Category: Tribal Law

The President’s FY2016 Federal Budget Request: Programs Relevant to Tribal Energy Development

Lewis Roca Rothgerber LLP

The White House transmitted its Fiscal Year 2016 Budget Request to Congress on February 2, 2015.  Overall, the budget includes over $7.4 billion in funding for clean energy technology programs across the federal agencies.  Most relevant to Indian tribes, tribal utilities, and tribal business are funding requests to continue existing energy and related environmental programs, as well as a few new initiatives, that support clean energy development and climate change resiliency efforts on tribal lands.  Starting with the Department of Energy, the budget requests $20 million for the Office of Indian Energy for financial and technical assistance, capacity building, and deployment of energy, energy infrastructure, microgrids, and energy efficiency projects.  A newly proposed initiative is theTribal Energy Loan Guarantee Program, with a request of $11 million.  The loan guarantee program would provide underwriting and credit subsidies for loan guarantees for tribally owned energy generation projects.

In the Department of Agriculture budget request, the Rural Energy for America Program, which tribes and tribal enterprises are eligible to participate in, maintains a budget request of $10 million to provide grants and loans for deployment of renewable energy and energy efficiency projects.  The Rural Utility Service request includes $14 million for High Energy Costs grants, and $6 billion in additional lending authority to support the deployment of rural utility renewable energy generation, energy efficiency projects, transmission and distribution power lines. Under the USDA Substantially Underserved Trust Areas (SUTA), tribes are now eligible for RUS grants and loans.  Additional USDA budget requests include programs that can be leveraged for energy development and climate change adaptation, such as the Forest Service Stewardship Contracting ($14 million), National Resource Conservation Service Technical Assistance ($1.5 billion), Farm Service Agency Conservation Program ($311 million).

The budget request for the Department of the Interior, which includes the Bureau of Indian Affairs, the Bureau of Reclamation and the Bureau of Land Management, is approximately $140 million for energy development, water energy conservation, and tribal hydro infrastructure improvement.  These programs include the Office of Indian Energy and Economic Development, with a budget request of approximately $50 million for energy, mineral, workforce development and loan guarantee program.  The BIA also proposes $50 million for climate change resiliency efforts on tribal lands.  And, the BIA has requested $27 million for resource management for Indian irrigation and dams that provide power to Indian tribal lands.  The BOR requested $161 million for water energy conservation grants.  Lastly, the Office of Surface Mining has requested $1 billion for states and tribes for reclamation of abandoned mine lands.

The Environmental Protection Agency has proposed a new initiative, with a $4 billion request, called the Clean Power State Incentive Fund.  This Fund would provide financial assistance to states and tribes to support their obligations under the proposed Clean Power Plan.  Tribes also participate in the Indian General Assistance Program, which has a budget request of $96 million.  And, tribes are eligible to participate in the Brownfield Program, a technical assistance program for state, local and tribal governments to determine better uses – including renewable energy projects – for brownfields.  The Brownfield Program request is $110 million.

Additional budget proposals that may be of interest to tribes include a permanent renewable energy production tax credit, which would be expanded to include solar technology and would be refundable.  The President has also proposed a new “Carbon Dioxide Investment and Sequestration Tax Credit” to support the commercial deployment of carbon capture, utilization, and storage technologies.  Finally, the President has proposed the “POWER + Plan” to help communities dependent on coal and fossil energy resources adapt to the changing energy landscape.  Over $55 million is proposed for Department of Labor, Department of Agriculture, EPA, Department of Commerce programs under this effort.

As Congress begins its annual budget and appropriation committee efforts,  tribes and tribal enterprises are encouraged to monitor these efforts.

ARTICLE BY

Pilar Thomas
OF
Lewis Roca Rothgerber LLP

Indian Nations Law Focus – August 2014

In Cayuga Indian Nation of New York v. Seneca County, N.Y., 2014 WL 3746795 (2d. Cir. 2014), the Cayuga Indian Nation had refused to pay taxes on land that had been alienated in the early 19th century in violation of the Indian Non-Intercourse Act but reacquired by the nation in the modern era and held in fee simple title. The district court held that, even though the county had the right to impose a property tax on the property, it could not foreclose for non-payment because of the Nation’s sovereign immunity. The Second Circuit affirmed, rejecting the county’s argument that a foreclosure action was in rem (against the property) rather than against the nation: “In Michigan v. Bay Mills Indian Community, [cite omitted], the Supreme Court once again held that tribes retain, as a necessary corollary to Indian sovereignty and self-governance, a common-law immunity from suit. This treatment of tribal sovereign immunity from suit is an avowedly broad principle, and the Supreme Court (like this Court) has thought it improper suddenly to start carving out exceptions to that immunity, opting instead to defer to the plenary power of Congress to define and otherwise abrogate tribal sovereign immunity from suit.” (Internal cites and quotes omitted.)

