On ReligionThe decision of the service to exclude the Wind RiverReservation from the area where the NAT could takeup to two bald eagles per year violates the free exerciseclause and burdens the NAT’s free exercise of religion,Judge Johnson said. The Wind Reservation is sharedby the NAT and the EST, and not allowing the NATto participate in the sincere religious practice on itsland constitutes a burden on their free exercise ofreligion, Judge Johnson said.
Further, the decision to exclude the Wind Reservationfrom the area where the NAT could take up to two baldeagles per year is not justified by a compelling interest,Judge Johnson said.
‘‘There is no doubt that the federal government hasgeneral interests in preserving Native American cultureand religion in-and-of themselves and in fulfilling trustobligations to Native Americans,’’ Judge Johnson said.‘‘But the argument that taking up to two bald eaglesper year within the Wind River Reservation wouldseriously compromise the federal government’s generalinterest in protecting and fostering the EasternShoshone Tribe’s culture is unavailing.’’
‘‘If take of two bald eagles within the Wind River Reser-vation harms the government’s compelling interest infostering and protecting the culture and religion of theEastern Shoshone Tribe, then certainly take of twobald eagles one foot outside of the Wind Reservationand bringing those eagles back to the reservationwould produce ‘substantial harm or alleged harmof the same sort,’ ’’ Judge Johnson said. ‘‘Defendants’decision to limit the area where Plaintiffs can take upto two bald eagles per year to Wyoming but outsidethe Wind River Reservation ‘leaves appreciable dam-age to that supposedly vital interest unprohibited.’ ’’
Also, the service’s decision to exclude the reservationfrom the area where the NAT could take the eagles isnot narrowly tailored to advance the asserted interest,Judge Johnson added.
CounselTerri V. Smith and Andrew W. Baldwin of BaldwinCrocker & Rudd in Lander, Wyo., represent the NAT.
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Carter Healy Coby Howell and Barbara M. R. Marvinof the U.S. Department of Justice in Washington,D.C., and Nicholas Vassallo of the U.S. Attorney’sOffice in Cheyenne represent the service.
Robert S. Hitchcock, attorney general of the EST inFort Washakie, Wyo., represents the EST.
(Additional documents available: Plaintiff’s sum-mary judgment brief. Document #96-150325-040B.Defendant’s summary judgment brief. Document#96-150325-041B. Plaintiff’s opposition brief. Docu-ment #96-150325-042B. Plaintiff’s reply brief. Docu-ment #96-150325-043B. Amended complaint.Document #96-150325-044C.) �
10th Circuit Affirms PrisonDid Not Violate NativeAmerican’s Religious RightsDENVER — A panel of the 10th Circuit U.S. Courtof Appeals on March 20 affirmed the dismissal of asuit brought by a Native American inmate challenginga decision upholding the prison’s denial of his requestto wear a colored bandana outside of group worshipservices (Jose Rojas v. James Heimgartner, No. 14-3178, 10th Cir.; 2015 U.S. App. LEXIS 4548).
(Opinion available. Document #96-150325-075Z.)
Religious RequestJose Rojas is an inmate in the Kansas Department ofCorrections. The policies of the prison in which Rojas isincarcerated permit inmates whose religion is classifiedas ‘‘Native American’’ to wear white bandanas duringworship services. In 2011, Rojas submitted a requestto wear a bandana. The director of Religious Programsat the prison responded that bandanas could be wornduring group worship services. Rojas submitted a grie-vance to Warden James Heimgartner requesting per-mission to wear colored bandanas and to wear thebandanas outside of group worship services. Aroundthe time Rojas made the request, 15 other prisoners,most of whom were members or suspected membersof prison gangs, also sought permission to wear coloredbandanas. Rojas’ request was denied because of con-cerns that individuals in prison gangs could use coloredbandanas to communicate coded messages.
Rojas sued the warden in the U.S. District Court forthe District of Kansas, alleging violations of his Firstand 14th Amendment rights as well as a violation ofthe American Indian Religious Freedom Act.
The District Court granted summary judgment in favorof the warden, and Rojas appealed to the 10th Circuit.
AccommodationInmates retain protections afforded by the FirstAmendment, including its directive that no law shallprohibit the free exercise of religion, the appeals courtsaid. However, ‘‘a prison regulation imping[ing] oninmates’ constitutional rights . . . is valid if it is reason-ably related to legitimate penological interests,’’ theappeals court added.
To state a claim for a free exercise of religion violation,a prisoner must show that a prison regulation ‘‘sub-stantially burdened . . . sincerely-held religious beliefs,’’the appeals court said. Once a prisoner has made thisshowing, courts must examine whether a prison regu-lation reasonably curtails those constitutional rights,the appeals court said.
The District Court correctly held that a rational con-nection existed for the prison policy regulation andthat a legitimate governmental interest was advancedby the regulation, the appeals court said. The recordshows that prisoners requesting to wear coloredbandanas outside of group worship raised ‘‘valid secur-ity concerns,’’ the appeals court said. Rojas was per-mitted an alternative means of exercising his religiousrights, the appeals court said. Accommodating Rojas’religious rights in Rojas’ ‘‘preferred fashion wouldrequire close monitoring by guards to prevent the trans-mission of gang messages, and could lead to gang activ-ity that injures other prisoners,’’ the appeals courtadded.
Further, Rojas did not identify an obvious alternativethat would accommodate his rights without posingsimilar problems, the appeals court said.
The District Court also correctly denied Rojas’ equalprotection claim, the appeals court said. ‘‘Although theregulations permit black kufi caps or tams and disallowbandanas, the former types of headwear do not presentthe same security concerns as bandanas, justifying dif-ferential treatment in light of legitimate penologicalinterests.’’
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No Cause Of ActionThe District Court also correctly held that the Amer-ican Indian Religious Freedom Act does not create acause of action; therefore, Rojas’ claim under the statuteis unavailing, the appeals court said.
Judge Carlos F. Lucero wrote the opinion for the courtin which Judges Paul J. Kelly Jr. and Carolyn B.McHugh concurred.
Rojas of El Dorado, Kan., is pro se. John WesleySmith of the Office of Attorney General for the Stateof Kansas in Topeka, Kan., represents Heimgartner. �
Parties File Summary JudgmentMotions In ‘Redskins’Trademarks SuitALEXANDRIA, Va. — The owners of the Washing-ton Redskins professional football team on Feb. 23filed a motion for summary judgment in a Virginiafederal court in its challenge to the cancellation of sixfederal trademark registrations relating to the team,while the defendants on Feb. 26 filed a motion forpartial summary judgment, saying that there was noerror committed in the cancellation of the marksbecause the evidence shows the marks ‘‘may disparage’’Native Americans (Pro-Football Inc. v. Amanda Black-horse, et al., No. 14-1043, E.D. Va.).
(Pro-Football Inc.’s summary judgment brief avail-able. Document #96-150325-017B. Defendants’summary judgment brief available. Document #96-150325-019B.)
Trademark Registrations CanceledIn June, the Trademark Trial and Appeal Board(TTAB) ordered the cancellation of six federal trade-mark registrations containing the word ‘‘Redskins’’ asused in connection with the Washington, D.C., profes-sional football team, on the ground that the trademarks‘‘may disparage’’ Native Americans.
In August, Pro-Football Inc. (PFI) sued AmandaBlackhorse, Marcus Briggs-Cloud, Phillip Gover, JillianPappan and Courtney Tsotigh in the U.S. DistrictCourt for the Eastern District of Virginia, saying thatthe TTAB’s decision violates the First and Fifth
Amendments to the U.S. Constitution. Blackhorse,Briggs-Cloud, Gover, Pappan and Tsotigh are theindividuals who petitioned the TTAB to cancel thefederal registrations of the Redskins marks.
PFI alleges that the Washington Redskins is one ofthe most storied sports franchises in the United Statesand has for more than eight decades continuouslyused the name ‘‘Redskins’’ as the name of its profes-sional football team and has held federal trademarkregistrations for nearly 50 years. The PFI seeks a denovo review, pursuant to 15 U.S. Code Section1071(b), of the decision by the TTAB to cancel thetrademark registrations.
PFI alleges that the ‘‘TTAB action was based on asparingly used statutory provision, Section 2(a) of theLanham Act, 15 U.S.C. § 1052(a), which is rarelyinvoked to cancel any registered trademarks, let alonelong-held valuable registrations such as the RedskinsMarks.’’ The test under Section 2(a) for whether amark ‘‘consists of or comprises . . . matter which maydisparage’’ turns ‘‘not on present-day perceptions ofthe matter at issue, but rather on the views of thereferenced group at the time of the registration,’’ PFIsays. The inquiry in this case is limited to whetherthe Redskins marks were disparaging to a substantialcomposite of Native Americans in a time periodranging from 1967-1990, when each was registered.The TTAB found that, as of the registration date foreach Redskins mark at issue, ‘‘a substantial compositeof Native Americans found the terms REDSKINS tobe disparaging in connection with respondent’s servicesduring the relevant time frame of 1967-1990,’’ PFIsays. The TTAB, however, erred in numerous respectsin taking this action, which PFI says deprives it of itslongheld and extremely valuable rights in its federalregistrations for the Redskins marks.
In its complaint, PFI seeks a declaration of nondispar-agement, a declaration of noncontempt or disrepute, adeclaration that Section 2(a) of the Lanham Act violatesthe First Amendment, a declaration that Section 2(a)of the Lanham Act is void for vagueness, a declarationthat the TTAB order violates the due process clauseof the Fifth Amendment, a declaration that theTTAB order violates the takings clause of the FifthAmendment and a declaration that the defendants’petition was barred by the doctrine of laches.
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UnconstitutionalPFI moved for summary judgment on its constitutionalclaims, arguing that Section 2(a) of the Lanham Actviolates the First Amendment because ‘‘[i]t is axiomaticthat the government may not regulate speech based onits substantive content or the message it conveys,’’ but thatSection 2(a) does both of those things on its face.
‘‘Viewpoint-based regulations such as Section 2(a)generally amount to ‘blatant’ violations of the FirstAmendment,’’ PFI says. ‘‘This effectively ends the ana-lysis here — the Court can and should find Section 2(a)unconstitutional on the basis of its viewpoint-basedrestrictions alone.’’
Even if the court does not determine that Section 2(a)is an impermissible viewpoint-based restriction, thesection still violates the First Amendment because ‘‘it:(1) restricts protected speech; and (2) does not directlyadvance a substantial and legitimate state interest,’’PFI says.
Section 2(a) also is unconstitutionally vague becauseit ‘‘fail[s] to provide the kind of notice that will en-able ordinary people to understand what conduct isprohibited,’’ PFI says. The section is also void for vague-ness because ‘‘its inherent subjectivity ‘authorize[s] andeven encourage[s] arbitrary and discriminatory enforce-ment,’’’ PFI says.
Regardless if the section is void for vagueness, PFIargues that the section is at least impermissibly vagueas applied to PFI. ‘‘The Redskins Marks were registereddecades before the TTAB provided any gloss on thetext of Section 2(a); thus PFI had no way to knowthat its marks would be adjudicated as disparagingyears after the fact based on the later-professed viewsof it as a ‘substantial composite’ of Native Americans.’’
Taking Of PropertyPFI also argues that the TTAB’s order unconstitution-ally takes PFI’s property without just compensation.The Redskins marks constitute ‘‘property’’ for takingsclause purposes and are therefore subject to FifthAmendment constitutional protection, PFI says. Thecancellation of the Redskins marks also effects a regu-latory taking because it ‘‘significantly impedes a corecharacteristic that makes trademarks economicallyviable — the right to exclude — thereby effecting aregulatory ‘taking’ of PFI’s property,’’ PFI says.
The marks are extraordinarily valuable, with Forbesmagazine ranking the Redskins as the NFL’s mostvaluable franchise at $1.423 billion, PFI says. ‘‘Cancel-lation of the Redskins Marks not only divests PFI ofstatutory protections accompanying federal registrationthat enforces exclusivity, but also substantially interfereswith PFI’s ability to protect the exclusivity of its marksunder state statutes and common law.’’
Further, PFI argues that is has been deprived of itsproperty without due process.
‘May Disparage’The defendants seek partial summary judgment onthe claims for declaration of nondisparagement,declaration of noncontempt or disrepute and a declara-tion that the defendants’ petition was not barred by thedoctrine of laches.
The defendants say that they have supplied evidencethat the trademarks contain matter that ‘‘may dis-parage’’ Native Americans. Using the framework ofanalysis employed by the TTAB and appeals court insuch cases, ‘‘[t]he evidence establishes that there is nogenuine issue of material fact that PFI’s trademarkscontain matter that may disparage Native Americans,’’the defendants say.
There also is no genuine issue of material fact thatthe TTAB did not err in its alternative ruling thatthe trademarks bring Native Americans into contemptor disrepute, the defendants say.
Further, PFI’s argument that the TTAB erred by notdismissing the defendants’ petition due to laches hasno merit because the petition raised issues of broadpublic interest, the defendants say. Also, the defendantssay they did not unreasonably delay in bringing thepetition, so PFI cannot demonstrate any reliance onany unreasonable delay.
CounselCraig C. Reilly of The Law Office of Craig C. Reillyin Alexandria and Robert L. Raskopf, Todd Anten andClaudia T. Bogdanos of Quinn Emanuel Urquhart &Sullivan in New York represent PFI.
Jesse A. Witten, Jeffrey J. Lopez, Adam Scott Kunz,Tore T. DeBella and Jennifer T. Criss of DrinkerBiddle & Reath in Washington, D.C., represent thedefendants.
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(Additional document available. Complaint. Docu-ment #96-150325-018C.) �
Supreme Court DeniesReview Of Ruling OnWashington Escrow StatuteWASHINGTON, D.C. — The U.S. Supreme CourtMarch 9 denied a petition for review of a ruling re-quiring a tobacco distributor owned by the YakamaIndian Nation to escrow funds to reimburse the Stateof Washington for health care costs related to tobaccouse (Confederated Tribes and Bands of the YakamaIndian Nation, et al. v. Robert McKenna, No. 14-947, U.S. Sup.).
The high court let stand a Nov. 3 order by the NinthCircuit U.S. Court of Appeals denying reconsiderationof its Sept. 26 ruling finding that Washington’s escrowstatute is nondiscriminatory and applies to productssold by King Mountain Tobacco. Co., owned andoperated by Delbert Wheeler, an enrolled member ofthe Yakama Nation. The Ninth Circuit held thatYakama Treaty of 1855 does not preclude enforce-ment of the escrow statute and rejected the YakamaNation’s argument that the treaty should be interpretedfrom the perspective of the tribe at the time of itssigning.
MSAWashington, like a number of states, adopted theescrow statute as a means of funding health care costsrelated to products manufactured by tobacco com-panies that did not participate in the 1998 Master Set-tlement Agreement (MSA) between state governmentsand the major tobacco producers. Under the MSA, theparticipating companies agreed to make annual cashpayments to the settling states in return for a releaseof certain past and future tobacco-related claims againstthem. The Washington statute requires nonparti-cipants in the MSA to make a flat-fee payment intoan escrow fund for each unit of tobacco sold. Themanufacturers earn interest on the escrow accountfunds, which can be released only to pay a judgmentor settlement, issue a refund to the manufacturerfor overpayment to the account or as a refund to themanufacturer after the funds have been in the accountfor 25 years.
King Mountain produces almost 40 percent of itstobacco on reservation land. The crop is shipped toTennessee to be threshed, then sent to a factory inNorth Carolina, where it is blended with tobaccogrown elsewhere, then sent back to the reservation foruse in cigarettes and other tobacco products sold onthe reservation, throughout Washington and in 16other states.
Suit FiledKing Mountain, which is not a participant in theMSA, originally complied with the statute but even-tually filed suit against the state and Attorney GeneralRobert McKenna in the U.S. District Court for theEastern District of Washington in 2011. JudgeLonny R. Suko entered summary judgment for thestate, finding that King Mountain failed to identifyany express federal law exempting its business fromstate regulation or to cite case law invalidating appli-cation of any state’s escrow statute based on an Indiantreaty or other federal law.
Affirming, the Ninth Circuit said that the statute isnondiscriminatory and that the bulk of King Moun-tain’s tobacco-related activities occur off-reservation,subjecting King Mountain’s business to regulation bythe state. Further, the panel said, the language of theYakama Treaty does not create an exemption from theescrow law.
9th Circuit RulingThe Ninth Circuit rejected King Mountain’s argumentthat Article II of the treaty, which sets the boundariesfor the Yakama reservation and reserves it for Yakamause, should be interpreted as providing that the reser-vation’s residents are to be the sole beneficiaries of theresources cultivated there, thereby precluding collectionof the escrow funds. ‘‘Washington’s escrow statute doesnot interfere with King Mountain’s ability to growtobacco on reservation lands and benefit from the saleof its tobacco products,’’ the panel said.
Further, the panel said, the lower court did not err inrefusing to consider the treaty’s meaning to the Yakamapeople at the time of its signing ‘‘because the meaningto the Yakama people cannot overcome the clear wordsof the Treaty.’’
Conflict With Precedent
In seeking review, the Yakama Nation and KingMountain renewed their argument that the treaty
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should be interpreted from the perspective of the tribe,saying, ‘‘The ruling by the Ninth Circuit Court ofAppeals conflicts with Supreme Court precedentrequiring Indian treaties in general, and the YakamaTreaty in particular, to be interpreted as the Indiansunderstood the treaty terms when courts are addressingtreaty challenges to state regulation.’’
King Mountain is represented by Randolph H. Barn-house and Justin Solimon of Johnson Barnhouse &Keegan in Albuquerque, N.M. McKenna is representedby David M. Hankins, Senior Counsel in the Office ofthe Washington Attorney General in Olympia, Wash. �
Judge: New York May SeekDiscovery From Owner Of NativeAmerican Tobacco CompanyCENTRAL ISLIP, N.Y. — The State of New Yorkmay seek discovery aimed at establishing personal jur-isdiction over the owner of a Native American tobaccomanufacturer, a federal magistrate judge ruled Feb. 26(State of New York v. Mountain Tobacco Co., et al.,No. 12-6276, E.D. N.Y.; 2015 U.S. Dist. LEXIS24966).
(Order available. Document #04-150318-007R.)
In a suit filed the U.S. District Court for the EasternDistrict of New York in December 2012, the statealleges that Mountain Tobacco Co., a corporationformed under the laws of the Yakama Nation of Indiansand doing business as King Mountain Tobacco Co.,distributed large quantities of unstamped, untaxed andunreported cigarettes in the state in violation of theContraband Cigarette Trafficking Act (CCTA) andthe Prevent All Cigarette Trafficking Act (PACT Act)and state statutes. The suit also names Delbert Wheeler,president and 50 percent owner of the company. Thecorporation has its headquarters in White Swan, Wash.Wheeler is a resident of Washington.
Personal JurisdictionWheeler moved to dismiss, arguing that the state lackspersonal jurisdiction over him. U.S. Judge Arthur D.Spatt of the Eastern District of New York deniedWheeler’s motion in October, finding that while thestate had failed to establish an agency theory of personal
jurisdiction, the state was entitled to conduct juris-dictional discovery to ‘‘develop a record relevant tothe extent of Wheeler’s contacts with New YorkState.’’ Following that order, Magistrate Judge StevenI. Locke entered an order scheduling a deposition ofWheeler on or before Feb. 13. The state then movedto compel responses to its discovery requests and toreschedule the deposition to a date after the responsesare provided.
Specifically, the state seeks information about thenumber of cigarettes sold by each distributor of KingMountain products, including financial statements;revenue, profits and losses derived from the sale ofcigarettes by each distributor; and any distribution ofdividends to Wheeler or anyone acting on his behalf.
Partially denying the state’s motion, Magistrate JudgeLocke found that information about the volume ofcigarettes sold and the resultant revenue derived ‘‘maybe relevant to establishing the breadth of KingMountain’s activities in New York,’’ but that therequests, in their current form, ‘‘are not reasonablycalculated’’ to lead to the discovery of informationshowing that King Mountain engaged in activities‘‘for the benefit of, and with the knowledge and con-sent of’’ Wheeler. The state may serve a more narrowlytailored discovery request, the magistrate judge said.
Financial InformationHowever, the magistrate judge granted the state’smotion with respect to the information about divi-dends, finding that the request is ‘‘designed to elicitinformation demonstrating the financial interrelation-ship between Wheeler and King Mountain.’’
The magistrate judge also granted the state’s motionwith respect to information identifying ‘‘any asset, pur-chase, investment, loan, security, or agreement made orprovided or entered into by Wheeler’’ and informationconcerning any asset held by King Mountain, includingits ‘‘production facility, buildings, warehouse, equip-ment, vehicles, inventory and property upon whichKing Mountain’s tobacco is grown.’’ The state mayalso seek information about bank and securitiesaccounts held by or for Wheeler or King Mountain,the magistrate judge said.
Finally, the magistrate judge ordered Wheeler to pro-vide the requested documents by March 27 and held
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that the state must take Wheeler’s deposition within45 days after the information is produced.
The state is represented by Attorney General Eric T.Schneiderman and Assistant Attorneys General Chris-topher K. Leung and Dana H. Bilberman in New York.Mountain Tobacco is represented by Kelli J. Keeganand Randolph Barnhouse of Johnson Barnhouse &Keegan in Ranchos De Albuq, N.M., and Nelson A.Boxer and Jill C. Barnhart of Petrillo Klein & Boxerin New York. Wheeler is represented by Andrew K.Martingale and David N. Yaffe of Hamburger,Maxon, Yaffe & McNally in New York. �
Loan Company PetitionsHigh Court Over ArbitrationRuling In Loan DisputeWASHINGTON, D.C. — A consumer loan com-pany owned by a member of the Cheyenne RiverSioux Tribe on Feb. 13 filed a petition for writ ofcertiorari with the U.S. Supreme Court, asking thecourt to reverse a finding by the Seventh Circuit U.S.Court of Appeals voiding an arbitration clause con-tained in the loan agreements and holding that a dis-pute over the loans could not be litigated in tribal courtbecause the individuals obtaining the loan had neverset foot on the reservation, saying that such a decisiongives an ‘‘unreasonably restrictive view of tribal courtjurisdiction that impedes the ability of tribal businessesto compete in a modern economy’’ (Western SkyFinancial, et al. v. Deborah Jackson, et al., No. 14-991, U.S. Sup.).
(Petition for writ of certiorari in Section B. Docu-ment #96-150325-026B.)
Arbitration ProvisionsIn 2010 and 2011, Deborah Jackson, Linda Gonnellaand James Binkowski (collectively, respondents) receivedunsecured installment loans over the Internet withWestern Sky Financial, which is owned by an enrolledmember of the Cheyenne River Sioux Tribe (CRST) —Martin A. ‘‘Butch’’ Webb — and operates on the Chey-enne River Indian Reservation in South Dakota.
The loan agreements contain two distinct dispute reso-lution provisions that precluded the respondents from
bringing suit in federal court. The first provision — thearbitration clause — states that any disputes relatingto the respondents’ loans must be arbitrated by eithera ‘‘Tribal Elder’’ or a panel of three members of theTribal Council. The arbitration clause states that therespondents would not have to pay the arbitrationfiling fee or any other fees charged by the arbitratorand that the arbitration could be conducted viaphone or video conference. The second provision —the forum-selection clause — requires that, to theextent any dispute may be brought in court, the disputecould be heard only in CRST courts.
Western Sky later transferred the loans to WS Funding,which assigned the servicing rights to CashCall Inc.
Arbitration Not Possible
In October 2011, the respondents brought a classaction against Western Sky, Webb, WS Funding andCashCall in the Cook County Circuit Court, allegingthat the loans violated Illinois civil and criminal sta-tutes, including the Illinois Consumer Fraud andDeceptive Business Practices Act.
The defendants removed the case to the U.S. DistrictCourt for the Northern District of Illinois and movedto dismiss the case in favor of arbitration pursuant tothe arbitration clause in the agreements.
The District Court treated the motion to dismiss andto compel arbitration ‘‘as an objection to venue’’ underFederal Rule of Civil Procedure 12(b)(3) and then ana-lyzed the arbitration clause as a type of ‘‘forum selectionclause.’’ The District Court held that the respondents’claims that the loan agreements were illegal could notbe addressed before arbitration and rejected the claimthat the loan agreements were procured by duress. TheDistrict Court also concluded that Illinois public policywould not invalidate borrowers’ ‘‘freely contractedchoice to litigate their dispute in the Tribal forum.’’
The respondents appealed to the Seventh CircuitU.S. Court of Appeals, which issued a limited remandfor the District Court to conduct further fact-findingon whether the CRST has ‘‘(1) applicable tribal lawreadily available to the public’’ and ‘‘(2) an authorizedarbitration mechanism available to the parties andwhether the arbitrator and method of arbitrationrequired under the contract is actually available.’’
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In August 2013, the District Court concluded that eachparty was able to secure a copy of the relevant substan-tive tribal law, meaning that the applicable tribal lawwas readily available to the public. The District Courtconcluded, however, that arbitration was not possiblein accordance with the arbitration clause because anyarbitrator selected would be bias due to his membershipin the CRST. The District Court also concluded thatarbitration was not available because the ‘‘intrusion ofthe [CRST] into the [Arbitration Clause] appears to bemerely an attempt to escape otherwise applicable limitson interest charges.’’
Clause Unconscionable
On appeal, the Seventh Circuit concluded in an August2014 opinion that the arbitral forum and proceduralrules listed in the arbitration clause were unavailable;therefore, the entire arbitration clause was unreasonableand unenforceable. The Seventh Circuit stated that thearbitration clause was a ‘‘specialized forum selection
clause’’ and held that the validity of the arbitrationclause is therefore gauged by the same test used for atraditional forum selection clause. The court stated thatan arbitration clause is invalid whenever it is ‘‘unreason-able’’ under the multi-prong common-law test set forthby the U.S. Supreme Court in M/S Bremen v. ZapataOff-Shore Co. (407 U.S. 1, 10 [1972]). Applying theBremen test to the arbitration clause at issue, theSeventh Circuit concluded that the arbitrator desig-nated in the loan agreements was unavailable becausethe CRST does not ‘‘involve itself in the hiring of arbi-trators’’ and does not have readily identifiable consumerdispute rules. The court went on to say that the chosenarbitral forum was ‘‘illusory,’’ therefore, the arbitrationclause was unenforceable.
The Seventh Circuit held that the arbitration clause alsowas unenforceable under Illinois law regarding forumselection clauses and that the unavailability of the arbi-trator and rules meant that the respondents could ‘‘nothave ascertained or understood the arbitration proce-dure to which they were agreeing.’’
The Seventh Circuit held the arbitration clause tobe unconscionable and void and compelled the partiesto litigate. The court also held that because the respon-dents never physically entered the reservation, the loantransactions were not the kind of ‘‘on-reservation’’ activ-ity amenable to tribal regulations.
Questions PresentedThe defendants filed a petition for writ of certiorariwith the Supreme Court, saying that the Seventh Cir-cuit’s decision warrants review on three issues.
The first question presented ‘‘is whether an arbitrationclause’s enforceability is judged exclusively by the ex-press statutory requirements of the FAA [Federal Arbi-tration Act], as many lower courts have held; or insteadby the common-law ‘reasonableness’ test, as the SeventhCircuit held below.’’ The petitioners argue that theSeventh Circuit’s application of a ‘‘reasonableness’’ testto an arbitration clause undercuts the FAA by makingit considerably easier for a party to void an arbitrationclause. Such a decision warrants plenary review or sum-mary reversal on this basis alone, the petitioners say.
The second question presented is ‘‘whether a courtmay — as the Seventh Circuit also did here — employstate law to void an entire arbitration clause merely
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because the contractually-selected arbitral forum andrules are found to be unavailable.’’ Section 5 of theFAA requires that when the parties’ selected arbitratoris unavailable, ‘‘the court shall designate and appointan arbitrator,’’ the petitioners say. Instead of followingthe statute, the Seventh Circuit held that the entirearbitration agreement was void and unenforceableunder Illinois law, the petitioners say. ‘‘The court ofappeals thus applied a state law defense in a mannerthat conflicts directly with the FAA, frustrates its obj-ectives, and disfavors arbitration, all in contraventionof this Court’s ruling in AT&T Mobility LLC v. Con-cepcion, 131 S. Ct. 1740, 1747-48 (2011),’’ the peti-tioners say.
Tribal JurisdictionThe third question presented relates to the scope oftribal jurisdiction over non-tribal members who donot physically enter the tribe’s reservation. The partiesagreed in the forum selection clause that any in-courtlitigation would occur only in the tribal court, the peti-tioners say. The Seventh Circuit held, however, thatthe clause was unenforceable because the respondents,who are not Indians, never entered the reservation, thepetitioners say.
‘‘In doing so, the Seventh Circuit held that Petitionerslacked even a colorable argument that the tribal courthas jurisdiction over this dispute, and thus refused toorder Respondents to comply with the tribal exhaustiondoctrine, which would require them to bring suit in thetribal court and allow that court to determine in the firstinstance whether it has jurisdiction,’’ the petitioners say.
‘‘The Seventh Circuit thus adopted an unprecedentedand unreasonably restrictive view of tribal court juris-diction that impedes the ability of tribal businesses tocompete in a modern economy, where countless trans-actions now cross jurisdictional boundaries even wherethe parties themselves do not,’’ the petitioners say.‘‘Under the Seventh Circuit’s rule, a tribal court maynever exercise jurisdiction over non-tribal membersunless they set foot on the reservation, even if the non-members voluntarily enter into commercial relation-ships with tribal members and sign contracts statingthat tribal law will govern their disputes, as Respon-dents did here.’’
Katya Jestin, Neil M. Barofsky, Brian J. Fischer, R.Trent McCotter and Esteban M. Morin of Jenner &Block in New York and Barry Levenstam, Michael
T. Brody and Daniel T. Fenske of Jenner & Blockin Chicago represent the petitioners. Cathleen M.Combs, Daniel A. Edelman, James O. Latturner andThomas E. Soule of Edelman Combs Latturner &Goodwin in Chicago represent the respondents.
(Additional documents available: 7th Circuit opinion.Document #96-150325-027Z. Appellant brief.Document #96-150325-028B. Appellee brief. Docu-ment #96-150325-029B. Reply brief. Document#96-150325-030B.) �
Wisconsin Appeals CourtAffirms Indian Tribe DidNot Waive Sovereign ImmunityWAUSAU, Wis. — In a per curiam opinion, a Wis-consin appeals court on March 10 affirmed that a res-taurant owned by the Lac du Flambeau Band of LakeSuperior Chippewa Indians did not waive its sovereignimmunity from suit in state court and, therefore, a statecourt was correct in voiding its judgment awarding theplaintiff damages in his workers’ compensation case(Benjamin D. Harris v. Lake of the Torches Resort &Casino, No. 2014AP1692, Wis. App., Dist. 3).
(Opinion available. Document #96-150325-058Z.)
Physical Injury
In 2007, Benjamin Harris was hired as a back-up/prepcook at the Eagle’s Nest Restaurant at Lake of theTorches Resort & Casino. Lake of the Torches isowned by the Torches Economic DevelopmentCorp., which is owned by the Lac du Flambeau Bandof Lake Superior Chippewa Indians.
In October 2008, Harris injured his right hand whileat work while operating an industrial mixer. He soughtmedical attention on Oct. 20, 2008, and learned thatthree of his fingers were fractured. Lake of the Torcheshad a written policy governing workers’ compensation.The policy provided, in part, that Lake of the Torchesemployees were ‘‘covered under a Tribal WorkersCompensation Insurance program and not subject toState Workers Compensation.’’ Lake of the Torcheswas self-insured for workers’ compensation purposesand used a third-party workers’ compensation systemadministrator, Crawford & Co. Pursuant to the policy,
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Lake of the Torches paid Harris lost wages from thedate of injury until Dec. 5, 2008. Harris’ medicalexpenses also were paid during that time.
On Dec. 4, 2008, Lake of the Torches’ safety manager,Mark Wilke, received a return-to-work form fromHarris’ doctor stating that Harris could return tolight-duty work. On Dec. 5, 2008, Wilke contactedHarris to offer him a temporary light-duty position asa host in the Eagle’s Nest Restaurant. For reasons indispute, Harris did not return to work. Consequently,Lake of the Torches terminated Harris and ceased pay-ing him lost wage benefits and medical benefits.
Harris subsequently obtained additional medicaltreatment and physical therapy for his hand injury.He underwent seven surgeries, and one physician diag-nosed him with a 100 percent permanent disability tohis right hand.
Tribal CourtIn June 2011, Harris sued Lake of the Torches andCrawford in the Vilas County Circuit Court. In July2011, Lake of the Torches, by special appearance, fileda motion for a temporary stay of the Circuit Courtproceedings pending an allocation of jurisdictionbetween the Circuit Court and the Lac du FlambeauTribal Court. The motion asserted that the TribalCourt was the appropriate forum for the claims becausethey involved a dispute between a tribal employer anda tribal employee related to activities that occurredon tribal land. The motion further asserted thatLake of the Torches ‘‘reserve[d] the right to raise alljurisdictional objections including a lack of jurisdictiondue to sovereign immunity.’’
Also in July 2011, Lake of the Torches moved totransfer jurisdiction to the Tribal Court pursuant toWisconsin Statute Section 801.54. Lake of the Torchesagain asserted it ‘‘reserve[d] the right to raise all juris-dictional objections including a lack of jurisdiction dueto sovereign immunity.’’ Lake of the Torches thenanswered Harris’ complaint, expressly asserting as anaffirmative defense that the Circuit Court lacked jur-isdiction because Lake of the Torches ‘‘enjoy[ed] thesovereign immunity of the Tribe.’’
In September 2011, the Circuit Court granted Lakeof the Torches’ motion to transfer the case to TribalCourt.
The Tribal Court held a trial on Harris’ claims onAug. 9, 2012, but 11 months later it had yet to issuea decision. So, on July 13, 2013, Harris filed a motionin the Circuit Court requesting that the case be trans-ferred back to the Circuit Court. On Aug. 7, 2013, theTribal Court issued a decision denying Harris relief.
Sovereign ImmunityThe Circuit Court, however, subsequently grantedHarris’ motion to transfer the case back to the CircuitCourt, reasoning that the Tribal Court’s decision wasinvalid because it was not ‘‘procured in compliance withprocedures required by the rendering court.’’ While theCircuit Court also recognized that Lake of the Torcheshad asserted sovereign immunity as a defense in theinitial Circuit Court proceedings, it concluded thatLake of the Torches later waived that defense by failingto assert it in the Tribal Court. As such, the CircuitCourt held that sovereign immunity did not bar itfrom exercising subject matter jurisdiction over Harris’claims.
Harris submitted a trial brief to the Circuit Court, andthe court undertook an independent review of the Tri-bal Court record. Lake of the Torches did not partici-pate in the proceedings. The court entered judgment infavor of Harris for $197,152.98 in damages.
Lake of the Torches moved to vacate the court’s judg-ment pursuant to Wisconsin Statute Section 806.07.The Circuit Court granted the motion, finding thatcontrary to its previous opinion, Lake of the Torcheshad not waived sovereign immunity in either the Cir-cuit Court or the Tribal Court. As a result, the CircuitCourt held that the judgment against Lake of theTorches was void because the court ‘‘lacked subjectmatter jurisdiction over [Lake of the Torches] due toits sovereign immunity from suit.’’
Harris appealed to the District Three Wisconsin Courtof Appeals.
No WaiverOn appeal, Harris argued that the tribe waived Lakeof the Torches’ sovereign immunity when it enteredinto a gaming compact with the State of Wisconsinin 1992. Harris’ argument fails, however, for tworeasons, the appeals court held. First, Section XIX ofthe compact merely requires the tribe’s insurance policyto include a promise by the insurer that the insurer will
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not attempt to escape liability under the terms of thepolicy by invoking sovereign immunity; it is not a clearand unequivocal waiver of Lake of the Torches’ sover-eign immunity, the appeals court said. Second, theappeals court said it agreed with Lake of the Torchesthat any waiver of sovereign immunity contained inSection XIX of the compact applies only to claimsrelated to Class III gaming activities and Harris wasnot injured in connection with Class III gamingactivities.
Harris also argued that Lake of the Torches waivedits sovereign immunity from suit by failing to raisesovereign immunity as a defense. Lake of the Torches,however, reserved its right to raise all jurisdictionalobjections, including lack of jurisdiction due to sover-eign immunity in its first two Circuit Court filings andagain during the hearing on its motion to transfer, theappeals court said.
Lastly, Harris argued that three specific acts by Lakeof the Torches or its representatives were sufficient towaive sovereign immunity. Harris argued that Craw-ford waived Lake of the Torches’ sovereign immunityby writing a Harris a letter indicating it would continuepaying his medical bills as they related to the workinjury. A waiver of sovereign immunity, however,must be approved by the tribe’s governing body, andHarris provided no evidence that the tribal councilgranted Crawford authority to waive Lake of theTorches’ sovereign immunity, the appeals court said.Regardless, even if Crawford had authority to waiveLake of the Torches’ sovereign immunity, Harris didnot explain why Crawford’s promise to pay benefitswould constitute a waiver of immunity from suit instate court, the appeals court added.
Harris then argued that Lake of the Torches waivedits sovereign immunity by failing to participate in theCircuit Court proceedings after Harris moved to trans-fer the case back to Circuit Court. Regardless of thereason for Lake of the Torches’ failure to participatein the Circuit Court proceedings, ‘‘its failure did notconstitute a clear, unequivocal, and advertent waiverof sovereign immunity,’’ the appeals court said. Shortlyafter Harris filed his motion to transfer the case backto the Circuit Court, Lake of the Torches obtained abinding judgment in its favor from the Tribal Court, soat this point there is no need for Lake of the Torches to
return to the Circuit Court to defend the action, theappeals court added.
Judge Michael W. Hoover, Lisa K. Stark and ThomasM. Hruz served on the panel.
