Native American Law Report, March 2015 issue

MEALEY’STMTM

Native American Law ReportMarch 2015 Volume 1, Issue #1

High Court Denies Certiorari In Case Involving Sale Of Interest In CasinoWASHINGTON, D.C. — The U.S. Supreme Court on Feb. 23 denied a petition for writ of certiorari in case forbreach of contract after the buyers and guarantors breached their payment obligations for the purchase of membershipinterest in a casino, leaving stand lower court decisions finding that the plaintiffs could not unilaterally modify theguaranty agreement and that the Indian tribe and its authority had not waived its defenses to the claims. SEE PAGE 4.

California Federal Judge: Water Right Reserved, But Land Act Extinguished ClaimRIVERSIDE, Calif. — A federal judge in California on March 20 granted partial summary judgment in favor ofthe Agua Caliente Band of Cahuilla Indians and the United States’ claim that the government implicitly reservedappurtenant water sources, including underlying groundwater, when it created the tribe’s reservation, but granted thedefendants partial summary judgment on the tribe’s aboriginal title claims, saying a land act effectively extinguishedany such right. SEE PAGE 10.

Government Asks Judge To Dismiss Indian Tribe’s ACA Employer Mandate ChallengeCHEYENNE, Wyo. — An Indian tribe waived its objections to the Patient Protection and Affordable Care Act(ACA)’s large employer mandate by not raising them during the rulemaking process, and its action runs afoul of theAnti-Injunction Act’s (AIA) bar on tax challenges taxes, the government told a federal judge on March 19. SEE PAGE 15.

Tribe Members’ Class Claims For Compensation Filed Too Late, Judge FindsSIOUX FALLS, S.D. — Class claims filed by four members of the Cheyenne River Sioux Tribe alleging that theUnited States violated its trust and fiduciary duties by taking their land without just compensation are barred by thestatute of limitations and because there is no waiver of sovereign immunity, a South Dakota federal judge ruledFeb. 26 in granting the government’s motion to dismiss the claims. SEE PAGE 21.

Chippewa Indian Tribe Opposes High Court Review Of Hunting DecisionWASHINGTON, D.C. — The Lac Courte Oreilles Band of Lake Superior Chippewa Indians on March 9 askedthe U.S. Supreme Court to deny a petition for writ of certiorari filed by the State of Wisconsin and leave intact aSeventh Circuit U.S. Court of Appeals decision finding that the tribe had met its burden to show that a total ban onthe nighttime hunting of deer was no longer necessary to ensure public safety. SEE PAGE 22.

Wyoming Federal Judge: Eagle Permit Violates Exercise Of ReligionCHEYENNE, Wyo. — Calling the issue one of first impression, a Wyoming federal judge on March 12 held thatthe First Amendment to the U.S. Constitution forbids the federal government from imposing the burden of law onone federally recognized Indian tribe’s free exercise of religion for the benefit of another Indian tribe. SEE PAGE 23.

Parties File Summary Judgment Motions In ‘Redskins’ Trademarks SuitALEXANDRIA, Va. — The owners of the Washington Redskins professional football team on Feb. 23 filed amotion for summary judgment in a Virginia federal court in its challenge to the cancellation of six federal trademarkregistrations relating to the team, while the defendants on Feb. 26 filed a motion for partial summary judgment, sayingthat there was no error committed in the cancellation of the marks because the evidence shows the marks ‘‘maydisparage’’ Native Americans. SEE PAGE 27.

Supreme Court Denies Review Of Ruling On Washington Escrow StatuteWASHINGTON, D.C. — The U.S. Supreme Court March 9 denied a petition for review of a ruling requiringa tobacco distributor owned by the Yakama Indian Nation to escrow funds to reimburse the State of Washingtonfor health care costs related to tobacco use. SEE PAGE 29.