In Alabama-Coushatta Tribe of Texas v. United States, 2014 WL 3360472 (5th Cir. 2014), the Tribe sued various Department of Agriculture agencies, challenging the National Park Service’s issuance of permits to drill for oil or gas in the Big Thicket National Preserve; (2) the Forest Service’s issuance of drilling permits for privately owned mineral estates located under the Sam Houston and Davy Crockett National Forests; (3) the Bureau of Land Management’s issuance of oil and gas leases for land in the Sam Houston and Davy Crockett National Forests, and the collection of royalties and rent payments from these leases; and (4) the National Forest Service’s exploitation and sale of timber resources from the Davy Crockett and Sam Houston National Forests. The Tribe contended that it heldaboriginal title to the subject lands and that the federal permits violated the federal government’s obligations under the common law trust doctrine and the Non-Intercourse Act. The district dismissed for lack of subject matter jurisdiction and the Fifth Circuit affirmed, holding that the tribe had failed to allege “agency action” sufficient to meet the standards required for waiver of the Government’s sovereign immunity under the Administrative Procedure Act: “[T]he tribe’s lawsuit is an impermissible programmatic challenge, and therefore, we lack jurisdiction over these claims. The Tribe’s complaint fails to point to any identifiable action or event. Instead, the complaint brings a challenge to the federal management of the natural resources on the land in question. The complaint contends only that all of the leases, permits, and sales administered by multiple federal agencies, including any ongoing action by these agencies that encroach on the Tribe’s aboriginal title, are unlawful. These are allegations of past, ongoing, and future harms, seeking ‘wholesale improvement’ and cover actions that have yet to occur. Such allegations do not challenge specific ‘agency action.’” 

In U.S. v. Whiteagle, 2014 WL 3562716 (7th Cir. 2014), Timothy Whiteagle was convicted of 12 federal offenses under 18 U.S.C.A. §§ 371 and 666, including conspiracy, corruption, bribery, tax evasion and perjury, arising out of his scheme to bribe Pettibone, a Ho-Chunk nation legislator, into using his influence to cause the nation to award tribal business to three different vendors that had hired Whiteagle. After the court sentenced Whiteagle to 10 year’s imprisonment, he appealed, arguing that there was insufficient evidence of Pettibone’s knowing participation in the charged conspiracy and acts of bribery, that the district court erred in permitting the introduction of certain evidence, that the court erred in estimating amounts lost to the nation and that the moneys conveyed to Pettibone were incorrectly characterized as bribes rather than gratuities. The Seventh Circuit rejected all of Whiteagle’s arguments and affirmed: “It was reasonable to infer, as the district court did, that the three companies were willing to pay Whiteagle such large sums of money specifically because of his relationship with Pettibone and his professed ability to deliver Pettibone’s vote and influence within the Ho-Chunk legislature. Moreover, Whiteagle’s insistence that his role be kept quiet (recall MCA’s laundering of his compensation through Support Consultants, and Whiteagle’s suggestions that Trinity hide the proposed consulting fees meant for Atherton and himself in other expenses) supported an inference that his compensation was not legitimately earned. It is also a fair inference, given the evidence presented at trial, that it was the bribes Whiteagle transmitted to Pettibone, rather than Whiteagle’s persuasiveness as a lobbyist, that secured Pettibone’s favorable action as a legislator:” 

In Narula v. Delbert Services Corporation, _____ F.Supp.2d ___, (E.D. Mich. 2014), Narula had borrowed $5,000 from Western Sky Financial, LLC (Western Sky), a reservation-based payday lender. Western Sky transferred the loan to Delbert Services Corporation. After defaulting, Narula sued in federal court, alleging that the loan violated the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. Delbert contended that the plaintiff was required by the loan agreement to arbitrate her claims and, further, that the loan agreement provided for exclusive jurisdiction in the Cheyenne River Sioux Tribe Court. The district court dismissed, holding that the tribal court had no jurisdiction over the parties “because neither party has any ties whatsoever to the tribal nation,” but that the arbitration clause was enforceable: “Allegations of fraudulent schemes are not sufficient to overcome the strong federal policy in favor of arbitration. The central question is whether the plaintiff’s claim of fraud, as stated in the complaint, relates to the making of the Arbitration Agreement itself. Here, there are no allegations in the complaint that Defendant fraudulently induced Plaintiff to agree to an arbitration clause.” 

