Hawaii, et al. v. Office of Hawaiian Affairs, et al.

United States v. Navajo Nation

With luck, we will provide more information and analysis in the future as arguments are set and heard.

Green Tree Servicing, LLC v. Duncan, No. SC-CV-46-05 (Nav. Sup Ct. Aug. 18, 2008)

Issues: Federal Law > Bankruptcies >> Automatic Stays; Navajo Fundamental Law > Contracts >> Arbitration Clauses

After Conseco filed for bankruptcy, Green Tree purchased Conseco’s loan servicing contracts. This included Duncan’s loan for the purchase of a mobile home. Sometime later Green Tree filed a repossession action against Duncan. Duncan counterclaimed for fraud, harassment, and assault. Does the “automatic stay” provision of the Bankruptcy Code bar Duncan’s counterclaims? If not, did an arbitration clause in the original contract bar the counterclaims?

No, answered the Navajo Supreme Court. Under the Bankruptcy Code, litigation and lien enforcement against the debtor are automatically stayed once the debtor files for bankruptcy. This provision is broad, but protects only the debtor. Here, Green Tree itself did not file for bankruptcy; it simply purchased Conseco’s contracts. But, even assuming Green Tree were a debtor, the Code does not shield debtors who affirmatively file lawsuits from counterclaims. Therefore, the Code does not bar Duncan’s counterclaims against Green Tree.
Although the Navajo Nation Code encourages arbitration, any contract containing such a provision must be consistent with Navajo Fundamental Law. The Court discussed several tenets of Fundamental Law in analyzing the arbitration clause. Hazho ogo, the Court explained, requires “patient, respectful discussion before a waiver is effective.” Iislyimi adooniil requires that things be made clear and obvious. Lastly, Navajo thought accords great importance to the home. The clause here purported to strip Duncan’s right to judicial enforcement of her rights, but did not reciprocally bar Green Tree from utilizing the court system. The contract neither explained why the burden was “one way,” nor indicated that Duncan understood that the clause impaired her rights. Therefore, the Court held that the clause failed under Navajo Fundamental Law. Thus, the arbitration clause did not bar Duncan’s counterclaims against Green Tree.

The en banc panel of the 9th Circuit says that the use of treated sewage effluent on the San Fransisco Peaks does not violate the Religious Freedom Restoration Act, reversing the 9th Circuit’s original opinion. The case is 2 volumes long and contains a lengthy dissent. Analysis to follow.

In the wake of Seminole Tribe, the Secretary of the Interior adopted a set of regulations that allowed tribes to pursue Class III gaming even if an intransigent State refused to negotiate a pact under the IGRA. The Kickapoo Traditional Tribe sought Class III gaming, but Texas categorically declined to negotiate a pact knowing full well that, under Seminole, the Tribe could never call Texas to account in federal court. So the Tribe pursued Class III gaming through the Secretary’s regulations. Texas then challenged the validity of the regulations.

The 5th Circuit, 2-1, struck down the regulations. Without delving into the finer details, the Chief Judge Jones held that (1) the IGRA unambiguously limited secretarial intervention in Class III gaming disputes; (2) even if IGRA was ambiguous, it did not delegate authority to the Secretary to prescribe these regulations; (3) Seminole did not create a “gap” for the Secretary to fill; and (4) even if Seminole did create a gap, the Secretary’s regulations were unreasonable.

Judge Dennis wrote a spirited dissent challenging most of Judge Jones’ conclusions. According to Judge Dennis, Judge Jones’ opinion creates a split among the circuits on some points of administrative law (such as whether judicial nullification of a statutory provision creates a “gap” in the statute for an agency to fill).

If the Court grants cert, we of course will fully analyze the opinions in this case.

Western Shoshone National Council v. United States, 2007-5020 (Fed. Cir. May 22, 2008)

Issue(s): Indian Claims Commission > Final Judgments >> Relief; Treaty Title > Intent to Convey

After Congress created the Indian Claims Commission, several Shoshone tribes filed claims alleging that the U.S. government took over 80 million acres of land. During the decades-long legal battle, the Te-Moak Band and the government agreed that historical events extinguished aboriginal title. In 1974, the Western Shoshone National Council attempted to intervene, alleging that the Te-Moak Band and United States had colluded to treat title as extinguished. Later, the Te-Moak Band itself attempted to reverse course and say that it still held title to the land. The Commission nixed both efforts and entered final judgment in 1979. Twenty-four years later, the Council and several Shoshone tribes sought a declaratory judgment that the judgment was void.