Cheryl Keelyeditor

Joan Grossman, Esq.managing editor

Jennifer Haycopy desk manager

Amy Bauermarketing brand manager

Toria Dettraproduction associate

To contact the editor:Cheryl Keely (215) 988-7727

email: [email protected]

The Reportis produced monthly by

LexisNexisª Mealey’s�

1600 John F. Kennedy Blvd., Suite 1655

Philadelphia, PA. 19103(215) 564-1788

Customer Service:1-800-MEALEYS (1-800-632-5397)Email: [email protected]

Web site: www.lexisnexis.com/mealeys

Print: $995* for a full year* Plus sales tax, shipping and handling where applicable.

An online version of this report withemail delivery is also available through

LexisNexis on www.lexis.com. Contactyour LexisNexis representative or call1-800-223-1940 for details.

PRINT ISSN

ONLINE ISSN

EBOOK ISBN 9781632827265

LexisNexis and the Knowledge Burst logo are

registered trademarks of Reed Elsevier Prop-

erties Inc., used under license. Mealey’s is a

trademark of LexisNexis, a division of Reed

Elsevier Inc. ª 2015, LexisNexis, a division of

Reed Elsevier Inc. All rights reserved.

MEALEY’STMTM

Native American Law ReportMarch 2015 Volume 1, Issue #1

Cases in this Issue Page

Ted Gatzaros, et al. v. The Sault Ste. Marie Tribe of Chippewa Indians, et al.,No. 14-665, U.S. Sup. ........................................................................................ 4

Narragansett Indian Tribe v. State of Rhode Island, et al., No. 12-322, R.I. Sup..... 6Texas v. Ysleta Del Sur Pueblo, No. 99-320, W.D. Texas ........................................ 7State of Michigan v. Aaron Payment, et al., No. 1:12-cv-962, W.D. Mich. ............. 9Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District,

et al., No. 13-883, C.D. Calif. ....................................................................... 10Center for Biological Diversity v. United States Bureau of Land Management,

et al., No. 14-226, White Pine County, et al. v. United States Bureauof Land Management, et al., No. 14-228, D. Nev............................................. 12

Crow Allottees Association, et al. v. United States Bureau of Indian Affairs,No. 14-62, D. Mont., Billings Div ..................................................................... 13

Northern Arapaho Tribe, et al. v. Sylvia Burwell, et al., No. 14-247, D. Wyo......... 15Amy Coppe v. The Sac & Fox Casino Healthcare Plan, et al., No. 14-2598,

D. Kan................................................................................................................. 16Gila River Indian Community v. Sylvia Matthews Burwell, et al., No. 14-943,

D. Ariz. ................................................................................................................ 17Navajo Health Foundation — Sage Memorial Hospital Inc. v. Sylvia

Mathew Burwell, et al., No. 14-958, D. N.M.................................................... 19Casimir L. Lebeau, et al. v. United States of America, No. 14-4056, D. S.D........... 21State of Wisconsin, et al. v. Lac Courte Oreilles Band of Lake Superior

Chippewa Indians, et al., No. 14-792, U.S. Sup. ............................................... 22Northern Arapaho Tribe v. Daniel Ashe, in his official capacity of U.S. Fish &

Wildlife Service Director, No. 11-347, D. Wyo. ........................................... 23Jose Rojas v. James Heimgartner, No. 14-3178, 10th Cir. ........................................ 26Pro-Football Inc. v. Amanda Blackhorse, et al., No. 14-1043, E.D. Va.................... 27Confederated Tribes and Bands of the Yakama Indian Nation, et al. v. Robert

McKenna, No. 14-947, U.S. Sup. ...................................................................... 29State of New York v. Mountain Tobacco Co., et al., No. 12-6276, E.D. N.Y......... 30Western Sky Financial, et al. v. Deborah Jackson, et al., No. 14-991,

U.S. Sup. ......................................................................................................... 31Benjamin D. Harris v. Lake of the Torches Resort & Casino, No. 2014AP1692,

Wis. App., Dist. 3 ............................................................................................... 33Resources For Indian Student Education Inc. v. Cedarville Rancheria of