In Blue Lake Rancheria v. Morgenstern, 2014 WL 3695734 (E.D. Cal. 2014), a federally recognized tribe, Blue Lake Rancheria Economic Development Corporation (EDC), a corporation owned by the tribe and chartered under Section 17 of the Indian Reorganization Act, and Mainstay Business Solutions, a subsidiary of the EDC (collectively, “Plaintiffs”) provided employee staffing services to businesses. Plaintiffs sued California officials seeking declaratory and injunctive relief related to the defendants’ enforcement of state unemployment taxes mandated by the Federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq. (FUTA), including encumbering tribal lands and assets, in violation of Plaintiffs’ alleged tribal sovereignty. Plaintiffs sought to amend their complaint to add a claim under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for injunctive relief. Citing the Supreme Court’s 2003 decision in Inyo County, California v. Paiute–Shoshone Indians, the Court denied the motion, holding that the the Plaintiffs were seeking to vindicate sovereign rights and, therefore, were not “persons” with standing to sue under Section 1983: “Plaintiffs are not seeking to protect individual rights from government encroachment, but to protect the communal interests of the tribe in a financial relationship with the State of California. This special relationship is the direct result of Plaintiffs exercising their ‘prerogative’ to become a reimbursable employer, a choice afforded to them as a federally recogn
ized Indian tribe.” 

In Navajo Nation v. U.S. Dept. of the Interior, 2014 WL 3610948, not reported in F.Supp.2d (D. Ariz. 2014), the United States had, in 1954, intervened in a water rights suit in its role as trustee in order to assert federally reserved Winters water rights in the Lower Colorado River on behalf of a number of entities. On behalf of the Navajo Nation, the government asserted a claim only with respect to water from the Little Colorado River, a tributary of the Colorado. The litigation ultimately resulted in no allocation of water rights for the nation but allocations did occur in a number of subsequent federal actions. In the instant case, the Navajo Nation sought to establish rights to Colorado River Lower Basin water, arguing that, under the Winters doctrine, the United States “impliedly reserved for the benefit of the Navajo Nation a sufficient amount of water to carry out the purposes for which the Reservation was created, specifically to make the Reservation a livable homeland for the nation’s present and future generations.” The nation further asserted that the government was required by its trust obligation to assure sufficient water for the nation. Specifically, the nation contended that various interim rules administered by the federal government were adopted in violation of the National Environmental Protection Act (NEPA). The United States conceded that the nation has reserved water rights under the Winters doctrine but contended that it had assisted the nation with acquisition of water supply in the San Juan Settlement and that it was pursuing the nation’s Winters rights in the ongoing general adjudication of the Little Colorado River System. The district court dismissed the nation’s claims, holding that the nation had no standing to bring the NEPA-based claims because it could not demonstrate that the federal regulations prejudiced its Winters rights. The court acknowledged that “the United States owes a generaltrust responsibility to Indian tribes,” but held that “unless there is a specific duty that has been placed on the government with respect to Indians, the government’s general trust obligation is discharged by the government’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” 

In Black v. U.S., 2014 WL 3337466 (W.D. Wash. 2014), police officers of the Suquamish and Port Gamble S’Klallam Indian Tribes (PGST), with the assistance of county sheriff’s deputies, sought to arrest PGST member Callihoo at a home owned by Anthony Black, a non-Indian, on fee land within the boundaries of the Suquamish reservation. In the ensuing confrontation, officers shot and killed Black. Black’s sister, who also resided at the home, brought a civil rights action pursuant to 42 U.S.C. § 1983 against the tribes and the tribal police officers. The court dismissed the claims against the tribes, but not the officers, on sovereign immunity grounds, holding that the officers acted in concert with sheriff’s deputies and, therefore, arguably under “color of state law” for Section 1983 purposes: “Tribal sovereign immunity, like other types of sovereign immunity, extends to officers acting in their official capacity and within the scope of their authority. However, this does not alter ‘the rule that individual capacity suits related to an officer’s official duties are generally permissible.’ Since Black is suing the officers in their individual capacities for actions taken within the scope of their employment under the color of state law, she has established a cognizable claim under § 1983 that may proceed under the jurisdiction of this Court.” 

In Harvey v. Ute Indian Tribe of Uintah and Ouray Reservation, 2014 WL 2967468, not reported in F.Supp.2d. (D. Utah 2014), plaintiffs initially sued four defendants in state court, including the Ute Indian Tribe of the Uintah and Ouray Reservation and officials of the Ute Tribal Employment Rights Office (UTERO), seeking a declaration with respect to the tribe’s and UTERO’s exercise of authority over non-Indians in certain categories of land based on principles of federal Indian law and also alleging two state-law causes of action, tortious interference with economic relations and extortion, against the UTERO defendants. Two of the defendants consented to state court jurisdiction. Later, the tribe removed the case to federal court, but that court remanded for lack of federal jurisdiction, holding that the removal required unanimity among the defendants, which could not be obtained: “Because the Initial Defendants manifested an intent to litigate in state court, and because they failed to remove soon after they became aware of possible federal-question issues, they waived their right to removal and their right to consent to removal. Removal to this court was therefore improper.” 