The Shoshone’s primary argument was that the Te-Moak Band’s attorney failed to heed its instructions. The attorney continued to argue that the government took Shoshone land and had extinguished aboriginal title despite the Band’s instructions to the contrary. Moreover, the BIA refused to acknowledge the discharge of the attorney after the Band tried to fire him. RCFC 60(b) permits courts to relieve parties from void judgments as long as the party makes the 60(b) motion within a reasonable time. The Federal Circuit, however, said that 24 years was too long a delay.

The Shoshones alternatively argued that they held treaty title to the land through the Treaty of Ruby Valley. The United States Supreme Court, according to the Circuit, previously held that the Treaty did not recognize fee title but was simply a peace treaty. Even though the Court specifically addressed the Box Elder Treaty, the Federal Circuit found that the Court had referred to the Treaty of Ruby Valley when it addressed treaties of “similar form.” Furthermore, said the Circuit court, the text of the treaty itself lacked any language showing that the Union intended to convey title to the Shoshones.

Dawes v. Eriacho, No SC-CV-09-08 (Nav. Sup. Ct. May 5, 2008)

Issue(s): Criminal Procedure > Pretrial Detention >> Bail or Bond >>> Requirements

Navajo Code of Criminal Procedure Rule 15(d) requires judges state the reasons for denying bail “for the record.” At Dawes’ initial appearance, the district court allegedly denied bail because Dawes lived in Albuquerque and therefore was a flight risk. From detention, Dawes filed a written request for release, but the district court did not respond. Did the district court violate Rule 15(d)?

Yes, said the Navajo Supreme Court. Previously, Navajo case law was not clear if the district court must give written reasons for denying bail to a defendant under Rule 15(d). In Apachito v. Navajo Nation, the Court held that, while written reasoning is unnecessary, the judge must at least state her rationale in a recorded bail hearing. But later, Seaton v. Greyeyes held that the lack of written reasoning violated the defendants due process rights. Seaton was about the right to a speedy trial. The lack of written reasoning was just one of several factors the Court considered, concluding that delays in holding Seaton’s trial violated due process. The Court, here, affirmed the basic rule of Apachito explaining that the Rule’s primary purpose is to assure that the defendant understands why she will remain in detention. Thus, the Court held that, by itself, the district court’s failure to explain in writing its decision to deny bail did not justify Dawes’ release.

The prosecutor alleged that the district court verbally told Dawes why it denied her bail request. The district court recorded the exchange, but neither party introduced the transcript into the record before the Court. Dawes did not deny that the district court verbally advised her of its reasons. Essentially, the Court found the record on this point too sparse and did not decide whether the apparent verbal exchange satisfied Rule 15(d).

Instead of remanding, however, the Court turned to another fact and broadened the scope of Rule 15(d). After the initial denial, Dawes, from jail, filed a written request for release. The prosecution responded, but the district court completely ignored the pleadings. The Court said that the district court’s failure to hear Dawes’ request was equivalent to denying bail without any reasons “for the record.” Thus, the Court held that the district court violated Rule 15(d), and therefore Dawes’ due process rights, and ordered Dawes’ release.

Notes on Dawes

1. It was interesting to see the Court confront inconsistency in its case law. While Apachito seems to be the correct rule, the Court’s analysis distinguishing Seaton was not entirely convincing. In fact, later in the opinion, the Court cites Seaton for the proposition that a Rule 15(d) violation is a due process violation. Because the Court didn’t outright overrule the relevant part of Seaton, it seems to leave the door open for future argument that writing might be required under some circumstances. So, future Rule 15(d) cases may not be as predictable as the Court’s opinion might suggest.
2. Another thought -provoking part of the opinion was this alleged “verbal exchange.” While the Court’s refusal to rule on an incomplete record is unsurprising, what would have happened if the record contained the transcript? How would the Court square the district court’s verbal reasoning with the district court’s failure to respond to Dawes’ second release request? My guess is that the Court would have required the district court to do something with Dawes’ second request; that the failure to respond violated due process. It would be more difficult, however, for the Court to say that the district violated Rule 15(d). If it did rely on Rule 15(d), it would seem to read a right to multiple bail hearings into the Rule.

Experimenting with a little bit different format for case summaries. We’ll see how it goes…