Todd R. McEldowney and Amy Ferguson of O’Melia,Schiek & McEldowney in Rhinelander, Wis., andStanley H. Riffle of Arenz, Molter, Macy, Riffle &Larson in Waukesha, Wis., represent Harris. AndrewAdams, Jessica Intermill, William Szotkowski andJessie Stomski III of Hogen Adams in St. Paul,Minn., represent Lake of the Torches. �
California Federal JudgeDismisses Dispute OverPay For Lack Of JurisdictionSACRAMENTO, Calif. — In dismissing a com-plaint without prejudice, a federal judge in Californiaon Feb. 12 held that he lacks jurisdiction to hear adispute over the payment and demand for reimburse-ment of back pay, saying that the plaintiff failedto exhaust tribal remedies in Tribal Court as requiredbefore seeking relief in federal court (Resources ForIndian Student Education Inc. v. Cedarville Rancheriaof Northern Paiute Indians, et al., No. 14-2543, E.D.Calif.; 2015 U.S. Dist. LEXIS 18290).
(Order available. Document #96-150325-001R.)
Pay DisputeAt some point prior to December 2013, DuannaKnighton resigned from her job with the CedarvilleRancheria of Northern Paiute Indians. At the sametime, Knighton also was employed with Resourcesfor Indian Student Education Inc. (RISE). At thetime of her resignation, Knighton and the tribe agreedthat she was owed $29,925 for accrued but unusedsick leave of 665 hours. Knighton contends that ‘‘itwas understood that the sum would be paid to RISEto maintain health insurance’’ for her. However, onDec. 18, 2013, Knighton received a letter from thetribe demanding reimbursement of the $29,925 paidto RISE on her behalf.
In October, the tribe filed a complaint in the CedarvilleRancheria Tribal Court against RISE and Knighton,
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alleging multiple causes of action against Knightonfor ‘‘poor investments’’ that she made while employedwith the tribe. The tribe also filed an ex parte appli-cation for a temporary restraining order against RISEand Knighton in the action.
RISE contended that the application was granted with-out providing RISE ‘‘with prior notice of the [a]pplica-tion or a chance to be heard.’’ RISE also contended that‘‘the Tribal Court unilaterally ruled that is has subjectmatter jurisdiction over the action[.]’’
Also in October, RISE sued the tribe and the TribalCourt in the U.S. District Court for the Eastern Districtof California, seeking declarative and injunctive relief.RISE also filed a motion for a temporary restrainingorder, which was denied for failure to provide noticeto the defendants. In November, RISE re-filed themotion, which again was denied on the ground thatRISE failed to show the need for an expedited ruling.
RISE then converted the motion into a motion for apreliminary injunction.
The tribe and the Tribal Court moved to dismiss, andthe tribe moved for sanctions.
No JurisdictionThe tribe and the Tribal Court both argued that thecomplaint must be dismissed because RISE failed toexhaust remedies by challenging jurisdiction in theTribal Court. RISE conceded that it had not exhaustedremedies in the Tribal Court but argued that theexhaustion requirement did not apply because ‘‘(a)the assertion of tribal court jurisdiction is ‘motivatedby a desire to harass or is conducted in bad faith;’ (b)the tribal court action is ‘patently violative of expressjurisdictional prohibitions;’ (c) ‘exhaustion would befutile because of the lack of an adequate opportunityto challenge the tribal court’s jurisdiction;’ and (d) it is‘plain’ that jurisdiction is lacking, so that the exhaustionrequirement ‘would serve no purpose other thandelay.’’’
Judge John A. Mendez noted that the Ninth CircuitU.S. Court of Appeals has held that ‘‘[f]ederal law haslong recognized a respect for comity and deference tothe tribal court as the appropriate court of first im-pression to determine its jurisdiction.’’ As such, ‘‘non-Indian defendants must exhaust tribal court remediesbefore seeking relief in federal court,’’ the judgeadded. The Ninth Circuit has held that this exhaustionrequirement applies ‘‘even where defendants allegethat proceedings in tribal court exceed tribal sovereignjurisdiction,’’ Judge Mendez said. As such, ‘‘federalcourts should not even make a ruling on tribal juris-diction . . . until tribal remedies are exhausted,’’ thejudge added.
Four exceptions do apply to the exhaustion require-ment, Judge Mendez said. RISE, however, concededthat it did not exhaust tribal remedies or argue that italready challenged the Tribal Court’s jurisdiction inthe Tribal Court, Judge Mendez said. Instead, RISEargued that it would be forced ‘‘to expend substantialmoney and resources to establish the lack of theTribal Court’s jurisdiction by exhausting TribalCourt remedies where’’ each of the exceptions apply,Judge Mendez said. RISE, however, did nothing butname each of the four exceptions, and without anysupporting allegations or argument ‘‘to connect the
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facts of this case’’ to one of the exceptions, none of theexceptions apply, Judge Mendez said.
‘‘In light of Plaintiff’s failure to exhaust its tribal courtremedies, this Court may ‘not even make a ruling ontribal court jurisdiction,’’’ Judge Mendez said. BecauseRISE can cure the jurisdictional defect by exhaustingthe Tribal Court remedies, the motions to dismiss aregranted without prejudice, the judge added.
Sanctions, Injunction
Judge Mendez denied the motion for sanctions, sayingthat although RISE failed to convince the court thatthe failure to exhaust the Tribal Court remedies shouldbe excused, the complaint was not frivolous or broughtfor an improper purpose.
The judge said that because the motions to dismiss weregranted, the court did not have jurisdiction to considerthe motion for a preliminary injunction.
Richard Ross Clouse and Anthony C. Ferguson ofCihigoyenetche, Grossberg & Clouse in Rancho Cuca-monga, Calif., represent RISE. Jack Duran Jr. of DuranLaw Office in Roseville, Calif., represents the tribe.Duran and Marisa Renee Chaves of Vasquez Estrada &Conway in San Rafael, Calif., represent the Tribal Court.
(Additional documents available: Complaint. Docu-ment #96-150325-002C. Cedarville Rancheria dismis-sal brief. Document #96-150325-003B. Tribal councildismissal brief. Document #96-150325-004B. Briefsupporting sanctions. Document #96-150325-005B.Brief supporting preliminary injunction. Document#96-150325-006B. Brief opposing Cedarville Ran-cheria’s motion. Document #96-150325-007B. Briefopposing sanctions. Document #96-150325-008B.Brief opposing tribal council’s motion. Document#96-150325-009B.) �
Utah Federal Judge DeclinesTo Dismiss Dispute OverElection District BoundariesSALT LAKE CITY — A federal judge in Utah onMarch 12 declined to dismiss a suit challenging theredrawing of election district boundaries, saying that
the plaintiff Navajo Nation Indian tribe was not bring-ing claims seeking to modify a previous settle-ment reached by the defendant and the United States(Navajo Nation v. San Juan County, No. 12-39, D.Utah; 2015 U.S. Dist. LEXIS 31195).
(Opinion available. Document #96-150325-045Z.)
Voting Boundaries
Navajo Nation is a federally recognized Indian tribe,occupying lands held in trust by the United States,some of which are located in part of San Juan County,a governmental subdivision in the State of Utah. Thecounty’s executive and legislative body is the San JuanCounty Commission.
In 1983, the U.S. Justice Department sued the countyin the U.S. District Court for the District of Utah,alleging that the election of commissioners throughan at-large election system diluted the voting strengthof Native Americans. The litigation resulted in aninjunction against the county and an entry of an agreedsettlement in 1984. The settlement stated that ‘‘theprocess leading to the selection of County Com-missioners in San Juan County’’ had failed to ‘‘complyfully’’ with Section 2 of the Voting Rights Act anddirected the county to pursue a change in its formof government to remedy the failure. The settlementenvisioned an alternative form of government basedon ‘‘fairly drawn single member districts,’’ replacingthe at-large system.
Three single-member election districts were created in1984. Since then, commissioners elected from DistrictsOne and Two have been white, and the commissionersfrom District Three have been Native American.
Navajo Nation sought reapportionment of the threedistricts through political means based on the currentdemographics of San Juan County. The 2010 U.S.Census determined that the total population of SanJuan County was 14,746 and that the non-Hispanicwhite percentage was 46.2 percent. Navajo Nationclaims that the county’s current population of NativeAmericans is 52.17 percent of the total population,and that the voting-age population is 50.33 percent.Navajo Nation contends that District Three has aninordinately large population of Native Americans,thus ‘‘packing’’ minority voters into one district. Navajo
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Nation contends that the commission should havetwo or more single-member districts with majorityvoting-age Native American populations.
Boundary Changes
In November 2011, the commission considered plansfor redrawing election district boundaries. Representa-tives of Navajo Nation attending the meeting presenteda proposed reapportionment plan, which the commis-sion did not adopt. Instead, the commission madeboundary changes to commission election DistrictsOne and Two, but not to District Three. NavajoNation contends that the reapportionment retainedan inordinate concentration of white voters in DistrictOne and Two and of Native American voters in Dis-trict Three.
Navajo Nation sued the commissioner in the U.S.District Court for the District of Utah, assertingclaims for violations of the 14th and 15th amendmentsto the U.S. Constitution and Section 2 of the VotingRights Act.
San Juan moved to dismiss, arguing that the court lackssubject matter jurisdiction to decide the case, which itconsiders a collateral attack on the consent decree towhich another court retains jurisdiction. San Juan alsoargued that the settlement is a form of contract andthat modifying that contract is impermissible.
Jurisdiction
Judge Robert J. Shelby concluded that the court doeshave subject matter jurisdiction to hear the case. SanJuan’s first argument fails because Navajo Nation’sclaims under the Constitution are not a collateral attackon the settlement, Judge Shelby said. The county’ssecond argument fails because Navajo Nation is notseeking to modify the settlement, the judge added.
The settlement involves questions regarding the formof government and not the particulars of its com-position, Judge Shelby said. Navajo Nation is not seek-ing to replace at-large district with single-memberdistricts, which was accomplished in 1984, the judgesaid. Navajo Nation instead is arguing that the single-member districts as presently drawn violate the Con-stitution and the Voting Rights Act and seeks alterationof the districts’ boundaries and demographic composi-tion, Judge Shelby said.
Further, San Juan’s position is at odds with its priorconduct, Judge Shelby said. ‘‘If alteration of electiondistrict boundaries is permissible only through the ori-ginal litigation, then it is unclear how the Commissioncould have redrawn its boundaries in 2011 withoutfirst obtain relief from the original court. Given thatthe original court was not involved, and that San JuanCounty has provided no reason to believe that theCommission’s actions in 2011 were unauthorized,San Juan cannot fairly argue that its construction ofthe scope and preclusive effect of the Settlement barsNavajo Nation’s present claims.’’
San Juan also argued that Navajo Nation’s claimsshould be precluded because they modify the settle-ment, but San Juan’s claim that the boundaries werea part of the consent decree is inaccurate, Judge Shelbysaid. The decree did not establish the boundaries, eitherexplicitly or by reference, Judge Shelby said. If NavajoNation prevails, the remedy would involve drawingone of both of Districts One and Two, thereby addres-sing actions taken in 2011, rather than in 1984, thejudge added.
Indispensable PartySan Juan also argued that because the settlement isa contractual agreement, the United States is an in-dispensable party.
Judge Shelby disagreed, saying that the relief sought byNavajo Nation does not seek relief under the settle-ment, does not address the subject matter of the settle-ment and is not seeking to modify the settlement;therefore, the United States is not an indispensableparty.
Eric P. Swenson in Salt Lake City, Maya Leonard Kanesand Steven C. Boos of Maynes Bradford Shipps &Sheftel in Durango Colo., and D. Harrison Tsosie ofthe Navajo Nation Office of Attorney General in Win-dow Rock, Ariz., represent Navajo Nation.
Britton R. Butterfield, Carl F. Huefner and Jesse C.Trentadue of Suitter Axland in Salt Lake City representSan Juan.
(Additional documents available: Amended com-plaint. Document #96-150325-046C. Dismissalbrief. Document #96-150325-047B. Oppositionbrief. Document #96-150325-048B.) �
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Judge Splits ArbitrationOrder For PlaintiffsIn Interest Rate SuitMILWAUKEE — A federal judge in Wisconsinon March 17 held that one plaintiff in a class actionlawsuit alleging violations of interest rate laws by loansoriginating on the Cheyenne River Sioux Tribe Reser-vation must arbitrate his claims but that the arbitrationprovision in a second plaintiff’s loan agreement couldnot be enforced (Eric Williams, et al. v. CashCall Inc.,No. 14-903, E.D. Wis.; 2015 U.S. Dist. LEXIS 32620).
(Opinion in Section C. Document #96-150325-050Z.)
Interest RatesWestern Sky Financial is a lender that offers high inter-est loans to consumers. It is located on the CheyenneRiver Sioux Tribe Nation Reservation in South Dakotaand is wholly owned by tribal member Martin Webb.
In November 2011, Lisa Walker borrowed $2,525at an interest rate of 139.12 percent, and in February2012, Eric Williams borrowed $1,000 at an interestrate of 233.91 percent. After the funds were advancedto Walker and Williams, their loans were sold to WSFunding and serviced by CashCall Inc., a Californiacorporation.
Walker and Williams filed a class action lawsuit againstCashCall in a Wisconsin state court, claiming thatCashCall violated Wisconsin’s usury law by charginginterest rates above 18 percent without first obtaininga license from the Wisconsin Division of Banking. As aresult, the plaintiffs contend that they are not obligatedto repay their loans.
CashCall removed the case to the U.S. District Courtfor the Eastern District of Wisconsin. All parties con-sented to the full jurisdiction of a magistrate judge.
CashCall moved to dismiss, which the court convertedinto a motion for summary judgment. Alternatively,CashCall moved the court to compel arbitration.
CashCall argued that the forum selection clausefound in the plaintiffs’ loan agreements mandates thatany in-court litigation occur in the courts of the tribeand that the tribal exhaustion doctrine requires that
plaintiffs, whose claims implicate the jurisdiction of afederally recognized Indian tribe, must first bring suitin tribal court before they may later challenge thescope of tribal jurisdiction in federal court. Both argu-ments were previously rejected by the Seventh CircuitU.S. Court of Appeals in Jackson v. Payday Financial(764 F.3d 765 [2014]), but CashCall stated that it in-cluded the arguments for ‘‘preservation only.’’ As such,Magistrate Judge William E. Duffin said he would notaddress the arguments.
ArbitrationJudge Duffin said he must first determine what lawgoverns the determination of the enforceability of thearbitration clauses contained in the loans. The loansinvolved each contain a choice-of-law provision statingthat ‘‘[t]his Loan Agreement is subject solely to theexclusive laws and jurisdiction of the [Tribe], CheyenneRiver Indian Reservation,’’ but there does not appearto be any tribal law addressing the enforceability offorum-selection clauses, Judge Duffin said. The partiesappear to concede that when tribal law is lacking, tribalcourts will borrow from federal law; therefore, JudgeDuffin said he would apply federal law in determiningthe enforceability of the arbitration clauses.
For purposes relevant to CashCall’s motion to compelarbitration, the arbitration provision in Walker’s loanagreement is identical to the one found in the loanagreements at issue in Jackson, Judge Duffin said.CashCall has acknowledged that the arbitral forumand associated procedural rules set forth in Walker’sloan agreement are not available, but argues — forpreservation purposes — that the Seventh Circuit gotit wrong in Jackson and that the District Court shouldcompel arbitration of the claims. CashCall, however,concedes that given the holding in Jackson, the DistrictCourt cannot enforce the arbitration clause in Walker’sloan agreement, and Judge Duffin said he agreed.
Clause EnforcedHowever, the arbitration provision in Williams’ loanagreement has a material difference stating that ‘‘Regard-less of who demands arbitration, you shall have the rightto select any of the following arbitration organizationsto administer the arbitration: the American Arbitra-tion Association . . .; JAMS . . .; or an arbitration orga-nization agreed upon by you and the other parties tothe Dispute. The arbitration will be governed by thechosen arbitration organization’s rules and procedures
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applicable to consumer disputes, to the extent thatthose rules and procedures do not contradict either thelaw of the . . . Tribe or the express terms of this Agree-ment to Arbitrate.’’
Courts have split on how to read this new language,Judge Duffin said. Judge Duffin said that ‘‘one couldread Mr. Williams’ arbitration clause as requiring thatthe arbitrator be an authorized Tribal representative,who would interpret the loan agreement and resolvethe dispute, with the selected arbitration organizationproviding administrative support and the governingrules.’’
However, it does not appear that the tribe would be ableto provide an authorized representative, Judge Duffinsaid. As such, a proceeding subject to tribal oversight is‘‘simply not a possibility,’’ Judge Duffin said. But havingsaid that, the parties clearly agreed to resolve their dis-putes by arbitration, and that matters, the judge added.
The Federal Arbitration Act provides that if for ‘‘any’’reason there is a ‘‘lapse in the naming of an arbitrator,’’the court shall appoint an arbitrator, Judge Duffinsaid. Williams’ only argument as to why the arbitrationprovision is unenforceable is that it calls for the arbi-trator to apply tribal law, which he contends does notexist, but that is not true, Judge Duffin said. There issubstantive tribal law on contract disputes, includingcontract cases in the tribe’s court and the tribe’s Com-mercial Code, Rules of Civil Procedure, Constitutionand By-Laws and Laws & Code, the judge said.
‘‘The most reasonable reading of Mr. Williams’s loanagreement is that he has the option of choosing toarbitrate any claims that he has relating to his agreementbefore the AAA, JAMS or another mutually acceptableorganization, applying the consumer dispute rulesof the selected administering organization and con-ducted by an arbitrator from the selected organization’ssystems,’’ Judge Duffin said. ‘‘Therefore, unlike Ms.Walker, Mr. Williams is required to pursue his claimsagainst CashCall in arbitration,’’ and his complaint shallbe dismissed.
Summary JudgmentCashCall initially moved to dismiss the complaintfor failure to state a claim upon which relief can begranted, but Judge Duffin converted the motion to
one for summary judgment after CashCall submittedmaterials outside of the pleadings and allowing theparties additional time to file supplementary materials.
Given the ruling compelling Williams to pursue hisclaims in arbitration, CashCall’s motion to dismiss Wil-liams’ claim will have to be addressed by the arbitrator.
CashCall argued that Walker’s claim must be dismissedbecause the dormant commerce clause of the U.S. Con-stitution precludes the application of Wisconsin law.CashCall argued that when a contract is formed outsideof a state’s borders, it is beyond the state’s regulatoryauthority, and it alleges that Walker’s loan agreementwas formed on the tribe’s reservation.
Walker opposed the motion, saying that she did nottravel to the tribe’s reservation to enter into the loanagreement and that she was physically present in Wis-consin when the loan offer was made and she acceptedit. She also contends that the money was wired to her inWisconsin and that she made payments fromWisconsin.
In denying the motion, Judge Duffin said that at thisstage he cannot conclude that no genuine issues ofmaterial fact show that CashCall is entitled to judgmentas a matter of law.
Stay Denied
Judge Duffin also declined CashCall’s request to stayWalker’s claim pending the conclusion of Williams’arbitration.
Heidi N. Miller and Nathan E. DeLadurantey ofDeLadurantey Law Office in Milwaukee and ThomasJohn Lyrons Jr. of the Consumer Justice Center inVadnais Heights, Minn., represent the plaintiffs. JohnA. Busch of Hansen Reynolds Dickinson Crueger inMilwaukee; Paul F. Linn and Adam E. Witkov ofMichael Best & Friedrich in Milwaukee; Brian J.Fischer of Jenner & Block in New York; and DanielT. Fenske and Michael T. Brody of Jenner & Block inChicago represent CashCall.
(Additional documents available: Dismissal brief.Document #96-150325-051B. Opposition brief.Document #96-150325-052B. Reply brief. Docu-ment #96-150325-053B.) �
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Parties To Maintain StatusQuo Pending AppealIn Disenrollment ProceedingsDEMING, Wash. — Saying that the plaintiffs facedthe possibility of disenrollment from the NooksackIndian Tribe, a Nooksack Tribal Court judge onFeb. 26 ordered the parties to maintain the statusquo pending resolution of the plaintiffs’ appeal ofthe disenrollment proceedings before the InteriorBoard of Indian Appeals (IBIA) (Michelle Joan Roberts,et al. v. Robert Kelly, et al., Belmont, et al. v. RobertKelly, et al., Nos. 2013-CI-CL-003, 2014-CI-CL-007,Nooksack Tribal).
(Order available. Document #96-150325-020R.)
Intent To DisenrollIn December 2012, the Tribal Council of the NooksackIndian Tribe became aware of the possibility of erro-neous enrollments. After researching the issue and find-ing a lack of supporting documents for approximately300 enrolled Nooksack members, the Tribal Councilpassed Resolution 13-02. The resolution provided thatnotices of intent to disenroll should be sent to thosetribal members believed to be erroneously enrolled. Sev-eral tribal members requested that the Tribal Councilhold meetings to consider their disenrollment.
On March 1, 2013, the Tribal Council passed Re-solution No. 13-38, which authorized a request for asecretarial election to amend the constitution by delet-ing Section 1(h). The secretary of the Interior held anelection on June 21, 2013, and the constitutionalamendment was certified. Several of the tribal memberssued, and in Lomeli v. Kelly (2013-I-APL-002), theNooksack Court of Appeals upheld Resolution No.13-02, Title 63 (the Enrollment Ordinance), Resolu-tion No. 13-38, the related constitutional amendmentand the dismissal of the plaintiffs’ other concerns.
On Aug. 8, 2013, the Tribal Council passed ResolutionNo. 13-111, which provided for disenrollment proce-dures. Several individuals sued Robert Kelly, chairmanof the Nooksack Tribal Council, and others in theTribal Court of the Nooksack Tribe of Indians forthe Nooksack Indian Tribe, requesting injunctive reliefand challenging the procedures as violating their dueprocess rights. In the appeal of Roberts v. Kelly (No.2013 CI-APL-003), the Nooksack Court of Appeals
upheld the procedures in Resolution No. 13-111,finding that due process rights were not violated, butalso held that the procedures were rules requiringsecretarial approval under Article II, Sections 2 and 4,of the Constitution. On March 13, 2014, the TribalCourt permanently enjoined the Tribal Councilfrom ‘‘undertaking disenrollment proceedings underResolution 13-111.’’
Secretarial ApprovalIn May 2014, members Eleanor Belmont and OliveOshiro were sent notices of July 1, 2014, disenrollmentmeetings. The two sued, and in Eleanor Belmont v.Robert Kelly, the Tribal Court held that the noticesrequired secretarial approval and issued a preliminaryinjunction against the use of the notices until the TribalCouncil obtained secretarial approval of the notices.
On Oct. 10, 2014, the Tribal Council passed Resolu-tion No. 14-112, which amended Title 63 to includethe disenrollment procedures that were approved bythe Roberts v. Kelly Court of Appeals decision andrequested secretarial approval. The acting superin-tendent of the Bureau of Indian Affairs (BIA) PugetSound Agency approved Resolution No. 14-112 andthe amended Title 64 on Oct. 24. The acting super-intendent sent Resolution No. 14-112 and theamended Title 63 to the BIA Northwest Regionaldirector for review.
On Jan. 15, the regional director concurred with theacting superintendent’s approval of Resolution No. 14-112 and the amended Title 63 with an effectiveapproval date of Oct. 24, 2014. On Jan. 13, the actingsuperintendent informed the Tribal Council of theregional director’s concurrence and stated that theapproval was effective Oct. 24.
On Jan. 31, the Tribal Council sent notices of March 4,2015, disenrollment meetings under the secretariallyapproved Resolution No. 14-112 and amended Title63 to seven individuals — Honorato Rapada III,Robert Rabang Sr., Naricisco Cunanan, Olive Oshiro,Michael Rabang, Phillip Narte and Elanor Belmont.Council for these individuals sent a notice of appealon behalf of 271 people to the acting superintendentand the IBIA. The notice of appeals purported to appealthe acting superintendent’s approval of resolution No.14-112 and/or the regional director’s approval —whichever was found to be appealable. The plaintiffs
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argued that their federal administrative appeal meansthe secretarial approval disappeared Feb. 3, 2015, andis not effective under the Nooksack Constitution.
Emergency Injunction SoughtOn Feb. 10, the plaintiffs filed in the Tribal Court anemergency motion to enforce injunction orders and anaccompanying response in opposition to the defen-dants’ ‘‘Notice of Noncomplianace.’’ The plaintiffssought enforcement if the order enjoining disenroll-ment proceedings in Roberts v. Kelly and the ordergranting the motion for preliminary injunction in Bel-mont v. Kelly.
The plaintiffs argued that the defendants failed to havethe two injunctions orders dissolved or vacated beforerecommencing disenrollment proceedings against theplaintiffs. As such, the plaintiffs argued that the defen-dants were in contempt of court.
Further, the ‘‘approv[al] by the Department of Interior’’cited in the notices of compliance, which the defen-dants admit is ‘‘required by’’ both injunction orders,is not yet in effect, the plaintiffs said.
Immune From SuitOn Feb. 19, the defendants filed a brief opposing themotion for emergency injunction, saying they areimmune from suit. The defendants said the TribalCourt’s contempt powers do not apply to them. Further,the defendants said that neither the Tribal Councilnor its individual members violated the injunctionissued in Roberts v. Kelly or the preliminary injunctionused in Belmont v. Kelly.
Resolution No. 14-112 and the amended Title 63 havesecretarial approval, and the plaintiffs’ ‘‘frivolousadministrative appeal cannot strip the approval’s effectfor purposes of the tribal action taken in accordancewith the Nooksack Constitution,’’ the defendants said.
Status QuoIn his order, Judge Pro Tem Randy Doucet noted thathis ruling was merely a procedural ruling and involvednothing regarding Nooksack tribal membership status.
Judge Doucet went on to say that the Tribal Councilwas not in contempt because the defendants reasonablyrelied on the secretary of the Interior’s approval ofResolution No. 14-112 and the amended Title 63.
The IBIA is in the best position to hear the argumentconcerning the plaintiffs’ IBIA appeal, he added.
However, Judge Doucet said he must balance thedelay of the Tribal Council disenrollment meetingsagainst the potential harm to the plaintiffs if theirIBIA appeal is not heard. The plaintiffs suffer thepossibility of disenrollment, even if they may seekreconsideration or reapply for enrollment, the judgesaid. As such, Judge Doucet ordered the parties tomaintain the status quo pending disposition of theissues before the IBIA and until a decision approvingTitle 63 becomes final for the Department of theInterior.
Gabriel S. Galanda, Anthony S. Broadman and RyanD. Dreveskracht of Galanda Broadman in Seattle repre-sent the plaintiffs. Thomas P. Schlosser and RebeccaJCH Jackson of Morisset, Schlosser, Jozwiak & Somer-ville in Seattle represent the defendants.
(Additional documents available: Plaintiffs’ motion toenforce injunction. Document #96-150325-021M.Plaintiffs’ response in opposition to defendants’notice of compliance. Document #96-150325-022B.Defendants’ opposition brief. Document #96-150325-023B. Plaintiffs’ reply brief. Document #96-150325-024B.) �
Doctrine Of Ex Parte YoungDoes Not Permit DisenrollmentLawsuit, 9th Circuit HoldsSAN FRANCISCO — A federal district court didnot have jurisdiction over a disenrollment case broughtby former members of the Pala Band of MissionIndians, the Ninth Circuit U.S. Court of Appealsaffirmed March 16 in an unpublished opinion (RonaldD. Allen, Jr., et al. v. Robert H. Smith, et al., No. 13-55552, 9th Cir.; 2015 U.S. App. LEXIS 4131).
(Memorandum opinion available. Document #96-150325-069Z.)
The Pala Band of Mission Indians disenrolled RonaldAllen and 26 other former members. Allen and the otherformer members sued present and former members
Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
42
of the tribe’s executive committee in their individualcapacities, asserting violations of federal statutes andcommon-law principles.
The former members sought declaratory and injunctiverelief and compensatory and punitive damages.
Suit Against Tribe
The U.S. District Court for the Southern District ofCalifornia dismissed the case for want of subject matterjurisdiction.
In affirming, the Ninth Circuit panel found that therelief sought in the instant case ‘‘clearly operates againstthe Tribe. The requested relief would prevent the Tribefrom disenrolling the Appellants and compel it to rein-state their membership and tribal benefits. Even therequest for compensatory and punitive damages (tobe paid by the Appellees, not the Tribe) would interferewith the Tribe’s public administration, because themonetary damages are predicated on this court’s deter-mination that the disenrollment of the Appellants wasimproper.’’
Sovereign Immunity
In addition, the defendants were protected by the tri-be’s sovereign immunity because they were acting intheir official capacities when they disenrolled theformer members.
The panel rejected the former members’ argument thatthe doctrine of Ex Parte Young (209 U.S. 123 [1908])allowed them to seek injunctive relief against thetribe’s officials. Ex Parte Young allows injunctive suitsin federal courts against officials when the tribe vio-lated federal law, and the former members argueda violation of federal law only on the basis that thedefendants were collaterally estopped from makinga membership decision that runs contrary to a U.S.Department of Interior 1989 administrative decision.
‘‘Even assuming that the preclusive effect of an agencydecision qualifies as federal law under Ex Parte Young,Appellants’ briefing does not demonstrate why the1989 decision has preclusive effect against the Appel-lees,’’ the court said.
Circuit Judges Stephen R. Reinhardt, N. Randy Smithand Andrew D. Hurwitz joined in the opinion.
The former members are represented by ElizabethP. Lin of The Lin Law Firm in Diamond Bar, Calif.The defendants are represented by Paula M. Yost, IanR. Barker and Sara Dutschke Setshwaelo of DentonsUS in San Francisco.
(Additional documents available: Appellant brief.Document #96-150325-070B. Response. Document#96-150325-071B. Appellant reply brief. Document#96-150325-072B.) �
2 Minors Covered UnderIndian Child Welfare Act,California Appeals Court RulesVENTURA, Calif. — A California appeals court onFeb. 24 reversed a juvenile court’s decision to terminateparental rights to two minor children after receivingconfirmation that the children are of Eskimo descententitled to protections as Native American childrenunder the Indian Child Welfare Act (ICWA) (VenturaCounty Human Services Agency v. B.G., et al., No.B255712, Calif. App., 2nd Dist., Div. 6; 2015 Cal.App. LEXIS 173).
(Published decision available. Document #96-150325-059Z.)
Eskimo HeritageVentura County Human Services Agency (HSA) fileda dependency action against parents identified as B.G.and C.C. in the Ventura County Superior Court. Afterthe father submitted an ICWA form claiming possibleEskimo heritage, the HSA informed the court thatICWA does not apply to Eskimo families. The courtagreed, found the ICWA inapplicable and issuedan order terminating parental rights to the two minorchildren and selecting adoption as the permanent plan.
The parents appealed to the Second District CaliforniaCourt of Appeal, which stated in its decision that theHSA now concedes that the ICWA applies to the casebecause the federal definition of ‘‘Indian’’ includes‘‘Eskimos and other aboriginal peoples of Alaska.’’
The appeals court then said the Noorvik Native Com-munity (NNC), a federally recognized Alaskan Indiantribe, has submitted documents confirming that the
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
43
minors at issue are lineal descendants of their paternalgrandmother, who is a tribe member.
‘‘ICWA reflects a congressional determination that itis in the best interests of Indian children to retain tribalties and cultural heritage and in the interest of the tribeto preserve its future generations,’’ the appeals courtsaid. ‘‘Now that NNC has confirmed minors are tribemembers, the parties agree they are Indian childrenunder ICWA.’’
New Hearing
Because the Superior Court found the ICWA in-applicable, the appeals court said, it failed to considerthe heightened requirements needed to terminateparental rights to a Native American child, such aswhether ‘‘active efforts’’ were made to provide servicesdesigned to prevent the breakup of the family andwhether the parents’ continued custody of the children‘‘is likely to result in serious emotional or physicaldamage.’’
Also, NNC was not afforded an opportunity to inter-vene in the case, as permitted under the ICWA, theappeals court said.
The court, therefore, reversed and remanded withinstructions to conduct a new hearing under Welfareand Institutions Code Section 366.26 in conformitywith the provisions of the ICWA and state law.
‘‘We recognize our decision further delays permanencyfor minors, ‘but cannot conclude that the prospectof such a delay excuses non-compliance at the expenseof those that ICWA is intended to protect,’ ’’ the courtsaid, quoting In re Alice M. ([2008] 161 Cal.App.4th1189, 1197). ‘‘We urge the juvenile court and theparties to expedite resolution of these proceedings onremand.’’
Panel, Counsel
The opinion was written by Justice Steven Z. Perren,with Presiding Justice Arthur Gilbert and Justice Ken-neth R. Yegan concurring.
The HSA is represented by County Counsel LeroySmith and Assistant County Counsel Joseph J. Ran-dazzo and Patricia McCourt of the Office of theCounty Counsel in Ventura.
B.G. is represented by Ernesto Paz Rey in Arleta, Calif.C.C. is represented by Maureen L. Keaney in PacificGrove, Calif. �
Bureau Of Indian AffairsAnnounces ProposedRule To Govern Child WelfareWASHINGTON, D.C. — The Bureau of IndianAffairs (BIA) on March 18 announced that it haspublished a proposed rule to govern the implementa-tion of the Indian Child Welfare Act of 1978 (ICWA)by state courts and child welfare agencies. The proposedrule also includes changes to current regulations thatgovern notice to state agencies under ICWA.
(Proposed rule available. Document #96-150325-049L.)
Custody ProceedingsCongress enacted the ICWA in 1978 to address thefederal, state and private agency policies and practicesthat resulted in the ‘‘wholesale separation of Indianchildren from their families’’ after finding ‘‘that analarmingly high percentage of Indian families are bro-ken up by the removal, often unwarranted, of theirchildren from them by nontribal public and privateagencies and that an alarmingly high percentageof such children are placed in non-Indian foster andadoptive homes and institutions,’’ according to theproposed rule.
Following the enactment of the ICWA in July 1979,the BIA issued regulations addressing notice proceduresfor involuntary child custody proceedings involvingIndian children, as well as governing the provisionof funding for and administration of Indian childrenand family service programs as authorized by theICWA. The regulations did not address the specificrequirements and standards that ICWA imposesupon state court child custody proceedings, beyondthe requirements for contents of the notice. Also in1979, the BIA published guidelines for state courts touse in interpreting many of ICWA’s requirements inIndian child custody proceedings.
In 2014, the BIA invited comments to determinewhether to update its guidelines, and if so, what changes
Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
44
should be made. Commenters requested that the BIAupdate its ICWA guidelines and also issue regulationsaddressing the requirements and standards that ICWAimposes upon state court child custody proceedings.The BIA then developed the instant proposed rule.
Rule Overview
In its overview section, the proposed rule notes that itaddresses ‘‘ICWA implementation by state courts andchild welfare agencies, including updating definitions,and replacing current notice provisions at 25 CFR23.11 with a proposed new subpart I to 25 CFR part23. The proposed new subpart also addresses otheraspects of ICWA compliance by state courts andchild welfare agencies including, but not limited to,other pretrial requirements, procedures for requestingtransfer of an Indian child custody proceeding to tribalcourt, adjudications of involuntary placements, adop-tions, and termination of parental rights, voluntary pro-ceedings, dispositions, and post-trial rights.’’
The proposed rule ‘‘clarifies ICWA applicability andcodifies that there is no ‘Existing Indian Family Ex-ception (EIF)’ to ICWA. Since first identification ofthe EIF in 1982, the majority of state appellate courtsthat have considered the EIF have rejected it as contraryto the plain language of ICWA. Some state legislatureshave also explicitly rejected the EIF within their stateICWA statutes. When Congress enacted ICWA, itintended that an ‘Indian child’ was the threshold forapplication of ICWA. The Department agrees with theStates that have concluded that there is no existingIndian family exception to application of ICWA. Theproposed rule also promotes the early identification ofICWA applicability. Such identifications will promoteproper implementation of ICWA at an early stage, toprevent — as much as possible — delayed discoveriesthat ICWA applies.’’
The BIA will be conducting tribal consultations andpublic meetings on the proposed rule through May2015. Tribal consultations are open only to representa-tives of federally recognized Indian tribes. Public meet-ings are open to everyone. �
New Statute ProvidesFor Same-Sex MarriagesIn Tlingit, Haida TribesJUNEAU, Alaska — By a unanimous vote on Feb. 20,the Central Council of the Tlingit and Haida IndianTribes of Alaska’s (Central Council) Executive Counciladopted a new tribal statute authorizing the TribalCourt to conduct marriage ceremonies, divorce pro-ceedings and establish custody arrangements, accordingto a press release issued by the tribe.
(Title 5 available. Document #96-150325-060L.)
In the release, the tribe noted that passage of ‘‘Title 5 —Marriage, Divorce and Custody’’ is notable ‘‘because itclearly defines that any person may enter into a legalmarriage with another person regardless of gender.Central Council is the latest to join a growing listof tribes in the United States that have either amendedor adopted new tribal codes to recognize gender equal-ity in their marriage statutes.’’
‘‘The impetus for the new tribal code on marriage camefrom two places; exercising our self-determination andsovereign authority and making sure that we provide forequal treatment of our tribal citizens,’’ PresidentRichard Peterson said in the release. ‘‘All of our tribalcitizens should be provided the same rights. It’s animportant statement for the Tribe to make and onethat was not difficult for our Executive Council tostand behind.’’ �
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
45
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Vol. 1, #1 March 2015 MEALEY’S Native American Law Report
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Docum
ents
Andre
w W
. Bald
win (
Wy.
Bar N
o. 5-2
114)
Berth
enia
S. Cr
ocke
r (W
y. Ba
r No.
5-182
1)Ke
lly A
. Rud
d (W
y. Ba
r No.
6-392
8)Te
rri V
. Smi
th (W
y. Ba
r No.