In Wells Fargo Bank, N.A. v. Chukchansi Economic, 118 A.D.3d 550 2014 WL 2721993, — N.Y.S.2d —- (N.Y. App. 2014), Chukchansi Economic Development Authority (CEDA), an agency of the Picayune Rancheria of Chukchansi (tribe), had issued $310 million in bonds to finance construction of a casino resort. The bond indenture Agreement required that CEDA deposit all revenues from the Casino’s operation into deposit accounts at Rabobank, and also required that CEDA, Wells Fargo, and Rabobank execute a Deposit Account Control Agreement (DACA). Competition between two factions, each purporting to be the tribe’s official government, triggered litigation over control of casino revenues in multiple jurisdictions, including New York. The trial court had granted a preliminary injunction ordering the CEDA to maintain deposits at Rabobank and, later, had granted plaintiff’s motion to dismiss appellants’ counterclaim, granted defendants-respondents’ motion to dismiss appellants’ cross claims, and denied appellants’ motions to modify the court’s July 2, 2013 preliminary injunction. Appellants subsequently appealed from the court’s refusal to modify the preliminary injunction. The appellate court held that the state court lacked jurisdiction over an intra-tribal dispute: “Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. The jurisdiction conferred on the New York courts by 25 USC § 233 “does not extend beyond the borders of this State” The tribe in the instant action is located in California, not New York. Furthermore, 25 USC § 233 “does not authorize courts of the State of New York to become embroiled in internal political disputes amongst officials of [an Indian tribe]’s government” (Bowen, 880 F Supp at 118; see also id. at 116, 120, 122–123). However, to decide whether the Ayala faction’s actions were illegal, a court would have to determine whether the Ayala faction was the legitimate Tribal Council; this it may not do.” 

In Simmonds v. Parks, (Alaska 2014), the Minto Tribal Court had terminated the parental rights of Edward Parks, a member of the Native Village of Stevens, and Bessie Stearman, a member of the Native Village of Minto, to their daughter S.P. The tribal court did not permit the attorney for Parks and Stearman to argue orally at the hearing that the court lacked jurisdiction due to Parks’ non-membership in the Minto Native Village. Parks did not file an appeal with the Minto Court of Appeals but instead sued S.P.’s foster parents, the Simmondses, in state court to regain custody of S.P. The Simmondses moved to dismiss Parks’s state lawsuit on the basis that the tribal
court judgment terminating parental rights was entitled to full faith and credit under the Indian Child Welfare Act(ICWA). The superior court denied the motion to dismiss, concluding that full faith and credit was not warranted because the tribal court had denied Parks minimum due process by prohibiting his attorney from presenting oral argument. The Alaska Supreme Court reversed, holding that Parks was required to exhaust his tribal court remedies and that the state court lacked jurisdiction: “Through ICWA’s full faith and credit clause, Congress mandates that states respect a tribe’s vital and sovereign interests in its children. This requires that we give the same respect to tribal court judgments that we give to judgments from a sister state. As a measure of that respect, we have refused to allow a party to collaterally attack a sister state’s judgment when the party failed to appeal in that state’s courts. Looking to federal law to interpret ICWA’s full faith and credit mandate, we find persuasive the policies underlying the federal doctrine of exhaustion of tribal remedies, and we adopt that doctrine in this context. Unless one of the exceptions to the exhaustion doctrine discussed below applies, we will not allow a party to challenge a tribal court’s judgment in an ICWA-defined child custody proceeding in Alaska state court without first exhausting available tribal court appellate remedies.”

The Supreme Court Decides Bay Mills Case, Leaves Tribal Sovereign Immunity Intact

Godfrey Kahn

In its long-awaited decision in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court today re-affirmed its 1998 holding in Kiowa Tribe v. Manufacturing Technologies, Inc. 523 U.S. 751 (1998) that tribal sovereign immunity extends to tribes’ governmental and commercial activities, both on reservation and off. In a 5-4 decision, the Court affirmed the Sixth Circuit’s decision that the Indian Gaming Regulatory Act waiver of tribal sovereign immunity for suits to enjoin gaming on Indian lands in violation of a tribe’s gaming compact with a state did not apply to tribal gaming on non-Indian lands and that the State was barred by the doctrine of sovereign immunity from suing the Tribe directly for damages.

The Court rejected Michigan’s arguments that Kiowa was wrongly decided and that tribes should enjoy no immunity with respect to their commercial, off-reservation activities. The majority opinion, authored by Justice Kagan and joined by Justices Roberts, Kennedy, Breyer and Sotomayor, emphasized the doctrine that the court should not overrule its previous decisions without special justification (stare decisis), pointing out that (1) the Court had explicitly invited Congress to consider limitations on tribal sovereign immunity its Kiowa decision, (2) Congress had, in fact, considered several bills that would have imposed broad limits but had not enacted any of them (“Having held in Kiowa that this issue is up to Congress, we cannot reverse ourselves because some may think its conclusion wrong” Slip. Op. 20), and (3) Michigan had other means of enforcing state law against Bay Mills, including denial of required licenses, suits against employees and officials of the tribe to enjoin violations of state law and criminal prosecution of tribal officials and employees and for violations of state criminal laws.