Northern Paiute Indians, et al., No. 14-2543, E.D. Calif. ................................. 35Navajo Nation v. San Juan County, No. 12-39, D. Utah ......................................... 37Eric Williams, et al. v. CashCall Inc., No. 14-903, E.D. Wis. ............................. 39Michelle Joan Roberts, et al. v. Robert Kelly, et al., Belmont, et al. v. Robert

Kelly, et al., Nos. 2013-CI-CL-003, 2014-CI-CL-007, Nooksack Tribal.......... 41Ronald D. Allen, Jr., et al. v. Robert H. Smith, et al., No. 13-55552, 9th Cir. ....... 42Ventura County Human Services Agency v. B.G., et al., No. B255712,

Calif. App., 2nd Dist., Div. 6 ............................................................................. 43

Published document is available at the end of the report. For other availabledocuments from cases reported on in this issue, visit www.mealeysonline.com or call1-800-MEALEYS.

In this Issue

GamingHigh Court Denies Certiorari In CaseInvolving Sale Of Interest In Casino ...................... page 4

Narragansett Indian Tribe’s Facial ChallengeTo Rhode Island’s Casino Act Fails........................ page 6

Texas Federal Judge Finds Tribe ViolatedInjunction Prohibiting Gaming.............................. page 7

Tribal Officers Claim Sovereign ImmunityIn Michigan Casino Dispute .................................. page 9

Water RightsCalifornia Federal Judge: Water RightReserved, But Land Act ExtinguishedClaim ................................................................... page 10

Nevada Federal Judge Dismisses 1 Count InChallenge To Water Pipeline Approval ................ page 12

Crow Water Allottees Lack Standing ForLegal Defense, Indian Affairs Says........................ page 13

Natural Resources Committee OutlinesProcess For Water Rights Settlements .................. page 14

Health CareGovernment Asks Judge To Dismiss IndianTribe’s ACA Employer Mandate Challenge ..............page 15

Plan Participant Need Not Exhaust TribalRemedies Under ERISA, Judge Rules .................. page 16

Breach Claim Dismissed; ReimbursementClaim Continues In Funding Dispute.................. page 17

New Mexico Federal Judge Declines ToTransfer Dispute Over Hospital Funding............. page 19

Land TakingTribe Members’ Class Claims For CompensationFiled Too Late, Judge Finds .........................................page 21

Regulation Of ActivityChippewa Indian Tribe Opposes High CourtReview Of Hunting Decision............................... page 22

Exercise Of ReligionWyoming Federal Judge: Eagle PermitViolates Exercise Of Religion ............................... page 23

10th Circuit Affirms Prison Did Not ViolateNative American’s Religious Rights ...................... page 26

TrademarksParties File Summary Judgment MotionsIn ‘Redskins’ Trademarks Suit ............................. page 27

TobaccoSupreme Court Denies Review Of RulingOn Washington Escrow Statute ........................... page 29

Judge: New York May Seek Discovery FromOwner Of Native American TobaccoCompany ............................................................. page 30

Tribal JurisdictionLoan Company Petitions High Court OverArbitration Ruling In Loan Dispute ..................... page 31

Wisconsin Appeals Court Affirms IndianTribe Did Not Waive SovereignImmunity............................................................. page 33

California Federal Judge Dismisses DisputeOver Pay For Lack Of Jurisdiction....................... page 35

VotingUtah Federal Judge Declines To DismissDispute Over Election DistrictBoundaries ........................................................... page 37

ArbitrationJudge Splits Arbitration Order For PlaintiffsIn Interest Rate Suit............................................. page 39

DisenrollmentParties To Maintain Status Quo PendingAppeal In Disenrollment Proceedings .................. page 41

Doctrine Of Ex Parte Young Does NotPermit Disenrollment Lawsuit, 9thCircuit Holds ....................................................... page 42

Family Law2 Minors Covered Under Indian ChildWelfare Act, California Appeals CourtRules .................................................................... page 43

Bureau Of Indian Affairs AnnouncesProposed Rule To Govern ChildWelfare................................................................. page 44

New Statute Provides For Same-SexMarriages In Tlingit, Haida Tribes ...................... page 45