7-468
5)Ba
ldwin,
Croc
ker &
Rud
d, P.C
.P.O
. Box
1229
Land
er, W
Y 82
520
(307)
332-3
385 /
FAX
(307)
332-2
507
Attor
neys
for P
lainti
ffs
UNIT
ED ST
ATES
DIS
TRIC
T CO
URT
DIST
RICT
OF W
YOM
ING
NORT
HERN
ARA
PAHO
TRIB
E,)
on its
own b
ehalf
and o
n beh
alf of
its)
memb
ers, a
nd) )
DARR
ELL O
’NEA
L, Sr.
)Ch
airma
n, No
rthern
Arap
aho B
usine
ss )
Coun
cil, in
his o
fficia
l and
indiv
idual
)ca
pacit
ies,
)Pla
intiff
s,)
vs.
) )Ci
vil. N
o. 11
-CV-
347-J
DANI
EL M
. ASH
E,)
Direc
tor, U
.S. Fi
sh an
d Wild
life S
ervice
,)
and
) )MA
TT H
OGAN
,)
Assis
tant R
egion
al Di
rector
, Reg
ion 6,
)
Migr
atory
Birds
and S
tate P
rogram
s) )
in the
ir offi
cial c
apac
ities,
) )De
fenda
nts.
)__
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
__
MEM
ORAN
DUM
IN SU
PPOR
T OF
PLAI
NTIF
FS’ M
OTIO
NFO
R SU
MM
ARY
JUDG
MEN
T ON
REM
AINI
NG C
LAIM
S__
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
____
___
Case
2:1
1-cv
-003
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men
t 79
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d 10
/14/
13
Page
1 o
f 32
INTR
ODUC
TION
This
case
presen
ts the
quest
ion of
whe
ther a
n age
ncy o
f the U
nited
State
s Gov
ernme
nt
can b
an ad
heren
ts of
the N
orthe
rn Ar
apah
o reli
gion f
rom pr
actic
ing a
cerem
ony c
entra
l to th
eir
faith
on th
e rese
rvatio
n tha
t is th
eir ho
me. T
he U
.S. Fi
sh an
d Wild
life S
ervice
(“FW
S,”
“Age
ncy”
or “G
overn
ment”
) has
fashio
ned a
polic
y and
issu
ed a
perm
it tha
t proh
ibits
the Tr
ibe
and i
ts me
mbers
from
doing
so. T
he pr
ohibi
tion i
s oste
nsibl
y base
d on “
religi
ous b
eliefs
” and
“obje
ction
s” of
certa
in me
mbers
of a
neigh
bor tr
ibe. T
he G
overn
ment
eleva
tes an
d con
verts
those
objec
tions
into
a perm
it rest
rictio
n tha
t viol
ates t
he Fi
rst A
mend
ment,
disre
gardi
ng on
e of
the m
ost c
heris
hed p
rincip
les of
libert
y in A
meric
an de
mocra
cy –
the in
dividu
al rig
ht to
the fr
ee
exerc
ise of
relig
ion.
This
memo
randu
m is
subm
itted i
n sup
port o
f Plai
ntiffs
’ Moti
on fo
r Sum
mary
Judg
ment
on R
emain
ing C
laims
, whic
h see
ks de
clarat
ory an
d inju
nctiv
e reli
ef un
der th
e Firs
t Ame
ndme
nt
and s
imila
r reli
ef un
der th
e Adm
inistr
ative
Proc
edure
s Act
(“APA
”). P
lainti
ffs’ c
laims
unde
r the
Relig
ious F
reedo
m Re
storat
ion A
ct (“R
FRA”
) were
dism
issed
by th
e Cou
rt (Do
c.# 45
and 4
9).
Man
y of th
e fac
ts, le
gal a
uthori
ties a
nd is
sues
involv
ed in
the R
FRA
claim
overl
ap w
ith th
e
claim
s at is
sue h
ere. P
lainti
ffs in
corpo
rate h
erein
by re
feren
ce th
eir ea
rlier
subm
ission
s and
memo
randa
to th
e Cou
rt (Do
c.# 29
, 30,
42, 4
6) an
d add
ress t
he C
onsti
tution
al an
d APA
claim
s
more
spec
ifica
lly be
low.
PROC
EDUR
AL B
ACKG
ROUN
D
Plaint
iffs (
“Trib
e” or
“NAT
”) ap
plied
to th
e Gov
ernme
nt for
an ea
gle ta
ke pe
rmit u
nder
the B
ald an
d Gold
en Ea
gle Pr
otecti
on A
ct (“B
GEPA
”), 16
U.S.
C. §6
68 et
seq.,
in O
ctobe
r, 200
9.
FWS R
OD at
0002
24-27
; 000
235-3
8; an
d 000
528,
para.
1.
On Ju
ne 8,
2011
, the G
overn
ment
met w
ith bo
th the
Nort
hern
Arap
aho B
usine
ss Co
uncil
and t
he Ea
stern
Shos
hone
Bus
iness
Coun
cil (“
SBC”
) sitti
ng in
joint
sessi
on (“
JBC”
) in Fo
rt
Wash
akie,
Wyo
ming
. Id.
The S
BC di
d not
objec
t to N
AT’s
perm
it app
licati
on, b
ut req
ueste
d an
addit
ional
thirty
days
to co
nsult
with
elde
rs of
both
Tribe
s.Se
e FW
S ROD
at 00
0138
.
- 2 -
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-003
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f 32
The T
ribe f
iled t
his la
wsuit
on N
ovem
ber 7
, 201
1, be
caus
e the
Gov
ernme
nt sti
ll had
not
acted
on N
AT’s
perm
it app
licati
on. I
n resp
onse
to the
laws
uit, o
n Marc
h 9, 2
012,
FWS i
ssued
an ea
gle ta
ke pe
rmit.
The p
ermit b
ars Pl
aintif
fs fro
m the
take
of ea
gle on
the W
ind R
iver I
ndian
Reser
vatio
n, wh
ere m
ost N
orthe
rn Ar
apah
o peo
ple liv
e.
The G
overn
ment
has e
xplai
ned t
hat th
e Age
ncy f
ashion
ed th
e perm
it rest
rictio
n base
d on
objec
tions
from
certa
in me
mbers
of th
e East
ern Sh
osho
ne Tr
ibe (“
EST”
), who
claim
that
the
cerem
onial
take
of an
eagle
in th
e Arap
aho r
eligio
us tra
dition
offen
ds th
e “rel
igiou
s beli
efs” o
f
the ob
jector
s. C
onsu
ltatio
n betw
een t
he FW
S and
EST “
was c
omple
te” on
Dec
embe
r 13,
2011
,
FWS R
OD at
0022
91, p
ara. 1
1.
The G
overn
ment
cons
idered
U.S.
v. W
ilgus,
638 F
.3d 12
74, 1
290 (
10th C
ir. 20
11), a
nd
cons
trued
the h
olding
to re
quire
FWS t
o give
grea
t weig
ht to
the ob
jectio
n. FW
S ROD
at
0005
32, p
ara. 1
8 (“th
e EST
’s rel
igiou
s beli
efs w
ere in
fring
ed by
gran
ting t
he N
AT’s
perm
it
appli
catio
n.”).
The G
overn
ment
reach
ed a
decis
ion th
at req
uires
reserv
ation
resid
ents
who
practi
ce in
the A
rapah
o reli
gious
tradit
ion to
trave
l awa
y from
the p
lace w
here
they l
ive to
cond
uct c
ertain
cerem
onies
to av
oid of
fendin
g the
sens
ibiliti
es of
the ob
jector
s.
RECE
NT R
ECOR
D DE
VELO
PMEN
TS
The G
overn
ment
subm
itted a
supp
lemen
tal ad
minis
trativ
e rec
ord to
the C
ourt r
egard
ing
the se
cond
perm
it (eff
ectiv
e Marc
h 1, 2
013)
(Doc
.#74).
It th
en su
bmitte
d add
itiona
l
supp
lemen
ts to
its or
igina
l reco
rd (D
oc.#7
5), in
cludin
g obje
ction
s to a
NAT
perm
it from
certa
in
EST m
embe
rs. T
he G
overn
ment’
s issu
ance
of an
off-r
eserva
tion p
ermit,
and i
ts de
nial o
f an o
n-
reserv
ation
one,
create
d a un
ique s
et of
religi
ous q
uesti
ons a
nd co
ncern
s for
the N
AT, w
hich a
re
nowh
ere ad
dresse
d in t
he G
overn
ment’
s orig
inal o
r sup
pleme
ntal re
cord.
The N
AT, in
its go
vernm
ental
role,
unde
rtook
a rev
iew of
these
conc
erns w
hich w
as
open
to th
e pub
lic an
d resu
lted i
n inp
ut fro
m tri
bal e
lders
and o
ther E
ST an
d NAT
mem
bers
and
acad
emici
ans.
NAT
ende
avore
d to d
eterm
ine w
hethe
r a pe
rmit a
llowi
ng th
e cere
monia
l take
of
an ea
gle in
Wyo
ming
, but
bann
ing th
e cere
monia
l take
on th
e Wind
Rive
r Rese
rvatio
n (“W
RR”),
- 3 -
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-003
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d 10
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f 32
NO
RT
HE
RN
AR
AP
AH
Ov.
AS
HE
,P
LA
INT
IFF’S
SU
MM
AR
YJU
DG
ME
NT
BR
IEF
A-1
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
meets
the r
eligiou
s need
s of th
ose wh
o prac
tice in
the N
AT tra
dition
. NAT
concl
uded t
hat it
does n
ot. T
he Tri
be det
ermine
d cert
ain fa
cts an
d reac
hed co
nclusi
ons re
gardin
g both
the f
ederal
and th
e Trib
e’s pe
rmit s
ystem
, whic
h is o
perate
d unde
r the la
ws of
the T
ribe (
declar
ation o
f
Susan
Johns
ton an
d reco
rds of
the N
AT, at
tached
as Pl
aintiff
s’ Exhi
bit 3)
.1 Refe
rences
to th
e
NAT’s
admi
nistra
tive r
ecord
are to
NAT R
OD at
[page]
, and r
eferen
ces to
the G
overnm
ent’s
admini
strativ
e reco
rd are
to FW
S ROD
at [pa
ge]. A
timelin
e of k
ey eve
nts of
recor
d is p
rovide
d
in Ap
pendix
A, att
ached
hereto
.
Among
other
facts
, the N
AT re
cord s
hows th
at one
curren
t mem
ber of
the E
ST Bu
siness
Counc
il, alo
ng wit
h many
other
EST m
ember
s, is a
yearl
y part
icipant
in th
e NAT
Sun D
ance;
NAT R
OD at
028 an
d 032-
33; th
at trad
itional
ly, ES
T “got
their
eagle
s from
the w
ild,” N
AT
ROD a
t 038;
and t
hat “th
is obje
ction [
by ES
T] is p
olitica
l and n
ot a r
eal di
spute o
ver tra
dition
al
values
and c
eremo
nies,”
NAT R
OD at
040. “
It is u
nfortu
nate th
at the
Shosh
one ele
cted l
eaders
have o
pposed
Arapa
ho tra
dition
al cere
monia
l need
s.” N
AT RO
D at 0
36.
UNDI
SPUT
ED FA
CTS
The f
ollow
ing su
mmari
zes m
ateria
l facts
which
are b
efore
the Co
urt an
d not
subjec
t to
disput
e. 1.Th
e take
of eag
les pr
oposed
by Pl
aintiff
s is fo
r bona
fide r
eligiou
s purp
oses.
The
Gover
nment
admi
ts that
the p
ropose
d take
of ba
ld eag
les by
the N
AT “is
for b
ona fid
e relig
ious
purpos
es.” F
WS RO
D at 0
00531,
para.
16. T
hese r
eligiou
s purp
oses in
clude
“the ta
king o
f an
eagle”
for th
e Sun
Dance
which
occur
s “onc
e ever
y year
.”Id.
Beca
use a “
clean”
eagle
is
requir
ed, th
e use
of eag
le part
s from
the N
ational
Eagle
Repos
itory
“was
not a r
easona
ble
option
” for
the Tr
ibe. F
WS RO
D at 0
00533,
para.
26. U
se of
the Re
posito
ry “is
not th
e least
restric
tive m
eans o
f achi
eving
the Se
rvice’
s com
pellin
g inte
rests i
n prot
ecting
bald
eagle
popula
tions
and pr
otectin
g NAT
relig
ion an
d cult
ure.”
FWS R
OD at
000533
, para.
26.
1 Plain
tiffs’ E
xhibit
1 (Tit
le 13, N
orther
n Arap
aho Co
de - R
eligiou
s Free
dom) a
nd 2
(July
5, 2011
, letter
from
Defen
dant H
ogan)
are att
ached
to its
initial
Comp
laint, D
oc.#1.
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2.Th
e take
of an
eagle i
s itsel
f a ce
ntral
religi
ous ce
remoni
al pra
ctice a
nd is p
art of
the Su
n Danc
e cere
mony.
The
Gover
nment
admi
ts that
“[t]h
e take
of the
eagle
used
in the
offeri
ng for
the S
un Da
nce is
itself p
art of
the c
eremo
nies le
ading
up to
the Su
n Danc
e... th
e
sponso
r’s ro
le and
respon
sibilit
ies, in
cludin
g the
taking
of an
eagle
, are im
portan
t comp
onents
of
the Su
n Danc
e and
are pa
rt of th
e acce
pted c
ultura
l prac
tices le
ading
up to
the Su
n Danc
e.”
FWS R
OD at
531 (1
6). Se
e also
NAT R
OD at
011 (A
nderso
n lette
r) (“ea
gle hu
nting
was a
nd is
a cere
monia
l prac
tice ca
refull
y done
withi
n [pre
scribe
d] lim
its...”)
; NAT
ROD a
t 035
(C’Ha
ir
declar
ation)
(“The
take o
f an e
agle is
itself
a relig
ious c
eremo
nial p
ractice
”); an
d NAT
ROD a
t
071.
3.Th
e prop
osed t
ake is
compat
ible w
ith pr
eserva
tion o
f a he
althy
eagle p
opulat
ion.
The G
overnm
ent ad
mits t
hat NA
T’s pr
oposed
take o
f eagl
es on
the W
RR fo
r relig
ious u
se “is
within
the a
nnual t
ake th
reshol
d esta
blishe
d by t
he Ser
vice.”
FWS R
OD at
000531
, para.
15.
The p
ropose
d take
by NA
T “is c
ompat
ible w
ith th
e pres
ervatio
n of th
e bald
eagle
” unde
r
applica
ble re
gulato
ry sta
ndards
.Id.
4.Th
e Gove
rnment
’s ban
of the
take
on the
WRR
is gro
unded
solely
on ob
jectio
ns
from S
hoshon
e triba
l mem
bers w
ho are
offen
ded by
Arapa
ho rel
igious
pract
ices.
The
Gover
nment
found
that “
[a]llo
wing t
ake on
the W
RR wo
uld bu
rden t
he ES
T’s re
ligiou
s and
cultur
al belie
fs.” F
WS RO
D at 0
02280,
para.
8. Th
e Agen
cy has
been
steadf
ast in
its po
sition
that o
bjectio
ns by
the ES
T mem
bers p
revent
it fro
m iss
uing a
perm
it on t
he WR
R. FW
S ROD
at
002278
, para.
2, 000
842, 00
0922-2
3, 0001
89, an
d 0005
32, pa
ra. 18
.
As di
scusse
d belo
w, the
quest
ion wh
ether
these
object
ions a
re bon
a fide
“relig
ious
belief
s” attr
ibutab
le to a
ll Shos
hone p
eople i
s high
ly dub
ious a
nd in
disput
e. Ne
verthe
less, t
he
record
is now
clear
that th
e Gove
rnment
’s deci
sion i
s base
d sole
ly on
those
object
ions.
5.Th
e prop
osed t
ake do
es not
burde
n relig
ious p
ractice
s of m
ember
s of a
nother
Tribe.
The
take o
f eagl
es by
NAT d
oes no
t prev
ent Sh
oshone
tribal
mem
bers fr
om pr
acticin
g in
any re
ligiou
s tradi
tion t
hat an
y Shos
hone tr
ibal m
ember
may
choose
. The
propos
ed tak
e does
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not pr
event
Shosh
ones fr
om ob
taining
their
own e
agles
and ea
gle pa
rts for
relig
ious u
se fro
m the
Federa
l Repo
sitory,
which
some
prefe
r (Doc.
#44, 9-
28-12
motio
n proc
eeding
s trans
., Vari
lek at
51-52)
and s
ee NA
T ROD
at 072
-74 an
d at 0
39, Le
onard
declar
ation (
“The
take o
f an e
agle,
when
done p
roperl
y in a
ccorda
nce wi
th tra
dition
, does
not ef
fect [s
ic] or
inter
fere w
ith th
e
tradit
ions o
r relig
ious ri
ghts o
f Shos
hone m
ember
s [like
myse
lf]”).
The p
ropose
d take
in no
way
burden
s Shos
hone m
ember
s who
practic
e in th
e Nort
hern A
rapaho
tradit
ion an
d who
need a
“clean
” eagl
e for
the NA
T Sun
Dance
in wh
ich th
ey par
ticipat
e. NA
T ROD
at 028
, 032-3
3. No
r
would
the p
ropose
d take
preve
nt Sh
oshone
s from
partic
ipatin
g in a
ny oth
er rel
igious
activ
ity,
like s
ervice
s at th
e Rom
an Ca
tholic
or La
tter Da
y Sain
ts chur
ches in
Fort W
ashaki
e, loca
ted on
the W
RR. There
is no
eviden
ce in
the re
cord t
hat th
e cere
monia
l take
of an
eagle b
y NAT
on th
e
WRR (
or any
where
) woul
d crim
inalize
, preve
nt, or
burde
n any
religi
ous pr
actice
of m
ember
s of
the ES
T, nor
pose
a “thr
eat of
extin
ction”
to ES
T, U.S
. v. Ha
rdman,
297 F
.3d 11
16, 11
28 (10
th
Cir. 20
02).2
DISP
UTED
FACT
S
The f
ollow
ing ar
e mate
rial fa
cts be
fore th
e Cour
t, rega
rding
which
there
is a s
ubstan
tial
disput
e: 1.Th
e ques
tion w
hether
the o
bjectio
ns upo
n whic
h the
Gover
nment
relied
are b
ased
on “re
ligiou
s belie
f” is d
ispute
d.Am
icus h
as ass
erted
that S
hoshon
e triba
l mem
bers d
o not
take
eagles
for re
ligiou
s purp
oses a
nd obj
ected
to an
on-res
ervatio
n NAT
perm
it on t
hose g
rounds
.
There
is no
substa
ntial e
videnc
e to su
pport t
his cla
im. A
caref
ul rev
iew of
the r
ecord
shows
that
the ob
jectio
ns are
more
accur
ately
charac
terize
d as a
n asse
rted “
50% rig
ht and
inter
est in
every
2 The
Gover
nment
does
make
the ba
re ass
ertion
at one
point
that t
he cer
emoni
al take
ofan
eagle w
ould b
urden
EST “
religi
ous pr
actice
s conc
erning
the s
acredn
ess of
bald
eagles
.” Do
c.#47
at 3. B
ut it i
dentifi
es no
cerem
ony or
pract
ice of
the E
ST cu
rtailed
by an
inten
tional
eagle t
ake by
NAT.
The G
overnm
ent ha
s sinc
e clar
ified i
ts relia
nce on
the th
eory t
hat a N
ATper
mit b
urdens
“EST
’s relig
ious a
nd cul
tural b
eliefs.”
FWS
ROD a
t 0022
80, pa
ra. 8.
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A-2
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
eagle,”
Doc.#
36 at 2
8, or a
nti-A
rapaho
preju
dice th
at is p
ersona
l or p
olitica
l in na
ture, r
ather
than a
“belie
f” tha
t is re
ligiou
s. See
Doc.#
30 at 1
2, Doc.
#46 at
3, and
NAT R
OD at
072-07
4.
2.Th
e ques
tion w
hether
“killi
ng eag
les” i
s proh
ibited
as a m
atter
of Sho
shone
religi
on and
cultu
re is d
ispute
d. Th
is is c
losely
relate
d to t
he que
stion a
bout w
hether
certa
in
EST m
ember
s are
really
objec
ting o
n thei
r own
“relig
ious”
ground
s, but
is also
a disti
nct
questio
n abou
t Shos
hone h
istory
and cu
lture.
In th
e even
t the C
ourt u
ltimate
ly con
cludes
that
FWS h
as a d
uty re
gardin
g EST
tradit
ional r
eligiou
s belie
fs, NA
T disp
utes th
at thei
r prop
osed
take o
n the
WRR o
ffends
those
belief
s. See
Doc.#
30 at 1
2, Doc.
#46 at
3, and
NAT R
OD at
072-
074.
In lig
ht of
these
disput
ed fac
ts, it w
ould b
e impro
per fo
r the C
ourt to
dism
iss NA
T’s
Comp
laint b
ased o
n eith
er of
these
disput
ed fac
tual p
remise
s.3
Nonet
heless
, as de
scribe
d belo
w, the
Court
can g
rant su
mmary
judgm
ent to
the N
AT
becaus
e, rega
rdless
of th
ese fa
ctual d
ispute
s, the
Gover
nment
has fa
iled un
der str
ict scr
utiny
to
meet i
ts burd
en by
demons
tratin
g a co
mpelli
ng gov
ernme
ntal in
terest
in ba
nning
the tak
e of a
n
eagle b
y Arap
ahos o
n the
WRR.
Likew
ise, as
a matte
r of la
w, the
Gover
nment
’s actio
n viol
ates
the AP
A and
must b
e set a
side.
LEGA
L STA
NDAR
D
A moti
on und
er Fed
.R.Civ
.P. 56
shoul
d be g
ranted
where
the m
oving
party
shows
there
is no g
enuine
issue
of ma
terial
fact an
d that
it is e
ntitled
to ju
dgment
as a m
atter o
f law.
Ander
son v.
Libert
y Lobb
y, Inc.
, 477 U
.S. 24
2, 247-
48 (19
86).
3 When
the C
ourt g
ranted
summ
ary ju
dgment
to FW
S sua
sponte
at an
earlier
proce
dural
stage,
it had
not y
et had
the op
portun
ity fo
r a ca
reful
review
of th
e Agen
cy’s fa
ctual f
inding
s and
determ
inatio
ns und
er the
APA.
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ARGU
MENT
I.Th
e Perm
it Rest
rictio
n Viol
ates th
e Relig
ion Cl
auses
of th
e Firs
t Ame
ndme
nt.
Gover
nment
al actio
n that
“crim
inalize
s relig
iously
inspi
red ac
tivity
” is su
bject t
o stric
t
scruti
ny.Bo
wen v
. Roy,
476 U
.S. 69
3, 706
(1986)
. “To
satisf
y the
comma
nds of
the F
irst
Amend
ment,
a law
restri
ctive o
f relig
ious p
ractice
must
advan
ce ‘in
terest
s of th
e high
est or
der’
and m
ust be
narro
wly tai
lored
in pur
suit o
f those
inter
ests.”
Chur
ch of
the Lu
kumi B
abalu
Aye,
Inc. v.
City o
f Hial
eah, 50
8 U.S.
520, 5
46 (in
ternal
citatio
ns om
itted)
(1993)
. “A l
aw th
at targ
ets
religi
ous co
nduct f
or dis
tinctiv
e treat
ment
or adv
ances
legitim
ate go
vernm
ental i
nteres
ts only
agains
t condu
ct with
a relig
ious m
otivat
ion wi
ll surv
ive str
ict scr
utiny
only i
n rare
cases
.” Id.
The g
overnm
ent’s b
urden
is spec
ific – i
t must
demo
nstrat
e that t
he com
pellin
g inte
rest te
st is
satisfi
ed thr
ough a
pplica
tion o
f the c
hallen
ged law
to “th
e part
icular
claim
ant wh
ose sin
cere
exerci
se of
religi
on is b
eing s
ubstan
tially
burden
ed.”O
Centr
o Espi
rita Be
neficie
nte Un
iao De
Veget
al v. A
shcrof
t, 546
U.S. 41
8, 430-
31 (20
06). T
he Re
ligion
Claus
es (Fr
ee Ex
ercise
and
Establ
ishme
nt) ar
e mutu
ally su
pportiv
e, and
doctrin
es und
er one
are r
elevan
t to th
e othe
r as w
ell.
Lawr
ence H
. Trib
e, Ame
rican
Const
itutio
nal La
w (Ne
w York
, 1978)
at 814
-15.4
The p
arties
agree
that t
he Go
vernm
ent ha
s a co
mpelli
ng gov
ernme
ntal in
terest
in
protec
ting e
agles
as a s
pecies
,5 but th
at com
pellin
g inte
rest is
not at
issue
here b
ecause
the
Gover
nment
conce
des th
at NAT
’s prop
osed t
ake do
es not
threa
ten th
e eagl
e popu
lation.
Instea
d, the
Gover
nment
conte
nds th
at the
compel
ling g
overnm
ental i
nteres
t that j
ustifie
s
4 “Allo
cating
relig
ious c
hoices
to th
e unfe
ttered
consci
ences
of ind
ividua
ls unde
r the f
reeexe
rcise
clause
rema
ins, in
part,
a mean
s of a
ssurin
g that
churc
h and
state d
o not
unite t
o crea
tethe
many
dange
rs and
divisio
ns oft
en im
plicit
in suc
h an e
stabli
shed u
nion.
Similar
ly,for
biddin
g exce
ssive
identi
ficatio
n of c
hurch
and sta
te thro
ugh th
e esta
blishm
ent cla
use re
mains
,in
part, a
mean
s of a
ssurin
g that
gover
nment
does
not ex
cessiv
ely in
trude
upon r
eligiou
s liber
ty.”
Id.
5See
Amend
ed Co
mplain
t and A
nswer,
Doc.#
18 and
Doc.#
22, pa
ra. 33
in ea
ch.
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the ba
n on N
AT re
ligiou
s activ
ity ar
ises fr
om ob
jectio
ns fro
m cer
tain Sh
oshone
indiv
iduals
who
claim
the A
rapaho
relig
ious p
ractice
offen
ds the
ir “rel
igious
belief
s.” In
addit
ion to
the f
actual
deficie
ncies
in the
recor
d, the
Gover
nment
errs a
s a m
atter o
f law.
The f
act th
at som
e may
harbor
“relig
ious b
eliefs”
that a
re “of
fended
” by t
he rel
igious
pract
ices o
f othe
rs cann
ot
constit
ute a c
ompel
ling g
overnm
ent in
terest
. Nava
jo Na
tion v
. U.S.
Fores
t Serv
ice, 53
5 F.3d
1058, 1
063 (9
th Cir. 2
008).
Furth
er, th
e perm
it rest
rictio
n, base
d as it
was o
n a no
n-exis
tent
compel
ling i
nteres
t, crea
tes ex
cessiv
e enta
nglem
ent wi
th rel
igion.
NAT i
s enti
tled to
summ
ary ju
dgment
on its
First
Amend
ment
claim
becau
se the
follow
ing ele
ments
are e
stabli
shed b
eyond
genuin
e disp
ute: (
1) the
Gover
nment
actio
n burd
ens
religi
ous ac
tivity
by cr
imina
lizing
it; (2)
the G
overnm
ent ha
s no c
ompel
ling i
nteres
t in do
ing so
;
and (3
) the G
overnm
ent ig
nores
the lea
st rest
rictiv
e mean
s requi
rement
in fa
shioni
ng its
permi
t
restric
tions. A.
Denia
l of a
n eagl
e tak
e perm
it on t
he WR
R burd
ens th
e relig
ious a
ctivit
y of
practi
tioner
s of th
e Nort
hern A
rapah
o Relig
ion by
crim
inalizi
ng th
atact
ivity.
On be
half o
f itsel
f and
its me
mbers
, NAT
sough
t an ea
gle tak
e perm
it with
in the
WRR
.
FWS R
OD at
000226
and 0
00236.
The
WRR,
where
most
NAT m
ember
s live,
comp
rises
approx
imate
ly 2.3
milli
on acr
es of
land i
n cent
ral W
yoming
. U.S.
v. Mazu
rie, 41
9 U.S.
544, 5
46
(1975)
. The
Gover
nment
denie
d this
reque
st. Th
e perm
its iss
ued by
FWS (
2012 a
nd 201
3)
catego
rically
exclu
de the
take o
f an e
agle f
or rel
igious
purpo
ses by
mem
bers o
f the N
AT
anywh
ere wi
thin t
he WR
R.6 With
out a p
ermit,
the tak
e of a
n eagl
e on t
he WR
R is a
crim
e.
6 The
2012 p
ermit p
rovide
s that t
he “lo
cation
where
autho
rized
activi
ty ma
y be
conduc
ted” is
“Wyom
ing, ou
tside th
e exte
rior b
oundar
ies of
Wind
River
Reser
vation
.” FW
SRO
D at 0
00671,
para.
10. T
he sam
e rest
rictio
n appl
ies to
the 2
013 pe
rmit.
FWS R
OD at
002241
, para.
10.
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16 U.S
.C. §6
68(a);
U.S. v
. Frid
ay, 52
5 F.3d
938 a
t 941
(10th Ci
r. 2008
).7 The
prohib
ition a
gainst
religi
ous tak
e of a
n eagl
e on t
he WR
R “cri
minal
izes re
ligiou
sly in
spired
activ
ity.”
Bowe
n at
706. A
s such
, the G
overnm
ent m
ust sh
ow a “
compel
ling g
overnm
ental i
nteres
t” in o
verrid
ing
NAT’s
free e
xercis
e righ
ts and
that th
e Gove
rnment
has m
et that
comp
elling
intere
st usin
g the
least r
estric
tive m
eans.
Lukum
i at 53
3.
B.Th
e Gove
rnment
has n
ot dem
onstr
ated a
ny co
mpelli
ng in
terest
which
justifi
es cri
mina
lizing
the r
eligiou
s acti
vity o
f Arap
aho p
ractiti
oners
.
The G
overnm
ent co
ntends
that a
relig
ious-b
ased o
bjectio
n by c
ertain
mem
bers o
f the
EST,
who d
o not
believ
e in tak
ing an
eagle
for re
ligiou
s purp
oses, s
erves
as its
compel
ling
intere
st and
justifi
es ma
king c
rimina
l the c
eremo
nial ta
ke of
an eag
le by m
ember
s of th
e NAT
for th
eir ow
n relig
ious p
urpose
s. Th
e Gove
rnment
’s anal
ysis d
oes no
t with
stand
scruti
ny.
1.Th
e Gove
rnment
was m
isled i
nto co
nclud
ing th
at all
Shosh
one p
eople
are of
fended
by th
e use
of eag
les in
the A
rapah
o relig
ious tr
aditio
n.
As its
own r
ecord
makes
clear,
the G
overnm
ent’s d
eterm
inatio
n that
Shosh
one pe
ople
have “
religi
ous be
liefs”
that ar
e “off
ended”
by th
e takin
g of e
agles
is base
d on i
nput fr
om a
handfu
l of in
dividu
al com
mento
rs: (1
) Mr. W
ade Le
Beau;
(2) K
imber
ly Va
rilek, E
sq, At
torney
Gener
al for
the ES
T; and
(3) u
nident
ified e
lders a
nd me
mbers
of SB
C on a
confe
rence
call w
ith
FWS.
Viewe
d thro
ugh th
e lens
of stri
ct scru
tiny, w
here th
e Gove
rnment
must
carry
the b
urden,
these
comme
nts ca
nnot su
pport t
he det
ermina
tion t
hat all
tradit
ional S
hoshon
e peop
le hold
“relig
ious b
eliefs”
that a
re off
ended
by a r
eligiou
s cere
mony
of the
Arapa
ho.
Mr. L
eBeau
may
well b
e one
of the
unide
ntifie
d EST
“elde
rs” on
whom
the G
overnm
ent
relies
, but an
y relia
nce on
Mr. L
eBeau
is mi
splace
d. Mr
. LeB
eau is
a disg
runtled
form
er NA
T
7 Mr. F
riday
“was
charge
d unde
r feder
al law
with
shooti
ng an
eagle w
ithout
a perm
it [on
the W
RR], w
hich i
s forbi
dden b
y the
Bald
and Go
lden E
agle P
rotect
ion Ac
t.” Id
.
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emplo
yee wh
o devo
tes lo
ng hou
rs to e
spousi
ng hat
eful v
iews th
at the
NAT a
nd its
memb
ers
have n
o righ
ts at al
l at th
e Wind
River
Reser
vation
.8 Mr. L
eBeau
has h
imsel
f said
the di
spute
betwe
en the
Tribe
s in th
e case
at bar
is pol
itical o
r legal
, not re
ligiou
s:
This w
as NE
VER a
bout re
ligiou
s freed
om, it
is abo
ut the
disho
norabl
e Arap
ahoe
trying
to se
t prec
edent
that y
ou don
’t have
to as
k the
TREA
TY TR
IBE fo
rper
missi
on to
do any
thing.
BUT
YOU D
O!! T
his is
about
the Ar
apahoe
trying
totak
e this r
eserva
tion f
rom th
e SHO
SHON
E trib
e.
Plaint
iffs’ E
xhibit
4. W
hen an
Arapa
ho say
s the c
ase at
bar “is
NOT a
bout tr
eaty r
ights..
. it’s
about
the re
ligiou
s right
s... of
north
ern ar
apaho
tribal m
ember
s,” M
r. LeB
eau re
sponds
:
Only
people
WITH
OUT t
reaty
rights
say [
what]
you s
ay.
* * *
The A
rapaho
e tribe
LOST
the E
AGLE
case
becaus
e the S
hoshon
e Trib
e oppo
sedit.
Every
case
that co
mes u
p that
will i
nvolve
them
actua
lly ha
ving e
qual ri
ghts to
the Sh
oshone
will b
e shot
down
becau
se the
SHOS
HONE
are th
e ONL
Y trib
ewit
h trea
ty rig
hts.”
Id.
In res
ponse
to a d
raft W
yoming
inter
pretiv
e plan
which
inclu
des so
me Ar
apaho
histor
y
about
the Sa
nd Cre
ek ma
ssacre
, Mr. L
eBeau
assur
es the
State
emplo
yee th
at she
will b
e bann
ed
from
the W
ind Ri
ver Re
servat
ion, w
hich h
e sees
as su
bject s
olely
to Sh
oshone
rule:
You c
annot
place
a foot
on ou
r reser
vation
... This
is the
SHOS
HONE
RESE
RVAT
ION a
nd we
are g
oing t
o make
sure
we ar
e repr
esente
d corr
ectly
ASWE
DICT
ATE.
8 In ju
st one
examp
le, Mr
. LeB
eau tel
ls the
Arapa
ho to
“Get o
ut of
here.
Go. A
ssert
your tr
eaty r
ights.
Go. Q
uit m
oochin
g off S
hoshon
e peop
le. Go
. You
can’t c
ause y
ou hav
eNO
THIN
G with
out th
e Shos
hone tr
ibe! W
e don’
t need
you t
o be h
ere, yo
u need
us. A
nd you
know t
hat an
d hate
it.” P
laintiff
s’ Exhi
bit 4,
attache
d here
to.
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Plaint
iffs’ E
xhibit
5. Pr
otectin
g the
sensib
ilities
of M
r. LeB
eau fro
m off
ense d
oes no
t const
itute
a com
pellin
g gove
rnment
al inte
rest.
See Ev
erson
v. Boar
d of E
ducati
on, 33
0 U.S.
1, 12
(1947)
(“crue
l pers
ecutio
ns we
re the
inevi
table r
esult o
f gove
rnment
estab
lished
religi
ons”).
Similar
ly, th
e repr
esenta
tions
of the
Shosh
one At
torney
Gener
al at o
ral ar
gument
canno
t
suppor
t the d
eterm
inatio
n of th
e Gove
rnment
. State
ments
of co
unsel a
re not
evide
nce.
Olenho
use v.
Comm
odity C
redit C
orp., 4
2 F.3d
1560,
1576
(10th Ci
r. 1994
). Th
e Gove
rnment
impro
perly
gives
Ms. V
arilek
’s com
ments
speci
al emp
hasis,
having
made
them
part o
f its
admini
strativ
e reco
rd, FW
S ROD
at 002
287-88
. A ca
reful
review
of he
r com
ments
durin
g the
pre-de
cision
al phas
e of th
e reco
rd rev
eals o
bjectio
ns tha
t are p
ersona
l or p
olitica
l in na
ture,
rather
than
religi
ous.S
ee Do
c.#30
at 12, f
n. 16, F
WS RO
D at 0
01016-
20. T
he Go
vernm
ent
ignore
d her
appare
nt pol
itical a
lliance
with
Mr. L
eBeau
, as we
ll as th
e fact
that s
he wa
s runni
ng
for re
appoin
tment
on an
anti-A
rapaho
platf
orm. I
d. Mo
re tro
ubling
ly, co
mment
s prov
ided b
y
Ms. V
arilek
make
no m
ention
of th
e fact
that m
any ES
T trib
al mem
bers p
ractice
in th
e Nort
hern
Arapa
ho rel
igious
tradit
ion. N
AT RO
D at 0
73. In
using
her o
ffice to
chara
cteriz
e the “
offens
e”
and “r
eligiou
s belie
fs” of
the E
ST, M
s. Vari
lek ha
s left m
any m
ember
s of th
at Trib
e behi
nd, an
d
effect
ively
misle
d the
Agenc
y.9 In th
e post
-decis
ional r
ecord
compil
ed by
the Go
vernm
ent, w
e
see in
creasi
ng em
phasis
from
Ms. V
arilek
on ES
T “rel
igious
belief
s,” wh
ich se
rves to
bend
what
began
as pol
itical o
bjectio
ns int
o the
rhetor
ic of W
ilgus.
The
views
are e
ntitled
to no
more
weigh
t that t
hose o
f othe
r gove
rnment
attorn
eys wh
o argu
e in fa
vor of
gover
nment
actio
n or
legisla
tion t
hat in
fringes
on th
e First
Amend
ment
rights
of in
dividu
als. S
ee, e.g
., 1987
Fla. O
p.