The Court concluded:

As “domestic dependent nations,” Indian tribes exercise sovereignty subject to the will of the Federal Government. …Sovereignty implies immunity from lawsuits. Subjection means (among much else) that Congress can abrogate that immunity as and to the extent it wishes. If Congress had authorized this suit, Bay Mills would have no valid grounds to object. But Congress has not done so: The abrogation of immunity in IGRA applies to gaming on, but not off, Indian lands. We will not rewrite Congress’s handiwork. Nor will we create a freestanding exception to tribal immunity for all off reservation commercial conduct. This Court has declined that course once before. To choose it now would entail both overthrowing our precedent and usurping Congress’s current policy judgment.

In her concurring opinion, Justice Sotomayor asserted that the historical basis for tribal sovereign immunity is stronger than the dissent recognized and that the result reached by the majority is consistent with comity in view of the fact that State sovereign immunity prevents states from being sued by tribes. Justice Sotomayor also pointed out the special challenges that tribes face with respect to raising revenue and the role that their commercial enterprises play in funding government.

The unmistakable premise of the dissenting opinion, authored by Justice Thomas and joined by Justices Scalia, Ginsburg and Alito, is that sovereign immunity as currently exercised by tribes under the rule of Kiowa has led to widespread, grave and intolerable injustices. These injustices, according to the dissenters, warrant departing from the rule of stare decisis to correct the Court’s “mistake” in the Kiowa decision:

In Kiowa, this Court adopted a rule without a reason: a sweeping immunity from suit untethered from commercial realities and the usual justifications for immunity, premised on the misguided notion that only Congress can place sensible limits on a doctrine we created. The decision was mistaken then, and the Court’s decision to reaffirm it in the face of the unfairness and conflict it has engendered is doubly so.

Dissent, slip Op. 18.

Justice Thomas’ opinion highlights areas, including taxation, tobacco commerce, payday lending and campaign finance, in which tribes have “exploited” immunity to avoid state regulation. In a separate dissenting opinion, Justice Ginsburg expressed her view that the Court had gone too far not only in expanding the scope of tribal sovereign immunity in Kiowabut also in expanding state sovereign immunity from suits by tribes to enforce federal laws in Seminole Tribe v. Florida, 517 U.S. 44 (1996). Justice Ginsburg would impose greater limits on the immunity of both sovereigns.

The Court’s decision leaves unclear two areas of tribal sovereign immunity jurisprudence. First, the Court expressly acknowledged that it has never “specifically addressed” whether immunity “should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. The argument that such cases would present a ‘special justification’ for abandoning precedent is not before us” Slip. Op. 16, n.8. The Court’s comment will be viewed as an invitation for a plaintiff to make the argument that this situation does indeed present a “special justification” for an exception to immunity.

The Court’s opinion also leaves unaddressed the extent to which tribal sovereign immunity applies to subsidiary entities. In a footnote, the dissent observed, without comment, that “[l]ower courts have held that tribal immunity shields not only Indian tribes themselves, but also entities deemed ‘arms of the tribe.’ … In addition, tribal immunity has been interpreted to cover tribal employees and officials acting within the scope of their employment.”

The consequences of the Court’s decision are likely to be (1) arguments by state lobbyists that Congress should take action to limit tribal immunity for the reasons set forth in the dissenting opinion and (2) suits based on the assertion that there should be an exception to tribal sovereign immunity for a “tort victim or other plaintiff who has not chosen to deal with a tribe” who has “no alternative way to obtain relief for off-reservation commercial conduct.”

Article By:

Brian L. Pierson
Of:
Godfrey & Kahn S.C.

Supreme Court Decides Indian Child Welfare Act Case

GK_Logo_Full-Color (CMYK)

In Adoptive Couple v. Baby Girl, — S.Ct. —-, 2013 WL 3184627 (U.S. 2013), the baby girl in question (Baby Girl) was born in Oklahoma to unwed parents, including a Cherokee father (Father) and non-Indian mother (Mother). After the couple broke up during the pregnancy, Father, in response to an inquiry from Mother, text-messaged Mother that he would rather give up parental rights than pay child support. Mother decided to terminate her parental rights and give the baby up for adoption.

