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Navajo Supreme Court Upholds Nation’s Regulatory Authority Over Power Plant Employment October 31, 2007

Posted by rezjudicata in Navajo Supreme Court, Tribal Courts.
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Thinn v. Navajo Generating Station, SC-CV-25-06, slip op. (Nav. Sup. Ct. October 19, 2007) 

Issue(s): Administrative Law > Agency Jurisdiction >> Subject Matter Jurisdiction; Navajo Fundamental Law > Governmental Powers & Duties >> Waiver

The Navajo Generating Station is a power plant operating on Navajo trust lands pursuant to a lease between the Navajo Nation and several utilities. The appellants worked for the Station and a subcontractor. The station and subcontractor terminated the appellants employment. Appellants then filed complaints with the Navajo Nation Labor Commission arguing that the terminations violated the Navajo Preference in Employment Act, 15 N.N.C. § 604 et. seq. The Station countered–and the Commission agreed–that the Commission lacked subject matter jurisdiction over the dispute because the aforementioned lease waived the Nation’s regulatory authority over employment at the plant.

The Supreme Court responded that only “unmistakable,” unambiguous words of the Council can waive governmental authority. Clarity or ambiguity in the waiver is determined by examining the waiver’s language, the agreement as a whole and the legal context of the waiver’s adoption. According to the Court, the term “operation” did not unmistakably include “employment.” The Court reasoned that the lease never defined the term, which could mean mechanical or technical operation of the plant; and other sections of the lease that specifically contemplated employment showed that employment was not intended to be part of the general waiver. Next, the Court looked to Navajo Fundamental Law to gauge the legal context of the lease. Under Navajo Fundamental Law, public officials have a fiduciary duty to protect the rights of the tribe and government. This includes the duty to protect both employees and employers because employment is “central to…the well being of the people.” Thinn, slip op. at 8. The Council could not delegate employment regulation to a non-Navajo entity because doing so would violate its fiduciary duties. Therefore, the Council could not legally have understood “operation” to include “employment” when it signed the lease. Finding the lease provision ambiguous, the Court reversed the Commission, upholding the Nation’s authority to regulate employment at the power plant.

Finally, the Court held that the apparently contradictory 9th Circuit decision Arizona Public Service Co. v. Aspaas, 77 F.3d 1128 (1996) was not binding on the Navajo courts. The Court reasoned that federal courts must defer to interpretations of tribal law by the tribe’s highest court just like state law and state courts.

Cert Denied to Reber v. Utah October 29, 2007

Posted by rezjudicata in SCOTUS.
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As expected, the Supreme Court this morning denied cert to Reber v. Utah. The order is available here (pg. 3).

Testimony Concludes in Cobell v. Kempthorne October 26, 2007

Posted by rezjudicata in Uncategorized.
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Indianz.com is reporting that both sides in the historic accounting case have finished presenting evidence. Transcripts are available here.

10/26 Conference Update October 25, 2007

Posted by rezjudicata in SCOTUS.
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The Justices of the Supreme Court will consider one Indian law case in the October 26 conference.

Reber v. Utah

In 2002, the State of Utah convicted the Petitioners for poaching. The Petitioners claimed that the state had no jurisdiction over them because they were Indian and the alleged crime occurred in Indian country. The Utah Court of Appeals agreed with the Petitioners and vacated their convictions. The Utah Supreme Court, however, reversed. Following the jurisdictional test of Solem v. Bartlett, the Court ruled that the state did have jurisdiction because the Petitioners were not Indians nor was there an Indian “victim.” To determine that the petitioners were not Indian, the court relied on the 1846 U.S. Supreme Court case of U.S. v. Rogers. Rogers ruled that one must have a significant degree of Indian blood and be recognized as an Indian by a tribe or the federal government. Utah’s Supreme Court ruled as a matter of law that 1/16 Indian blood is not a “significant degree.” Alternatively, the Court reasoned, the petitioners belong to the Uintah Band, which was terminated in part by legislation in the 1950s. Thus they legally have zero Indian blood because their ancestors lost their status as Indians. The petitioners also failed the second prong of Rogers: the Uintah Band is not recognized by the federal government. Therefore, the Court reversed the appellate court and reinstated the petitioners convictions.

In their petition, petitioners argue that there are significant questions over whether the Ute Partition Act (UPA) severed the Uintah Band from the Ute Tribe and whether the UPA has any effect on treaty rights (i.e. hunting and fishing) of individuals born prior to UPA and not listed in the termination rolls.