Atty. G
en. 14
6 (198
7) (op
ining
that th
e City
of Hi
aleah
“may
adopt
an ord
inance
prohi
biting
the
9 “If th
ere is
any fix
ed sta
r in ou
r cons
titutio
nal co
nstella
tion, i
t is th
at no o
fficial,
high
or pet
ty, ca
n pres
cribe
what s
hall b
e orth
odox i
n poli
tics, na
tional
ism, re
ligion
or ot
her m
atters o
fopi
nion o
r force
citize
ns to
confes
s by w
ord or
act th
eir fa
ith th
erein.
If th
ere ar
e any
circum
stance
s whic
h perm
it an e
xcepti
on, th
ey do
not no
w occu
r to us
.” We
st Virg
inia S
tate
Board
of Ed
ucatio
n v. B
arnette
, 319 U
.S. 62
4, 642
(1943)
.
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religi
ous sa
crific
e of a
nimals
withi
n the
city) (v
iew re
jected
by th
e Supr
eme C
ourt in
Lukum
i.)
The E
ST AG
’s advo
cacy i
n prot
ecting
certa
in con
stituen
ts from
offen
se is n
ot evi
dence
to be
weigh
ed in
the ba
lance,
and d
oes no
t const
itute a
comp
elling
govern
ment
intere
st that
satisf
ies
the re
quirem
ents o
f stric
t scrut
iny.
Aside
from
the co
mment
ary by
Mr. L
eBeau
and M
s. Vari
lek, th
e rem
ainder
of th
e
eviden
ce of
Shosh
one “r
eligiou
s belie
fs” is
derive
d from
a conf
erence
call,
where
unide
ntifie
d
partici
pants e
xpress
ed a v
iew th
at thei
r belie
fs were
offen
ded by
Arapa
ho rel
igious
pract
ice an
d
descri
bed a t
raditio
nal Sh
oshone
catch
and r
elease
10 techni
que to
harve
st eagl
e tail f
eather
s. Th
e
partici
pants i
n the
call g
lossed
over
eagle b
one wh
istles,
whole
eagle
wings
, and t
ail fan
s used
in
the Sh
oshone
relig
ious tr
aditio
n, faili
ng to
explain
how t
he eag
le migh
t have
fared
witho
ut the
se
parts a
fter it
s “cat
ch and
relea
se.” N
AT RO
D at 0
73. T
hrough
the le
ns of
strict s
crutin
y, this
phone
call is
inade
quate t
o esta
blish
a com
pellin
g gove
rnment
al inte
rest.
Moreo
ver, th
e
charac
teriza
tion o
f the c
all con
flicts w
ith th
e weig
ht of
eviden
ce bef
ore th
e Cour
t about
Shosh
one “r
eligiou
s belie
fs.”Id.
2.Pr
otecti
ng “r
eligiou
s belie
f” fro
m off
ense is
not a
comp
elling
inter
estun
derNa
vajo.
If we s
et asid
e the e
vident
iary p
roblem
s with
FWS’
determ
inatio
n that
Shosh
one
“relig
ious b
eliefs”
are “
offend
ed” by
Arapa
ho rel
igious
pract
ice, an
d acce
pt, ar
guendo
, these
assert
ions a
t face
value,
the G
overnm
ent sti
ll cann
ot ove
rcome
its bu
rden u
nder st
rict sc
rutiny
to
demons
trate a
comp
elling
govern
ment
intere
st.
The G
overnm
ent co
ntends
that i
ts com
pellin
g inte
rest li
es in
protec
ting c
ertain
Shosh
one
“relig
ious b
eliefs”
that a
re off
ended
by Ar
apaho
religi
ous pr
actice
. Here
, the G
overnm
ent
10 “C
atch a
nd rel
ease”
is a “ta
ke” un
der FW
S regu
lations
. “Ta
ke me
ans pu
rsue, s
hoot,
shoot
at, poi
son, w
ound, k
ill, ca
pture,
trap, c
ollect
, destro
y, mole
st or d
isturb.
” 50 C
.F.R.
§22.3.
Appar
ently,
the G
overnm
ent lo
oks th
e othe
r way
when
EST m
ember
s perf
orm th
e “cat
ch and
releas
e” for
m of
take, w
hich i
s also
a crim
e unle
ss don
e purs
uant to
a fede
ral pe
rmit.
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equate
s “rel
igious
belief
s” wit
h “rel
igious
pract
ices,”
and i
gnores
the c
rucial
distin
ction b
etween
these
two co
ncepts
clarifi
ed in
the lea
ding c
ase th
at addr
esses
it head
-on.11
InNa
vajo N
ation
v. U.S.
Fores
t Serv
ice, 53
5 F.3d
1058
(9th Cir. 2
008), I
ndian
tribes
and
their m
ember
s oppo
sed th
e use
of rec
ycled
waste
water
to m
ake ar
tificia
l snow
for sk
iing i
n the
San Fr
ancisc
o Peak
s on t
he gro
unds th
at doin
g so “
will sp
iritual
ly con
tamina
te the
entire
mount
ain an
d deva
lue th
eir re
ligiou
s exer
cises”
there
. Id. a
t 1063
. The
Distric
t Cour
t found
that
althoug
h the
religi
ous be
liefs w
ere sin
cere:
... ther
e are
no pla
nts, sp
rings,
natur
al reso
urces,
shrin
es wit
h relig
ious
signif
icance
, or re
ligiou
s cere
monie
s that w
ould b
e phys
ically
affec
ted by
the u
seof
such a
rtificia
l snow
... Plain
tiffs c
ontinu
e to ha
ve vir
tually
unlim
ited ac
cess to
the m
ountain
, inclu
ding t
he ski
area,
for re
ligiou
s and
cultur
al purp
oses.
On th
emo
untain
, they
contin
ue to
pray, c
onduct
their
relig
ious c
eremo
nies, a
nd col
lect
plants
for re
ligiou
s use.
Id. T
he gra
nt of
a perm
it to N
AT wo
uld no
t phys
ically
affec
t any E
ST re
ligiou
s cere
mony;
nor
would
any e
agle p
opulati
on be
advers
ely af
fected
. EST
mem
bers w
ho obj
ect to
the N
AT pe
rmit
remain
free to
pray,
condu
ct thei
r cere
monie
s and
obtain
their
eagle
s from
the F
ederal
Repos
itory,
and t
o enjo
y the
unimp
aired
wild p
opulati
on of
eagles
that t
ravers
e the W
RR.
The N
inth C
ircuit
analy
zed th
e diffe
rence
betwe
en bur
dens o
n trad
itional
India
n relig
ious
beliefs
and b
urdens
on In
dian r
eligiou
s activ
ity, sa
ying:
Thus,
the s
ole ef
fect o
f the a
rtificia
l snow
is on
the Pl
aintiff
s’ subj
ective
spirit
ualexp
erienc
e. Th
at is, t
he pre
sence
of the
artifi
cial sn
ow on
the P
eaks is
offen
sive
to the
Plain
tiffs’ f
eeling
s abou
t their
relig
ion an
d will
decrea
se the
spirit
ualful
fillme
nt Pla
intiffs
get fr
om pr
acticin
g thei
r relig
ion on
the m
ountain
. Ne
verthe
less, a
gover
nment
actio
n that
decre
ases th
e spir
itualit
y, the
fervor
, or th
esat
isfactio
n with
which
a belie
ver pr
actice
s his r
eligion
is not
what C
ongres
s has
labele
d a ‘su
bstant
ial bur
den’ -
a term
of ar
t chose
n by C
ongres
s to be
defin
ed by
refere
nce to
Supre
me Co
urt pr
eceden
t - on
the fre
e exer
cise o
f relig
ion. W
here,
11 B
y cont
rast, t
he dis
tinctio
n was
not an
issue
in Wi
lgus, w
here th
e cour
t seem
s to us
ethe
terms
indis
crimi
nately
.
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f 32
as her
e, ther
e is no
show
ing th
e gove
rnment
has c
oerced
the P
laintiff
s to ac
tcon
trary
to the
ir relig
ious b
eliefs u
nder th
e threa
t of sa
nction
s, or c
onditio
ned a
govern
menta
l bene
fit upo
n cond
uct wh
ich wo
uld vi
olate P
laintiff
s’ relig
ious
belief
s,ther
e is no
‘subst
antial
burde
n’ on
the ex
ercise
of th
eir re
ligion
. Were
itoth
erwise
... [e]a
ch citi
zen wo
uld ho
ld an
individ
ual ve
to to
prohib
it the
govern
ment
action
solely
becau
se it o
ffends
his re
ligiou
s belie
fs, sen
sibilit
ies, or
tastes
, or fa
ils to
satisfy
his r
eligiou
s desi
res. F
urther
, givin
g one
religi
ous se
ct avet
o over
the u
se of
public
park l
and wo
uld de
prive
others
of th
e righ
t to us
e [tha
tlan
d].
Id. at
1063-6
4 (em
phasis
added
). He
re, th
e “sol
e effe
ct” re
lied up
on by
the Go
vernm
ent as
a
compel
ling i
nteres
t is th
e cont
ention
by so
me m
ember
s of th
e EST
that t
heir “
subjec
tive s
piritu
al
experi
ence”
may b
e dim
inishe
d if th
ey kno
w that
NAT m
ember
s will
take a
n eagl
e for
the NA
T
Sun D
ance b
ecause
that p
ractice
offen
ds the
m.12 D
efenda
nts im
proper
ly gra
nt som
e EST
memb
ers ve
to pow
er ove
r the u
se of
all lan
ds on
the W
RR fo
r the c
eremo
nial ta
ke of
an eag
le
becaus
e it of
fends
the se
nsibil
ities o
f those
mem
bers.
The p
ositio
n urge
d by t
he Tri
bes in
Navaj
o Nati
on, if
adopte
d, also
would
have
create
d
unmana
geable
gover
nment
al obli
gation
s. Go
vernm
ent co
uld no
t funct
ion ef
fectiv
ely if
it
prohib
ited ac
tivitie
s base
d on t
he “re
ligiou
s sens
ibiliti
es,” a
nd the
relig
ious-b
ased o
bjectio
ns, of
tribal m
ember
s. Id.
at 106
4, citin
g Lyng
v. No
rthwe
st. Ind
ian Ce
meter
y Prot
ective
Ass’n
., 485,
U.S. 43
9, 452
(1988)
. In t
he im
plicit
recogn
ition o
f this i
mport
ant di
stinctio
n, fede
ral ag
encies
are di
rected
“to ac
commo
date N
ative A
meric
an rel
igious
pract
ices,”
not b
eliefs (
empha
sis
added)
. Mem
orandu
m of
Presid
ent Cl
inton,
April
29, 19
94, 59
F.R.
22953.
12 T
he Ag
ency i
s appa
rently
less c
oncern
ed wit
h the
“subje
ctive s
piritu
al expe
rience
” of
EST m
ember
s who
worsh
ip in
the Ar
apaho
tradit
ion. C
onvers
ely, th
e Gove
rnment
gives
short
shrift
to ind
ividua
ls who
might
have
“relig
ious b
eliefs”
that a
re “of
fended
” by A
rapaho
pract
ices
but liv
e off-r
eserva
tion a
nd are
there
fore m
ore ex
posed
to hav
ing th
eir “s
ubject
ive sp
iritual
experi
ence”
interf
ered w
ith by
an Ar
apaho
practit
ioner
with a
perm
it to t
ake an
eagle
off th
eWR
R.
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3.Go
vernm
ent ha
s ident
ified n
o com
pellin
g inte
rest th
at ad
vances
publi
c safe
ty, pe
ace or
order
.
With
the un
dersta
nding
from
Navaj
othat
burde
ning r
eligiou
s “bel
iefs”
is diffe
rent th
an
burden
ing re
ligiou
s “pra
ctices,
” it be
comes
even m
ore cle
ar tha
t the G
overnm
ent ha
s failed
to
identi
fy a c
ompel
ling g
overnm
ental i
nteres
t that j
ustifie
s the p
ermit r
estric
tion.
Gover
nment
actio
n whic
h adva
nces e
ven leg
itimate
gover
nment
al int
erests
when
measu
red “o
nly ag
ainst c
onduct
with
a relig
ious m
otivat
ion wi
ll surv
ive str
ict scr
utiny
only i
n
rare c
ases.”
Lukum
i at 54
6. “A
ctions
and pr
actice
s fallin
g with
in the
bound
s of th
e free
exerc
ise
clause
can o
nly be
overc
ome b
y gove
rnment
al inte
rests ‘
of the
highe
st orde
r’.” In
ternat
ional
Society
for K
rishna
Consc
iousne
ss, In
c. v. B
arber,
650 F
.2d 43
0, 444
(2nd Cir. 1
981), c
iting
Wisco
nsin v
. Yode
r, 406
U.S. 20
5 at 2
15 (19
72). L
imitat
ions o
n free
exerc
ise “a
re jus
tified
only
by a c
ompel
ling i
nteres
t in pu
blic s
afety,
peace
or or
der.”
Id.13
There
is not
hing i
n the
record
that s
hows th
at the
permi
t restri
ction s
erves
to pro
tect
public
safety
, peace
or or
der.
4.Th
e Gove
rnment
’s relia
nce on
Wilg
us is m
isplac
ed.
The G
overnm
ent re
lies on
Wilg
us and
relate
d prec
edent
as the
basis
for it
s cont
ention
that
protec
ting c
ertain
Shosh
one “r
eligiou
s belie
fs” am
ounts t
o a co
mpelli
ng int
erest.
Broad
ly, th
e
Wilgu
scase
stands
for th
e prin
ciple t
hat pr
otectio
n of tr
aditio
nal re
ligiou
s prac
tices o
f feder
ally
recogn
ized I
ndian
tribes
can se
rve as
a com
pellin
g gove
rnment
al inte
rest w
hen th
e supp
ly of
eagle p
arts is
limited
. Beyo
nd tha
t, Wilg
us doe
s not
suppor
t the G
overnm
ent’s c
rimina
lizatio
n of
the ce
remoni
al take
of an
eagle
by tri
bal m
ember
s on t
he WR
R. Th
e fact
ual cir
cumsta
nces in
Wilgu
s are
marke
dly di
ssimi
lar fro
m tho
se in
the ca
se at b
ar.
13 T
hus, a
compel
ling i
nteres
t in pu
blic s
afety,
peace
or or
der wa
s suff
icient
to ove
rcome
religi
ously
motiv
ated p
olygam
y and
the fo
rced s
ale of
relig
ious p
eriodi
cals b
y mino
r chil
dren.
SeeRe
ynolds
v. U.S
., 98 U
.S. 14
5 (187
8) and
Princ
e v. C
ommo
nweal
th of
Massa
chuset
ts, 321
U.S. 15
8 (194
4).
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(a)Th
e supp
ly and
dema
nd pro
blem
addres
sed in
Wilg
us doe
s not
apply
to the
case
at bar.
Wilgu
swas
narrow
ly con
cerned
with
the pr
oblem
of all
ocatin
g scar
ce eag
le part
s from
the Re
posito
ry bet
ween
Indian
and n
on-Ind
ian pr
actitio
ners w
hen th
ere ar
e not
enough
parts
to
meet d
emand
. Wilg
us rel
ied up
on cer
tain ke
y fact
s in its
analy
sis. F
irst, th
e fact
that e
agle
popula
tions
are on
the r
ise do
es not
neces
sarily
mean
the F
ederal
Repos
itory
will se
e a
corres
pondin
g incr
ease in
eagle
parts
and fe
athers
.Wilg
us at 1
291. T
herefo
re, th
e popu
lation
rise wo
uld no
t reduc
e or m
itigate
comp
etition
as be
tween
Indian
s and
non-In
dians
for ea
gles
from
the Re
posito
ry. S
econd,
the d
emand
for e
agles
by trib
al mem
bers fa
r outs
trips th
e supp
ly
availab
le from
the R
eposito
ry. Id
. If th
e dem
and we
re low
er, m
aking
eagles
availa
ble to
non-
Indian
s migh
t not
be as
harmf
ul to
tribal m
ember
s. Th
ird, th
e cour
t found
it dif
ficult
to es
timate
non-In
dian d
emand
on pa
rts fro
m the
Repos
itory,
if the
y were
allow
ed acc
ess. H
oweve
r,
Afro-
Carib
bean r
eligiou
s prac
titione
rs alon
e coul
d num
ber as
many
as on
e milli
on, an
d cert
ainly
would
incre
ase de
mand
on lim
ited Re
posito
ry res
ources
. Id.
The c
ourt re
garded
“the d
emand
for ea
gle fe
athers
to be
essen
tially
a zero
-sum
game.”
Id. at
1293.
None
of the
se fac
ts is p
resent
in th
e case
at bar
. Noth
ing in
the r
ecord
sugges
ts that
the
cerem
onial t
ake fro
m the
wild
sought
by NA
T will
have a
ny im
pact o
n the
supply
of ea
gle pa
rts
availab
le to E
ST fro
m the
Repos
itory.
In fa
ct, the
Gover
nment
has c
onclud
ed tha
t the
cerem
onial t
ake pr
oposed
by NA
T will
have n
o appr
eciabl
e effe
ct on t
he wil
d popu
lation,
from
which
the R
eposito
ry is u
ltimate
ly sup
plied.
FWS
ROD a
t 0005
31 at p
ara. 15
. “Th
e vast
major
ity of
decea
sed bi
rds tu
rned i
n to t
he Re
posito
ry die
from
electr
ocutio
n or c
ollisio
n with
a
vehicle
.”Wi
lgus a
t 1291
.
Wilgu
s rejec
ted op
tions
that w
ould a
llow n
on-Ind
ians to
obtain
eagle
s from
the
Repos
itory
becaus
e “fea
thers a
nd eag
le part
s will
be div
erted
away
from
memb
ers of
feder
ally
recogn
ized t
ribes,
the v
ery pe
ople th
at the
govern
menta
l inter
est pr
otects
.” Id.
at 129
5.
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Allow
ing th
e cere
monia
l take
of an
eagle b
y NAT
on th
e WRR
prote
cts NA
T mem
bers w
ithout
limitin
g the
supply
of ea
gles o
r eagl
e part
s avai
lable t
o EST
throu
gh the
Feder
al Repo
sitory.
The f
ederal
inter
est in
prote
cting “
religi
ous be
liefs”
of ind
ividua
l EST
mem
bers w
ho
have p
ut for
th obj
ection
s, if it
exten
ds tha
t far, i
s not
“of th
e high
est or
der” s
ufficie
nt to
overco
me th
e Free
Exerc
ise rig
hts of
India
n prac
titione
rs of N
AT re
ligion
. Wilg
us
acknow
ledges
a valid
gover
nment
al inte
rest in
the p
rotect
ion of
tribal
cerem
onies
based
on the
politic
al statu
s of In
dian t
ribes
when
the su
pply o
f eagl
e part
s was
limited
. But
protec
tion f
rom
offens
e of th
e asse
rted r
eligiou
s belie
fs of so
me in
dividu
al trib
al mem
bers h
as nev
er bee
n held
to
be “of
the h
ighest
order
” nece
ssary
to pro
tect p
ublic s
afety,
peace
or or
der, or
other
wise
suffic
ient to
overc
ome th
e Free
Exerc
ise rig
hts of
anyon
e, let a
lone to
crim
inalize
the r
eligiou
s
activi
ties of
anoth
er Tri
be or
its me
mbers
.
(b)Wi
lgus c
reates
no co
mpelli
ng gov
ernme
ntal in
terest
in su
ppress
ingInd
ian re
ligion
s.
By cr
imina
lizing
the ce
remoni
al take
of an
eagle
by NA
T on t
he WR
R, the
Gover
nment
has ef
fectiv
ely su
ppress
ed NA
T relig
ion. T
he ES
T and
the NA
T is e
ach a s
eparat
ely fe
derally
recogn
ized I
ndian
Tribe,
and n
othing
in W
ilgus
or BG
EPA s
upport
s feder
al actio
n crim
inalizi
ng
the re
ligiou
s prac
tices o
f one
Tribe
in ord
er to
avoid
offend
ing th
e belie
fs of so
me m
ember
s of
anothe
r Trib
e.Wi
lgus p
rotect
s triba
l mem
bers w
ho nee
d eagl
es and
eagle
parts
or fea
thers f
or
tradit
ional c
eremo
nial p
ractice
s. It d
oes no
t empow
er one
Tribe
to us
e the G
overnm
ent to
block
anothe
r Trib
e’s ef
forts t
o obta
in an
eagle f
or cer
emoni
al purp
oses.
The G
overnm
ent tu
rns
Wilgu
son i
ts head
in co
nstrui
ng it a
s a ba
rrier to
acces
sing e
agle p
arts fo
r Nativ
e Ame
ricans
who
practic
e in th
e Nort
hern A
rapaho
tradit
ion.
If, und
er Wi
lgus, t
he fed
eral g
overnm
ent ca
n crim
inalize
a relig
ious c
eremo
ny of
the
NAT b
ased o
n the
alleged
relig
ious-b
ased o
bjectio
ns of
the ES
T, can
it als
o proh
ibit o
ther
cerem
onies
the ES
T or a
nother
tribe
finds
offens
ive to
its be
liefs?
Could
FWS b
an the
Hebre
w
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cerem
ony of
Kapar
ot, or
cerem
onies
in the
Santo
ria fa
ith? T
he ans
wer is
no. L
ukumi.
Wilgu
s weig
hed th
e fede
ral in
terest
in (1
) prot
ecting
certa
in Ind
ian re
ligiou
s prac
tices,
couple
d with
(2) p
rotect
ing ea
gles a
s a sp
ecies,
again
st asse
rted F
ree Ex
ercise
rights
of
Mr. W
ilgus,
a non-
Indian
. The
ban ap
plicab
le to M
r. Wilg
us wa
s not
based
on the
idea
that
some tr
ibal m
ember
s woul
d be o
ffende
d by h
is relig
ious p
ractice
s. Ra
ther, t
he ban
appli
cable t
o
Mr. W
ilgus’
relig
ious a
ctivity
was s
upport
ed by
a need
to pr
otect e
agles
as a s
pecies
and t
o
protec
t India
n relig
ious a
ctivity
, whic
h depe
nds on
a supp
ly of
eagle p
arts a
nd fea
thers.
The
result
would
be en
tirely
differ
ent if
tribal m
ember
s were
mere
ly off
ended
by Mr
. Wilg
us’
religi
ous pr
actice
and h
is activ
ity ha
d no n
egativ
e effe
ct on t
he sup
ply of
decea
sed ea
gles
availab
le to t
ribal m
ember
s. In
that ca
se, M
r. Wilg
us’ Fr
ee Ex
ercise
rights
would
preva
il.
“The
Free E
xercis
e Clau
se com
mits g
overnm
ent its
elf to
relig
ious to
leranc
e, and
upon
even s
light
suspic
ion th
at prop
osals f
or sta
te inte
rventi
on ste
m fro
m ani
mosity
to re
ligion
or
distru
st of it
s prac
tices, a
ll offic
ials m
ust pa
use to
reme
mber
their o
wn hi
gh dut
y to t
he
Const
itutio
n and
to the
rights
it sec
ures.”
Lukum
iid. at
547.
C.Th
e Gove
rnment
’s gerr
yman
dering
of ge
ograp
hic ar
eas fo
r diffe
rent
religi
ous p
ractic
es is n
ot the
least r
estric
tive m
eans.
Even
if we a
ssume
the G
overnm
ent ca
n crim
inalize
NAT r
eligiou
s prac
tices o
n the
WRR
at the
reques
t of o
thers w
ho ma
y be o
ffende
d by t
hem, “[
t]he g
overnm
ent m
ust als
o show
that n
o
less re
strictiv
e mean
s to ac
hieve
its end
are a
vailab
le.” In
ternat
ional
Soc. at
444.
The
Gover
nment
has a
ttempte
d to “
balanc
e” wh
at it se
es as
compet
ing du
ties un
der W
ilgus
to two
Tribes
with
religi
ous tra
dition
s whic
h are
assert
ed to
be in
conflic
t by a
llowin
g the
NAT
religi
ous pr
actice
only
outsid
e the W
RR. T
he “ba
lance”
crim
inalize
s the c
eremo
nial ta
ke of
an
eagle a
nywher
e on t
he res
ervatio
n of th
e NAT
and r
equire
s NAT
(and
many
EST)
memb
ers to
go out
side o
f their
reser
vation
for th
is cent
ral pa
rt of th
eir Su
n Danc
e cere
monie
s. By
contr
ast,
those
EST m
ember
s who
are of
fended
by NA
T Sun
Dance
tradit
ion ar
e free
to pr
actice
and
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promo
te thei
r view
s from
home
.
Relig
ious c
o-exis
tence
and to
leratio
n were
conte
mplate
d by a
uthors
of th
e Cons
titutio
n.
InLu
kumi, t
he Cit
y of H
ialeah
crimi
nalize
d cert
ain re
ligiou
s cond
uct (a
nimal s
acrific
e) by
memb
ers of
the C
hurch.
Id. at
527-2
8. Th
e Supr
eme C
ourt st
ruck d
own t
he app
licatio
n of C
ity
ordina
nces p
rohibi
ting t
hat re
ligiou
s activ
ity by
Churc
h mem
bers.
The C
ourt d
id not
once
sugges
t that t
he Fre
e Exer
cise C
lause
allowe
d a “b
alance
” of c
ompet
ing re
ligiou
s view
s betw
een
those
of the
Churc
h and
those
who o
pposed
it. N
or did
the S
uprem
e Cour
t allow
the C
ity to
ban
Churc
h activ
ities e
veryw
here e
xcept
outsid
e the b
oundar
ies of
the m
unicip
ality.
Yet, t
his is
precis
ely wh
at the
Gover
nment
has d
one in
the c
ase at
bar. N
AT m
ember
s may
only o
btain
an
eagle c
entral
for u
se in
the Su
n Danc
e if th
e cere
monia
l take
occurs
outsid
e the W
RR
bounda
ries, b
ecause
that r
eligiou
s activ
ity of
fends
the re
ligiou
s sens
ibiliti
es of
some m
ember
s of
the ES
T. If
this a
pproac
h were
valid
under
the F
ree Ex
ercise
Claus
e, Luku
mi wo
uld ha
ve had
a
comple
tely di
fferen
t outc
ome.
The G
overnm
ent’s d
enial o
f an o
n-Rese
rvatio
n perm
it and
issuan
ce of
an off
-Reser
vation
one a
ccomp
lishes
an im
permi
ssible
“relig
ious g
errym
ander”
reject
ed by
the Co
urt.I
d. at 5
35, cit
ing W
alz v.
Tax C
omm’
n of N
ew Yo
rk Cit
y, 397
U.S. 66
4 at
696 (1
970) (“
Neutr
ality i
n its a
pplica
tion r
equire
s an e
qual p
rotect
ion m
ode of
analy
sis. T
he
Court
must
surve
y metic
ulousl
y the
circum
stance
s of g
overnm
ental c
ategor
ies to
elimi
nate, a
s it
were,
relig
ious g
errym
anders
,” Harl
an, J.,
concu
rring).
Furth
ermore
, the G
overnm
ent’s d
ecisio
n to e
xclude
the e
ntire
reserv
ation f
rom th
e
cerem
onial t
ake of
an ea
gle by
NAT d
oes no
t furth
er any
prope
r inter
est un
der W
ilgus.
14 The
federa
l inter
est is
in pro
tectin
g exis
ting I
ndian
religi
ous pr
actice
s agai
nst re
pressi
on, no
t in
burden
ing th
ose pr
actice
s base
d on t
he rel
igious
belief
s asse
rted b
y som
e of th
e mem
bers o
f
14 T
he Ag
ency t
reats t
he loc
ation o
f a tak
e as ir
releva
nt. F
WS RO
D at 5
32 par
a.17.
The
NAT h
as exp
lained
the sig
nifica
nce of
the lo
cation
, whic
h is c
hosen
by the
eagle
itself
. NAT
ROD a
t 071-
72.
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anothe
r tribe
.See
Memo
randum
of Pr
esiden
t Clin
ton, id
.
Finally
, the G
overnm
ent ha
s ackn
owled
ged, at
least i
n pass
ing, th
at the
Shosh
one an
d
Arapa
ho Tri
bal Co
urt co
uld ha
ve a r
ole in
decid
ing im
portan
t issue
s in th
is case
. FWS
ROD a
t
002278
, para.
2. Th
e only
way T
ribal C
ourt ca
n make
any m
eaning
ful de
termi
nation
is if t
he
Gover
nment
issues
the p
ermit,15 su
bject t
o any
applica
ble law
s of th
e Trib
e. In
fact, t
his
condit
ion alr
eady a
pplies
to th
e issue
d perm
it16 and i
s a sta
ndard
provis
ion on
FWS p
ermits
of
this k
ind. I
ssuanc
e of a
perm
it subj
ect to
Triba
l law a
llows
for th
e prot
ection
of leg
itimate
cultur
al or o
ther c
oncern
s of b
oth Tr
ibes in
the le
ast re
strictiv
e mean
s.
D.Gr
antin
g the
permi
t wou
ld avo
id exc
essive
entan
gleme
nt in
religi
ous is
sues.
Among
the a
ctions
forbid
den un
der th
e First
Amend
ment,
gover
nment
actio
n “mu
st not
foster
an ‘e
xcessi
ve gov
ernme
nt ent
anglem
ent wi
th rel
igion’
.” Lem
on v. K
urtzm
an, 40
3 U.S.
602, 61
3 (197
1), cit
ing W
alz at
674. H
ere, de
nial o
f the p
ermit o
n the
WRR e
ntangl
es FW
S in
identi
ficatio
n of th
e core
“tradi
tional
” EST
relig
ion (th
e one,
“true”
EST r
eligion
) subje
ct to
protec
tion u
nder W
ilgus.
17 It als
o enta
ngles
Gover
nment
in on
going
effect
s of th
e annu
al perm
it
on rel
igious
pract
ices o
f EST
and N
AT m
ember
s and
the in
tent o
f indiv
idual E
ST m
ember
s who
object
on “r
eligiou
s” gro
unds.
As we
have
seen, w
hether
EST t
raditio
nal re
ligion
is “of
fended
”
by the
cerem
onial t
ake of
an ea
gle re
mains
an iss
ue of
fact co
nteste
d by m
ember
s of b
oth Tr
ibes.
NAT R
OD at
072-74
.
15 A
s long
as the
perm
it on t
he WR
R is d
enied,
there
is not
hing t
he Tri
bal Co
urt ca
n do
to pre
vent cr
imina
l pros
ecutio
n by t
he Un
ited St
ates fo
r the c
eremo
nial ta
ke of
an eag
le by a
tribal m
ember
witho
ut a f
ederal
perm
it.
16 F
WS RO
D at 0
00071
(2012
permi
t) and
002241
(2013
perm
it), pa
ra. 11
.B. (“
The
validi
ty of
this p
ermit i
s also
condi
tioned
upon
strict o
bserva
nce of
all ap
plicab
le fore
ign, st
ate,
local,
tribal o
r othe
r feder
al law
.”)
17U.S
. v. Ba
llard,
322 U
.S. 78
, 86-87
(1944
) (“La
w in a
nonth
eocrat
ic state
canno
tme
asure
religi
ous tru
th.”).
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These
very
concer
ns ma
y be r
esolve
d, and
are be
st reso
lved, b
y the
Tribes
them
selves
as
a matte
r of tr
ibal la
w and
custom
deter
mined
in th
eir Tr
ibal C
ourt.
NAT R
OD at
074-75
; see
Feder
al Ind
ian La
w, Co
hen (2
012 ed
.) at 4
.05[4]
. To a
void t
he con
tinuin
g enta
nglem
ent in
to
questio
ns of
a relig
ious n
ature,
the A
gency
should
issue
the pe
rmit s
ubject
to ap
plicab
le law
s of
the Tr
ibes, a
s FWS
custo
marily
does
with s
uch pe
rmits
and as
it has
alread
y done
for th
e off-
reserv
ation p
ermit.
FWS i
tself s
eemed
to fav
or, th
en ign
ore, th
is appr
oach.
The v
iews o
f Jame
s
Dubov
sky, th
e Chie
f of th
e Divi
sion o
f Migr
atory
Bird M
anagem
ent, M
ountain
and P
rairie
Regio
n were
that:
[Deni
al of th
e NAT
perm
it] bas
ed on
anothe
r tribe
not su
pportin
g issu
ance o
f that
permi
t... pu
ts us in
a very
bad p
ositio
n, as th
e arbi
ter of
appro
priate
dispo
sition
ofeag
les am
ong tri
bes... I
would
hope
we co
uld [is
sue th
e perm
it] wit
h the
unders
tandin
g that
the p
ermit d
oes no
t autho
rize a
ny act
ivity
that is
incon
sisten
twit
h trib
al law
s. Th
us, we
plan
to iss
ue the
perm
it, and
any i
ssues
remain
ing ar
ethe
resul
t of tr
ibal la
ws an
d regu
lations
and w
ould n
eed to
be wo
rked o
ut am
ongst
the tri
bes, an
d not
involv
e our
office
.
FWS R
OD at
000283
and 0
00908.
Defe
ndant
Matt H
ogan, A
ssista
nt Re
gional
Direc
tor, R
egion
6, Migr
atory
Birds
and St
ate Pr
ogram
s, conc
urred.
FWS
ROD a
t 0004
81-82.
For
reason
s not
explain
ed in
the re
cord, t
he Go
vernm
ent ha
s forec
losed
this v
aluabl
e appr
oach b
y cate
gorica
lly
denyin
g any
take p
ermit o
n the
WRR.
Relief
sough
t. NA
T requ
ests th
at the
Court
decla
re the
denia
l of a
n eagl
e take
permi
t to
NAT o
n the
WRR t
o viol
ate th
e Relig
ion Cl
auses
of the
First
Amend
ment
and en
join F
WS fro
m
enforc
ing th
at perm
it rest
rictio
n. Sta
ndard
permi
t condi
tions
requir
ing co
mplian
ce wit
h othe
r
applica
ble law
may
remain
in th
e perm
it. Qu
estion
s of tr
ibal la
w, cus
tom, an
d relig
ious tr
aditio
n
should
be lef
t to th
e Trib
es the
mselv
es to
resolv
e throu
gh the
Triba
l Cour
t or o
ther a
ppropr
iate
means
.
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II.In
violat
ion of
the A
PA, th
e FWS
bans
a trad
itiona
l relig
ious c
eremo
ny of
the N
ATan
ywher
e on t
he Wi
nd Ri
ver In
dian R
eserva
tion.
Just as
the A
gency’
s refus
al to i
ssue a
perm
it to t
he NA
T fails
to m
eet th
e stric
t scrut
iny
standa
rds un
der th
e First
Amend
ment,
the d
ecisio
n like
wise d
oes no
t meet
the r
equire
ments
set
out in
the A
dmini
strativ
e Proc
edures
Act, 5
U.S.C
. §706(
2) (“A
PA”).
Revi
ew un
der th
ese
requir
ement
s esta
blishe
s that t
he dec
ision i
s unla
wful
and sh
ould b
e set a
side.
The F
WS is
charge
d by C
ongres
s with
the r
espons
ibility
of im
pleme
nting
the BG
EPA,
which
embod
ies Co
ngress
’ inten
t that N
ative A
meric
ans lik
e NAT
pract
itioner
s have
acces
s to
eagles
for re
ligiou
s purp
oses, a
nd pro
vides
a perm
it proc
ess fo
r takin
g eagl
es fro
m the
wild.
50 CF
R §22.
22. T
he AP
A prov
ides fo
r relief
when
govern
ment
agenci
es err
in im
pleme
nting
the
laws o
f the U
nited
States
, or ac
t errat
ically
or un
reason
ably i
n doin
g so.
In thi
s case
, the A
gency
has ve
ered e
rratica
lly ac
ross a
nd bey
ond th
e brea
dth of
its law
ful ob
ligatio
n to i
mplem
ent
BGEP
A. At
one e
xtrem
e, wher
e this c
ase be
gan, th
e Agen
cy iss
ues no
perm
its. T
he Ag
ency
then d
is-entr
enches
and q
uickly
reach
es a d
eterm
inatio
n that
the p
ermit p
oses n
o thre
at to a
viable
eagle
popul
ation, b
ut ran
ges be
yond t
heir d
iscret
ion an
d law
ful au
thority
into
an
evalua
tion o
f poli
tical an
d “rel
igious
” obje
ctions
to the
perm
it. As
descr
ibed b
elow,
the re
cord
reflec
ts a se
quence
of wr
ong tu
rns, w
here th
e Agen
cy’s c
onduct
is arb
itrary,
capri
cious
and
contra
ry to
law.
Stand
ard of
Revie
w
Judicia
l revie
w of a
gency
action
is gov
erned
by §70
6 of th
e APA
and r
equire
s a
“deter
minat
ion of
(1) w
hether
the a
gency
acted
within
the s
cope o
f its a
uthori
ty, (2
) whet
her th
e
agency
comp
lied wi
th pre
scribe
d proc
edures
, and (
3) wh
ether
the ac
tion i
s othe
rwise
arbit
rary,
capric
ious o
r an a
buse o
f disc
retion
.”Ole
nhouse
, id., a
t 1573
-74.
The d
uty of
a cour
t revie
wing a
gency
action
under
the “
arbitra
ry or
capric
ious”
standa
rd is t
o asce
rtain
wheth
er the
agenc
y exam
ined t
he rel
evant
data a
ndart
iculate
d a ra
tional
conne
ction b
etween
the f
acts fo
und an
d the
decisio
n made
.