The adoptive parents (Adoptive Parents), residents of South Carolina, were present when Baby Girl was born September 15, 2009, and took her home with them shortly after receiving permission from Oklahoma pursuant to the Interstate Compact on Placement of Children. Adoptive Parents began adoption proceedings in South Carolina three days after Baby Girl was born but Father did not receive notice until nearly four months later, in January 2010. when a process server presented him with an “Acceptance of Service and Answer,” which purported to waive the 30-day waiting period, waive notice of hearing and waive any objection to the adoption. Father, a soldier about to depart for Iraq, signed but then immediately changed his mind and sought a stay of adoption under the Servicemember’s Civil Relief Act.

The Cherokee Nation, which had previously indicated that Father was not a citizen, later determined that he was. The South Carolina adoption petition was amended accordingly in March 2010. After establishing paternity through DNA testing, Father challenged the adoption. Adoptive parents argued that, under South Carolina law, there was no need for Father’s consent to the adoption because Father had neither lived with Mother or Baby Girl for the six months preceding the adoption nor paid child support. The South Carolina family court judge ruled that the Indian Child Welfare Act (ICWA) applied and mandated that Baby Girl be turned over to father. After various stay motions were denied, Father returned to Oklahoma with Baby Girl December 31, 2011. The South Carolina Supreme Court affirmed.

On June 25, the Supreme Court in a 5-4 decision reversed. The state court had relied in part on Section 1912(f) of the codified ICWA, which bars termination of parental rights to an Indian child unless the court finds that “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Emphasizing the word “continued,” the Court held that “§ 1912(f) does not apply where the Indian parent never had custody of the Indian child” (Emphasis in original).

The Court also disagreed with the South Carolina court’s conclusion that termination of Father’s rights was barred by Section 1912(d), which requires a showing that efforts have been made “to prevent the breakup of the Indian family,” holding Section 1912(d) inapplicable in Father’s case: “But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no relationship that would be discontinued – and no effective entity that would be ended – by the termination of the Indian parent’s rights.” (Internal quotes and ellipses omitted).

Finally, the Court held that Section 1915(a), which mandates preference “in any adoptive placement” for a member of the child’s extended family, other members of the child’s tribe or other Indian families, in that order, did not apply in the case of Baby Girl: “This is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.”

In an important concurrence, Justice Breyer explicitly left open whether ICWA sections 1915(a), (b) and (f) might apply under different circumstances, e.g., where the Indian father (1) has visitation rights, (2) has paid child support, (3) was deceived about the existence of a child, or (4) was prevented from supporting his child.

In a dissent joined by three other members of the Court, Justice Sotomayor accused the majority of distorting the meaning of the term “continued” to defeat the very purposes for which Congress had enacted the ICWA:

The majority’s hollow literalism distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now if, at the age of 3 1/2, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.

According to the dissent, “continued” custody, consistent with congressional intent, means prospective custody and does not preclude the application of ICWA’s protections to a non-custodial Indian parent, including (1) the requirement that a proceeding be transferred to tribal court upon the Indian parent’s request, in the absence of good cause to the contrary, as required by Section 1911(b), (2) the requirement that any consent to adoption be in writing and executed before a judge, per Section 1913(a), (3) the requirement of Section 1912(a) that an Indian parent and the child’s tribe receive notice, and (4) the requirement of Section 1912(b) that the Indian parent be provided with legal counsel.

The dissent also sends a message to the state court, which will now consider the case on remand, laying out a scenario that could result in Father having no parental rights but having a relationship with his own daughter through relatives:

[T]he majority does not and cannot foreclose the possibility that on remand, Baby Girl’s paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl. If these parties do so, and if on remand Birth Father’s parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in § 1915. The majority cannot rule prospectively that § 1915 would not apply to an adoption petition that has not yet been filed. Indeed, the statute applies “[i]n any adoptive placement of an Indian child under State law,” 25 U.S.C. § 1915(a) (emphasis added), and contains no temporal qualifications. It would indeed be an odd result for this Court, in the name of the child’s best interests, cf. ante, at —-, to purport to exclude from the proceedings possible custodians for Baby Girl, such as her paternal grand-parents, who may have well-established relationships with her.

In an odd concurring opinion, Justice Thomas blesses the majority for not reaching more fundamental constitutional questions but then embarks on an originalist reimagining of federal Indian law pursuant to which (1) Congress had no authority to enact the ICWA, (2) the doctrine of congressional plenary power is error, (3) congressional power is strictly limited to commercial trade with Indian tribes located beyond state borders, and (4) congressional power does not extend to citizens of tribes. The idea behind concurrences of this nature is to plant seeds that the author hopes will germinate into a majority of the court at some future date.

Violence Against Women Act Renewed

Dickinson Wright Logo

Early last month, Congress renewed and extended federal legislation known as the “Violence Against Women Act” or “VAWA.”  The VAWA was originally enacted in 1994, and at that time, its objective was as clear as its name – to prevent and address domestic violence, primarily against women.  The VAWA reformed how the law grapples with domestic violence.  But the VAWA’s enactment has perhaps transformed how we look at domestic violence and the victims who struggle with it at home.

