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New Mexico Supreme Court Says Road Separating Pueblos Not “Indian Country” February 29, 2008

Posted by rezjudicata in State Courts.
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State v. Quintana, No, 29,909 (N.M. Jan. 25, 2008)

Issue(s): State Jurisdiction > Crimes >> Indian Country; Indian Country > Definitions >> Venetie Test

If not within the exterior boundaries of a reservation, land is “Indian Country” only if it qualifies as a “dependent Indian community.” New Mexico charged Quintana with several crimes stemming from a car accident that occurred on State Road 16. The road acts as the boundary between the Cochiti and Santo Domingo Pueblos and is the only northern access to Cochiti Pueblo. Is the road “Indian Country” for purposes of state criminal jurisdiction?

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2/22 Conference Update: Carcieri v. Kempthorne – Cert Granted February 25, 2008

Posted by rezjudicata in SCOTUS.
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The Supreme Court has granted certiorari to Carcieri v. Kempthorne. The Court’s review will be limited to Questions 1 and 2 of the petition. These are:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934; and

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

Though SCOTUSblog correctly predicted this grant, it erroneously identified the issue as clarification of “the federal government’s power to take land for the benefit of Indian tribes that are not officially recognized.”

2/22 Conference Update: Carcieri v. Kempthorne February 22, 2008

Posted by rezjudicata in 1st Circuit, SCOTUS.
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Carcieri v. Kempthorne

Basic Issues & Background

The origins of this case lie in a complex tangle of historical, political, and legal maneuvers. Its resolution, however, rests on two relatively narrow legal issues.

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Idaho Supreme Court Holds That Shoshone-Bannock Water Rights Not Ceded to City February 21, 2008

Posted by rezjudicata in State Courts.
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City of Pocatello v. Idaho, No. 33669 (Idaho Feb. 19, 2008)

Issue(s): Constitutional Law > Property Clause >> Water Rights; Water Law > Federal Water Rights >> Grants; Treaties > Construction

In the mid-1880s, the federal government negotiated a cessation agreement between the Shoshone and Bannock Tribes of the Fort Hall Reservation and the trespassing citizens of Pocatello. By statute, Congress implemented the agreement saying that Pocatello citizens would have “use…of the waters” on the Reservation, “in-common with the…Indians.” The cessation agreement, however, did not mention water rights. Did the statute grant a federal water right to the City of Pocatello?

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2/15 Conference Update: MacArthur v. San Juan County (II) February 19, 2008

Posted by rezjudicata in SCOTUS.
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The Supreme Court has denied certiorari to MacArthur v. San Juan County. The order list is here.

Next up: Carcieri v. Kempthorne, set for the 2/22 conference.

Iowa Supreme Court Affirms Transfer of ICWA Case to Meskwaki Tribal Court February 18, 2008

Posted by rezjudicata in State Courts.
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In the Interest of N.V. and P.V., No 18/07-0583 (Iowa Feb. 15, 2008)

Issue(s): Iowa ICWA > Child Welfare Proceedings >> Transfer to Tribal Court >>> Grounds for Denying Transfer

Aside from a few listed exceptions, under the Iowa ICWA, a state court must transfer a child welfare proceeding to tribal court upon the request of either parent. The State instituted child in need of assistance proceedings in 2005. In 2007, at the termination hearing, both the mother and father requested that the court transfer the case to Meskwaki Tribal Court. Can the state court deny the parents’ request because it was untimely?

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Fort Peck Court of Appeals Rules on Timing of Rights Admonishments February 17, 2008

Posted by rezjudicata in Fort Peck Court of Appeals, Tribal Courts.
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Fort Peck Tribes v. First, No. 467 (Ft. Peck App. Jan. 25, 2008)

Issue(s): Criminal Procedure > Post-arrest Admonishments

Upon arrest, the Fort Peck Tribal Code requires police officers to “immediately” advise suspects of tribal rights. After First violated terms of his probation, the probation officer called the Tribal Police Department to arrest First. The officer did not advise First of his rights until the car ride to jail. By failing to admonish First at the scene of arrest, did the officer illegally detain the defendant?

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D.C. Circuit Upholds Secretary’s Rejection of Tribal Constitution February 17, 2008

Posted by rezjudicata in DC Circuit, Federal Circuits.
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California Valley Miwok Tribe v. United States, No. 06-5203 (D.C. Cir. Feb 15, 2008)

Issue(s): Tribal Government > Organization >> Federal Benefits; Tribal Constitutions > Secretary Approval >> Indian Reorganization Act; Administrative Law > Approval Standards >> Chevron Deference

The Indian Reorganization Act requires the Secretary of the Interior to approve tribal constitutions adopted under the Act. During an internecine power struggle, Burley and a small cadre of supporters adopted a constitution and submitted the document for Secretary approval. The Secretary refused to approve the constitution. Though Burley’s faction represented a small minority of the California Valley Miwok Tribe’s membership, did the Secretary have to approve their constitution?

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2/15 Conference Update: MacArthur v. San Juan County February 15, 2008

Posted by rezjudicata in SCOTUS.
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MacArthur v. San Juan County

Case Summary

From the NARF Supreme Court Project: “On November 13, 2007, attorneys representing individual tribal members filed a petition for cert seeking review of a decision by the U.S. Court of Appeals for the Tenth Circuit which held that the Navajo Tribal Courts do not have subject matter jurisdiction over employment related claims against the San Juan Health Services District which operates a clinic within the exterior boundaries of the Navajo Nation. In MacArthur, the tribal member plaintiffs sought to enforce the tribal court’s preliminary injunction orders against clinic and county officials through the federal courts. In applying the analysis of Montana and its progeny, the Tenth Circuit found that Montana‘s consensual relationship exception does apply to a nonmember who enters into an employment relationship with a member of the tribe on the Reservation. However, based on its understanding of Nevada v. Hicks, the Tenth Circuit held that Montana‘s consensual relationship exception only applies to “private” consensual relations, not to consensual relations by the state or state officials acting in their official capacity on the Reservation. The San Juan Health Services District filed their brief in opposition is on December 20, 2007.”

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Oklahoma Supreme Court Opens Tribe to Private Dram Shop Action February 8, 2008

Posted by rezjudicata in State Courts.
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Bittle v. Bahe, 2008 OK 10 (Okla. Feb 5, 2008)

Issue(s): Tribal Sovereignty > Alcohol Regulation >> Rice v. Rehner; Tribal Sovereign Immunity > Congressional Abrogation >> 18 USC 1161 >>> Private Causes of Action; Tribal Sovereign Immunity > Waiver >> Licensing Agreements

Federal law (18 USC § 1161) permits liquor sales in Indian Country as long as the transactions comply with state and tribal laws. An intoxicated driver struck and injured Bittle. Bittle alleged that the Absentee Shawnee Tribe’s casino served the driver alcohol and sued the Tribe under Oklahoma’s common-law dram shop jurisprudence. The Tribe agreed to observe Oklahoma laws in order to obtain the casino’s liquor license from the state. Does § 1161 abrogate the Tribe’s immunity? If not, did the Tribe waive immunity in the licensing agreement?

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