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In rev
iewing
the a
gency’
s expl
anatio
n, the
review
ing co
urt m
ust de
termi
newh
ether
the ag
ency c
onside
red all
relev
ant fa
ctors a
nd wh
ether
there
has be
en an
abuse
of dis
cretio
n. Ag
ency a
ction w
ill be
set as
ide “if
the a
gency
relied
onfac
tors w
hich C
ongres
s has
not in
tended
for it
to co
nsider
, entire
ly fai
led to
consid
er an
impor
tant as
pect o
f the p
roblem
, offer
ed an
explan
ation f
or its
decisio
n that
runs
counte
r to th
e evid
ence b
efore
the ag
ency, o
r is so
impla
usible
that it
could
not b
e ascr
ibed t
o a di
fferen
ce in
view o
r the p
roduct
of ag
ency
expert
ise.”
Id. at
1574 (
intern
al citat
ions o
mitted
).
A.Un
der 50
C.F.R
. §22.2
2, the
Agenc
y’s ch
arge is
to iss
ue per
mits b
ased o
nbio
logica
l scien
ce so
that v
iable e
agle p
opula
tions
are pr
otecte
d.
The r
egulati
on im
pleme
nting
the BG
EPA’
s exce
ption
for “I
ndian
religi
ous pu
rposes
”
appear
s at 5
0 C.F.
R. §22
.22. S
ubsect
ion (c
) of th
e regu
lation
answe
rs the
questio
n, “Ho
w do w
e
evalua
te your
appli
cation
for a
perm
it?” a
s follo
ws:
We wi
ll... on
ly iss
ue a p
ermit t
o take
... when
we de
termi
ne tha
t the ta
king...
iscom
patibl
e with
prese
rvatio
n of th
e... ea
gle. I
n maki
ng a d
eterm
inatio
n, we w
illcon
sider,
among
other
criter
ia, the
follo
wing:
(1) T
he dir
ect or
indir
ect ef
fect w
hich i
ssuing
such
a perm
it woul
d be
likely
to ha
ve upo
n the
wild p
opulati
ons of
... eag
les; an
d
(2) W
hether
the a
pplica
nt is a
n Indi
an wh
o is a
uthori
zed to
partic
ipate i
nbon
a fide
tribal
relig
ious c
eremo
nies.
Thus,
the o
nly en
umera
ted cr
iteria w
hich F
WS is
author
ized b
y its o
wn re
gulatio
n to e
valuat
e are
the vi
ability
of th
e popu
lation
and th
e sinc
erity
of the
relig
ious b
elief o
f the I
ndian
applica
nt.
The A
gency
found
both t
hese c
riteria
satisf
ied. T
hat sh
ould h
ave be
en the
end o
f its e
valuat
ion.
Inject
ing a n
ew cr
iterion
– nam
ely, w
hether
tradit
ional r
eligiou
s belie
fs of a
nother
India
n
Tribe
within
the g
eograp
hical a
rea of
the p
ermit a
pplica
tion w
ould b
e “off
ended”
– is c
learly
outsid
e the s
cope o
f the s
tatute a
nd the
regul
ations,
and i
ndeed
well b
eyond
the sta
tutory
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author
ity an
d the
expert
ise of
the A
gency.
“For
Chevr
on18 defer
ence to
apply
, the A
gency
must
have r
eceive
d Cong
ressio
nal au
thority
to de
termi
ne the
partic
ular m
atter a
t issue
in th
e part
icular
manne
r adop
ted.”
City o
f Arlin
gton v
. F.C.
C., 13
3 S.Ct
. 1863,
1874
(2013)
(disti
nguish
ing
United
State
s v. M
ead Co
rp., 53
3 U.S.
218 (
2001),
denyi
ng Ch
evron
defere
nce to
actio
n by a
n
agency
with
rulem
aking
author
ity th
at was
not ru
lemaki
ng). W
hen an
agenc
y inte
rprets
a statu
te
lying
“outsid
e the c
ompas
s of it
s part
icular
exper
tise” n
o defe
rence
is due.
Hydr
o Reso
urces,
Inc. v.
U.S.E
.P.A.,
608 F
.3d 11
31, 11
46 (10
th Cir. 2
010).
Any s
uggest
ion th
at a re
ligiou
s
object
ion fa
ctor fa
lls wit
hin “o
ther c
riteria
” unde
r 50 C
.F.R.
§22.22
would
lack m
erit as
contr
ary
to the
purpo
se of
the sta
tute.
“Agen
cy act
ion wi
ll be s
et asid
e if th
e agen
cy rel
ied on
facto
rs
which
Congr
ess ha
s not
intend
ed for
it to
consid
er.”O
lenhou
se, id
. at 15
74.
B.Th
e Agen
cy’s u
ltra vir
es for
ay int
o “rel
igiou
s obje
ction
s” res
ulted
inerr
oneou
s factu
al det
ermina
tions.
Havin
g stra
yed be
yond t
he two
facto
rs set f
orth i
n the
regula
tion, t
he Go
vernm
ent
reache
d a co
nclusi
on tha
t an ea
gle tak
e is of
fensiv
e to Sh
oshone
relig
ious b
eliefs.
“Agen
cy
action
will b
e set a
side if
the a
gency.
.. offe
red an
expla
nation
for it
s deci
sion t
hat ru
ns cou
nter to
the ev
idence
befor
e the a
gency[
.]” O
lenhou
se,id.
at 157
4. As
discu
ssed e
arlier
in th
is
Memo
randum
, the A
gency
conclu
sion r
ests o
n a fla
wed f
actual
found
ation.
The p
re-dec
isional
record
comp
iled by
FWS r
eveals
no ev
idence
that “
religi
ous be
liefs”
are “o
ffende
d.”
Appen
dix A
summa
rizes
the co
ntents
of th
e adm
inistra
tive r
ecord
releva
nt to
the su
bstanc
e of
these
object
ions.
There
is no
substa
ntial e
videnc
e to su
pport t
he Ag
ency’s
concl
usion
about
“relig
ious o
bjectio
ns.”S
ee Ole
nhouse
,id. at
1575
(inter
nal cit
ations
omitte
d) (“a
gency
action
will b
e set a
side if
it is u
nsuppo
rted b
y subs
tantial
evide
nce... ‘
it is im
possib
le to c
onceiv
e of a
non-ar
bitrar
y fact
ual ju
dgment
suppo
rted b
y evid
ence th
at is n
ot sub
stanti
al in t
he AP
A sens
e’”).
Viewe
d gene
rously
, the r
ecord
contain
s three
refer
ences
to per
sonal o
r “cul
tural”
objec
tions
to
18 Ch
evron
U.S.A.
v. Na
tural
Resou
rces D
efense
Counc
il, Inc
., 467
U.S. 83
7 (198
4).
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the pe
rmit.
One c
omes
from
Mr. L
ebeau.
See F
WS RO
D at 0
00381-
84. T
he oth
er com
es fro
m
Ms. V
arilek
.See
FWS R
OD at
002288
. The
last co
mes in
a find
ing, F
WS RO
D at 0
02291,
which
make
s pass
ing re
ferenc
e to a t
elepho
ne cal
l with
SBC a
nd uni
dentifi
ed eld
ers, th
e
substa
nce of
which
is not
conta
ined w
ithin
the re
cord.
These
scint
illa ar
e inade
quate t
o supp
ort
the Ag
ency’s
deter
minat
ion. O
lenhou
se,id.
at 158
1 (sci
ntilla
eviden
ce ina
dequat
e).19
Perhap
s the m
ost no
tewort
hy fea
ture o
f the p
re-dec
isional
recor
d is th
at Mess
rs. Ho
gan
and Du
bovsky
recom
mende
d issu
ance o
f the p
ermit t
o NAT
withi
n the
WRR a
nd the
State
of
Wyom
ing. S
ee p. 2
2, supr
a. So
mehow
, inter
nally,
these
recom
menda
tions
did no
t carry
the d
ay.
Instea
d, the
Agenc
y swe
rved o
ff into
the b
usines
s of “
religi
ous ob
jectio
ns.”
C.Th
e Agen
cy’s u
ltra vir
es for
ay int
o “rel
igiou
s obje
ction
s” ign
ored t
he Fir
stAm
endme
nt.
With
no spe
cial ex
pertise
in re
ligiou
s matte
rs, it i
s not
surpri
sing t
hat, w
hen th
e Agen
cy
began
consid
ering
religi
ous ob
jectio
ns as
factor
, that a
nalysi
s was
unteth
ered f
rom th
e First
Amend
ment.
As d
iscuss
ed ear
lier in
this M
emora
ndum,
the p
ermit r
estric
tion f
ashion
ed by
the
Agenc
y runs
afoul
of th
e Free
Exerc
ise Cl
ause.
Under
the A
PA, th
ese vi
olatio
ns of
the Fi
rst
Amend
ment
by the
Agenc
y are
“contr
ary to
law” a
nd mu
st be s
et asid
e.
Furth
ermore
, the A
gency’
s actio
n viol
ates th
e Esta
blishm
ent Cl
ause.
“[T]ru
e relig
ious
libert
y requ
ires th
at gove
rnment
... effe
ct no f
avoriti
sm am
ong se
cts... a
nd tha
t it wo
rk det
errenc
e
of no
religi
ous be
lief.”
Larso
n v. V
alente
, 456 U
.S. 22
8, 246
(1982)
(inter
nal cit
ations
omitte
d).
The G
overnm
ent’s d
enial o
f an o
n-rese
rvatio
n perm
it endo
rses th
e relig
ious b
eliefs o
f some
EST
memb
ers as
more
impor
tant th
an the
relig
ious b
eliefs a
nd pra
ctices
of any
India
n prac
ticing
in
the No
rthern
Arapa
ho rel
igion.
19 B
y cont
rast, e
videnc
e of th
e relig
ious p
ractice
s of th
e NAT
regar
ding t
he Su
n Danc
e,and
the c
eremo
nial ta
ke of
an eag
le requ
ired f
or Su
n Danc
e, are
well d
ocume
nted (
see U.
S. v.
Friday
, 525 F
.3d 93
8, 10th Ci
r. 2008
), NAT
ROD a
t 67-7
5, and
admitte
d as fa
cts by
the
Gover
nment
(see F
WS RO
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“When
gover
nment
assoc
iates o
ne set
of re
ligiou
s belie
fs with
the s
tate an
d iden
tifies
nonadh
erents
as ou
tsiders
, it en
croach
es upo
n the
indivi
dual’s
decisio
n abou
t whet
her an
d how
to wo
rship.
”McC
reary
Count
y, Ky. v
. ACL
U, 545
U.S.
844, 88
3 (200
5) (O
’Conno
r,
concur
ring).
“By e
nforci
ng the
[First
Amend
ment
and Es
tablish
ment]
Claus
es, we
have
kept
religi
on a m
atter fo
r the in
dividu
al cons
cience
, not fo
r the p
rosecu
tor or
burea
ucrat.”
Id. H
ere,
the Go
vernm
ent m
akes N
AT m
ember
s who
believ
e and
partici
pate in
the A
rapaho
Sun D
ance
“outsid
ers,” b
oth fig
urativ
ely an
d liter
ally. T
o cond
uct th
e cere
monia
l take
of an
eagle,
NAT
(and m
any ES
T) me
mbers
must
go ou
tside th
eir ow
n rese
rvatio
n hom
es, wh
ile oth
er ES
T
memb
ers en
joy th
e priv
ilege th
at com
es fro
m fed
eral su
pport f
or the
ir relig
ious-b
ased o
bjectio
n
to the
NAT r
eligiou
s cere
mony.
The
Gover
nment
leaves
the c
eremo
nial ta
ke of
an eag
le on t
he
WRR “
for th
e pros
ecutor
.” Th
is viol
ates th
e Esta
blishm
ent Cl
ause, a
nd is t
herefo
re con
trary
to
law un
der th
e APA
.
D.Th
e proc
edures
that
were
utilize
d by t
he Ag
ency v
iolate
due-p
rocess
.
An ag
ency’s
decis
ion is
“arbit
rary a
nd cap
riciou
s” if i
t was
not th
e resu
lt of p
rocedu
res
that co
mport
with
princi
ples o
f due-
proces
s and
fair p
lay. O
lenhou
se, id
. at 15
83. H
ere, th
e
record
revea
ls seri
ous du
e proc
ess vi
olatio
ns.
The “
religi
ous ob
jectio
ns” fa
ctor is
absen
t from
the B
GEPA
regul
ation, b
ut wa
s crea
ted
by the
Agenc
y in t
he cou
rse of
its re
view o
f the a
pplica
tion.
FWS f
ailed t
o noti
fy the
appli
cant
that “r
eligiou
s obje
ctions”
was a
facto
r at al
l, let a
lone th
e cent
ral on
e, in i
ts delib
eratio
n.See
Appen
dix A
(timelin
e). B
y crea
ting t
his fa
ctor a
nd fai
ling t
o prov
ide no
tice of
that a
ction t
o
NAT,
the Ag
ency v
iolate
d due
proces
s. “A
n elem
entary
and f
undam
ental r
equire
ment
of due
proces
s in an
y proc
eeding
which
is to
be acc
orded
finalit
y is n
otice
reason
ably c
alcula
ted, un
der
all of
the cir
cumsta
nces, t
o appr
ise in
terest
ed par
ties of
the p
endenc
y of th
e actio
n and
afford
them
an opp
ortuni
ty to
presen
t their
objec
tions.
” Mull
ane v.
Centr
al Ha
nover
Bank
& Tru
st Co.,
339 U.
S. 306
, 314 (
1950).
The
Agenc
y actio
n depr
ived N
AT of
an op
portun
ity to
put fo
rth
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
comme
nts th
at addr
ess th
e secr
et “rel
igious
objec
tions”
facto
r, in v
iolatio
n of d
ue pro
cess.
Id.
As a r
esult,
the re
cord c
ompil
ed by
the Ag
ency r
egardi
ng thi
s facto
r cons
ists on
ly of
object
ions
from
EST i
ndivid
uals.
These
objec
tions
were
provid
ed to
NAT a
fter th
is actio
n was
filed w
ith
the Co
urt an
d the
Agenc
y subm
itted i
ts ROD
. See
Appen
dix A
(timelin
e). N
AT ha
d no
opport
unity
to pro
vide in
put on
the “
religi
ous ob
jectio
ns” fa
ctor p
rior to
the A
gency
decisio
n,
which
viola
ted du
e proc
ess.20 “[
A]gen
cy act
ion wi
ll be s
et asid
e if th
e adm
inistra
tive p
rocess
emplo
yed vi
olated
basic
conce
pts of
fair p
lay.”
Olenho
use,id
. at 15
83.
The A
gency
also i
mprop
erly r
elies o
n post
-hoc r
ational
izatio
ns, in
viola
tion o
f the A
PA.
The A
gency
relies
on po
rtions21 of
transc
ripts o
f oral
argum
ent fro
m the
Amicu
s, with
recor
d
supple
ments
. The
oral ar
gument
took
place
approx
imate
ly six
-mont
hs aft
er fin
al agen
cy act
ion.
Decis
ions b
ased o
n “pos
t hoc”
ratio
naliza
tions
must b
e set a
side.
Olenho
use,id
. at 15
77.
E.Th
e Agen
cy fai
led to
prop
erly w
eigh t
he fed
eral in
terest
in fo
sterin
g NAT
cultur
e and
relig
ion.
Under
the A
PA, ag
ency a
ction w
ill be
set as
ide if
the ag
ency f
ailed t
o cons
ider a
n
“impor
tant as
pect” o
f the m
atter.
Olenho
use,id
. at 15
74. W
hile g
iving
preclu
sive w
eight
to
assert
ed ES
T trad
itional
belief
s in co
nnectio
n with
Wilg
us, th
e Agen
cy fai
led to
consi
der th
e
powerf
ul eff
ect of
a crim
inal b
an on
eagle t
ake by
pract
itioner
s of N
AT tra
dition
al relig
ion on
the W
RR an
d faile
d to p
roperl
y weig
h its o
bligat
ion un
der BG
EPA t
o ensu
re acc
ess to
“clea
n”
eagles
as a m
eans o
f foste
ring N
orther
n Arap
aho cu
lture
and re
ligion
. As p
art of
that f
ailure,
FWS i
gnored
the R
eligiou
s Free
dom Co
de, en
acted
by NA
T, wh
ich es
tablish
es an
on-res
ervatio
n
20 A
fter th
e FWS
ROD w
as file
d with
the C
ourt an
d obta
ined b
y NAT
, the T
ribe
undert
ook a c
areful
consi
deratio
n of p
ermit i
ssues
affect
ing th
e Trib
e, incl
uding
these
“relig
ious
object
ions.”
The
Tribe
provid
ed pub
lic not
ice an
d acce
pted p
ublic c
omme
nt dur
ing its
revie
w,and
issued
findin
gs and
concl
usions
in its
gover
nment
al role
. See
NAT R
OD at
067-75
.
21 P
roffer
ing tra
nscrip
t excer
pts fro
m one
partic
ular la
wyer
for in
clusio
n in t
headm
inistra
tive r
ecord,
as op
posed
to the
whole
transc
ript, i
s arbi
trary
and ca
pricio
us.
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eagle t
ake pe
rmit s
ystem
for N
AT m
ember
s and
finds
that tr
aditio
nal ce
remoni
es of
the NA
T
“are a
n inte
gral p
art of
the T
ribe it
self a
nd ess
ential
to the
survi
val an
d well-
being
of the
Tribe
and its
mem
bers.”
13 N.
A.C. 10
1(a), F
WS RO
D at 0
00253
(ignor
ed in
Agenc
y find
ings, F
WS
ROD a
t 528-
33).
The c
eremo
nial ta
ke of
an eag
le on t
he WR
R is a
centr
al part
of th
e Trib
e’s ef
forts t
o
raise
its chi
ldren
in tra
dition
al Arap
aho wa
ys. “T
he his
tory a
nd cul
ture o
f West
ern civ
ilizatio
n
reflec
t a stro
ng tra
dition
of pa
rental
concer
n for
the nu
rture
and up
bringi
ng of
their c
hildre
n.
This p
rimary
role o
f the p
arents
in th
e upbr
inging
of th
eir ch
ildren
is now
estab
lished
beyond
debate
as an
endur
ing Am
erican
tradit
ion.”
Yoder
, 406 U
.S. at
232.Y
oder ru
led th
at Ami
sh
religi
ous be
liefs, a
nd the
right
of Am
ish pa
rents t
o teac
h thos
e belie
fs to t
heir c
hildre
n,
outwe
ighed
the St
ate’s i
nteres
t in co
mpuls
ory pu
blic e
ducatio
n past
the a
ge of
sixtee
n. Lik
e the
Amish
, the N
orther
n Arap
aho “m
ode of
life h
as thu
s com
e into
conflic
t incre
asingl
y with
requir
ement
s of c
ontem
porary
socie
ty exe
rting a
hydra
ulic in
sisten
ce on
confor
mity
to
major
itarian
standa
rds.”
Id. at
217. T
he cho
ice pr
esente
d by F
WS m
eans th
at NAT
mem
bers
may b
e imper
missi
bly “f
orced
to mi
grate t
o som
e othe
r and
more
tolera
nt reg
ion” id
. at 21
8,
outsid
e the W
RR, to
engag
e in th
e cere
monia
l take
of an
eagle a
nd to
teach
that tr
aditio
nal
practic
e to th
eir ch
ildren
. For
the Ar
apaho,
a more
toler
ant re
gion d
oes no
t appea
r to be
close
at
hand.
SeeLa
rge v.
Fremo
nt Co
unty, W
yo., 70
9 F. S
upp.2d
1176
(Wyo.
2010)
(“Th
e long
histor
y
of dis
crimi
nation
again
st Indi
ans in
the U
nited
States
, Wyom
ing, an
d Frem
ont Co
unty i
s
undeni
able...
discr
imina
tion i
s ongo
ing... [
and in
cludes
] cult
urally
-erosi
ve pol
icies...
” Id. a
t
1184).
The N
AT ha
s found
that i
ts abil
ity to
raise
its ch
ildren
“in tra
dition
al Arap
aho wa
ys is
vital t
o our
contin
ued ex
istence
as a p
eople.”
NAT
ROD a
t 070.
“Oppo
rtunit
ies to
teach
tradit
ional v
alues
and ce
remoni
es, an
d nurt
ure sp
iritual
under
standi
ng, is
natura
lly do
ne clo
se to
home, w
here w
e are
comfor
table a
nd wh
ere we
are n
ot sur
rounde
d by c
ustom
s and
expect
ations
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that ex
ist in
non-In
dian c
ulture
.”Id.
“The
ability
to tea
ch our
child
ren all
of ou
r cere
monie
s,
includ
ing th
e Sun
Dance
and t
he pro
per wa
y an e
agle m
ay be
taken
for Su
n Danc
e, is in
terfer
ed
with i
f we c
annot
conduc
t one
of tho
se im
portan
t cerem
onies
here a
t hom
e, on t
he WR
IR.” N
AT
ROD a
t 039
(Leona
rd dec
.) and
070.
Relief
sough
t. NA
T requ
ests th
at the
Court
set as
ide th
at port
ion of
the F
WS de
cision
denyin
g the
eagle t
ake pe
rmit t
o NAT
on th
e WRR
as vi
olatin
g the
provis
ions o
f the A
PA. T
he
Agenc
y has
no spe
cial ex
pertise
regar
ding q
uestio
ns of
tribal l
aw, cu
stom,
and r
eligiou
s
tradit
ion, w
hich s
hould
be lef
t to th
e Trib
es the
mselv
es to
resolv
e throu
gh the
Triba
l Cour
t or
other
approp
riate m
eans.
III.
Concl
usion
.
The c
eremo
nial ta
ke of
an eag
le for
NAT S
un Da
nce ha
s been
an on
-going
relig
ious
practic
e on t
he WR
R for
over 1
35 yea
rs. Th
e Trib
e emb
arked
on a p
rotrac
ted pr
ocess
to obt
ain a
federa
l perm
it afte
r NAT
mem
ber W
inslow
Frida
y was
prosec
uted b
y the
Gover
nment
for ta
king
an eag
le for
Sun D
ance w
ithout
one.
Ultim
ately,
FWS d
enied
NAT’s
appli
cation
to tak
e an
eagle o
n the
Tribe’
s 2.3 m
illion
acre r
eserva
tion a
nd iss
ued, in
stead,
a perm
it for
areas
in
Wyom
ing ex
cludin
g the
WRR.
The b
an of
an eag
le take
by NA
T relig
ious p
ractiti
oners
crimi
nalize
s a ce
ntral c
eremo
nial p
ractice
of th
e NAT
on th
e Trib
e’s ow
n rese
rvatio
n. Th
e ban
is base
d on o
bjectio
ns fro
m ES
T mem
bers w
ho say
their
tradit
ional r
eligiou
s belie
fs are
offend
ed
by the
NAT r
eligiou
s prac
tice.
In den
ying t
he on-
reserv
ation p
ermit,
FWS s
trayed
beyon
d its s
tatutor
y and
regula
tory
author
ity, cr
eating
a “rel
igious
objec
tions”
facto
r in th
e proc
ess. O
n unfa
miliar
groun
d, the
Agenc
y allo
wed i
tself t
o be m
isled, b
y a m
ere sc
intilla
of ev
idence
, into
determ
ining
the on
e true
EST “
tradit
ional r
eligiou
s belie
f” and
then
conclu
ding t
hat th
e NAT
relig
ious p
ractice
is
offens
ive to
that b
elief.
The A
gency
ignore
d the
fact th
at eagl
e take
by NA
T has
create
d no
burden
on th
e relig
ious p
ractice
s of a
ny ES
T mem
bers.
Comp
oundin
g its l
egal an
d evid
entiar
y
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
errors
, FWS
gave
preclu
sive w
eight
to the
asser
ted ES
T belie
fs with
out fa
ir noti
ce or
opport
unity
to the
NAT t
o resp
ond an
d with
out ca
reful
consid
eratio
n of th
e effe
ct of th
e FWS
decis
ion on
NAT r
eligiou
s prac
titione
rs.
More
fundam
entally
, the A
gency’
s deni
al of a
n on-r
eserva
tion p
ermit v
iolate
s cent
ral
tenets
of Am
erican
demo
cracy
and Co
nstitu
tional
law – t
he ind
ividua
l’s rig
ht to
the fre
e exer
cise
of rel
igion
and to
raise
one’s
child
ren in
their
own r
eligiou
s tradi
tion.
The G
overnm
ent m
ust
show a
comp
elling
intere
st in p
reserv
ing th
e publ
ic peac
e, safe
ty or
order
to ove
rcome
these
basic r
ights.
The p
rotect
ion of
India
n relig
ious b
eliefs s
aid to
be of
fended
by a r
eligiou
s prac
tice
of oth
ers is
not su
ch an
intere
st. Ge
rryma
nderin
g zone
s of to
leranc
e, or o
f intol
erance
, based
on
religi
ous se
nsibil
ities is
not p
ermitte
d by t
he Fir
st Ame
ndment
. The
Agenc
y’s ch
arge is
to m
ake
eagles
availa
ble as
neede
d to p
rotect
the r
eligiou
s tradi
tions
of trib
al mem
bers, n
ot to
becom
e
entang
led in
deter
minin
g what
are, o
r are
not, tr
aditio
nal In
dian r
eligiou
s belie
fs or h
ow to
weigh
those,
one a
gainst
the o
ther.
The G
overnm
ent’s b
an on
eagle t
ake by
NAT r
eligiou
s
practit
ioners
on th
e WRR
must
be se
t aside
.
Dated
this 1
4th day o
f Octo
ber, 20
13.
North
ern Ar
apaho
Tribe
and Da
rrel O
’Neal
, Sr.,
Plaint
iffs
By:
/s/
Andre
w W. B
aldwin
Berth
enia S
. Croc
kerKe
lly A.
Rudd
Terri
V. Sm
ithBa
ldwin,
Crock
er &
Rudd,
P.C.
P.O. B
ox 122
9La
nder, W
Y 825
20-122
9(30
7) 332
-3385
ATTO
RNEY
S FOR
PLAI
NTIFF
S
- 31 -
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CERT
IFICA
TE OF
SERV
ICE
The u
ndersig
ned he
reby c
ertifie
s that t
he for
egoing
MEM
ORAN
DUM
IN SU
PPOR
T OF
PLAI
NTIFF
S’ MO
TION F
OR SU
MMAR
Y JUD
GMEN
T ON R
EMAI
NING
CLAI
MS wa
sser
ved up
on the
follo
wing b
y the
metho
ds ind
icated
below
on th
e 14th da
y of O
ctober
, 2013:
Barba
ra M.
R. M
arvin
[ ]
By Fa
csimi
leDe
pt. of
Justic
e[
]By
U.S.
mail,
postag
e prep
aidEn
vironm
ental &
Natur
al Reso
urces
Div.
[ ]
By Ha
nd De
livery
P.O. B
ox 761
1[
]By
Overn
ight C
ourier
Washi
ngton,
DC 20
004[X
]Ele
ctroni
c Filin
g
Nichol
as Va
ssallo
[ ]
By Fa
csimi
leU.S
. Atto
rney’s
Offic
e[
]By
U.S.
mail,
postag
e prep
aidP.O
. Box
668[
]By
Hand
Deliv
eryCh
eyenne
, WY
82003-
0668
[ ]
By Ov
ernigh
t Cour
ier[X
]Ele
ctroni
c Filin
g
Coby
Howe
ll[
]By
Facsi
mile
Envir
onment
al & Na
tural R
esourc
es Div
.[
]By
U.S.
mail,
postag
e prep
aidWi
ldlife
and M
arine
Resou
rces S
ection
[ ]
By Ha
nd De
livery
c/o U.
S. Att
orney’
s Offic
e[
]By
Overn
ight C
ourier
1000 S
.W. T
hird A
venue
[X]
Electr
onic F
iling
Portla
nd, OR
97204
-2901
Kimber
ly Va
rilek
[ ]
By Fa
csimi
leOf
fice o
f Atto
rney G
eneral
[ ]
By U.
S. ma
il, pos
tage p
repaid
Easte
rn Sh
oshone
Tribe
[ ]
By Ha
nd De
livery
P.O. B
ox 164
4[
]By
Overn
ight C
ourier
Fort W
ashaki
e, WY
82520
[X]
Electr
onic F
iling
/s
/An
drew W
. Bald
win
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
WE
ST
ER
NS
KY
FIN
AN
CIA
Lv.
JA
CK
SO
N
B-1
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
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UNIT
ED ST
ATES
DIST
RICT
COUR
TEA
STER
N DI
STRI
CT O
F WISC
ONSIN
ERIC
WILL
IAMS
,LIS
A WAL
KER,
Plaint
iffs,
v.Ca
se No
. 14-C
V-903
CASH
CALL
,INC.,
Defen
dant.
DECI
SION
AND
ORDE
R
Weste
rn Sk
y Fin
ancia
l, LL
C is
a len
der
that o
ffers
high
intere
st loa
ns to
consum
ers. (E
CF N
o. 12-
1 at 2
.) Itis
locat
ed on
the C
heyen
ne Ri
ver Si
oux T
ribe N
ation
(the T
ribe)
Reser
vatio
n in S
outh
Dako
ta an
d is w
holly
owne
d by T
ribal
memb
er Ma
rtin
Webb
. (EC
F No
. 12-1
at 2.
) Plai
ntiffs
Lisa
Walk
er an
d Eri
c Willi
ams a
re Wi
sconsi
n
reside
nts w
ho ap
plied
for a
nd re
ceived
consu
mer lo
ans fr
om W
estern
Sky.
(ECF N
o. 12-
1 at 2
, 13.)
In N
ovem
ber 2
011, M
s. Wa
lker b
orrow
ed $2
,525 a
t an
intere
st rat
e of
139.12
%; in
Febru
ary201
2, Mr
. Willi
ams b
orrow
ed $1
,000 a
t an i
nteres
t rate
of 233
.91%.
(ECF N
o. 12-
1 at 2
, 13.)
After
the f
unds
were
adva
nced t
o plai
ntiffs
, their
loan
s were
Case
2:14
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of 20
Doc
umen
t 36
2
sold
to WS
Fun
ding,
LLC
and
servic
ed b
y De
fenda
nt Ca
shCall
, Inc.
, a C
alifor
nia
corpo
ration
. (ECF
No.
12-1 a
t 3.)
Plaint
iffs br
ough
t a cl
ass ac
tion s
uit ag
ainst
CashC
allin
Wisco
nsin c
ircuit
court
claim
ingtha
t Cash
Callv
iolate
d Wisc
onsin
’susur
y law
(Wis.
Stat.§
138.0
9)by
charg
ing
intere
st rat
es ab
ove 1
8 perc
ent w
ithou
t firs
t obta
ining
a lice
nse fr
om th
e Wisc
onsin
Divis
ion of
Bank
ing. (E
CF N
o. 1-1
at 1-
3.) A
s a re
sult, p
lainti
ffs al
lege t
hat,p
ursua
nt to
Wis.
Stat. §
425.30
5,the
y are
not o
bliga
ted to
repa
y the
ir loa
ns. (E
CF N
o. 1-1
at 3.
)
CashC
allrem
oved
the m
atter
to fed
eral co
urt. (E
CF N
o. 1.)
In ac
corda
nce w
ith 28
U.S.C
.
§636(
c) an
d Fed
. R. C
iv. P.
73(b)
the p
arties
all c
onsen
ted to
the f
ull ju
risdic
tion o
f a
magis
trate
judge
. (ECF
Nos.
6,8.)
Now
pend
ing be
fore t
his co
urt is
CashC
all’s
motio
n
to dis
miss,
whic
hpurs
uant
toFe
d. R.
Civ. P
. 12(d
) the c
ourt
has c
onver
ted to
a mo
tion
forsum
mary
judgm
ent;a
lterna
tively
,Cash
Call m
oves
the co
urt to
compe
l arbi
tratio
n.
CashC
all’s
brief
in su
pport
of it
s moti
on in
clude
s two
argu
ments
prev
iously
reject
ed by
the S
eventh
Circu
it Cou
rt of A
ppeal
sin Ja
ckson
v. Pay
day Fi
nancia
l, LLC
,764
F.3d 7
65 (20
14). S
pecif
ically
, it ar
gues
that th
e foru
m sel
ection
claus
e fou
nd in
plain
tiffs’
loan a
greem
ents
mand
ates t
hat a
ny in
-court
litiga
tion o
ccur in
the c
ourts
of th
e Trib
e,
and t
hat th
e trib
al exh
austio
n doct
rine r
equir
es tha
t plai
ntiffs
,who
se cla
ims i
mplic
ate
the ju
risdic
tion o
f a fe
deral
ly rec
ogniz
ed In
dian t
ribe,
must
first b
ring s
uit in
Trib
al
court
before
they
may
later
chall
enge
the s
cope o
f Trib
al jur
isdict
ion in
fede
ral co
urt.
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umen
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3
CashC
all sta
tes th
at it i
nclud
es tho
se arg
umen
ts “for
prese
rvatio
n only
.” (EC
F No.
12at
18-23.
) Con
seque
ntly,
the co
urt w
ill no
t add
ress th
ose ar
gume
nts fu
rther.
I.MO
TION
TO CO
MPEL
ARBI
TRAT
ION
A.La
w Ap
plicab
le to
Deter
minin
g the
Enfo
rceab
ility
of the
Arbi
tratio
n Cl
auses
The
court
must
first d
eterm
ine w
hatl
aw g
overn
s the
dete
rmina
tion
of the
enfor
ceabil
ity of
thea
rbitra
tion
clause
s. Fe
deral
juris
dictio
n ov
er thi
s disp
uteexi
sts
pursu
ant t
o the
Clas
s Acti
on F
airne
ss Ac
t, wh
ich r
equir
es mi
nimal
divers
ity o
f
citize
nship
of the
part
ies. 2
8 U.S
.C.§1
332(d)
(2)(A
). Wh
en fe
deral
cou
rts o
btain
jurisd
iction
throu
gh di
versity
of cit
izensh
ip, th
eyord
inarily
will
apply
“the
subst
antiv
e
law of
the s
tate i
n whic
h the
distr
ict co
urt sit
s, incl
uding
choic
e of la
w rul
es.” W
achovi
a
Sec. v
. Banc
o Pana
meric
ano,I
nc.,6
74 F.3
d 743
, 751
(7th
Cir. 2
012) (
intern
al cit
ation
s
omitte
d). Howe
ver, a
n arbi
tratio
n clau
se is
a typ
e of f
orum
select
ion cl
ause.
Sherw
ood v.
Marqu
ette T
ransp.
Co.,
587 F.
3d 84
1, 844
(7th
Cir. 2
009).T
o dete
rmine
the v
alidit
y of a
forum
selec
tion c
lause,
the l
aw de
signa
ted in
the c
ontra
ct’s c
hoice
of la
w cla
use is
used.
Jackso
n, 764
F.3d
at 77
4-75(
citing
Abbot
t Labo
ratori
es v. T
akeda
Pharm
aceuti
cal Co
.,476
F.3d
421 (7
thCir
. 2007
)). He
re, th
e loa
n agre
emen
ts eac
h con
tain a
choic
e of la
w pro
vision
statin
g tha
t“[t]h
is Lo
an A
greem
ent i
s su
bject
solely
to th
e exc
lusive
laws
and
jurisd
iction
of th
e [Tri
be], C
heyen
ne Ri
ver In
dian R
eserva
tion.”
(ECF
No.
12-1 a
t 6, 1
3.)
Howe
ver, a
s the
defen
dants
conce
dedi
n Jack
son, 7
64 F.3
d at 7
75,the
re do
es no
t app
ear
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umen
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WIL
LIA
MS
v.C
AS
CA
LL
C-1
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
4
to be
any T
ribal
law ad
dressi
ng th
e enfo
rceab
ility o
fforum
selec
tion c
lauses
. The
partie
s
here
have
not d
irecte
d this
court
to th
e exis
tence
of an
y suc
h Trib
al law
. Acco
rding
to
the d
efend
ants
in Jac
kson,
when
Che
yenne
Rive
r Ind
ian T
ribal
law is
lacki
ng,T
ribal
courts
will
borro
w fro
mfed
eral la
w. Id
.at 7
76.He
re,the
partie
s app
ear to
conce
de th
at
this i
s corr
ect;b
oth C
ashCa
llan
d pla
intiffs
rely
on fe
deral
law
in dis
cussi
ng th
e
enfor
ceabil
ity of
the ar
bitrat
ion cla
uses in
the l
oan a
greem
ents.
There
fore, t
he co
urt w
ill
apply
fede
ral la
w in
deter
minin
g the
enfor
ceabil
ityof
the ar
bitrat
ion cla
uses.
B.Ar
bitrab
ility D
eterm
inatio
n
As a
thres
hold
matte
r, Ca
shCall
con
tends
that
the is
sue o
f whe
ther
Mr.
Willia
ms’s
arbitra
tion c
lause
is en
forcea
ble is
to be
resol
ved b
y the
arbit
rator,
not th
is
court,1 rel
ying u
pon t
he Su
preme
Court
’s deci
sion i
nRent
-A-Ce
nter, W
est, In
c.v. Ja
ckson,
561 U
.S. 63,
70-7
1 (20
10). I
n Re
nt-A-
Cente
r, in
a sec
tion
of the
con
tract
entitl
ed
“Arbi
tratio
n Proc
edure
s,” th
e part
ies ag
reed t
hat “
[t]he A
rbitra
tor…s
hall h
ave e
xclus
ive
autho
rity t
o res
olve
any
dispu
te rel
ating
to
the i
nterpr
etatio
n, ap
plicab
ility,
enfor
ceabil
ityor
forma
tiono
f this
Agre
emen
t inclu
ding,
but n
ot lim
ited t
o any
claim
that a
ll or a
ny pa
rt of th
is Agre
emen
t is vo
id or
voida
ble.” I
d.at 6
6.Beca
use th
e plai
ntiff
there
did no
t cha
lleng
e the
valid
ity of
the s
o-call
ed “d
elega
tion p
rovisio
n”spe
cifica
lly,
1 The s
ame a
rgume
nt wo
uld se
em to
apply
to M
s. Walk
er’s a
rbitra
tion c
lause,
but p
erhap
s view
ing it
as a
fait ac
compli
given
the d
ecisio
n in J
ackson
, as d
iscus
sed be
low, C
ashCa
ll does
not p
ress t
he ar
gume
nt as
again
st her
agree
ment.