The original legislation that made up the VAWA ensured free access to court protective orders regardless of income level, established the National Domestic Violence Help-Line, and was the legislative source for fiercely contested “rape shield laws” that prohibit evidence relating to a victim’s past sexual history.  The VAWA also required training among civil servants and medical personnel to help encourage victims of domestic violence to identify themselves and reach out for help.  We likely do not notice how the VAWA has kept us mindful of the dangers of violence in the family.  After all, how often does one reflect on anti-stalking laws?  Yet, with any trip to an urgent care, emergency room, or radiologist’s lab a medical provider will ask: “Are you involved in a relationship where you don’t feel safe?”  That’s the VAWA.  And while the VAWA’s name may seem to have everything to have to do with women, the act’s recent reenactment has a much more expansive view – and reach.

Under the original enactment, some Native American tribal members were previously left out in the cold following a 1978 Supreme Court ruling in the case of Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), which limited a tribe’s jurisdiction over non-Indian abusers.  Native American tribes will now have greater authority to prosecute non-Indian abusers under the reenacted VAWA, based on a special jurisdictional provision to the law. However, a tribe’s jurisdiction to address the victimization of a tribal member is restricted only to those non-Indians with significant ties to the prosecuting tribe, those who reside in the Indian country of the prosecuting tribe, or are employed in the Indian country of the prosecuting tribe, or are either the spouse or intimate partner of a member of the prosecuting tribe.  Although some critics question whether limited jurisdiction over non-Indian defendants will withstand Constitutional muster, many in support of the VAWA’s reenactment are hopeful that the ability of tribes to prosecute non-Indian offenders in some instances will reduce the nearly 40-70% of rape potential prosecutions against non-Indians that are declined by federal prosecutors.

The VAWA reenactment is also aimed at targeting cyber-bullying and other instances of abuse that were not the focus of the VAWA originally.  Protections for men and members of the “LGBT” (Lesbian Gay Bisexual and Transgender) community who are struggling with domestic violence now enjoy greater recognition under the updated law.  These changes to the VAWA send a clear message that domestic violence is not a “women’s issue” – it’s a family one because anyone can be a victim of domestic violence.

Article By:

 of

Congress Renews Violence Against Women Act, Expands Tribal Court Jurisdiction

The National Law Review recently featured an article by Brian L. Pierson with Godfrey & Kahn S.C., regarding Recent Congressional Actions:

Godfrey & Kahn S.C. Law firm

On February 28, 2013 the House of Representatives approved Senate Bill 47, which reauthorizes and amends the Violence Against Women Act of 1994 (VAWA). The Bill, already approved in the Senate, became law when the President signed it on March 7th.

The VAWA is a major legislative achievement for Indian country. The Supreme Court held in 1978 that tribes lack inherent power to exercise criminal jurisdiction over non-Indians. For the first time since that decision, Congress has authorized tribes to exercise such jurisdiction. Title IX of the VAWA amends the Indian Civil Rights Act (ICRA) to permit tribes to exercise “special domestic violence criminal jurisdiction” over non-Indians who are charged with domestic violence, dating violence, and violations of protective orders that occur on their lands. Features of special domestic violence criminal jurisdiction include:

  • either the perpetrator or victim must be Indian
  • the tribe must prove that the defendant has ties to the tribal community
  • tribal jurisdiction is concurrent with state and federal jurisdiction
  • the defendant has the right to a trial by an impartial jury that is drawn from sources that –
    • reflect a fair cross section of the community; and
    • do not systematically exclude any distinctive group in the community, including non-Indians
  • In the event that a sentence of imprisonment “may” be imposed, the tribe must guarantee the defendant the enhanced procedural rights added to the ICRA by the Tribal Law and Order Act of 2010, including:
    • effective assistance of counsel, paid for by the tribe if the defendant is indigent
    • a legally trained judge licensed to practice law
    • published laws and rules of criminal procedure
    • recorded proceedings

Copyright © 2013 Godfrey & Kahn S.C.

Tribal Corporate Bankruptcy Petition Raises Issues of First Impression for Bankruptcy Court

The National Law Review recently featured an article by Christine L. Swanick, Carren B. Shulman, and Wilda Wahpepah with Sheppard, Mullin, Richter & Hampton LLP regarding Tribal Bankruptcy Petitions:

Sheppard Mullin 2012

On March 4, 2013, ‘SA’ NYU WA, Inc., a tribally-chartered corporation wholly owned by the Hualapai Indian Tribe, filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court, District of Arizona. This is a very important case for tribes and any party conducting business with tribes because the petition will raise a question of first impression for the Bankruptcy Court. The Bankruptcy Court will have to decide whether a tribal corporation is eligible to be a debtor under the Bankruptcy Code.