Read the Utah Supreme Court decision: Utah v. Reber                                                                                                                       

Tenth Circuit Dismisses Wyandotte Land-Into-Trust Case October 25, 2007

Posted by rezjudicata in 10th Circuit, Federal Circuits.
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Governor of the State of Kansas,  et. al. v. Kempthorne

Issue(s): Sovereign Immunity › Federal Sovereign Immunity » Waiver; Administrative Law › Agency Actions » Land-Into-Trust

In 1984, Congress passed a law providing for compensation to the Wyandotte Nation for two-hundred years of land transfers to the United States. The law–P.L. 98-602–provided for per capita distribution of 80% of the money and allocated the remaining 20% for the Tribe to purchase real property. The Secretary of the Interior was then required to take into trust any property purchased with this so-called “105(b) money.” Initially, the Wyandottes invested the money. In 1995, the Wyandottes negotiated the purchase of a tract of land in Kansas City, Kansas with the intent to develop gaming on the site. The Tribe then applied to the Secretary to take the land into trust under P.L. 98-602. The Governor of Kansas, the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, and the Prairie Band of Potawatomi Indians filed suit claiming that the Secretary could not take the land into trust because the Wyandottes did not exclusively use 105(b) money to make the purchase. A convoluted process resulted that ultimately led the District Court to remand the case the administrative agency whereupon the court ordered the case closed. In the interim the Secretary did take the land into trust and the plaintiffs filed another, wholly new lawsuit based on the same facts and contentions.

Citing the Quiet Title Act, the Tenth Circuit dismissed the case. The Quiet Title Act waives the sovereign immunity of the United States for certain actions regarding title, but expressly excepts cases involving “trust or restricted Indian lands.” The Court found the plaintiffs action to be a “quiet title” action under the Act. The Court found the timing of the lawsuit and the timing of the Secretary’s decision to take the land into trust to be dispositive. Because the Secretary took the land into trust before the current lawsuit was filed, sovereign immunity stripped the Court of jurisdiction over the case. Even though the original litigation began before the Secretary granted trust status, the district court entered final judgment on that case without ruling on the merits, and certain orders purported to preserve the parties’ rights, the Tenth Circuit refused to fuse the two actions. It held that it could not reanimate rights preserved in the original case because doing so would be effectively authorizing a suit against the Uniteds States, which it had not power to do. Therefore, the Court dismissed the case for want of jurisdiction.

9th Circuit Orders En Banc Rehearing of Navajo Nation v. US Forest Service October 18, 2007

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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The Ninth Circuit ordered an en banc rehearing of Navajo Nation v. US Forest Service. In March 2007, the Ninth Circuit ruled that the federal government’s plan to use treated sewage to make snow for a ski area in the San Francisco Peaks violated the Religious Freedom Restoration Act (RFRA), 42 USC §§ 2000 et seq. Several tribes challenged the plan claiming that such actions degraded a sacred site.

Ho-Chunk Nation Supreme Court Rules in Due Process Case October 11, 2007

Posted by rezjudicata in Ho-Chunk Nation Supreme Court, Tribal Courts.
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Lone Tree v. Garvin, SU 07-04, slip op., (HCN Sup. Ct., Oct. 6, 2007)

Issues: Constitutional Law-Due Process–Procedural Due Process; Administrative Law-Review of Agency Actions

Garvin (appellant) suspended and then terminated Lone Tree (appellee) after an investigation into accusations that Lone Tree sexually harassed a female co-worker. The Nation’s Grievance Review Board found that the investigation afforded Lone Tree sufficient due process because the investigator spoke to him about the allegations. The Trial Court reversed the the GRB’s decision and the Supreme Court affirmed. The Supreme Court held that there must be a pre-deprivation hearing separate and distinct from any investigation. Though the Court declined to describe an adequate hearing, it clearly contemplated an adversarial-type procedure where both sides are able to present arguments and evidence. The Court also held that a court may review agency constitutional interpretations de novo.

Cobell v. Kempthorne Trial Opens October 11, 2007

Posted by rezjudicata in District Courts.
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The latest phase in the historic trust accounting case opened Wednesday, October 10. You can follow the trial on the Cobell v. Kempthorne page.

October 10 AM Session Hearing Transcript

Cert Denied for Three Indian Law Cases October 1, 2007

Posted by rezjudicata in SCOTUS, Uncategorized.
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The Supreme Court denied cert in Gros Ventre Tribe v. United StatesCatawba Indian Nation v. South Carolina and Yakima Nation v. Colville Tribes