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umen
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5
the Co
urt he
ld tha
t it w
as va
lid, le
aving
any c
halle
nge t
o the
valid
ity of
the a
rbitra
tion
agree
ment
as a w
hole f
or the
arbit
rator.
561 U
.S. at
71-72.
Mr. W
illiam
s’s lo
an ag
reeme
nt do
es no
t con
tain a
“dele
gatio
n prov
ision”
simila
r
to tha
t in
Rent-
A-Ce
nter.
Rathe
r, in
identi
fying
the ty
pes o
f disp
utes t
hat a
re to
be
resolv
ed by
arbit
ration
, a “D
ispute
” is d
efine
d to
includ
e, “b
y way
of ex
ample
and
witho
ut lim
itatio
n,…an
y issu
e con
cernin
g the
valid
ity, e
nforce
abilit
y, or
scope
of th
is
loan
or the
Arbi
tratio
n ag
reeme
nt.”(
ECF
No. 1
2-1 at
9.)C
ashCa
ll arg
ues t
hat t
his
langu
age e
viden
ces th
e part
ies’ a
greem
ent t
hat i
ssues
of arb
itrabil
ity a
re res
erved
exclus
ively
for th
e arbi
trator
.(ECF
No.
12 at
10.)
Chall
enge
s to t
he va
lidity
of ar
bitrat
ion ag
reeme
nts ca
n be
divide
d int
o two
types.
One
type
chall
enge
s spe
cifica
lly th
e agre
emen
t to ar
bitrat
e; the
othe
r cha
lleng
es
the co
ntract
as a
whole
. Buck
eye Ch
eck Ca
shing
, Inc. v
. Card
egna,5
46 U.S
. 440,
444 (
2006).
If the
chall
enge
is sp
ecific
ally t
o the
agree
ment
to arb
itrate,
the c
ourt
may p
roceed
to
adjud
icate
it. Re
nt-A-
Cente
r,561
U.S. a
t 70;
Prima
Paint
Corp.
v. Fl
ood &
Conkl
in Mf
g. Co
.,
388 U
.S. 395
, 403-
04 (19
67). In
oppo
sing C
ashCa
ll’s m
otion
to co
mpel
arbitra
tion,
Mr.
Willia
ms do
es no
t cha
lleng
e the
enfor
ceabil
ity of
the e
ntire
loan a
greem
ent; r
ather,
he
challe
nges
only
the en
forcea
bility
of th
e spe
cific
provis
ion re
quirin
g him
to ar
bitrat
e
dispu
tes u
nder
the lo
an a
greem
ent.
(ECF
No. 1
6 at
8-10.)
Includ
ed w
ithin
that
challe
nge,
by d
efinit
ion,is
a cha
lleng
e to t
he re
quire
ment
that t
he ar
bitrat
or res
olve
dispu
tes co
ncerni
ng th
e enfo
rceab
ility o
f the a
rbitra
tion a
greem
ent. T
hus, t
he co
urt w
ill
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umen
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6
procee
d to
addre
ss Mr
. Willi
ams’s
chall
enge
to th
e enfo
rceab
ility
of the
arbit
ration
provis
ion.
C.Pla
intiff
s’ Arbi
tratio
n Clau
ses
The F
edera
l Arbi
tratio
n Ac
t (“FA
A”) g
uides
the en
forcea
bility
of a
rbitra
tion
agree
ments
by st
rongly
favo
ring p
arties
’ con
tractu
al ag
reeme
nts to
arbit
rate d
ispute
s.
Am.E
xpress
Co. v
. Italia
n Colo
rs Re
st., 13
3 S. C
t. 2304
, 2309
(2013
). Sect
ion 2
of the
FAA
provid
es tha
t con
tractu
al ag
reeme
nts to
arbi
trate
“shall
be
valid
, irre
vocab
le, an
d
enfor
ceable
, sav
e upo
n suc
h grou
nds a
s exis
t at la
w or
in eq
uity f
or the
revo
cation
of
any
contra
ct.” 9
U.S.C
. §2.
As a
gen
eral r
ule, c
ourts
must
“rigo
rously
enfo
rce”
arbitra
tion c
lauses
accord
ing to
their
term
s, incl
uding
term
s that
specif
y with
who
m the
partie
s cho
ose to
arbit
rate t
heir d
ispute
s and
the r
ules u
nder
which
that
arbitra
tion w
ill
be con
ducte
d. Am
. Expr
ess Co
.,133
S.Ct
. at 2
309(qu
oting
Dean
Witte
r Reyn
olds, I
nc. v.
Byrd,
470 U.
S. 213,
221 (
1985))
.
As a
type o
f foru
m sel
ection
clau
se, th
e pres
umpti
ve va
lidity
of an
arbit
ration
clause
“can
be ov
ercom
e if th
e resi
sting
party
can s
how
it is ‘
unrea
sonab
le un
der t
he
circu
mstan
ces.’”
Jackso
n,764
F.3d
at 77
6 (qu
oting
M/S
Breme
n v. Z
apata
Off-S
hore C
o.,407
U.S. 1
, 10
(1972)
). Th
e Un
ited
States
Sup
reme
Court
has
identi
fied
three
sets o
f
circu
mstan
ces th
at wi
ll ren
der a
forum
selec
tion c
lause
“unre
asona
ble”:
(1) if
their
incorp
oratio
n into
the c
ontra
ct wa
s the
resul
t of fr
aud,
undu
e inf
luence
or ov
erween
ing ba
rgaini
ng po
wer;
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
7
(2)if t
he se
lected
forum
is so
“grav
ely di
fficult
and i
nconv
enien
t that
[the
compla
ining
party
] will
for al
l prac
tical
purpo
ses be
depri
ved of
its da
y in
court[
]”; or
(3) if
enfor
cemen
t of th
e clau
ses w
ould
contra
vene a
stron
g pub
lic po
licy
of the
forum
in w
hich t
he su
it is b
rough
t, decl
ared b
y stat
ute or
judic
ial
decis
ion.
Id.(qu
oting
M/S B
remen,
407 U.
S. at 1
8).
1.Ms
. Walk
er’s A
rbitra
tion P
rovisi
on
For
all p
urpose
s rel
evant
to Ca
shCall
’s mo
tion
to com
pel a
rbitra
tion,
the
arbitra
tion p
rovisio
nin M
s. Wa
lker’s
loan
agree
ment
is ide
ntical
to th
at fou
nd in
the
loan a
greem
ents a
t issue
in Jac
kson:
Agree
ment
to Ar
bitrat
e. Yo
u agre
e tha
t any
Disp
ute, e
xcept
as pro
vided
bel
ow, w
ill be
resol
ved by
Arbi
tratio
n, wh
ich sh
all be
cond
ucted
by th
e [Tr
ibe] b
y an a
uthori
zed re
presen
tative
in ac
corda
nce w
ith its
consu
mer
dispu
te rul
es an
d the
term
s of th
is Agre
emen
t.
(ECF
No. 1
2-1 a
t 16.)
Two
para
graph
s lat
er, in
a p
aragra
ph e
ntitle
d “C
hoice
of
Arbit
rator,
” the
agree
ment
states
that
“Arbi
tratio
n sha
ll be c
ondu
cted i
n the
[Trib
e] by
a
pane
l of t
hree T
ribal
Elders
and
shall b
e con
ducte
d in
accord
ance
with
the [T
ribe’s
]
consum
er rul
es an
d the
term
s of th
is Agre
emen
t.” (E
CF N
o. 12-
1 at 1
6.)In
findin
g an
identi
cal ar
bitrat
ion pr
ovisio
n unre
asona
ble an
d une
nforce
able,
the Ja
ckson
court
relied
upon
the f
act th
atno
such
forum
exists
: the “
Tribe
does
not a
uthori
ze Ar
bitrat
ion, it
does
not i
nvolv
e itse
lf in
the h
iring
of arb
itrator
s, an
d it
does
not h
ave c
onsum
er
dispu
te rul
es.”J
ackson
,764
F.3d a
t 777
(quota
tion,
ellips
es, an
d brac
kets
omitte
d).As
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umen
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8
such,
the co
urt ha
d “no
hesit
ation
concl
uding
that
an ill
usory
forum
is un
reason
able.”
Id.(ci
ting M
/S Bre
men,
407 U.
S. at1
0).
CashC
allack
nowl
edge
s tha
t the a
rbitra
l forum
and a
ssocia
ted pr
ocedu
ral ru
les
set fo
rth in
Ms.
Walke
r’s lo
an a
greem
ent a
re no
t ava
ilable
. (EC
F No
. 12
at 12.
)
Never
theles
s, it a
rgues,
again
for p
reserv
ation
purpo
ses on
ly, th
at the
Seven
th Cir
cuit
Court
of Ap
peals
got it
wron
g in J
ackson
and t
hat th
is cou
rt sho
uld co
mpel a
rbitra
tion o
f
Ms. W
alker’
s clai
ms. H
oweve
r,it c
onced
es tha
t, give
n the
holdi
ng in
Jacks
on, th
is cou
rt
canno
t enfo
rce th
e arbi
tratio
nclau
se in
Ms. W
alker’
s loan
agree
ment.
The c
ourt a
grees.
2.Mr
. Willi
ams’s
Arbit
ration
Prov
ision
The
parag
raph
entitl
ed “
Agree
ment
to Ar
bitrat
e” in
Mr. W
illiam
s’s lo
an
agree
ment
is ide
ntical
to th
at in
Ms. W
alker’
s loa
n agre
emen
t(and
totho
se at
issue
in
Jackso
n).It s
tates:
You a
gree t
hat a
ny D
ispute
…will
be re
solved
by A
rbitra
tion,
which
shall
be con
ducte
d by t
he [T
ribe]
by an
autho
rized
repre
sentat
ive in
accor
dance
wi
th its
consu
mer d
ispute
rules
and t
he te
rms o
f this A
greem
ent.
(ECF N
o. 12-
1 at 9
(Emp
hasis
adde
d).)T
he m
ateria
l diffe
rence
comes
two p
aragra
phs
later,
whe
n,un
liket
he la
ngua
ge in
Ms.
Walke
r’sloa
n agre
emen
t,Mr. W
illiam
s’s lo
an
agree
ment
states
in ap
aragra
ph en
titled
“Cho
ice of
Arbit
rator”
:
Rega
rdless
of w
ho de
mand
s arbi
tratio
n, yo
usha
ll hav
e the
right
to sel
ect
any
of the
foll
owing
arbi
tratio
n org
aniza
tions
to ad
minis
ter t
he
arbitra
tion:
the A
meric
an A
rbitra
tion
Assoc
iation
…; J
AMS…
; or
an
arbitra
tion o
rganiz
ation
agree
d upo
n by y
ou an
d the
othe
r part
ies to
the
Dispu
te. T
he a
rbitra
tion
will
be g
overn
ed b
y the
cho
sen a
rbitra
tion
organ
izatio
n’s ru
les an
d proc
edure
s app
licable
to co
nsume
r disp
utes,
to
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9
the ex
tent th
at tho
se rul
es an
d proc
edure
s do n
ot con
tradic
t eith
er the
law
of the
…Trib
e or th
e exp
ress te
rms o
f this A
greem
ent to
Arbit
rate…
.
(ECF N
o. 12-
1 at 9
.) At le
ast on
e cou
rt ha
s desc
ribed
this
new
langu
age a
s crea
ting a
“conu
ndrum
.”See
Held
t v. P
ayday
Financ
ial, LL
C,12
F.Sup
p.3d
1170,
1190-9
1 (D.S
.D.
2014).
Abse
nt an
y info
rmati
on th
at an
y “au
thoriz
ed re
presen
tative
” of th
e Trib
e is a
n
arbitra
tor in
the A
AA or
JAMS
syste
ms, th
e Held
t cou
rt fou
nd th
at the
two p
rovisio
ns
areinc
onsis
tent in
term
s of w
ho th
e part
ies ag
reed s
hould
arbit
rate t
heir d
ispute
s. Id.
Howe
ver, a
nothe
r cou
rt rea
d the
two p
aragra
phs a
s prov
iding
the p
arties
with
the op
tion o
f cho
osing
eithe
r (a)
an au
thoriz
ed re
presen
tative
of th
e Trib
e app
lying
the
Tribe’
s con
sumer
dispu
te rul
esor
(b) an
arbit
rator
appo
inted
by th
e AAA
, JAMS
, or
other
accep
table o
rganiz
ation
, apply
ing th
e cho
sen or
ganiz
ation
’s rule
s and
proce
dures
.
In Ha
yes v.
Delbe
rt Serv
s. Corp
., No.
3:14-C
V-258
, 2015
WL 26
9483, a
t *4 (E
.D. Va
. Jan.
21,
2015),
the c
ourt f
ound
that,
as a r
esult o
f then
ewlan
guag
e in th
e“Ch
oice o
f Arbi
trator
”
parag
raph,
the pa
rties a
re no
longer
“limi
ted to
the il
lusory
‘auth
orized
repre
sentat
ives’
of the
[Trib
e]an
d its
non-e
xisten
t ‘con
sumer
dispu
te rul
es’”;
by pr
ovidi
ng th
e part
ies
with
recou
rse to
“well
-recog
nized
arbit
ration
orga
nizati
ons a
nd th
eir pr
ocedu
res,”
the
new
langu
age “
saves
the ar
bitrat
ion ag
reeme
nt fro
m me
eting
the s
ame f
ate as
”tha
t in
Jackso
n.Id. In
reachi
ng th
at con
clusio
n, the
court
in H
ayese
ssenti
ally
read
the la
ngua
ge
statin
g tha
t the
part
ies h
ave
the ri
ght t
o ha
ve the
arbi
tratio
n adm
iniste
red b
y an
organ
izatio
n like
the A
AA or
JAMS
as if
it sa
idtha
t the
y had
the r
ight t
o hav
e the
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
10
arbitra
tion c
onduct
ed by
an ar
bitrat
or fro
m eit
her t
he A
AA or
JAMS
syste
ms—e
ven if
that p
erson
were
not a
n auth
orized
repre
sentat
ive of
the T
ribe. B
ut the
contr
act do
es no
t
say th
at, at
least n
ot cle
arly.
Provid
ing th
at an
orga
nizati
on li
ke th
eAA
A or
JAMS
will
admi
nister
an
arbitra
tion
is no
t nece
ssarily
the
same
as pro
viding
that
anarb
itrator
from
that
organ
izatio
n wi
ll con
duct
the ar
bitrat
ion.O
rganiz
ation
s tha
t adm
iniste
r arbi
tratio
n
“over
see[]
and
mana
ge[]
the a
rbitra
tion
from
incep
tion
throu
gh fi
nal a
ward.
Suc
h
admi
nistra
tion u
sually
invo
lves a
ctivit
ies su
ch as
screen
ing co
mmun
icatio
ns wi
th the
arbitra
tor, sc
hedu
ling h
earing
s, arra
nging
for t
he fil
ing an
d serv
ice of
brief
s and
othe
r
docu
ments
, and
colle
cting
arbit
rator
compe
nsatio
n.” A
LAN
S.GU
TTER
MAN,
BUSIN
ESS
TRAN
SACT
IONS
SOLU
TIONS
§101:
39(20
15);se
e also
Glen
H. S
pence
r, Adm
iniste
red vs
. Non-
Admi
nister
ed Ar
bitrat
ion,D
ISP.R
ESOL
.J., F
eb. 1
999, a
t 42,
43. Co
nvers
ely, a
rbitra
tions
are
“cond
ucted
” by
the ar
bitrat
ors th
emsel
ves—n
ot the
admi
nister
ing o
rganiz
ation
. See
Rule
7, JA
MS C
ompre
hensi
ve Ar
bitrat
ion R
ules &
Proc
edure
s, eff
ective
July
1, 201
4,
availab
le at
http:/
/www
.jamsad
r.com
/rules
-comp
rehen
sive-a
rbitra
tion/;
Rule
32,
AAA
Consu
mer
Arbit
ration
Ru
les,
Amen
ded
Sept.
1, 201
4, ava
ilable
at
https:
//www
.adr.o
rg/aaa
/faces
/rules
/.
One c
ould
readM
r. Willi
ams’s
arbit
ration
clau
se as
requir
ing th
at the
arbit
rator
be an
autho
rized
Triba
l rep
resen
tative
, who
wou
ld int
erpret
the l
oan a
greem
ent a
nd
resolv
e the
dispu
te, w
ith th
e sele
cted a
rbitra
tion o
rganiz
ation
prov
iding
admi
nistra
tive
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ocum
ent 3
611
suppo
rt an
d the
gover
ning r
ules. S
ee Ine
tianbo
r v. C
ashCa
ll, Inc
., 768
F.3d 1
346, 1
350-51
(11th
Cir. 20
14) (“
We ca
n thin
k of n
o othe
r reas
onab
le int
erpret
ation
of th
e prov
ision f
or
arbitra
tion ‘
by’ t
he T
ribe b
efore
an ‘a
uthori
zed re
presen
tative
’ of t
he T
ribe t
han o
ne
requir
ing so
me di
rect p
articip
ation
by th
e Trib
e itse
lf.”).B
ut it d
oes no
t app
ear th
at the
Tribe
could
or wo
uld be
able
to pro
vide a
n auth
orized
repre
sentat
ive. T
he co
urt in
Jackso
n stat
ed th
at the
Tribe
“does
not a
uthori
ze arb
itratio
n”an
d “do
es no
t invo
lve its
elf
in the
hirin
g of…
arbitra
tors.”
765 F
.3d at
776.
“Alth
ough
the a
rbitra
tion
provis
ion
contem
plates
the in
volve
ment
and s
uperv
ision o
f the…
Tribe,
the re
cord e
stabli
shes th
at
the Tr
ibe do
es no
t und
ertak
e suc
h acti
vity.”
Id.a
t 780.
Thus,
a pro
ceedin
g sub
ject t
o
Triba
l over
sight
is “sim
ply no
t a po
ssibil
ity.” I
d. at 7
79.Ca
shCall
does
not d
ispute
these
conclu
sions,
ackn
owled
ging h
ere th
at a T
ribal
arbitra
l forum
is no
t ava
ilable
. (ECF
No.
12 at
12.) Ha
ving
said
that,
the p
arties
clea
rly a
greed
to r
esolve
their
disp
utes
by
arbitra
tion,
and u
nder
the FA
A an
d as e
mpha
sized
in Gr
een v.
U.S. C
ash Ad
vance
Illinoi
s,
LLC,
724 F.
3d 78
7 (7th
Cir. 2
013), t
hat m
atters
.It co
uld be
argu
ed th
at, no
twith
stand
ing
inartf
ul dra
fting,
the pa
rties d
idint
end t
hat th
ey w
ould
have
the op
tion o
f cho
osing
an
arbitra
tor se
lected
from
the A
AA or
JAMS
syste
ms as
an al
terna
tive t
o cho
osing
an
autho
rized
repre
sentat
ive fr
om th
e Trib
e. Afte
r all,
that la
ngua
ge is
found
in a
portio
n
of the
agree
ment
entitl
ed “C
hoice
of A
rbitra
tor.”
(ECF N
o. 12-
1 at 9
.)Even
if tha
t was
not a
reaso
nable
read
ing of
the c
ontra
ct, Sec
tion 5
of th
e FAA
prov
ides th
at,if f
or “an
y”
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reason
there
is a
“lapse
in th
e nam
ing of
an ar
bitrat
or,” t
he co
urt sh
all ap
point
an
arbitra
tor.9
U.S.C
. §5.
In oth
er wo
rds, “
Cong
ress…
provid
ed th
at a j
udge
can a
ppoin
t
an ar
bitrat
or wh
en fo
r ‘any
’ reaso
n som
ething
has g
one w
rong.”
Green
, 724
F.3d a
t 791
(citin
g Hall
Street
Assoc
iates,
L.L.C.
v. Ma
ttel, I
nc., 55
2 U.S.
576 (2
008)).
So w
hy di
dn’t t
he co
urt ap
point
an ar
bitrat
orin
Jackso
n? Th
e cou
rt the
re he
ld tha
t
the ar
bitrat
ion p
rovisio
n (lik
e the
one s
igned
by M
s. Wa
lker)
was v
oid “b
ecaus
e it
provid
es tha
t a de
cision
is to
be m
ade u
nder
a proc
ess th
at is
a sha
m fro
m ste
m to
stern.
” 764
F.3d a
t 779.
Not
only
was t
here
no au
thoriz
ed re
presen
tative
of th
e Trib
e to
presid
e over
the p
roceed
ing, “
the Tr
ibe ha
s no r
ules f
or the
cond
uct o
f the p
roced
ure.”
Id.(em
phasi
s in or
igina
l).By
prov
iding
the o
ption
of us
ingthe
consu
mer d
ispute
rules
of the
AAA
or JA
MS, M
r. Willi
ams’s
contra
ct sol
ves th
at pro
blem.
And b
y allo
wing
the
partie
s to us
e an a
rbitra
tor fro
m eit
her th
e AAA
or JA
MSsys
tems, t
he bi
as con
cerns
that
the Ja
ckson
court
had a
bout
using
a Tri
balm
embe
r as t
he ar
bitrat
or,id.
at 779
-80, a
re
elimi
nated
.
Mr.
Willia
ms’s
only
argum
ent
as to
why
the a
rbitra
tion
provis
ion i
s
unen
forcea
ble is
that it
calls
for th
e arbi
trator
to ap
ply Tr
ibal la
w, w
hich h
e con
tends
is
law th
at do
es no
t exis
t. (EC
F No
. 16 a
t 9.)
But t
hat i
s not
true,
as ev
idenc
ed b
y
substa
ntive
Triba
l law
on
contra
ct dis
putes
, incl
uding
contr
act ca
ses in
the T
ribe’s
courts
, and
the T
ribe’s
Com
merci
al Co
de, R
ules o
f Civi
l Proc
edure
, Con
stituti
on an
d
By-La
ws, an
d Law
& Co
de. (E
CF N
os. 12
-4, 12
-5, 12
-6, 12
-7, 12
-8, 21
.) Mr. W
illiam
s does
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13
not r
aise a
ny of
the p
roced
ural o
r sub
stanti
ve un
consci
onab
ility c
oncer
ns exp
ressed
by
the co
urt in
Jackso
n.
The m
ost re
asona
ble re
ading
of M
r. Willi
ams’s
loan
agree
ment
is tha
t he h
as the
optio
n of c
hoosi
ng to
arbit
rate a
ny cl
aims t
hat h
e has
relati
ng to
his a
greem
ent b
efore
the A
AA, JA
MS, o
r ano
ther m
utuall
y acce
ptable
orga
nizati
on, a
pplyi
ng th
e con
sumer
dispu
terul
es of
the se
lected
admi
nister
ing or
ganiz
ation
and c
ondu
cted b
y an a
rbitra
tor
from
the se
lected
orga
nizati
on’s
system
.The
refore
, unli
ke M
s. Walk
er, M
r. Willi
ams i
s
requir
ed to
pursu
e his
claim
s aga
inst C
ashCa
ll in a
rbitra
tion.
His c
ompla
int sh
all be
dismi
ssed.
II.MO
TION
FOR S
UMMA
RY JU
DGME
NT
CashC
all in
itially
mov
edto
dismi
ss pla
intiffs
’ com
plaint
unde
r Fed
. R. C
iv. P.
12(b)(
6) for
failu
re to
state
a clai
mup
on w
hich
relief
can
be g
ranted
.(EC
F No.
3.)
Howe
ver,
in sup
port
of its
motio
n Ca
shCall
submi
tted
mater
ials
outsi
de o
f the
plead
ings,
includ
ingan
affid
avit
from
a We
stern
Sky
emplo
yee,t
obo
lster
certai
n
factua
l state
ments
set fo
rth in
its su
pport
ing br
ief. (E
CF N
o. 4-1
at 2-3
.) Purs
uant
to Fe
d.
R. Civ
. P. 1
2(d), t
he co
urt co
nvert
ed C
ashCa
ll’s m
otion
to on
e for
summa
ry jud
gmen
t
and p
rovide
d the
partie
s add
itiona
l time
to fil
e sup
pleme
ntary
mater
ials o
utside
of th
e
plead
ings.
(ECF N
o. 26.
) Afte
reach
plain
tiff su
bmitte
dan a
ffidav
it (EC
F Nos.
30-31
)
and r
eque
stedl
eave t
o con
duct
discov
ery, C
ashCa
lloffe
red to
with
draw
itsaff
idavit
.
(ECF N
o. 35
at 2.)
Alth
ough
the c
ourt
finds
that
discov
ery is
not n
ecessa
ry,it b
elieve
s
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that it
wou
ld be
inapp
ropria
te (an
d ultim
ately
ineffic
ient) t
o disr
egard
the f
acts s
et for
th
in the
mate
rials s
ubmi
tted b
y the
partie
s.Con
seque
ntly,
CashC
all’s m
otion
will
remain
a moti
on fo
r sum
mary
judgm
ent.2
“The
court
shall
gran
t sum
mary
judgm
ent if
the m
ovan
t sho
ws th
at the
re is
no
genu
ine d
ispute
as to
any m
ateria
l fact
and
the m
ovan
t is en
titled
to ju
dgme
nt as
a
matte
r of l
aw.”
Fed. R
. Civ.
P. 56
(a). A
fact
is “m
ateria
l” on
ly if
it “mi
ght a
ffect
the
outco
me of
the s
uit” a
nd a
dispu
te is “
genu
ine” o
nly if
a reas
onab
le fin
der o
f fact
could
accep
t the
non-m
oving
party
’s po
sition
and
return
a ver
dict in
its f
avor.
And
erson
v.
Libert
y Lobb
y, 477
U.S. 24
2, 248
(1986)
. In re
solvin
g a m
otion
for s
umma
ry jud
gmen
t, the
court i
s to “c
onstr
ue al
l evid
ence
and d
raw al
l reaso
nable
infer
ences
from
that e
viden
ce
in” fa
vor o
f the n
on-m
ovan
t. E.Y.
v. Un
ited St
ates, 7
58 F.3
d 861,
863 (
7th Ci
r. 2014
) (citin
g
Gil v.
Reed,
535 F
.3d 55
1, 556
(7th
Cir. 2
008); D
el Raso
v. U
nited
States
, 244
F.3d 5
67, 57
0
(7th
Cir. 2
001)).
The
“court
may
not
make
credib
ility
deter
mina
tions,
weig
h the
evide
nce, o
r deci
de w
hich
infere
nces t
o dra
w fro
m the
facts
; the
se are
jobs
for a
factfin
der.”
Wash
ington
v. H
aupert
, 481
F.3d 5
43, 55
0 (7th
Cir.
2007)
(quoti
ng Pa
yne v
.
Pauley
, 337
F.3d
767, 7
70 (7t
h Cir
. 2003
)). “T
o sur
vive
summa
ry jud
gmen
t, the
nonm
ovan
t must
prod
uce
suffic
ient a
dmiss
ible
evide
nce, t
aken
in th
e lig
ht mo
st
favora
ble to
it, to
retur
n a ju
ry ver
dict in
its fa
vor.”
Fleis
hman
v. Cont
'l Cas.
Co., 6
98 F.3
d
2 Give
n the
court
’s ruli
ng co
mpell
ing M
r. Willi
ams to
pursu
e his c
laims
in ar
bitrat
ion, C
ashCa
ll’s m
otion
to
dismi
ss his
claim
will
have
to be
addre
ssed b
y the
arbit
rator.
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615
598, 6
03 (7t
h Cir.
2012)
(quoti
ng Be
rry v.
Chi. T
ransit
Auth.
, 618
F.3d 6
88, 69
0-91 (
7th Ci
r.
2010))
. CashC
allarg
uesth
at the
Dorm
ant C
omme
rce Cl
ause
preclu
desth
e app
licatio
n of
Wisco
nsin l
aw to
Ms. W
alker’
s loan
agree
ment.
Artic
le I o
f the U
.S. Co
nstitu
tion g
rants
Cong
ress t
he a
uthori
ty to
“to re
gulat
e com
merce
…amo
ng th
e seve
ral st
ates.”
U.S.
Const
. Art.
I, sec.
8, cl.
3. The
Unit
ed St
ates S
uprem
e Cou
rt has
held
that,b
y gran
ting t
o
Cong
ress t
heau
thority
to re
gulat
e inte
rstate
comm
erce,
the C
onstit
ution
impli
citly
limits
state
s from
regu
lating
comm
erce o
utside
of th
eirbo
rders.
Heal
y v. B
eer In
stitute
,
491 U
.S. 324
, 336
(1989)
. “Th
[e] ‘n
egati
ve’ as
pect
of the
Com
merce
Clau
se is
often
referr
ed t
o as
the ‘
Dorm
ant
Comm
erce
Clause
’ an
d is
invok
ed t
o inv
alida
te
overr
eachin
g prov
isions
of sta
te reg
ulatio
n of c
omme
rce.”
Allian
t Ener
gy Co
rp. v.
Bie,
330 F
.3d 90
4, 911
(7th
Cir. 2
003).
The D
orman
t “Co
mmerc
e Clau
se…pre
clude
s the
appli
cation
of a
state
statut
e to c
omme
rce th
at tak
es pla
ce wh
olly o
utside
of th
e Stat
e’s
borde
rs, w
hethe
r or n
ot the
comm
erce h
as eff
ects w
ithin
the St
ate.”
Healy
,491
U.S. a
t
336 (q
uotin
g Edga
r v. M
ITE Co
rp.,45
7 U.S.
624, 64
2-43(
1982))
.
Relyi
ng pr
imari
lyon
Midw
est Ti
tle Loa
ns v.
Mills,
593 F
.3d 66
0 (7th
Cir.
2010),
CashC
all ar
gues
that w
hen a
contr
act is
forme
d outs
ide of
a sta
te’s b
orders
it is b
eyon
d
the st
ate’s r
egulat
ory au
thority
. Cash
Calla
llege
s tha
t Ms. W
alker’
s loan
agree
ment
was
forme
don
the
Tribe’
sRese
rvatio
n.In
suppo
rt, it
point
s to
langu
age
in the
loan
agree
ment
that s
tates
“you
hereb
y exp
ressly
agree
that
this A
greem
ent is
execu
ted an
d
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
16
perfo
rmed
solel
y with
in the
exter
ior bo
unda
ries o
fthe [
Tribe’
s] Re
serva
tion…
and t
hat
your
execu
tion o
fthis A
greem
ent is
mad
e as if
you w
ere ph
ysical
ly pre
sent w
ithin
the
exteri
or bo
unda
ries o
f the[
Tribe’
s] Rese
rvatio
n.” (E
CF N
o. 12-
1 at 1
5.)It f
urthe
r cite
s an
affida
vit fr
om a
Weste
rn Sk
y emp
loyee,
who a
sserte
d tha
t “[t]h
e criti
cal fin
al ste
ps to
accep
t loan
agree
ments
and f
und l
oans
all oc
curre
d on t
he Re
servat
ion.”
(ECF N
o. 12-
1
at 3.)
As su
ch,Ca
shCall
argu
es tha
t it w
ould
violat
e the
Dorm
ant C
omme
rce Cl
ause
to
apply
Wisco
nsin’s
usury
statut
etot
he lo
an ag
reeme
nt.(EC
F No.
12 at
13-18.
)
In Mi
dwest
Title,
an In
diana
law
requir
edcre
ditors
who
adver
tised
or so
licited
in
Indian
a to o
btain
an In
diana
licen
se.593
F.3d
at662
. An I
llinois
lend
er sue
d to e
njoin
the ap
plicat
ion of
India
na’s l
awto
loana
greem
ents
forme
d in I
llinois
.Id. A
lthou
gh th
e
defen
dant
lende
r adv
ertise
din
Indian
a, Ind
iana b
orrow
ers tr
avele
d to
the le
nder’
s
Illino
is offic
es to
obtai
n a lo
an. Id
. at 6
62. Th
e borr
owers
nego
tiated
the l
oan a
greem
ent
in Illi
nois,
read a
nd si
gned
the l
oan a
greem
ent in
Illino
is, rec
eived
a che
ck in
Illino
is
drawn
from
an Ill
inois b
ank,
and i
n turn
could
imme
diatel
y cash
their
check
s in Ill
inois.
Id. a
t 662-
69.Th
ebo
rrowe
rs als
o con
dition
ally
transf
erred
colla
teral
(title
to the
ir
autom
obile
s) in I
llinois
. Id.
Unlik
e the
situa
tion
in Mi
dwest
Title
, and
notw
ithsta
nding
the a
bove-
quote
d
contra
ctual
langu
age o
n whic
h Cash
Call r
elies,
it is
not c
leart
hat M
s. Wa
lker’s
loan
agree
ment
was c
onsu
mmate
d on t
he Tr
ibe’s
Reser
vatio
n. See
W. S
ky Fin
. V. M
arylan
d
Com’
r of F
in. Re
gulat
ion, N
o. CI
V. WD
Q-11-
1256, 2
012 W
L 1284
407, a
t *4 (D
. Md.
Apr. 9
,
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2012)
(holdi
ng th
at it w
as no
t an u
ndisp
uted f
act w
here
Weste
rn Sk
y’s lo
an ag
reeme
nt
was c
onsu
mmate
d).Ms
. Walk
ersta
tes th
at she
did no
ttrav
el to
the Tr
ibe’s r
eserva
tion
to en
ter in
to the
loan
agree
ment.
(ECF N
o. 31.
) She
was
physi
cally
presen
t in W
iscon
sin
both
when
West
ern Sk
y mad
e the
offer
to he
r and
whe
n she
accep
ted it.
(ECF
No.
31.)
Furth
er, W
estern
Sky w
ired t
he m
oney
to he
r in W
iscon
sin,an
d she
has m
ade p
ayme
nts
from
Wisco
nsin.
(EFC N
o. 31.
)
Moreo
ver, e
ven th
ough
Cash
Call a
rgues
that “
[t]he c
ritical
final
steps
to acc
ept
loan a
greem
ents
and f
und l
oans
all oc
curre
d on t
he Re
servat
ion” (
ECF N
o. 12-
1, ¶5
), it
appe
ars on
the f
ace of
the l
oan a
greem
entt
hatit
didn
ot bec
ome e
ffecti
ve un
til Ms
.
Walke
rnote
dher
compli
ance
with
its te
rms b
y che
cking
(elec
tronic
ally)
two b
oxes
on
its fin
al pa
ge.B
y che
cking
the s
econd
box,
she ac
know
ledge
d tha
t she
has “
read a
ll of
the te
rms a
nd co
nditio
ns of
this p
romiss
ory no
te an
d disc
losure
state
ment
and a
gree[s
]
tobe
boun
d the
reto.
You u
nders
tand a
nd ag
ree th
at yo
ur exe
cutio
n of th
is no
te sha
ll
have
the sa
me leg
al for
ce an
d effe
ct as a
pape
r con
tract.”
(ECF N
o. 12-
1 at 1
8).
The c
ourt
canno
t con
clude
at th
is sta
ge th
at the
re are
no
genu
ine is
sues o
f
mater
ial fa
ctsho
wing
that
CashC
all is
enti
tled
to jud
gmen
t as a
matt
er of
law.
CashC
all’s m
otion
for s
umma
ry jud
gmen
t as to
Ms. W
alker’
s com
plaint
isde
nied.
III.
MOTI
ON TO
STAY
MS.
WALK
ER’S
CLAI
MS
CashC
all as
ks thi
s cou
rt to
stay M
s. Walk
er’s l
awsui
t pen
ding t
he co
nclusi
on of
Mr. W
illiam
s’s ar
bitrat
ion an
d give
s thre
e reas
ons f
or its
reque
st. Fir
st, it a
rgues
that,
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since
both
Ms. W
alker’
s and
Mr. W
illiam
s’s su
bstan
tive c
laims
are i
denti
cal, a
llowi
ng
her l
awsui
t to
procee
d at
the sa
me ti
me M
r. Wi
lliams
is p
ursuin
g his
claim
s in
arbitra
tion “
would
resul
t in an
unne
cessar
y wast
e of th
is Cou
rt’s tim
e and
the p
arties
’
resou
rces.”
(EFC
No. 1
2 at 1
1.)Sec
ond,
it arg
ues t
hat r
esolut
ion o
f Mr.
Willia
ms’s
arbitra
tion “
may i
nflue
nce th
e outc
ome o
f proc
eeding
s in th
is case
.”(EC
F No.
12 at
11.)
Lastl
y, it a
rgues
that “
it is l
ikely
that th
e outc
ome o
f an a
rbitra
tion w
ould
inform
the
partie
s’ de
cision
on w
hethe
r to p
roceed
in th
is cas
e.” (E
CF N
o. 12
at 11.
) Ms.
Walke
r
oppo
ses th
e req
uest,
notin
g only
that
the de
cision
of th
e arbi
trator
in M
r. Wi
lliams
’s
case w
ould
not b
e bind
ing on
this c
ourt.
(ECF N
o. 16
at 9-1
0.)
Distr
ict co
urts h
ave b
road d
iscret
ion in
deter
minin
g whe
ther to
stay p
roceed
ings.
Clinto
n v. Jo
nes, 5
20 U.S
. 681,
706 (
1997).
“[T]he
powe
r to s
tay pr
oceed
ings i
s incid
ental
to the
pow
er inh
erent
in ev
ery co
urt to
contr
ol the
disp
ositio
n of
the ca
uses o
n its
docke
t with
econ
omy o
f time
and e
ffort
for its
elf, fo
r cou
nsel, a
nd fo
r litig
ants.”
Land
is
v. N.
Am. C
o., 299
U.S.
248, 2
54(19
36). In
deter
minin
g whe
ther to
stay
a pro
ceedin
gthe
follow
ing th
ree fa
ctors
are co
nside
red:“
(1) w
hethe
r litig
ation
is at
an ea
rly st
age;
(2)
wheth
er a s
tay w
ill sim
plify
the iss
ues in
quest
ion an
d tria
l of th
e case
; and
(3) w
hethe
r
a sta
y wo
uld u
nduly
prej
udice
or
presen
t a c
lear
tactic
al dis
adva
ntage
to th
e
nonm
oving
part
y.”Sea
quist
Closur
es LL
C v.