MEALEY’S Native American Law Report Vol. 1, #1 March 2015

Cite as Mealey’s Native American Law Report, Vol. 1, Iss. 1 (3/15) at p.___, sec.___. 3

News

High Court Denies CertiorariIn Case Involving SaleOf Interest In CasinoWASHINGTON, D.C. — The U.S. Supreme Courton Feb. 23 denied a petition for writ of certiorari incase for breach of contract after the buyers and guaran-tors breached their payment obligations for the pur-chase of membership interest in a casino, leavingstand lower court decisions finding that the plaintiffscould not unilaterally modify the guaranty agreementand that the Indian tribe and its authority had notwaived its defenses to the claims (Ted Gatzaros, et al. v.The Sault Ste. Marie Tribe of Chippewa Indians, et al.,No. 14-665, U.S. Sup.).

(Petition available. Document #96-150325-015B.)

Membership Interest SoldTed and Maria Gatzaros owned a substantial member-ship interest in Monroe Partners, an entity that owned50 percent of Greektown Casino LLC, the operator ofGreektown Casino in Detroit. When the Gatzarosesdecided to sell their interest, Monroe agreed to redeemit for $265 million, to be paid to the Gatzaroses overtime in a series of ‘‘liquidation payments.’’ To accom-plish the redemption, the Gatzaros and Monroeentered into an ‘‘Amended and Restated Limited Lia-bility Company Redemption Agreement’’ on July 28,2000. The redemption agreement identified the‘‘Redemption Amount’’ as $265 million.

Contemporaneously with the redemption transaction,Monroe sold the Gatzaroses’ redeemed member-ship interest to Kewadin Greektown Casino for $265million. Monroe accomplished the sale of the Gat-zaroses’ interest through an ‘‘Amended and RestatedLimited Liability Company Subscription Agreement’’executed by Monroe and Kewadin on July 28, 2000.The subscription agreement defined the ‘‘SubscriptionAmount’’ as ‘‘the Redemption Amount,’’ in other words,

$265 million. In the subscription agreement, Kewadinagreed to pay Monroe the amounts owed to the Gat-zaroses under the redemption agreement as those pay-ments came due. The subscription agreement requiredKewadin to obtain a limited guaranty agreement fromthe Sault Ste. Marie Tribe of Chippewa Indians andthe authority binding them, with certain conditions pre-cedent, to pay the subscription amount in the eventthat Kewadin defaulted on its obligations under thesubscription agreement.

On the day the redemption and subscription agree-ments were executed, the tribe and the authority exe-cuted the guaranty agreement. The tribe and theauthority agreed to pay the subscription amount ifKewadin defaulted on the subscription agreement.

Recovery Sought

The Gatzaroses received most of the payments due tothem under the redemption agreement, but Kewadinultimately breached its payment obligation under thesubscription agreement with Monroe. Monroe in turnbreached its payment obligation to the Gatzarosesunder the redemption agreement. On May 29, 2008,Kewadin and Monroe filed for Chapter 11 bankruptcyprotection in the U.S. Bankruptcy Court for the East-ern District of Michigan.

In 2012, the Gatzaroses attempted to recover nearly $74million in principal and interest still owed to them underthe redemption agreement. The Gatzaroses’ counselnotified the tribe and the authority by letter that theGatzaroses, standing in the shoes of Monroe as third-party beneficiary to the guaranty agreement, were mod-ifying and accelerating the funding obligations of theguaranty agreement. The Gatzaroses eliminated limita-tions that had set the necessary conditions precedent onthe obligation of the tribe and the authority to pay underthe guaranty agreement if Kewadin defaulted on thesubscription agreement. The Gatzaroses declared the

Vol. 1, #1 March 2015 MEALEY’S Native American Law Report

4

remaining amount of the debt, plus attorney fees, im-mediately due and owed to them from the tribe andthe authority.