Federally recognized tribes likely are not eligible for bankruptcy protection. This is because Section 109 of the Bankruptcy Code provides direction as to who may be a debtor: only a “person” or a “municipality” may file a bankruptcy petition for relief. Neither “person” or “municipality,” as defined by the Bankruptcy Code, expressly includes or excludes an Indian tribe, and no reported court decisions have expressly addressed whether an Indian tribe is eligible to file for bankruptcy as person, municipality, or otherwise. The definition of “person” under the Bankruptcy Code excludes “governmental units” from being eligible debtors. The Bankruptcy Code defines a “governmental unit” as, among other things, an “other foreign or domestic government.” A number of courts have examined whether an Indian tribe is a “governmental unit” for purposes of applying the sovereign immunity provisions contained in Section 106 of the Bankruptcy Code. The majority of cases (including cases decided in the United States Bankruptcy Court for the District of Arizona) examining Section 106 of the Bankruptcy Code have found that an Indian tribe is a “governmental unit” within the meaning of the Bankruptcy Code. See In re Platinum Oil Properties, LLC, 465 B.R. 621 (Bankr. D.N.M. 2011) reconsideration denied, 11-09-10832 JA, 2011 WL 6293132 (Bankr. D.N.M. Dec. 12, 2011); Russell v. Ft. McDowell Yavapai Nation, 293 B.R. 34 (Bankr. D. Ariz. 2003); Davis Chevrolet Inc. v. Navajo Nation, 282 B.R. 674 (Bankr. D. Ariz. 2002); Turning Stone Casino v. Vianese, 195 B.R. 572 (Bankr. N.D.N.Y. 1995); Gilbert v. Shape, 25 B.R. 356 (Bankr. D. Mont. 1982); In re Sandmar Corp., 12 B.R. 910 (Bankr. N.M. 1981). Additionally, last year the United States Bankruptcy Court, Southern District of California dismissed a Chapter 11 petition filed by the Santa Ysabel Resort and Casino, a gaming enterprise of the Iipay Nation of Santa Ysabel, a federally recognized Indian tribe. The dismissal order of the Court simply granted the creditors’ motions to dismiss the petition.

However, in this case, the debtor alleges that it is a chartered tribal corporation, separate from the Hualapai Indian Tribe which owns it. The Bankruptcy Code allows a “corporation” to file for bankruptcy protection. The United States Bankruptcy Court, District of Arizona will have to decide whether a corporation organized under tribal law is a “corporation” for purposes of the Bankruptcy Code. In the non-bankruptcy context, the Seventh Circuit, in a case interpreting the federal Indian Gaming Regulatory Act and the federal diversity statute, 28 U.S.C. § 1332, held in Wells Fargo v. Lake of the Torches, 658 F.3d 684 (7th Cir. 2011), that a tribal corporation was a “corporation” and a citizen of the state of Wisconsin for purposes of determining federal diversity jurisdiction.

Outside of the bankruptcy context, federal and tribal law applicable to Indian tribes extends to a tribe’s wholly-owned instrumentalities and entities; however, whether the relief and remedies typically available with respect to non-tribal corporate debtors under the Bankruptcy Code is available to tribal corporate debtors, likely will be addressed by the Arizona bankruptcy court. For example, just as in the case of a tribe, land used or beneficially owned by a tribal corporation may actually be owned by the United States in trust for the tribe and therefore cannot be subject to sale or alienation in a bankruptcy case. Similarly, federal approvals may need to be obtained with respect to use or disposition of assets owned by a tribal corporation. If a tribal corporation is engaged in Indian gaming operations, which the debtor in the present case is not engaged in, federal law restricts the ownership of such gaming operations to the tribe on whose lands the tribal casino is located and requires third party managers to obtain federal approval.

The petition has the potential to make new law in other respects. For example, if a tribal corporation is found to be eligible as a debtor under the Bankruptcy Code, can creditors in future cases force tribal corporations into involuntary bankruptcy, despite the potential sovereign immunity of tribal corporations? If a tribal corporation is eligible as a debtor, can creditors “pierce” the corporate veil of the tribal corporation and reach assets of the shareholder tribe, or will the Bankruptcy Court follow non-recourse provisions that may be found in the tribal corporation’s organic documents or in its business contracts? Outside the context of bankruptcy, courts considering whether suits against a tribal corporate entity may also proceed against the parent tribe have declined to apply veil-piercing principles. See, e.g., Morgan Buildings & Spas, Inc. v. Iowa Tribe of Oklahoma d/b/a BKJ Solutions et al., Case No. CIV-09-730-M, 2011 WL 308889, *1 (Jan. 26, 2011 W.D. Okla.).

Given recent tribal defaults and restructurings, the outcome of this case will no doubt be watched by tribes and lenders to tribes.

Shawn Watts contributed to this article.

Copyright © 2013, Sheppard Mullin Richter & Hampton LLP