Rexam
Plas
tics, N
o. 08C
0106,
2008
WL
469179
2, at *1
(E.D.
Wis.
Oct. 2
2, 2008
).
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C-6
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
19
Consi
derin
g the
three
facto
rs list
ed ab
ove, t
he co
urt de
nies C
ashCa
ll’s re
quest
for
a stay
. Ms. W
alker
filed h
er law
suit i
n Jun
e of 2
014. A
s a re
sult o
f the r
emov
al to
this
court
and
subse
quen
t moti
ons,
it is
now
nearl
y nin
e mo
nths
later.
And
whil
e
arbitra
tions
often
times
move
quick
ertha
n law
suits,
that d
oesn’t
mean
they
move
quick
ly. M
r. Willi
ams’s
arbit
ration
could
take
man
y mon
ths or
long
er. M
oreov
er, th
ere
is no r
eason
to be
lieve
that a
stay
will
simpli
fy the
issue
s in q
uesti
on or
strea
mline
the
trial in
Ms. W
alker’
s case
. And
whil
e it’s
possi
ble th
at the
resol
ution
of M
r. Willi
ams’s
claim
in ar
bitrat
ion co
uld le
ad th
e part
ies in
Ms. W
alker’
s case
to an
earlie
r sett
lemen
t
than m
ight o
therw
ise be
the c
ase, th
at is n
ot a g
ood e
noug
h reas
on to
prev
ent h
er fro
m
movin
g forw
ard w
ith he
r laws
uit no
w.
IT IS
THE
REFO
REOR
DERE
Dtha
t, purs
uant
to the
findin
gs in
this D
ecisio
n
and O
rder, D
efend
ant’s
Motio
n to C
ompe
l Arbi
tratio
n as a
gains
tPlai
ntiff
Willia
ms is
grante
d. IT IS
FURT
HER
ORDE
RED
that D
efend
ant’s
Motio
n to C
ompe
l Arbi
tratio
n as
again
stPlai
ntiff W
alker
is den
ied.
IT IS
FURT
HER O
RDER
EDtha
t Defe
ndan
t’s Mo
tion f
or Su
mmary
Judg
ment
is
denie
d. IT IS
FURT
HER
ORDE
RED
that D
efend
ant’s
Motio
n to S
tay Pl
aintiff
Walk
er’s
procee
dings
is den
ied.
Case
2:14
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ocum
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620
Dated
at M
ilwau
kee,
Wisc
onsin
this
17th
day o
f Mar
ch,2
015.
WIL
LIAM
E. D
UFFI
NU.
S. M
agist
rate
Judg
e
Case
2:1
4-cv
-009
03-W
ED
Filed
03/
17/1
5 P
age
20 o
f 20
Doc
umen
t 36
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MEALEY’S Native American Law Report Vol. 1, #1 March 2015
Page1
of 14
CIVI
L MIN
UTES
—GEN
ERAL
Initial
s of D
eputy C
lerk m
g/wr
UNITE
D STA
TES D
ISTRIC
T COU
RT
CENT
RAL D
ISTRIC
T OF C
ALIFO
RNIA
CIV
IL MI
NUTE
S—GE
NERA
L
Case
No.
EDCV
13–88
3–JGB
Da
te Ma
rch 20
, 2015
Title
Agua
Calien
te Band
of Ca
huilla
India
ns v. C
oachel
la Valle
y Wate
r Distr
ict et a
l.
Presen
t: The
Honor
able
JESUS
G. BE
RNAL
, UNI
TED S
TATE
S DIST
RICT J
UDGE
MAYN
OR GA
LVEZ
Not R
eporte
d De
puty C
lerk
Co
urt Re
porter
Attorn
ey(s) P
resent
for P
laintiff
(s):
Attorn
ey(s) P
resent
for D
efenda
nt(s):
None
Presen
t
None
Presen
t
Proce
eding
s:Or
derGR
ANTI
NG IN
PART
and D
ENYI
NG IN
PART
Plain
tiffs’ a
nd
Defen
dants
’ moti
ons fo
r part
ial su
mmary
judg
ment
“It is
probab
le that
no pr
oblem
of the
South
west s
ection
of the
Natio
n is mo
re criti
cal
than th
at of sc
arcity
of wa
ter.”
Color
ado Ri
ver W
ater C
onserv
ation D
ist. v.
United
State
s, 424
U.S. 80
0, 804
(1976)
.
The A
gua Ca
liente B
and of
Cahui
lla Ind
ians (“
Agua
Calien
te” or
“Trib
e”) cla
ims to
have
lived
in the
Coach
ella va
lley, w
hich s
its jus
t to th
e east
of the
San J
acinto
mount
ains in
south
ern
Califo
rnia, s
ince b
efore C
aliforn
ia was
admitte
d as a
State
in 185
0. Th
e Coac
hella v
alley f
orms
part of
the So
noran
desert
, wher
e wate
r is sc
arce.
The A
gua Ca
liente s
ued the
Coach
ella Va
lley
Water
Distri
ct (“C
VWD”
) and th
e Dese
rt Wate
r Agen
cy (“D
WA”),1 se
eking,
among
other
things
, a dec
laratio
n that t
heir fe
deral r
eserve
d wate
r right
s, whic
h arise
under
the do
ctrine
of
Winte
rs v. U
nited
States
, 207 U
.S. 56
4 (190
8), ex
tend to
groun
dwate
r. Th
e part
ies, pl
us the
Un
ited St
ates a
s Plain
tiff-in
terven
or, all
filed
motio
ns for
partia
l summ
ary jud
gment
. (Do
c. Nos.
82,
83, 84
, 85.)
After
consi
dering
all the
paper
s, the
exhibi
ts subm
itted w
ith the
m, and
the
parties
’ argum
ents a
t the M
arch 1
6, 2015
heari
ng, the
Court
concl
udes th
e Trib
e’s fed
eral
reserv
ed wa
ter rig
hts ma
y inclu
de gro
undwa
ter, bu
t the T
ribe’s
abori
ginal r
ight of
occup
ancy
was e
xtingu
ished
long a
go, so
the Tr
ibe ha
s no d
erivat
ive rig
ht to g
roundw
ater o
n that b
asis.
I. BA
CKGR
OUND
1 The C
ourt re
fers to
CVWD
and D
WA co
llectiv
ely as
“Defe
ndants
.”
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CIVI
L MIN
UTES
—GEN
ERAL
Initial
s of D
eputy C
lerk m
g/wr
A. Fa
ctual a
llegati
ons
Th
e Agua
Calien
te have
lived
in the
Coach
ella va
lley sin
ce bef
ore Am
erican
or Eu
ropean
set
tlers a
rrived
in what
is now
south
ern Ca
liforni
a, and
the Tr
ibe ha
s used
both s
urface
water
and
ground
water
resour
ces the
re for
“cultu
ral, do
mestic
and a
gricul
tural s
ubsiste
nce pu
rposes
.”(Co
mpl. ¶
4.) T
hose u
ses inc
luded
“stock
water
ing an
d agri
cultur
al irrig
ation,”
and th
e Trib
e rai
sed “a
bundan
t crops
of co
rn, ba
rley a
nd veg
etable
s” in t
he 185
0s. (C
ompl.
¶ 14–1
5.)Pre
sident
Ulyss
es S.
Grant
estab
lished
the Tr
ibe’s r
eserva
tion in
an Ex
ecutiv
e Orde
r issue
d May
15, 18
76, an
d the re
servat
ion wa
s expa
nded b
y Pres
ident R
utherf
ord B.
Hayes
on Se
ptemb
er 29,
1877.
(Id. ¶5
.) Th
e Unit
ed Sta
tes, pu
rsuant
to sta
tute, h
olds th
e lands
of the
reserv
ation in
trust
for the
tribe.
(Id.)
The
Agua
Calien
te claim
the “e
stabli
shment
of the
Reser
vation
pursu
ant to
federa
l law i
mplied
ly rese
rved to
the Tr
ibe an
d its m
ember
s the ri
ght to
surfac
e wate
r and
ground
water
suffic
ient to
accom
plish
the pu
rposes
of the
reserv
ation, i
ncludi
ng est
ablish
ing a
homela
nd for
the Tr
ibe an
d its m
ember
s.” (I
d. ¶ 6.)
In the
Tribe
’s view
, those
reserv
ed rig
hts
“are th
e most
senio
r” in th
e regio
n, and,
accor
dingly
, the A
gua Ca
liente m
ay pre
vent C
VWD a
nd DW
A from
adver
sely a
ffectin
g the q
uantity
and q
uality
of the
ir wate
r. (Id
. ¶¶ 7,
8.)
De
fendan
ts are c
reatur
es of
Califo
rnia s
tatutes
, or ind
ividua
ls sued
in the
ir offic
ial cap
acities
who c
ontrol
or ma
nage th
e CVW
D or D
WA. T
he CV
WD is
a coun
ty wate
r distr
ict,
and is
respon
sible f
or dev
elopin
g grou
ndwate
r wells
in the
Coach
ella va
lley an
d extr
acting
gro
undwa
ter. (
Comp
l. ¶ 10
.) Th
e DWA
is an
“indep
endent
speci
al distr
ict” cre
ated to
provi
de wa
ter to
the cit
y of P
alm Sp
rings
and are
as tha
t surro
und it
by dev
elopin
g grou
ndwate
r wells
and
extrac
ting g
roundw
ater.
(Id. ¶
12.) T
hrough
out the
twent
ieth ce
ntury,
Califo
rnians
displa
ced the
Ag
ua Ca
liente f
rom the
Coach
ella va
lley, an
d fuel
ed agr
icultu
ral ex
pansio
n in the
deser
t throu
gh the
increa
sed us
e of g
roundw
ater fo
r comm
ercial
irrigat
ion. (
Comp
l. ¶¶ 2
3–24.)
Th
e Trib
e’s ple
ading
furthe
r state
s the g
roundw
ater u
nderly
ing the
Coach
ella va
lley is
in a c
ontinu
al state
of “o
verdra
ft,” wh
ich me
ans the
outflo
ws fro
m the
aquife
r excee
d the in
flows
. (Co
mpl ¶
33.) T
he CV
WD tri
es to r
echarg
e the C
oachel
la valle
y’s gr
oundw
ater b
y impor
ting
water
from t
he Co
lorado
River
, but th
e Trib
e alleg
es tha
t wate
r is of
inferi
or qua
lity. (
Comp
l. ¶ 4
7.)
Th
e com
plaint
finally
allege
s the “
Tribe
and its
memb
ers ha
ve est
ablish
ed a h
omela
nd in
the Co
achella
valley
, inclu
ding h
ousing
, schoo
ls, gov
ernme
nt offic
es, an
d cult
ural an
d com
merci
al ente
rprise
s,” fo
r whic
h the T
ribe re
lies up
on its
reserv
ed gro
undwa
ter res
ources
.(Co
mpl. ¶
51.)
The A
gua Ca
liente s
eek rel
ief in
this c
ase to
“satisf
y the p
resent
and f
uture n
eeds
of the
Tribe
and it
s mem
bers”
and to
protec
t the T
ribe’s
reserv
ed wa
ter rig
hts fro
m over
draft a
nd deg
radatio
n. (Co
mpl. ¶
¶ 52–5
4.)2
B. Pr
ocedu
ral hi
story
2 The U
nited
States
’ com
plaint
in in
terven
tion a
sserts
claim
s mate
rially
simi
lar to
the
Tribe’
s com
plaint
regard
ing the
claim
for a
declar
ation o
f feder
ally res
erved
water
rights
. It do
es not
, howe
ver, as
sert a
claim
regard
ing ab
origin
al wate
r right
s.
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CIVI
L MIN
UTES
—GEN
ERAL
Initial
s of D
eputy C
lerk m
g/wr
The A
gua Ca
liente f
iled thi
s actio
n for
declar
atory
and inj
unctiv
e relief
again
st both
def
endant
s in M
ay 201
3. (D
oc. No
. 1.) I
n June
2014
the Co
urt gr
anted
the Un
ited St
ates’
motio
n to int
ervene
as a P
laintiff
in its
capaci
ty as tr
ustee
for the
Tribe
’s rese
rvatio
n. (D
oc. No
s. 62,
70.)
Th
e part
ies sti
pulate
d to tri
furcat
e this a
ction in
to thre
e phas
es. (D
oc. No
. 49.)
Phase
I see
ks to r
esolve
the pr
imari
ly lega
l quest
ions re
gardin
g the e
xisten
ce of
(1) the
Agua
Calien
te’s
federa
l reser
ved rig
hts to
ground
water
under
the W
inters
doctr
ine, an
d (2)
the Tr
ibe’s a
borigi
nal
rights
to gro
undwa
ter. P
hase II
, conti
ngent t
o a ce
rtain e
xtent o
n Phas
e I’s re
soluti
on, wi
ll add
ress (1
) the o
wners
hip of
certa
in “por
e spac
e” ben
eath th
e reser
vation
; (2) th
e legal
quest
ion
of wh
ether a
right t
o a qu
antity
of gr
oundw
ater en
compas
ses a r
ight to
water
of a c
ertain
qualit
y; and
(3) so
me of
the eq
uitabl
e defe
nses a
sserte
d by th
e CVW
D and
DWA.
If nec
essary
, in Ph
ase
III the
Court
will u
nderta
ke the
fact-in
tensiv
e tasks
of qu
antify
ing the
Agua
Calien
te’s ri
ghts to
gro
undwa
ter an
d pore
space
, and c
raftin
g appr
opriate
injunc
tive re
lief.
All fo
ur par
ties ha
ve file
d moti
ons fo
r summ
ary jud
gment
. The
Tribe’
s moti
on, (D
oc.
No. 85
), argu
es fed
eral la
w reco
gnizes
the Tr
ibe’s r
eserve
d righ
t to gr
oundw
ater, a
nd tha
t it als
o hol
ds abo
rigina
l title
to land
in the
Coach
ella va
lley to
which
groun
dwate
r right
s attac
h. Th
e Un
ited St
ates’ m
otion,
(Doc.
No. 83
), echo
es the
Tribe
’s Wint
ers rig
hts arg
ument
and
empha
sizes
the su
prema
cy of
federa
l wate
r right
s over
those
create
d by s
tate law
, but do
es not
cla
im tri
bal ab
origin
al title
on the
Agua
Calien
te’s b
ehalf.
CV
WD ma
intain
s in its
motio
n that (
1) Co
ngress
extin
guishe
d any
aborig
inal
ground
water
rights
, and (
2) Wi
nters r
ights i
mplied
ly rese
rved f
or the
Tribe
do no
t exten
d to
ground
water
, and e
ven if
they e
xtend
to grou
ndwate
r, the
purpos
es of
the Ag
ua Ca
liente’
s res
ervatio
n will
not “e
ntirel
y fail”
witho
ut a res
erved
right t
o grou
ndwate
r. (D
oc. No
. 82.)
DWA’
s moti
on, (D
oc. No
. 84), l
argely
paral
lels tha
t of CV
WD; it
conte
nds the
Tribe
has n
o fed
eral re
served
right i
n grou
ndwate
r, and
the Tr
ibe’s a
borigi
nal wa
ter rig
hts cla
im wa
s ext
inguis
hed by
statut
e long
ago. II.
LEGA
L STA
NDAR
D
A cour
t shall
grant a
motio
n for
summa
ry jud
gment
when
there i
s no g
enuine
disput
e as
to any
mater
ial fac
t and th
e movi
ng par
ty is e
ntitled
to jud
gment
as a m
atter o
f law.
Fed. R
. Civ.
P. 56(
a); An
derson
v. Lib
erty L
obby, I
nc., 47
7 U.S.
242, 2
47–48
(1986)
. Sum
mary
judgm
ent is
approp
riate i
f “unde
r the g
overni
ng law
, there
can b
e but o
ne rea
sonabl
e conc
lusion
as to
the
verdic
t.” An
derson
, 477 U
.S. at
250. C
ourts c
onside
r cross
-moti
ons fo
r summ
ary jud
gment
ind
epende
ntly o
f one
anothe
r, each
on the
ir own
merits
, in lig
ht of al
l the e
videnc
e attac
hed to
both m
otions
. Fair
Hous.
Counc
il of R
iversid
e Cnty
., Inc.
v. Riv
erside
Two, 2
49 F.3
d 1132
, 113
6 (9th
Cir. 2
001).
A genu
ine iss
ue of
mater
ial fac
t exists
“if the
evide
nce is
such th
at a rea
sonabl
e jury
could r
eturn
a verd
ict for
the no
n-movi
ng par
ty,” A
nderso
n, 477
U.S. at
248; S
cott v.
Harris
, 550
U.S.
372, 38
0 (200
7), an
d the u
nderly
ing su
bstant
ive law
identi
fies w
hich f
acts a
re mate
rial.
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AG
UA
CA
LIE
NT
AB
AN
DO
FC
AH
UIL
LA
v.C
OA
CH
ELLA
D-1
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
Page4
of 14
CIVI
L MIN
UTES
—GEN
ERAL
Initial
s of D
eputy C
lerk m
g/wr
Id. In
rulin
g on a
motio
n for
summa
ry jud
gment
, a cou
rt cons
trues
the ev
idence
in the
light m
ost
favora
ble to
the no
n-movi
ng par
ty. Sc
ott, 55
0 U.S.
at 380
.
III.
FACT
S
The fa
cts rel
evant t
o Phas
e I iss
ues, ta
ken fro
m the
parties
’ state
ments
of un
disput
ed fac
ts and
reques
ts for
judicia
l notice
, are n
ot in d
ispute
. Prec
eding
the cre
ation o
f the A
gua Ca
liente’
s res
ervatio
n, vari
ous go
vernm
ent of
ficials
report
ed tha
t they
intend
ed the
reserv
ation to
“meet
the
presen
t and f
uture w
ants o
f these
India
ns, by
giving
them t
he exc
lusive
and f
ree po
ssessi
on of
these
lands
[on wh
ich] th
ey wil
l be en
courag
ed to b
uild c
omfor
table h
ouses,
impro
ve the
ir acre
s, and
surro
und the
mselv
es wit
h hom
e com
forts.”
(E.g.,
Doc. N
o. 92–1
¶ 47.)
A “M
ission
India
n Ag
ent” c
orresp
onded
that hi
s depa
rtment
’s purp
ose wa
s to “s
ecure t
he Mi
ssion
Indian
s with
per
manen
t home
s, with
land a
nd wa
ter en
ough, t
hat ea
ch one
who w
ill go
upon a
reserv
ation
may h
ave to
cultiv
ate a p
iece o
f grou
nd as
large
as he
may d
esire.”
(Doc.
No. 92
–1 ¶ 5
8; see
also id
. ¶¶ 39
–59.)
A s
eries
of sev
en Ex
ecutiv
e Orde
rs, iss
ued pu
rsuant
to sta
tutory
autho
rity an
d date
d from
186
5–1881
, creat
ed wh
at is n
ow the
Agua
Calien
te’s re
servat
ion, al
though
the fir
st two
reserv
ed the
bulk o
f the la
nd. (S
ee Do
c. No. 9
2–1 ¶ 3
0.) A
ll the
Order
s are v
ery sh
ort. P
reside
nt Gran
t sta
ted in
the fir
st Orde
r that t
he lan
d desc
ribed
was “
withdr
awn f
rom sa
le and
set ap
art as
res
ervatio
ns for
the pe
rmane
nt use
and oc
cupanc
y of th
e Miss
ion In
dians
in sout
hern C
aliforn
ia.”
(Id. ¶
31.) T
he sub
sequen
t reser
vation
s eith
er inco
rporat
e the g
eneral
statem
ent of
purpo
se con
tained
in the
first, o
r simp
ly state
the res
ervatio
n shou
ld be u
sed fo
r “Indi
an pur
poses.
” (See
id.
¶¶ 32–
36.)
The g
roundw
ater b
asin w
hich u
nderlie
s the re
servat
ion ex
tends
beneat
h the e
ntire
Coach
ella va
lley, an
d the a
quifer
is in a
state o
f over
draft.
(Doc.
No. 92
–1 ¶ 6
9.) T
he gro
undwa
ter do
es not
“add
to, con
tribute
to or
suppor
t” any
surfac
e stre
am fro
m whic
h the T
ribe
divert
s wate
r or is
otherw
ise rel
evant t
o this l
itigatio
n (e.g
., the T
ahquit
z, Andr
eas, or
Chino
Cre
eks).
(Doc.
No. 96
–1 ¶ 1
.) Ne
ither t
he Tri
be nor
its all
ottees
produ
ce gro
undwa
ter, ra
ther,
they p
urchas
e their
water
from D
WA or
CVWD
. (Do
c. No. 9
8–9 ¶¶
1–2, 1
9.) S
ome n
on-Ind
ian
lessee
s who
occupy
reserv
ation te
rritory
do pr
oduce
ground
water
for th
eir us
e—spe
cifica
lly to
water
golf c
ourses
. (Do
c. No. 9
8–9 ¶ 2
0.)
In
1938, t
he Ca
liforni
a Supe
rior C
ourt fo
r Rive
rside C
ounty e
ntered
a decr
ee gov
erning
the
rights
to the
water
in the
Whit
ewate
r river
syste
m. (D
oc. No
. 84–5
Ex. 1.
) The
United
State
s par
ticipat
ed in t
hat ad
judica
tion v
ia a “S
uggest
ion,” (
Doc. N
o. 84–7
Ex. 8)
, and r
eceive
d a rig
ht to d
ivert s
ome s
urface
water
from t
he Ta
hquitz
and An
dreas
creeks
for th
e Trib
e’s us
e (Doc.
No.
84–5 E
x. 1 at
61–62)
. The
United
State
s, how
ever, s
pecific
ally sta
ted in
its Su
ggestio
n that i
t wa
s not “
submi
tting th
e right
s of th
e Unit
ed Sta
tes . .
. to the
jurisd
iction
of the
Depar
tment
of
Publi
c Work
s of th
e State
of Ca
liforni
a” and
also th
at the
court l
acked
“jurisd
iction
of the
water
rig
hts of
the Un
ited St
ates.”
(Doc.
No. 84
–7 Ex
. 8 at 4
6.)
IV.
DISC
USSIO
N
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CIVI
L MIN
UTES
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ERAL
Initial
s of D
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Ph
ase I o
f this c
ase ad
dresse
s, by s
tipula
tion o
f the p
arties
, (1) w
hether
the Tr
ibe’s f
ederal
res
erved
water
rights
includ
e grou
ndwate
r resou
rces, a
nd (2)
wheth
er the
Tribe
may a
ssert
aborig
inal ti
tle to g
roundw
ater u
nderly
ing its
reserv
ation.
The C
ourt ad
dresse
s the is
sues in
turn.
A. Un
ited S
tates
v. Wint
ers an
d fede
ral re
served
water
rights
1. Th
e law o
f feder
al rese
rved w
ater r
ights
Fo
r over
a cent
ury, th
e Supr
eme C
ourt ha
s held
that w
hen the
United
State
s “wit
hdraw
s its
land f
rom the
publi
c dom
ain an
d rese
rves it
for a
federa
l purpo
se, the
Gover
nment
, by
impli
cation
, reser
ves ap
purten
ant wa
ter the
n unap
propri
ated to
the ex
tent ne
eded to
accom
plish
the pu
rpose
of the
reserv
ation.”
3 Capp
aert v.
United
State
s, 426
U.S. 12
8, 138
(1976)
(citin
g U.S
. Cons
t. art.
I, § 8;
U.S. C
onst. a
rt. IV
, § 3);
see a
lso W
inters
v. Un
ited St
ates, 2
07 U.S
. 564
(1908)
; John
v. Unit
ed Sta
tes, 72
0 F.3d
1214;
1225–
26 (9t
h Cir.
2013);
Colvi
lle Co
nfeder
ated
Tribes
v. Wa
lton, 6
47 F.2
d 42 (
9th Ci
r. 1981
); Felix
S. Co
hen et
al., Co
hen’s H
andboo
k of
Federa
l India
n Law
§ 19.0
3 (201
2 ed.)
(“Cohe
n’s Ha
ndbook
”); 1 W
aters a
nd Wa
ter Ri
ghts
§ 37.0
2 (Am
y K. K
elley e
d., 3d
ed. 20
15). I
mplied
ly rese
rved w
ater ri
ghts “
vest[ ]
on the
date o
f the
reserv
ation a
nd [ar
e] supe
rior to
the rig
hts of
futur
e appr
opriato
rs.” Id
. Wint
ers rig
hts ari
se und
er fede
ral law
, and a
re thus
an ex
ceptio
n to the
norm
al rule
that as
signs
water
resour
ces
regula
tion to
the sta
tes.U
nited
States
v. Ne
w Mexi
co, 43
8 U.S.
696, 7
01–02
(1978)
; Capp
aert,
426 U.
S. at 1
45; Co
hen’s H
andboo
k § 19
.03[1]
.
Th
e amo
unt of
water
impli
edly r
eserve
d unde
r the W
inters
doctr
ine pr
esents
a toug
her
questio
n than
wheth
er or n
ot the
govern
ment r
eserve
d wate
r at all
. See
Walto
n, 647
F.2d a
t 48.
Arizo
na v. C
aliforn
ia, 373
U.S.
546 (1
963), p
rovide
s the a
nalyti
cal sta
rting p
oint fo
r a qua
ntific
ation o
f an In
dian tr
ibe’s W
inters
rights
. In A
rizona
, an or
iginal
proce
eding,
the
Supre
me Co
urt ag
reed w
ith the
speci
al mast
er’s c
onclus
ion tha
t “wate
r was
intend
ed to s
atisfy
the fu
ture a
s well
as the
prese
nt need
s of th
e India
n Rese
rvatio
ns and
. . . th
at enou
gh wa
ter wa
s res
erved
to irrig
ate all
the pr
actica
bly irr
igable
acrea
ge on
the res
ervatio
n.” 37
3 U.S.
at 600
.Fo
llowin
g Ariz
ona, th
e Cour
t expla
ined th
e feder
al gove
rnment
only r
eserve
s “tha
t amoun
t of
water
neces
sary to
fulfil
l the p
urpose
of the
reserv
ation, n
o more
.” Ca
ppaert
, 426 U
.S. at
141.
And in
a subs
equent
case
it drew
a disti
nction
betwe
en a re
servat
ion’s p
rimary
purpo
se, fo
r wh
ich wa
ter is
impli
edly r
eserve
d unde
r Wint
ers, an
d seco
ndary
uses, f
or wh
ich it
is not.
New
Mexic
o, 438
U.S. at
702.
3 Gene
rally,
the ph
rase “
public
domain
” refe
rs to
“the l
and ow
ned by
the [
federa
l] Go
vernm
ent, m
ostly
in the
West
, that
was a
vailab
le for
sale,
entry,
and s
ettlem
ent un
der th
e hom
estead
laws, o
r othe
r disp
ositio
n unde
r the g
eneral
body
of lan
d law
s.” H
agen v
. Utah
, 510
U.S. 3
99, 41
2 (199
4). T
he gov
ernme
nt res
erves
land,
literal
ly set
ting a
side “
parcel
s of la
nd bel
onging
to th
e Unit
ed Sta
tes .
. . for
variou
s purp
oses,
includ
ing In
dian
settlem
ent, b
ird
preser
vation
, and m
ilitary
insta
llation
s, when
it app
ear[s]
that t
he pub
lic int
erest w
ould b
e serv
ed by
withdr
awing
or re
servin
g part
s of th
e publ
ic dom
ain.”
Id. (i
nterna
l citat
ions a
nd quo
tation
marks
omitte
d).
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CIVI
L MIN
UTES
—GEN
ERAL
Initial
s of D
eputy C
lerk m
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The N
inth C
ircuit
appli
es Ne
w Mexi
co’s p
rimary
use–s
econda
ry use
distin
ction to
guide
the
impli
ed res
erved
water
rights
analy
sis inv
olving
India
n tribe
s and
reserv
ations,
althou
gh not
nec
essari
ly to c
ontrol
it.See
United
State
s v. A
dair, 7
23 F.2
d 1394
, 1408–
09 (9t
h Cir.
1983)
(citin
g New
Mexi
co, 43
8 U.S.
at 702
); Walto
n, 647
F.2d a
t 47 (w
riting
in the
proces
s of
quanti
fying
a tribe
’s Wint
ers rig
hts: “[
w]e a
pply th
e New
Mexi
co tes
t here”
).4 The
Ninth C
ircuit
has
furth
er expl
ained
the “g
eneral
” purp
ose of
an In
dian r
eserva
tion, a
nd thu
s the p
urpose
for
which
the fed
eral go
vernm
ent im
pliedl
y rese
rves w
ater ri
ghts, i
s to “p
rovide
a hom
e for th
e Ind
ians, [
which
] is a b
road o
ne and
must b
e liber
ally co
nstrue
d.” W
alton, 6
47 F.2
d at 47
& n.9
(“T
he rul
e of li
beral c
onstru
ction s
hould a
pply to
reserv
ations
create
d by E
xecuti
ve Or
der. S
ee [A
rizona
, 373 U
.S. at
598].
Congr
ess en
vision
ed agr
icultu
ral pu
rsuits
as onl
y a fir
st step
in the
‘ci
vilizin
g’ pro
cess.”
); Unit
ed Sta
tes v.
Ahtan
um Irr
igatio
n Dist.
, 236 F
.2d 32
1, 326
(9th C
ir. 195
6) (“I
t is ob
vious
that th
e quan
tum is
not me
asured
by the
use b
eing m
ade at
the tim
e the
treaty
was m
ade. T
he res
ervatio
n was
not me
rely f
or pre
sent bu
t for fu
ture u
se.”).
To ide
ntify
an Ind
ian res
ervatio
n’s pu
rposes
, the N
inth C
ircuit
consi
ders “
the [re
servat
ion’s f
ormativ
e] doc
ument
and c
ircum
stance
s surro
unding
its cre
ation, a
nd the
histor
y of th
e India
ns for
whom
it wa
s crea
ted,” a
s well
as the
tribe’
s “nee
d to ma
intain
thems
elves
under c
hanged
circum
stance
s.”Wa
lton, 6
47 F.2
d at 47
(citin
g Unit
ed Sta
tes v.
Winan
s, 198
U.S. 37
1, 381
(1905)
); acco
rd Un
ited St
ates v
. Wash
ington
, 375 F
. Supp
. 2d 10
50, 10
64 (W
.D. W
ash. 20
05), va
cated
pursua
nt to s
ettlem
ent, L
ummi
India
n Natio
n v. W
ashing
ton, N
o. C01–
0047Z
, 2007
WL 41
90400
(W.D.
Wa
sh. No
v. 20, 2
007).
Cases
addre
ssing
Winte
rs righ
ts proc
eed in
two dis
tinct a
nalyti
cal ste
ps. C
ourts f
irst
exami
ne the
existe
nce of
reserv
ed rig
hts—u
sually
a stra
ightfo
rward
inquir
y. Th
en com
es qua
ntific
ation, w
hich a
ddress
es the
scope
of the
gover
nment
’s imp
licatio
n. See
, e.g.,
New
Mexic
o, 438
U.S. at
698, 7
18 (fir
st rest
ating W
inters
rule,
then d
ecidin
g Cong
ress in
tended
to res
erve w
ater fr
om the
Rio M
imbre
s “onl
y wher
e nece
ssary
to pres
erve th
e timb
er or to
secur
e fav
orable
water
flows
for p
rivate
and p
ublic u
ses un
der sta
te law
”); Ca
ppaert
, 426 U
.S. at
138–
46 (ad
dressi
ng wh
ether t
he gov
ernme
nt rese
rved w
ater in
conne
ction w
ith the
addit
ion of
Devil
’s Ho
le to th
e Deat
h Valle
y Natio
nal M
onume
nt, and
then r
uling
that di
stant g
roundw
ater p
umpin
g cou
ld be e
njoine
d to pr
otect t
he fed
eral re
servat
ion); W
alton, 6
47 F.2
d at 47
(“We h
old tha
t wa
ter wa
s reser
ved wh
en the
. . . [r
]eserv
ation w
as cre
ated. .
. . Th
e more
diffic
ult qu
estion
con
cerns
the am
ount of
water
reserv
ed.”).
The u
pshot o
f this w
ell-est
ablish
ed fra
mewo
rk,
especi
ally in
light o
f the p
arties
’ agree
ment t
o spli
t this c
ase int
o three
phase
s, is th
at the
Court
add
resses
here o
nly the
existe
nce of
the Tr
ibe’s W
inters
rights
; quant
ificatio
n com
es late
r.
4 The C
ourt re
cogniz
es tha
t the p
rimary
use–s
econda
ry use
distin
ction m
ay be
best su
ited
to con
texts
where
a “pr
imary
purpo
se” of
a res
ervatio
n is m
ore cl
early
announ
ced, s
uch as
fed
eral r
eserva
tions
create
d purs
uant to
statu
te as
in Ne
w Me
xico.
See C
ohen’s
Hand
book
§ 19.0
3[4] (“
The s
ignific
ant di
fferen
ces be
tween
Indian
reser
vation
s and
federa
l reser
ved la
nds
indica
te tha
t the
[prim
ary–se
condar
y] dis
tinctio
n shou
ld not
apply
.”). N
otwith
standi
ng the
pra
ctical
diffic
ulty o
f ident
ifying
a trib
e’s re
servat
ion’s
prima
ry pur
pose, t
he Co
urt m
ust fo
llow
Ninth
Circui
t case
law,
which
expla
ins th
at Ne
w Me
xico,
“whil
e not
direct
ly app
licable
to
Winte
rs doc
trine r
ights
on Ind
ian re
servat
ions,”
at a
minim
um “e
stabli
sh[es]
sever
al use
ful
guidel
ines.”
Adai
r, 723
F.2d a
t 1409.
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CIVI
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UTES
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ERAL
Initial
s of D
eputy C
lerk m
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2. Th
e feder
al gove
rnment
impli
edly r
eserve
d wate
r for th
e Trib
e’s re
servat
ion
Wh
en Pre
sident
s Gran
t and H
ayes w
ithdre
w port
ions o
f the C
oachel
la valle
y from
the
public
domain
by Ex
ecutiv
e Orde
r to cre
ate the
Agua
Calien
te’s re
servat
ion, th
ey als
o rese
rved,
by im
plicat
ion, th
e right
to app
urtena
nt wate
r in the
amoun
t neces
sary “
to fulf
ill the
purpo
ses of
the
reserv
ation.”
Cf. W
alton, 6
47 F.2
d at 46
–47. N
o case
interp
reting
Wint
ers dr
aws a
pri
nciple
d disti
nction
betwe
en sur
face w
ater p
hysica
lly loc
ated o
n a res
ervatio
n and
other
appurt
enant w
ater so
urces.
See,
e.g., C
appaer
t, 426
U.S. at
143; s
ee als
o Cohe
n’s Ha
ndbook
§ 1
9.03[2
][a] (“
Reser
ved rig
hts pr
esuma
bly att
ach to
all wa
ter so
urces—
ground
water
, strea
ms,
lakes,
and s
prings
—that
arise
on, bo
rder, t
ravers
e, unde
rlie, or
are en
compas
sed wi
thin I
ndian
reserv
ations.
”). In
stead,
the rel
evant l
egal co
nstrai
nts un
der W
inters
and it
s prog
eny are
wheth
er (1)
the res
erved
water
is nec
essary
to ful
fill the
purpo
ses of
the res
ervatio
n and
(2) the
reserv
ed wa
ter is
appurt
enant t
o the re
served
land.
Walto
n, 647
F.2d a
t 46.
a. Th
e rese
rvatio
n’s pu
rpose
Th
e docu
ments
conte
mpora
neous
with th
e crea
tion o
f the A
gua Ca
liente’
s reser
vation
are
vague,
which
is not
surpr
ising b
ecause
they’r
e appr
oxima
tely 15
0 year
s old.
But th
ose
docum
ents d
o adm
it that
the res
ervatio
n inten
ded to
provid
e the T
ribe w
ith a h
ome, a
nd int
ended
to do s
o with
some
measu
re of p
ermane
nce. W
alton g
uides
the int
erpret
ation o
f the A
gua
Calien
te’s re
servat
ion’s p
urpose
. In W
alton, l
ike in
this c
ase, th
e Pres
ident c
reated
the
reserv
ation b
y terse
Execu
tive O
rder in
the era
follo
wing th
e Civi
l War,
647 F.
2d at 4
7 n.8,
and
the Ni
nth Ci
rcuit c
aution
ed: “[t
]he sp
ecific
purpo
ses of
an In
dian r
eserva
tion, h
oweve
r, were
oft
en una
rticula
ted. T
he gen
eral pu
rpose,
to pro
vide a
home
for th
e India
ns, is
a broa
d one
and
must b
e liber
ally co
nstrue
d.” Id
. at 47
. The
court t
here h
eld the
tribe’
s reser
ved rig
hts ex
tended
to a
gricul
tural u
ses as
well a
s the “
develo
pment
and m
ainten
ance o
f repla
cement
fishin
g gro
unds”
due to
the ec
onomi
c and
religi
ous im
portan
ce of
fishing
to the
tribe.
Id. at
48.
Accor
dingly
, the C
ourt m
ust bo
th cons
true th
e gene
ral pu
rposes
of the
Tribe
’s rese
rvatio
n bro
adly, a
nd tak
e acco
unt tha
t Wint
ers rig
hts an
ticipat
e incre
ased o
r nove
l futur
e uses
. See
also
Ahtan
um Irr
igatio
n Dist.
, 236 F
.2d at
326. A
pplyin
g those
tenets
, the C
ourt ca
n safe
ly state
that
the res
ervatio
n impli
ed at l
east so
me wa
ter us
e; but e
xactly
how m
uch is
not a q
uestio
n pres
ented
by Ph
ase I o
f this c
ase.
b. Gr
ound
water
is ap
purte
nant
to the
Tribe
’s rese
rvatio
n
An
y attem
pt to li
mit ap
purten
ant wa
ter so
urces
to surf
ace wa
ter fai
ls as a
matter
of law
and
logic.