The Gatzaroses justified their unilateral action bypointing to ‘‘paragraph 8’’ of the guaranty agreement,which included various waivers by the tribe and theauthority. As third-party beneficiaries of the guarantyagreement, the Gatzaroses contended that they maystep into the shoes of Monroe and modify, accelerateand enforce the terms of the funding obligation withoutnotice and without affecting the obligation of the tribeand the authority to pay under the guaranty agreement.The Gatzaroses also contended that the tribe and theauthority waived all defenses because the guarantyagreement says the tribe and the authority ‘‘uncondi-tionally and irrevocably waive each and every defenseand setoff of any nature which, under principles ofguaranty or suretyship, would operate to impair ordiminish in any way the obligation of the Sault Tribeand the Authority under this Guaranty Agreement.’’

Case DismissedIn November 2012, the Gatzaroses sued the tribe andKewadin in the Wayne County Circuit Court, seekingdeclaratory relief concerning their rights under theguaranty to modify the funding obligations so theywere no longer subject to limitations that prevent repay-ment of the debt. The Gatzaroses also claimed that thedefendants had waived all of their contractual defenses.

The defendants removed the case to the U.S. DistrictCourt for the Eastern District of Michigan.

In July 2013, the District Court granted the defen-dants’ motion to dismiss for failure to state a claim.

In an August 2014 divided opinion, the Sixth CircuitU.S. Court of Appeals affirmed the District Court’sdecision, saying the Gatzaroses could not unilaterallymodify the guaranty agreement because the tribe andthe authority did not agree in writing to the modifica-tion, as the guaranty requires, and that they miscon-strue the meaning of the waiver language. The majorityalso said it found no merit in the Gatzaroses’ conten-tions that the tribe and the authority waived all defensesthey may have to the claims.

Judge Eric L. Clay dissented, saying the majority wasable to uphold the District Court’s ruling only by

‘‘uncritically construing all disputed issues in Defen-dants’ favor.’’ The judge said that because he disagreedwith the majority’s characterization of the guaranty’slanguage, he dissented.

High Court Review Sought

In December, the Gatzaroses filed a petition for writof certiorari with the Supreme Court, presenting fivequestions for review:

� ‘‘Whether the Majority Opinion of the UnitedStated Court of Appeals for the Sixth Circuit con-flicts with the decisions of this Supreme Courtand other Circuit Courts of Appeals, therebychanging the well-established rules of contractand construction which require specific contractprovisions govern over general provisions to re-solve disputes caused by two conflicting contractprovisions?’’

� ‘‘Whether the Majority Opinion is in direct con-flict with the decisions of this Supreme Court,other Circuit Courts of appeals and the fundamen-tal rules of contract construction which requirethe application of extrinsic evidence when there isan ambiguity caused by conflicting contractuallanguage?’’

� ‘‘Whether the Majority Opinion, in upholding thejudicial rewriting of paragraph 8 of the Guaranty, isin direct conflict with the decisions of this SupremeCourt and the other Circuit Courts of Appealswhich have held the courts must give effect tocontracts as written by the parties, and cannot re-write them?’’

� ‘‘Whether the Majority’s failure to find the Respon-dents waived their contract defenses contradictsestablished case law in the other Circuit Courts ofAppeals that a guaranty is a contract which mustbe enforced as written?’’

� ‘‘Whether the Majority’s Opinion conflicts with thewell-settled standard for reviewing a Motion to Dis-miss under Fed. Civ. R. 12(b)(6) when it failed to viewthe facts in the light most favorable to the Petitionersor accept their well-pled allegations?’’

CounselThomas L. Stroble and Mitchell H. Boardman ofStroble Law in Bloomfield Hills, Mich., represent theGatzaroses.


5

Grant S. Cowan of Frost Brown Todd in Cincinnatiand David A. Lerner of Plunkett Cooney in BloomfieldHills represent the defendants.

(Additional document available. Sixth Circuit opinion.Document #96-150325-016Z.) �

Narragansett Indian Tribe’sFacial Challenge To RhodeIsland’s Casino Act FailsPROVIDENCE, R.I. — The Rhode Island SupremeCourt on March 4 rejected the Narragansett IndianTribe’s challenge to the constitutionality of theRhode Island 2011 Casino Act, which resulted in theremoval of gaming machines from which the tribereceived income (Narragansett Indian Tribe v. Stateof Rhode Island, et al., No. 12-322, R.I. Sup.; 2015R.I. LEXIS 29).

