Ninth Circuit Court of Appeals Roundup
Continuing Indian Country Today Media Network’s periodic roundup of court cases relevant to Indian country within the Ninth Circuit, we examine one new federal circuit court of appeals decision as well as a few district court decisions that may find their way up to the appellate level.
Lack Of Indian Self-Identity Does Not Prevent Major Crimes Act Prosecution
In United States v. Juvenile Male, No. 11–30065, 2012 WL 164105 (9th Cir. Jan. 20, 2012), the Ninth Circuit ruled that a juvenile criminal defendant who did not identify himself as a tribal member, was considered “Indian” under the Major Crimes Act, 18 U.S.C. § 1153. That statute confers federal jurisdiction for certain crimes committed by Indians in Indian country. Because Indian status is an essential element that the federal government must allege in an indictment and eventually prove beyond a reasonable doubt, it was subject to challenge by the juvenile – who admitted the rest of the allegations against him.
Even though the juvenile was an enrolled member of a tribe, had received tribal assistance, and had used his membership to obtain tribal benefits, the juvenile argued to a U.S. District Court in Montana that he did “not identify as Indian, and [was] not socially recognized as Indian by other tribal members.” Both the District Court and Ninth Circuit disagreed. Because he was “Indian by blood” and met three of the four factors used to evaluate tribal recognition – enrollment, recipient of government benefits reserved for Indians, tribal benefits – his District Court conviction was upheld by the Ninth Circuit. Also, the one factor the federal government could not prove – social recognition as an Indian through residence on a reservation and participation in Indian social life – was deemed not dispositive. The tribal member was “Indian” enough for Major Crimes Act purposes. As such, even where a tribal member does not self-identify as an Indian, he will likely be considered Indian for purposes of Major Crimes Act prosecution if other factors apply.
Federal Trial Court Holds Montana Applies On All Reservation Lands
The U.S. District Court for Arizona directly disobeyed the Ninth Circuit’s most recent precedent regarding tribal court authority over non-members last month. In Rolling Frito-Lay Sales LP v. Stover, No. 11–1361, 2012 WL 252938 (D. Ariz. Jan. 26, 2012), the District Court held that the “Montana test” of jurisdiction applied to all reservation lands, regardless of whether in trust or fee status.
In the early 1980s, in Montana v. United States, 450 U.S. 544, 565 (1981) the Supreme Court held, in pertinent part that Indian courts have jurisdiction over non-Indian parties who enter “consensual relationships” with a tribe or tribal member “through commercial dealing, contracts, leases, or other arrangements.” Just last year, the Ninth Circuit Court of Appeals confirmed that in the Ninth Circuit, this test generally does not apply to questions of tribal court jurisdiction on tribal trust land. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011). Practically speaking, under Water Wheel, tribal courts generally have jurisdiction over cases arising on reservation trust land even if a non-member is involved and even when there is no consensual commercial relationship between the non-member and a tribal party.
Rolling Frito-Lay Sales LP stemmed from a non-member’s slip-and-fall at an on-reservation, Indian-owned store. The non-member woman sued the storeowner and the Frito Lay distributor in tribal court, claiming they both caused her accident. The case made its way to federal court, where Frito Lay argued that the tribal court did not have jurisdiction to hear the dispute.
Ignoring mandatory Ninth Circuit precedent, the Rolling Frito-Lay court took its own initiative to opine that “Water Wheel departs from Supreme Court jurisprudence” in applying the Montana test to reservation trust land, and thus ruled against tribal jurisdiction. Rolling Frito-Lay, at *3. Although the non-Indian-versus-non-Indian character of the suit should have been a strong signal to all involved that a non-tribal court would attack tribal jurisdiction, the District Court’s willingness to disregard a very recent Ninth Circuit ruling was surprising.
Conclusory Allegations Of Waiver Are Inadequate To Waive Tribe’s Sovereign Immunity
In December 2011, the District Court for the Southern District of California held that a plaintiff asserting a waiver of sovereign immunity is held to two distinct standards: (1) at the complaint stage, and (2) at the challenge stage of such assertion. Gold River, LLC v. La Jolla Band of Luiseno Mission Indians, No. 11-1750, 2011 WL 6152291 (S.D. Cal. Dec. 9, 2011).
First, the District Court imported the standard announced in 2009 by the U.S. Supreme Court in Ashcroft v. Iqbal, observing that a complaint asserting a waiver of sovereign immunity “must do more than permit the court to infer the mere possibility of waiver of sovereign immunity.” Gold River, at *2. At a minimum, the court held, in the complaint a plaintiff must identify the basis from which the court is able to construe an unequivocal waiver of sovereign immunity by statute or contract. Legal conclusions are inadequate.
Second, at the motion stage, when jurisdiction is specifically challenged, a “plaintiff has the burden to demonstrate with admissible evidence that this court possesses subject matter jurisdiction over its claims.” Id. at *2. The court properly and explicitly recognized the correct standard for analyzing sovereign immunity: subject matter jurisdiction. Id. at *2 n.1. Gold River provides tribal defense lawyers additional ammunition with which to protect tribes and tribal enterprises at the pleading stage.
Unpublished Policy Regarding 638 Police Funding Violates Federal Law
In October, the District Court for the Southern District of California ruled that the BIA’s arbitrary denial of 638 law enforcement contract funding to so-called “P.L. 280 tribes,” and reliance on an unwritten internal policy, violated the Administrative Procedures Act (APA). Los Coyotes Band of Cahuilla & Cupeno Indians v. Salazar, No. 10-1448, 2011 WL 5118733 (S.D. Cal. Oct. 28, 2011). When the BIA denied the Los Coyotes Band’s request for 638 contract funding, it relied on an unwritten internal policy that the BIA admitted had been in place for half a century. The BIA had employed unpublished agency policy, denying many tribes federal police funding as far back as 1953, when Congress passed P.L. 280.
The District Court held that the BIA violated the APA by, first, failing to follow the notice and comment procedures necessary for such a policy, and, second, by arbitrarily applying the unwritten policy. The BIA could provide no reasonable explanation for why some tribes in P.L. 280 states receive law enforcement funding, while others do not. The case clarifies the ability of tribes to use unwritten federal policies as bases for APA claims. The federal government must both explicitly express its policies toward Indian tribes and apply such policies fairly.
Tribes in P.L. 280 states should leverage this decision to insist that the BIA now provide them 638 law enforcement contract funding. More broadly, Indian country should ask aloud: what other unwritten policies do federal agencies follow when dealing with tribes.
Anthony Broadman is a partner with Galanda Broadman in Seattle. His practice focuses on matters critical to Indian country. He can be reached at email@example.com.