For ex
ample
, Calif
ornia l
aw rec
ognize
s that g
roundw
ater ri
ghts a
re inex
tricabl
y lin
ked to
the ov
erlyin
g land.
See
City o
f Bars
tow v.
Mojav
e Wate
r Agen
cy, 23
Cal. 4
th 1224
, 124
0 (200
0) (“A
n over
lying
right,
analog
ous to
that of
a ripa
rian o
wner i
n a su
rface
stream
, is
the rig
ht of th
e own
er of th
e land
to take
water
from t
he gro
und un
dernea
th for
use on
his lan
d wit
hin the
basin
or wa
tershe
d; the
right i
s base
d on o
wners
hip of
the lan
d and
is appu
rtenan
t the
reto.”
) (inte
rnal qu
otatio
n mark
s omi
tted).
And f
ederal
law, at
least b
y impli
cation
, treat
s sur
face w
ater an
d grou
ndwate
r simi
larly.
See C
appaer
t, 426
U.S. at
143 (
holdin
g the U
nited
States
can “
protec
t its w
ater fr
om su
bseque
nt dive
rsion, w
hether
the div
ersion
is of
surfac
e wate
r
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CIVI
L MIN
UTES
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ERAL
Initial
s of D
eputy C
lerk m
g/wr
or gro
undwa
ter”).
Taken
togeth
er, the
se aut
horitie
s sugge
st that
groun
dwate
r prov
ides a
n app
urtena
nt wate
r sourc
e, in th
e Wint
ers se
nse.
With o
ne exc
eption
, every
court
to add
ress th
e issue
agree
s that W
inters
rights
encom
pass
ground
water
resour
ces, as
well a
s surfa
ce wa
ter, ap
purten
ant to
reserv
ed lan
d. See
, e.g.,
Washi
ngton,
No. C
01–004
7Z, sl
ip op. a
t 8 (W
.D. W
ash. F
eb. 24
, 2003)
(“Thus
, as a m
atter o
f law
the Co
urt co
nclude
s that t
he res
erved
water
rights
doctr
ine ex
tends
to grou
ndwate
r even
if gro
undwa
ter is
not co
nnecte
d to su
rface
water
.”); Tw
eedy v
. Texa
s Co.,
286 F.
Supp.
383, 3
85 (D
. Mont
. 1968)
(“The
Winte
rs case
dealt
only w
ith the
surfa
ce wa
ter, bu
t the s
ame im
plicat
ions
which
led the
Supre
me Co
urt to
hold th
at surf
ace wa
ters h
ad bee
n rese
rved w
ould a
pply to
und
ergrou
nd wa
ters a
s well.
The
land w
as ari
d—wa
ter wo
uld ma
ke it m
ore us
eful, a
nd wh
ether
the wa
ters w
ere fo
und on
the su
rface
of the
land o
r unde
r it sh
ould m
ake no
differ
ence.”
); In r
e Gil
a Rive
r Sys.
& So
urce, 9
89 P.2
d 739,
747 (
Ariz.
1999)
(“The
signif
icant q
uestio
n for
the
purpos
e of th
e reser
ved rig
hts do
ctrine
is not
wheth
er the
water
runs
above
or bel
ow the
groun
d but
wheth
er it is
neces
sary to
accom
plish
the pu
rpose
of the
reserv
ation.”
); Conf
ederat
ed Sal
ish
& Koot
enai T
ribes
v. Stul
ts, 59
P.3d 1
093, 10
99 (M
ont. 20
02) (“W
e see
no rea
son to
limit t
he sco
pe of
our pr
ior ho
ldings
by ex
cludin
g grou
ndwate
r from
the Tr
ibes’ f
ederal
ly rese
rved w
ater
rights
in thi
s case
.”). B
ut see
In re B
ig Horn
River
Sys.,
753 P.
2d 76,
99–10
0 (Wy
o. 1988
), aff’d
by
an equ
ally div
ided c
ourt, W
yoming
v. Un
ited St
ates, 4
92 U.S
. 406 (
1989).
5
Ap
purten
ance, a
s that t
erm is
used b
y the W
inters
doctr
ine, m
ust pr
ovide
some le
gal
limitat
ion to
impli
edly r
eserve
d wate
r right
s; but p
ersuas
ive au
thority
sugge
sts tha
t limi
t shoul
d not
be dr
awn b
etween
surfa
ce and
groun
dwate
r sourc
es. C
f. Capp
aert, 4
26 U.S
. at 14
2–43
(empha
sizing
the rel
ation b
etween
surfa
ce wa
ter an
d grou
ndwate
r in the
hydro
logic c
ycle).
The
federa
l gover
nment
intend
ed to r
eserve
water
for th
e Trib
e’s us
e on it
s reser
vation
. Righ
ts to th
e gro
undwa
ter un
derlyi
ng the
reserv
ation a
re appu
rtenan
t to the
reserv
ation it
self.
Accor
dingly
, the
Court
concl
udes th
e feder
al gove
rnment
impli
edly r
eserve
d grou
ndwate
r, as w
ell as
surfac
e wa
ter, fo
r the A
gua Ca
liente w
hen it
create
d the re
servat
ion. W
hether
groun
dwate
r resou
rces a
re nec
essary
to ful
fill the
reserv
ation’s
purpo
se, ho
wever
, is a q
uestio
n that m
ust be
addre
ssed in
a late
r phas
e of th
is litig
ation.
3. De
fenda
nts’ a
rgume
nts ar
e large
ly irre
levan
t to Ph
ase I i
ssues
Th
e part
ies ag
reed to
addre
ss two
discre
te ques
tions
in Phas
e I of
this c
ase. T
he firs
t, and
the on
e relev
ant to
much
of De
fendan
ts’ wr
itten s
ubmiss
ions, a
sks fo
r clari
ficatio
n of th
e Trib
e’s
Winte
rs righ
ts—nam
ely wh
ether t
hey co
uld ex
tend to
groun
dwate
r unde
rlying
the res
ervatio
n.
5 The W
yoming
Supre
me Co
urt ad
mitted
that “
[t]he lo
gic wh
ich su
pports
a rese
rvatio
n of
surfac
e wate
r to fu
lfill th
e purp
ose of
the r
eserva
tion a
lso su
pports
reserv
ation o
f grou
ndwate
r,” but
never
theles
s ruled
again
st the
extens
ion of
Wint
ers rig
hts be
cause
“not a
single
case
applyi
ng the
reser
ved w
ater d
octrin
e to g
roundw
ater i
s cited
to us
.” 75
3 P.2d
at 99
. Th
e weig
ht of
author
ity on
the iss
ue has
shifte
d.
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UTES
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ERAL
Initial
s of D
eputy C
lerk m
g/wr
DWA a
nd CV
WD ha
ve arg
ued ex
tensiv
ely in
their b
riefin
g that a
ny Wi
nters r
ights p
ossess
ed by
the Ag
ua Ca
liente d
o not e
xtend
to grou
ndwate
r.Th
eir co
ntenti
ons, ho
wever
, main
ly talk
past
wheth
er Wint
ers rig
hts inc
lude g
roundw
ater, a
nd foc
us on
the qu
antum
of the
Tribe
’s ent
itleme
nt.
De
fendan
ts’ arg
ument
s large
ly take
two f
orms.
First,
Defen
dants c
ontend
that pr
incipl
es of
federa
lism an
d com
ity co
unsel a
gainst
an ex
tensio
n of W
inters
rights
to Ca
liforni
a gro
undwa
ter res
ources
. Seco
nd, De
fendan
ts claim
the Tr
ibe is
able to
funct
ion ad
equate
ly unde
r Ca
liforni
a’s gr
oundw
ater al
locatio
n fram
ework
witho
ut reso
rt to W
inters
rights
, so an
asser
ted
right b
eyond
their c
urrent
allotm
ent is
not ne
cessar
y to pr
event t
he res
ervatio
n’s pu
rpose
from
being
entire
ly defe
ated.6 N
either a
rgume
nt with
stands
scrut
iny.
It i
s neith
er nove
l nor co
ntrove
rsial th
at Wint
ers rig
hts de
rive fr
om fed
eral la
w, and
thus
displa
ce sta
te law
when
in conf
lict. E
.g., Ca
ppaert
, 426 U
.S. at
138–39
. The
case la
w spe
cifica
lly ho
lds tha
t the W
inters
doctr
ine do
es not
entail
a “bal
ancing
test” o
f comp
eting
intere
sts to
determ
ine the
existe
nce or
scope
of res
erved
rights
. Id.
Moreo
ver, th
e Calif
ornia
legisla
ture a
cknow
ledges
the su
prema
cy of
federa
l wate
r right
s, and
acquie
sces in
their p
riority
.See
Cal. W
ater C
ode § 1
0720.3
(“[I]n
the ma
nagem
ent of
a grou
ndwate
r basi
n or su
bbasin
by a
ground
water
susta
inabil
ity ag
ency o
r by th
e boar
d, fede
rally r
eserve
d righ
ts to g
roundw
ater sh
all be
respec
ted in
full. I
n case
of co
nflict
betwe
en fed
eral an
d state
law in
that . .
. mana
gement
, fed
eral la
w shal
l preva
il.”) (e
mphas
is adde
d). T
herefo
re, De
fendan
ts’ arg
ument
s regar
ding
federa
l-state
relatio
ns run
count
er to b
oth fed
eral an
d state
law.
De
fendan
ts’ add
itional
argum
ents h
inge o
n an u
nduly r
estric
tive re
ading
of Un
ited St
ates
v. New
Mexi
co, an
d a mi
sappre
hensio
n of th
at case
’s subs
equent
appli
cation
by the
Ninth
Cir
cuit to
cases
which
involv
e triba
l right
s. In
the Ne
w Mexi
co cas
e, the
Supre
me Co
urt
addres
sed the
scope
of res
erved
rights
in the
Rio M
imbre
s’s wa
ter co
nnecte
d to the
gover
nment
’s cre
ation o
f the G
ila Na
tional
Fores
t. 438
U.S. at
697–9
8. Co
ngress
estab
lished
that F
orest,
among
many
others
, pursu
ant to
the Or
ganic A
dmini
stratio
n Act o
f 1897
, whic
h inten
ded the
Na
tional
Fores
ts to “
conser
ve wa
ter flo
ws, an
d to fu
rnish
a cont
inuous
suppl
y of ti
mber f
or the
peo
ple.”
Id. at
706. T
he Su
preme
Court
held t
hose tw
o purp
oses th
e only
ones
for wh
ich the
gov
ernme
nt imp
liedly r
eserve
d wate
r, notw
ithsta
nding
later-e
nacted
statut
es wh
ich pr
omote
d oth
er uses
of the
Fores
t, like
“outd
oor rec
reatio
n” or
“wild
life an
d fish
purpo
ses.”
Id. at
714–15
.Th
e Cour
t drew
on the
legisla
tive h
istory
of the
Mult
iple-U
se Su
staine
d-Yield
Act of
1960
to hol
d the s
ubsequ
ently d
esigna
ted pu
rposes
were “
second
ary,” m
eaning
they w
ere no
t “so c
rucial
6 Alth
ough g
reatly
simp
lified
by the
Cour
t, this
argum
ent m
akes u
p a la
rge po
rtion o
f DW
A’s s
ubstan
tive b
riefin
g. Fo
r exam
ple, D
WA ar
gues (1
) the T
ribe h
as a c
orrela
tive r
ight to
gro
undwa
ter un
der Ca
liforni
a law
, whic
h, lik
e all o
ther g
roundw
ater u
sers is
subje
ct to
a state
con
stituti
onal s
tandar
d of r
easona
ble us
e, so
the Tr
ibe m
ay acc
ess th
ose re
source
s with
out a
declar
ation o
f Wint
ers ri
ghts j
ust lik
e any
other
overly
ing la
ndown
er; (2
) the
Tribe
has no
t dri
lled w
ells on
its pr
operty
, so g
roundw
ater is
not n
ecessa
ry for
the r
eserva
tion;
and (3
) the
United
State
s only
reque
sted
a cert
ain am
ount o
f surf
ace w
ater i
n the
1938
state
court
adj
udicat
ion of
the W
hitew
ater s
ystem
, so th
at am
ount is
adequ
ate to
satisf
y the
needs
of the
res
ervatio
n.
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4CI
VIL M
INUT
ES—G
ENER
ALIni
tials o
f Depu
ty Cler
k mg/w
r
as to r
equire
a rese
rvatio
n of ad
dition
al wate
r.” Id
. at 71
5. As
noted
above
, the N
inth C
ircuit
has
held th
e reaso
ning o
f New
Mexi
co onl
y “est
ablish
es use
ful gu
idelin
es” fo
r triba
l reser
vation
cas
es, an
d cour
ts shou
ld inst
ead fo
cus on
the br
oader c
omma
nd tha
t Wint
ers rig
hts en
compas
s “on
ly that
amoun
t of wa
ter ne
cessar
y to fu
lfill th
e purp
ose of
the res
ervatio
n, no m
ore.”
Adair
, 723
F.2d
at 1408
–09.
In
this c
ase the
re are n
o subs
equent
enact
ments
that im
pact th
e purp
oses o
f the T
ribe’s
res
ervatio
n, alth
ough to
be su
re the
govern
ment a
ugment
ed the
reserv
ation’s
territo
ry ove
r time
. Th
e reser
vation
’s purp
oses re
main t
he sam
e as w
hen the
gover
nment
create
d the re
servat
ion—t
o pro
vide th
e Agua
Calien
te with
a perm
anent h
omela
nd. T
he Nin
th Circ
uit ha
s speci
fically
em
phasiz
ed suc
h a pu
rpose’
s elas
ticity;
a trib
al rese
rvatio
n’s rea
son fo
r bein
g is no
t etche
d in
stone,
but sh
ifts to
meet f
uture n
eeds.
See W
alton, 6
47 F.2
d at 47
–48; A
htanum
Irriga
tion D
ist.,
236 F.
2d at 3
26.
Despi
te Defe
ndants
’ insis
tent re
liance
on Ne
w Mexi
co, tha
t case’
s reaso
ning s
imply
does
not im
pact P
hase I
of thi
s litig
ation.7 O
f cours
e, delin
eating
the res
ervatio
n’s pu
rpose
will
ultim
ately d
ictate t
he bre
adth o
f the T
ribe’s
Wint
ers rig
hts, bu
t the A
gua Ca
liente’
s reser
vation
, at a
minim
um, pr
ovides
the Tr
ibe wi
th a ho
melan
d for
now an
d for
the fu
ture, a
nd Wi
nters
ensure
s a fed
eral ri
ght to
appurt
enant w
ater to
realize
that en
d.
Accor
dingly
, the T
ribe a
nd the
United
State
s are e
ntitled
to par
tial su
mmary
judgm
ent on
the
Phase
I issu
e of w
hether
the Tr
ibe’s f
ederall
y rese
rved w
ater ri
ghts e
ncomp
ass gr
oundw
ater
underl
ying th
e reser
vation
.
B.Th
e Trib
e’s cla
im to
an ab
origin
al grou
ndwa
ter rig
ht fai
ls
7 Defen
dants a
lso arg
ue tha
t indiv
idual a
llottee
s and
lessee
s of re
servat
ion lan
d have
no
claim
to res
erved
water
rights
becau
se (1)
the Tr
ibe ha
s no s
uch rig
ht and
(2) res
ort go
lf cour
ses,
of the
kind m
aintain
ed by
some le
ssees,
do no
t fit D
efenda
nts’ co
ncepti
on of
the Tr
ibe’s
reserv
ation’s
purpo
se. C
ontent
ions re
gardin
g the d
erivat
ive rig
hts of
allott
ees an
d lesse
es fai
l for
the sa
me rea
sons th
eir oth
er argu
ments
fail—
they a
re sim
ply no
t relev
ant to
Phase
I of th
is case
. It i
s well-
establ
ished
that “I
ndian
allottee
s have
a righ
t to us
e a po
rtion o
f . . . r
eserve
d wate
r.”Ad
air, 72
3 F.2d
at 141
5. Ad
dition
ally, “t
he ful
l quant
ity of
water
availa
ble to
the In
dian a
llottee
thu
s may
be con
veyed
to the
non-In
dian p
urchas
er,” W
alton, 6
47 F.2
d at 51
, whic
h logic
surel
y tra
nslate
s to les
sees.
Thus,
for th
e sam
e reaso
ns De
fendan
ts othe
r argum
ents fa
il, thi
s one
fails
as we
ll due
to its d
erivat
ive na
ture.
To the
exten
t Defe
ndants
wish
to argu
e that r
esort g
olf
course
s, or an
y othe
r use,
does
not fal
l with
in the
class o
f perm
issibl
e uses
under
the W
inters
doc
trine, i
t may
so arg
ue in l
ater p
hases
of thi
s case
, whic
h will
deal w
ith the
scope
of the
im
plied
reserv
ation.
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The T
ribe’s
secon
d claim
in thi
s laws
uit as
serts a
n abor
iginal
right t
o use
ground
water
ben
eath th
e Coac
hella v
alley, w
ith a p
riority
date o
f time
imme
moria
l.8 Sim
plifie
d, the
Agua
Calien
te’s a
borigi
nal rig
hts arg
ument
proce
eds thu
sly: fe
deral l
aw rec
ognize
s cert
ain rig
hts
connec
ted to
origin
al Indi
an occ
upancy
; lands
encom
passed
by the
Treat
y of G
uadalu
pe Hid
algo9 fal
l under
the or
iginal
occup
ancy d
octrin
e; the
Tribe
has co
ntinua
lly an
d excl
usivel
y occ
upied
the Co
achella
valley
, whic
h was
ceded
as par
t of the
Treat
y of G
uadalu
pe Hid
algo,
since
centur
ies be
fore o
ther se
ttlers;
so the
Agua
Calien
te poss
ess an
abori
ginal r
ight to
gro
undwa
ter un
derlyi
ng its
reserv
ation.
(Tribe
’s Mot.
for Su
mm. J.
at 18–
23.) I
n oppo
sition
to the
Tribe
’s abor
iginal
rights
claim
, Defe
ndants
point
out th
at Cong
ress, v
ia an 1
851 sta
tute,
requir
ed the
prese
ntatio
n of la
nd cla
ims in
Califo
rnia to
a com
missi
on for
valid
ation, t
he Tri
be did
not as
sert su
ch a c
laim, so
the lan
d the T
ribe o
ccupie
d in the
Coach
ella va
lley rev
erted
to the
public
domain
. The
Tribe’
s claim
to an
aborig
inal oc
cupanc
y righ
t fails.
Federa
l law r
ecogni
zes a t
ribe’s
prope
rty rig
ht arisi
ng out
of or
iginal
territo
rial
occupa
ncy. S
ee Un
ited St
ates e
x rel.
Chuni
e v. R
ingros
e, 788
F.2d 6
38, 64
1–42 (
9th Ci
r. 1986
) (“I
ndian’
s abor
iginal
title d
erives
from t
heir p
resenc
e on th
e land
before
the arr
ival of
white
settler
s.”) (c
iting T
ee-Hit
-Ton I
ndians
v. Un
ited St
ates, 3
48 U.S
. 272, 2
79 (19
55)); s
ee als
o Co
hen’s H
andboo
k § 15
.04[3]
(“A tri
be wit
h orig
inal In
dian ti
tle ma
y brin
g a fed
eral co
mmon
law ac
tion to
enfor
ce ow
nershi
p righ
ts.”).
Abori
ginal p
ropert
y righ
ts whic
h arise
under
federa
l law
are no
t “own
ership
rights
,” but r
ather a
re “rig
ht[s] o
f occu
pancy
grante
d by th
e conq
uering
sov
ereign
. . . [a
nd are
] there
fore n
ecessa
rily a c
reatur
e of th
e conq
uering
sover
eign’s
law.”
Id.
at 642.
10 Chie
f Justic
e Mars
hall, i
n John
son v.
M’Int
osh, 21
U.S.
543 (1
823), l
aid do
wn the
rule
that “t
he con
querin
g gove
rnment
acqui
res the
exclu
sive ri
ght to
exting
uish I
ndian
title.”
Chun
ie, 788
F.2d
at 642.
Any
such d
ivestm
ent of
origi
nal In
dian ti
tle is p
urely a
matter
of Co
ngress
ional
prerog
ative.
United
State
s v. S
anta F
e Pac.
R. Co
., 314
U.S. 33
9, 347
(1941)
. And
althoug
h the
Supre
me Co
urt ha
s note
d exti
nguish
ment c
ould b
e acco
mplish
ed by
“treat
y . . . s
word
. . . ex
ercise
of co
mplete
domi
nion a
dverse
to the
right o
f occu
pancy,
or oth
erwise
,” id.,
a feder
al sta
tute e
mbodi
es a m
ore typ
ical le
gislati
ve div
estme
nt. Se
e id. at
347–4
8 (dis
cussin
g in de
pth
the eff
ects o
f vari
ous sta
tutes
on com
peting
land c
laims).
The U
nited
States
ratifie
d the T
reaty o
f Guad
alupe
Hidalg
o in 19
48. C
aliforn
ia was
admitte
d as a
state i
n 1850
. Shor
tly aft
er Calif
ornia’
s adm
ission
, in or
der to
“prote
ct prop
erty
8 The U
nited
States
’ comp
laint in
interv
ention
did no
t press
such
a claim
and n
either d
id its
motio
n for
summa
ry jud
gment
on Ph
ase I i
ssues.
The
United
State
s’ oppo
sition
to De
fendan
ts’ mo
tion f
or sum
mary
judgm
ent, ho
wever
, argue
s in fav
or of
such a
n abor
iginal
right.
9 The T
reaty
of Gu
adalup
e Hida
lgo, si
gned b
y the
United
State
s and
Mexic
o in 1
848,
ended
the M
exican
–Ame
rican
War.
See Su
mma C
orp. v
. Calif
ornia,
466 U.
S. 198
, 202
(1984)
. Un
der th
e term
s of th
e Trea
ty, Me
xico c
eded m
uch of
what
is no
w con
sidere
d the
Ameri
can
South
west
to the
Unit
ed Sta
tes, in
cludin
g the
territo
ry tha
t woul
d late
r beco
me th
e state
s of
Califo
rnia, N
evada,
and U
tah, an
d part
s of A
rizona
, New
Mexi
co, Co
lorado
, and W
yoming
. 10 Li
ke the
Nint
h Circ
uit ha
s done
past c
ases, i
n the
absenc
e of a
ny arg
ument
that
“the
Spani
sh or
Mexic
an law
of ab
origin
al title
diffe
rs from
our o
wn, [t
he Co
urt] w
ill ass
ume th
at it
does n
ot.” C
hunie,
788 F.
2d at 6
42.
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rights
of fo
rmer M
exican
citize
ns in t
he new
ly-acq
uired
territo
ry and
to set
tle lan
d claim
s, Co
ngress
passe
d the A
ct of M
arch 3
, 1851,
ch.41
, 9 Sta
t. 631,
” (“Ac
t of 18
51”).
Chuni
e, 788
F.2d a
t 644.
Three
of the
Act of
1851’
s num
erous
provis
ions im
pact th
is case
: sectio
n 8
institu
ted a l
and cla
ims p
rocess
for p
eople c
laiming
prope
rty rig
hts in
Califo
rnia; s
ection
13
impos
es a tw
o-year
time li
mit fo
r pres
enting
land c
laims; a
nd sec
tion 1
6 impos
ed a “
duty [
on]
the co
mmiss
ioners
herei
n prov
ided f
or to a
scerta
in and
report
. . . th
e tenur
e by w
hich th
e mi
ssion
lands
are he
ld, and
those
held b
y civi
lized I
ndians
.” See
Barke
r v. H
arvey,
181 U
.S.
481, 48
3–85 (
1901).
11
Federa
l court
s cons
true s
ection
s 8 an
d 13 b
roadly
; toget
her the
y bar I
ndians
who f
ailed to
ass
ert or
iginal
occup
ancy c
laims w
ithin t
he sta
tutory
two-y
ear wi
ndow f
rom rel
ying o
n such
a rig
ht in f
uture d
ispute
s:
[The S
uprem
e Cour
t], aft
er obse
rving
. . . the
United
State
s was
bound
to resp
ect the
rig
hts of
priva
te prop
erty in
the ce
ded ter
ritory,
said t
here c
ould b
e no d
oubt of
the po
wer
of the
United
State
s, cons
istentl
y with
such
obliga
tion, t
o prov
ide rea
sonabl
e mean
s for
determ
ining
the va
lidity
of all
titles
withi
n the c
eded te
rritory
, to req
uire a
ll claim
s to
lands
therei
n to be
prese
nted f
or exa
minat
ion, an
d to de
clare t
hat all
not pr
esente
d shou
ld be
regard
ed as
abando
ned. T
he Co
urt fu
rther s
aid the
purpo
se of
the ac
t of 18
51 wa
s to
give re
pose to
titles
as we
ll as to
fulfil
l treat
y obli
gation
s, and
that it
not on
ly perm
itted,
but req
uired,
all cla
ims to
be pr
esente
d to the
comm
ission
, and b
arred
all fro
m futu
re ass
ertion
which
were n
ot pres
ented
within
the 2 y
ears.
United
State
s v. T
itle In
s. & Tr
ust Co
., 265
U.S. 47
2, 483
(1924)
; see a
lso Su
mma C
orp. v.
Ca
liforni
a ex r
el. Sta
te Land
s Com
m’n, 4
66 U.S
. 198, 2
08 (19
84) (ex
plaini
ng tha
t the T
itle
Insura
nce ca
se “ap
plied
[the C
ourt’s]
decis
ion in
Barke
r to ho
ld that
becau
se the
India
ns fai
led to
assert
their i
nteres
t with
in the
timesp
an est
ablish
ed by
the 18
51 Ac
t, thei
r claim
ed rig
ht of
occupa
ncy wa
s barr
ed”); S
anta F
e, 314
U.S. at
351 (
discus
sing B
arker a
nd Tit
le Insu
rance,
and
noting
“the A
ct of 1
851 wa
s inter
preted
as co
ntaini
ng ma
chiner
y for
exting
uishm
ent of
claim
s, inc
luding
those
based
on Ind
ian rig
ht of o
ccupan
cy”).
The S
uprem
e Cour
t has h
eld rep
eatedl
y tha
t, desp
ite the
Act of
1851’
s text,
the “la
nd con
firmatio
n proc
eeding
s were
intend
ed to b
e all-
encom
passin
g” and
a failu
re to a
ssert a
borigi
nal tit
le with
in the
terms
of the
statut
e woul
d pre
clude
subseq
uent cl
aims to
land.
Chuni
e, 788
F.2d a
t 646 (
“Give
n the li
ne of
Supre
me Co
urt
decisio
ns rec
ognizin
g the e
xtensi
ve rea
ch of
the Ac
t of 18
51 . . .
the Ch
umash
, claim
ing a r
ight
of occ
upancy
based
on ab
origin
al title
, lost a
ll righ
ts in th
e land
when
they f
ailed to
prese
nt a
claim
to the
comm
ission
ers.”).
11 The A
ct of
1851’s
Sectio
n 8 sta
tes: “
[t]hat
each a
nd eve
ry per
son cl
aiming
lands
in
Califo
rnia b
y virtu
e of a
ny rig
ht or
title d
erived
from
the Sp
anish
or Me
xican
govern
ment
shall
presen
t the s
ame t
o the
said c
ommi
ssione
rs . . .
.” Ba
rker, 1
81 U.S
. at 48
3. Se
ction 1
3 hold
s: “[t
]hat a
ll land
s, the
claim
s to w
hich h
ave be
en fin
ally re
jected
. . . a
nd all
lands
the cl
aims to
wh
ich sh
all not
have
been p
resent
ed to
the sa
id com
missi
oners w
ithin
two ye
ars af
ter th
e date
of
this a
ct, sha
ll be d
eemed,
held
and co
nsider
ed as
part o
f the p
ublic d
omain
of th
e Unit
ed Sta
tes.”
Id. at
484.
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INUT
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ALIni
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In
this c
ase, th
e Trib
e alleg
es the
y have
occup
ied the
Coach
ella va
lley sin
ce tim
e im
memo
rial. W
ithin t
he fra
mewo
rk est
ablish
ed by
Barke
r and C
hunie,
that m
eans th
ey hel
d an
aborig
inal ri
ght of
occup
ancy u
nder M
exican
law, an
d then
a right
of oc
cupanc
y unde
r Unit
ed Sta
tes law
follo
wing th
e Trea
ty of G
uadalu
pe Hid
algo.
The T
ribe a
dmits
that no
claim
was fi
led
on its
behalf
as pa
rt of th
e claim
s proc
ess un
der the
Act of
1851,
(Doc.
No. 82
–3 Ex
. 1–10)
, so
like th
e India
ns in a
ll othe
r cases
interp
reting
the Ac
t of 18
51, the
Agua
Calien
te’s a
borigi
nal
claim
was e
ffectiv
ely ex
tingui
shed a
fter th
e two-y
ear cla
ims w
indow
closed
, and it
s territ
ory
subsum
ed wit
hin the
publi
c dom
ain.
Cit
ing Cr
amer v
. Unit
ed Sta
tes, 26
1 U.S.
219 (
1923),
the Tr
ibe arg
ues alt
ernativ
ely tha
t eve
n if the
Act of
1851
exting
uished
its ab
origin
al title
, the T
ribe re
-estab
lished
such a
right b
y con
tinuou
s occu
pancy
from 1
853 un
til the
creatio
n of it
s reser
vation
in 187
6.12 (Trib
e’s M
ot. for
Su
mm. J.
at 23.
) But e
ven if
the Tr
ibe did
reclaim
a title
of or
iginal
occup
ancy in
the 23
years
bet
ween
the tim
e its c
laim wa
s exti
nguish
ed and
the cre
ation o
f its re
servat
ion, th
e reser
vation
eff
ective
ly re-e
xtingu
ished
that ri
ght. R
eserva
tion, r
ecall,
means
the Un
ited St
ates w
ithdra
ws
land w
hich it
then “
set[s]
apart
for p
ublic u
ses.”
Hagen
, 510 U
.S. at
966. A
borigi
nal rig
hts are
bas
ed on
“actua
l, excl
usive,
and c
ontinu
ous us
e and
occupa
ncy ‘fo
r a lon
g time
’ of th
e claim
ed are
a,” N
ative V
ill. of
Eyak
v. Blan
k, 688
F.3d 6
19, 62
2 (9th
Cir. 2
012).
Accor
dingly
, an
aborig
inal ri
ght of
occup
ancy is
funda
menta
lly inc
ompat
ible w
ith fed
eral ow
nershi
p.
Th
e Act o
f 1851
extin
guishe
d the T
ribe’s
abori
ginal o
ccupan
cy rig
ht, and
even
if the
Tribe
re-est
ablish
ed suc
h a rig
ht it w
as not
conti
nuous
and ex
clusiv
e and
contin
uous o
nce the
Un
ited St
ates c
reated
the Ag
ua Ca
liente’
s reser
vation
. Acco
rdingl
y, the
Tribe
cannot
asser
t an
origin
al occu
pancy
right,
and De
fendan
ts are e
ntitled
to sum
mary
judgm
ent on
this is
sue.
C. Int
erlocu
tory a
ppeal
under
28 U.
S.C. 12
92(b)
Usual
ly litig
ants m
ay onl
y appe
al fina
l judgm
ents o
f distr
ict cou
rts. S
ee 28
U.S.C.
§ 1
291. S
ection
1292,
howe
ver, co
nfers a
ppellat
e jurisd
iction
over a
limited
class o
f int
erlocu
tory d
ecisio
ns by
distric
t court
s, incl
uding
decisio
ns wh
ich inv
olve “
a cont
rollin
g que
stion o
f law a
s to wh
ich the
re is su
bstant
ial gro
und fo
r diffe
rence
of opi
nion a
nd tha
t an
imme
diate a
ppeal f
rom the
order
may m
ateria
lly ad
vance
the ult
imate
termi
nation
of the
liti
gation
.” 28
U.S.C.
1292(
b); se
e also
Couch
v. Te
lescop
e, Inc.
, 611 F
.3d 62
9, 632–
33 (9t
h Cir.
2010).
Wh
ether W
inters
rights
exten
d to gr
oundw
ater, i
n light
of Ca
liforni
a’s co
rrelati
ve rig
hts
legal f
ramew
ork fo
r grou
ndwate
r alloc
ation, e
ffectiv
ely co
ntrols
the ou
tcome
of thi
s case
. The
scope
of thi
s litig
ation w
ould, a
t the v
ery lea
st, shr
ink dr
amatic
ally if
the iss
ue res
olves
the oth
er
12 One p
oint of
clarifi
cation
is in o
rder: t
he Tri
be’s a
sserte
d righ
t to gr
oundw
ater b
ased o
n abo
rigina
l title
must
actua
lly co
nnect
to its
claim
for a
borigi
nal ti
tle.
That
is, no
such
freest
anding
abori
ginal
rights
to na
tural
resour
ces ex
ist, al
l deri
ve fro
m a r
ight to
occup
ancy.
See U
nited
States
v. Sh
oshone
Tribe
, 304
U.S. 1
11, 11
6–17 (
1938)
(“To t
hat en
d the
United
Sta
tes gr
anted
and as
sured
to the
tribe
peace
able a
nd unq
ualifie
d poss
ession
of th
e land
in
perpet
uity.
Miner
als an
d stan
ding ti
mber a
re cons
tituent
eleme
nts of
the lan
d itsel
f.”).
Case
5:13
-cv-00
883-J
GB-S
P D
ocum
ent 1
15 F
iled 0
3/20/1
5 Pa
ge 13
of 14
Pag
e ID
#:654
8
Page1
4 of 1
4CI
VIL M
INUT
ES—G
ENER
ALIni
tials o
f Depu
ty Cler
k mg/w
r
way, t
hus “a
dvanc[
ing] th
e ultim
ate ter
minat
ion” o
f the c
ase. S
ubstan
tial gr
ound f
or dif
ferenc
e of
opinio
n exis
ts on th
e legal
quest
ion—s
tate su
preme
court
s are s
plit on
the iss
ue and
no fed
eral
court o
f appea
ls has
passed
on it.
See
Couch
, F.3d
at 633
.13 Addi
tional
ly, the
Supre
me Co
urt’s
decisio
n in Ca
ppaert
speci
fically
avoid
ed dec
iding
the iss
ue, it
chose
instea
d to co
nstrue
distan
t gro
undwa
ter as
surfa
ce wa
ter. I
n this c
ase it
is undi
sputed
that th
e grou
ndwate
r at iss
ue is n
ot hyd
rologi
cally c
onnect
ed to t
he res
ervatio
n’s su
rface
water
, so it
sits un
comfor
tably o
utside
Ca
ppaert
’s expl
icit ho
lding.
And
althoug
h not o
ne of
§ 1292
(b)’s f
actors
, it’s w
orth n
oting
this
decisio
n may
be unr
eview
able a
s a pr
actica
l matte
r due
to the
likelih
ood of
settle
ment a
s the c
ase
progre
sses.
Cf. Un
ited St
ates e
x rel.
Lumm
i India
n Natio
n v. W
ashing
ton, N
o. C01–
0047Z
, 200
7 WL 4
190400
, at *1
(W.D.
Wash
. Nov.
20, 20
07).
In
accord
ance w
ith § 1
292(b)
, the C
ourt ce
rtifies
this O
rder fo
r inter
locuto
ry app
eal,
should
the pa
rties se
ek rev
iew.
V. CO
NCLU
SION
The C
ourt ha
s attem
pted to
addre
ss the
parties
’ argum
ents w
ithin t
he fra
mewo
rk set
out
by the
ir own
agree
ment,
which
was a
pprove
d by th
e Cour
t. The
conclu
sions
made
in this
Order
sho
uld be
read w
ith an
eye to
ward
the lar
ger pic
ture o
f this l
itigatio
n.
Based
on the
foreg
oing d
iscuss
ion of
the leg
al issu
es pre
sented
by Ph
ase I o
f this c
ase,
the Co
urt (1
) GRA
NTS p
artial
summa
ry jud
gment
to the
Agua
Calien
te and
the Un
ited St
ates o
n the
claim
that th
e gove
rnment
impli
edly r
eserve
d appu
rtenan
t wate
r sourc
es—inc
luding
und
erlyin
g grou
ndwate
r—wh
en it c
reated
the Tr
ibe’s r
eserva
tion; a
nd (2)
GRAN
TS pa
rtial
summa
ry jud
gment
to De
fendan
ts rega
rding
the Tr
ibe’s a
borigi
nal tit
le claim
s beca
use the
Land
Claim
s Act o
f 1851
, as int
erpret
ed by
the Su
preme
Court
, effec
tively
extin
guishe
d any
such
right.
IT IS
SO OR
DERE
D.
13 The N
inth C
ircuit
recent
ly expl
ained:
To de
termi
ne if a
“subs
tantial
groun
d for
differ
ence o
f opin
ion” e
xists u
nder §
1292(
b),
courts
must e
xamine
to w
hat ex
tent c
ontrol
ling l
aw is
unclea
r. Co
urts tr
aditio
nally
will
find t
hat a
substa
ntial
ground
for d
ifferen
ce of
opinio
n exis
ts wher
e “the
circu
its are
in
disput
e on t
he que
stion a
nd the
court
of ap
peals o
f the c
ircuit
has n
ot spo
ken on
the p
oint
. . . or
if nov
el and
diffic
ult qu
estion
s of fi
rst im
pressi
on are
prese
nted.”
Couch
, 611 F
.3d at
633.
Case
5:13
-cv-00
883-J
GB-S
P D
ocum
ent 1
15 F
iled 0
3/20/1
5 Pa
ge 14
of 14
Pag
e ID
#:654
9
D-5
MEALEY’S Native American Law Report Vol. 1, #1 March 2015
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