(Opinion available. Document #96-150325-074Z.)

Twin River is a state-licensed gambling facility inRhode Island where video lottery terminal (VLT)machines are used. By statute, the tribe is entitled toreceive 0.17 percent of net terminal income from theauthorized VLT machines at Twin River up to a max-imum of $10,000,000 per year.

The 2011 Casino Act provides for the establishmentof state-authorized table games at Twin River. As aresult of the proposed establishment of table games,approximately 200 VLT machines were removedfrom Twin River.

The tribe filed a complaint against the State of RhodeIsland, seeking a declaration that the Casino Act vio-lates Article 6, Section 15, of the Rhode Island Con-stitution, which provides that ‘‘[a]ll lotteries shall beprohibited in the state except lotteries operated by

the state . . . and all shall be subject to the prescriptionand regulation of the general assembly.’’ The tribe alsoasserted that the Casino Act is unconstitutionallyvague and in violation of the nondelegation doctrinein Article 6, Sections 1 and 2, in that ‘‘it delegatescertain legislative powers to a private corporation with-out adequate legislative standards or safeguards speci-fied in the statute.’’

UTGR Inc., which operates Twin River, intervened asa defendant.

The Washington County Superior Court ruled thatalthough the tribe had standing, it failed to meet itsburden of proving beyond a reasonable doubt thatthe Casino Act is facially unconstitutional.

‘Operational Control’In January 2014, the Rhode Island Supreme Courtheld that the tribe had demonstrated ‘‘an injury infact’’ sufficient to maintain standing.

In the instant opinion, the Supreme Court affirmedpartial summary judgment in favor of Rhode Islandand UTGR.

The Supreme Court rejected the tribe’s argument basedon the nondelegation doctrine, saying that ‘‘regulationand operation are not mutually exclusive.’’ The courtnoted that the Casino Act gave the state the ‘‘power toterminate or suspend any casino gaming activities,’’which is ‘‘essential to the exercise of operationalcontrol.’’

In addition, the Casino Act provided that the stateshall ‘‘[h]old all other powers necessary and proper tofully effectively execute and administer the provisionsof’’ the Casino Act.

Facial ChallengeThe court also rejected the tribe’s facial challengebased on vagueness because vagueness claims must beevaluated based on the statute as applied to the factsof the case.

Similarly, because the tribe presented a facial challengeto the Casino Act, the Supreme Court declined toaddress the tribe’s argument that the statute ‘‘allowsthe State to potentially delegate disproportionatepower to a private entity to operate what is supposed

E M A I L T H E E D I T O R

email editor cheryl keely [email protected]


6

to be a State entity, in violation of the Rhode IslandConstitution.’’ The Supreme Court commented thatquestions regarding the operation of the Casino Actare properly raised in the as-applied challenge to thestatute that is pending in the Superior Court.

Justice Gilbert V. Indeglia wrote the court’s opinion andwas joined by Chief Justice Paul A. Suttell and JusticesFrancis X. Flaherty and William P. Robinson III.

The tribe is represented by William P. Devereaux ofPannone Lopes Devereaux & West. The state is repre-sented by Michael W. Field of the Office of the Attor-ney General. All are in Providence. �

Texas Federal Judge FindsTribe Violated InjunctionProhibiting GamingEL PASO, Texas — A federal judge in Texas onMarch 6 granted the state’s motion for contemptby the Ysleta del Sur Pueblo Indian tribe and its agentsfor violating an injunction prohibiting gaming deviceson the reservation in violation of state law without courtapproval of any modifications to the order (Texas v.Ysleta Del Sur Pueblo, No. 99-320, W.D. Texas;2015 U.S. Dist. LEXIS 28026).


Gaming ActivitiesIn 1987, Congress passed the Restoration Act, grantingthe Ysleta del Sur Pueblo Indian tribe full federal truststatus. Under the act, the tribe is restricted from con-ducting gaming operations on its lands. Though the actdoes not grant Texas civil or criminal regulatory juris-diction over the tribe’s gaming activities, Texas is notprecluded ‘‘from bringing an action in the courts of theUnited States to enjoin violations of [§ 1300g-6(a)]’’ ofthe act.

In 1993, the tribe opened the Speaking Rock Casinoand Entertainment Center on its reservation in El Paso.Speaking Rock began as a bingo hall, but it quicklyexpanded to a full-service casino, offering a wide varietyof gambling activities played with cards, dice and balls.

In September 1999, the State of Texas sued the tribeand various agents of the tribe in the U.S. District

Court for the Western District of Texas, seeking toenjoin the defendants from continuing to operate thegambling activities at Speaking Rock in violation ofthe Texas Penal Code and the Restoration Act.

The District Court issued its original injunction inSeptember 2001. In the order issuing the injunction,the court found that the tribe was conducting illegalgambling operations in violation of the Texas PenalCode and the Restoration Act. The court enjoinedthe tribe, Tigua Gaming Agency, Tribal Council ofthe Ysleta del Sur Pueblo, the tribal governor, the triballieutenant governor and the gaming commissionerfrom operating a number of gaming activities playedwith cards, dice, balls or any other gaming device. Theinjunction had the ‘‘practical effect of prohibiting illegalas well as legal gaming activities by the [tribe].’’

Modification RequestsIn October 2001, the defendants moved for a new trialand to amend judgment, asserting that the originalinjunction was overly broad. In November 2011, thecourt denied the motion. After an unsuccessful appealof the court’s refusal to modify the original injunction,the tribe ceased operation of the prohibited gamblingactivities at Speaking Rock in February 2002.

Less than a month later, Pueblo representatives sub-mitted an emergency motion for clarification of anorder granting summary judgment and injunction.The representatives sought a declaration that the useof certain electronic gaming devices and third-partysweepstakes would not violate the original injunction.In May 2002, the court modified its original injunctionto allow the third-party sweepstakes, but denied thetribe’s request to conduct its own sweepstakes absenta ‘‘firm and detailed proposal showing that said sweep-stakes would be in compliance with Texas law.’’

In September 2003, the defendants filed a secondemergency motion for clarification of the summaryjudgment and injunction order, seeking approval fora tribal sweepstakes promotion. The defendants soughtpermission to conduct a ‘‘Running Bear Prepaid PhoneCard Sweepstakes,’’ which centered around sweepstakesentries granted in connection with the purchase of pre-paid phone cards, as well as the related use of thosecards in ‘‘sweepstakes validation terminal[s].’’ Thecourt rejected the proposal on the grounds that thephone cards were ‘‘geared towards inducing purchasers


7

to participate in the sweepstakes contest so that theTribe will receive financial gain.’’

Contempt

Despite the court’s rejection of the proposal, the tribebegan operating electronic gaming devices at SpeakingRock in 2008. The tribe issued prizes won in the formof Visa debit cards.

Texas moved for contempt for violation of the 2001injunction.

In 2009, the court issued its second contempt order.After finding that the Visa debit card was the ‘‘equiva-lent of money’’ under the Texas Penal Code, the courtheld the individuals in contempt for operation of illegal‘‘gambling devices’’ in violation of the modifiedinjunction.

Simultaneous to the 2008 contempt proceedings, thedefendants filed their third emergency motion for clar-ification of order granting injunction. The motionsought a declaration that the tribe’s ‘‘Texas Reel Skill’’sweepstakes would not violate the modified injunction.In August 2009, The court rejected the proposal, find-ing that the tribe’s ‘‘representations of value’’ were ‘‘notindistinguishable’’ from the Visa debit cards and, there-fore, did not purge the illegality of the tribe’s gamingdevices. The court also found that the Texas Reel Skillssweepstakes was distinguished from the first proposalprimarily ‘‘by the substitution of prepaid internet accesscards for prepaid phone cards,’’ which is a ‘‘distinctionwithout a legal difference.’’

Less than a week after the court issued the order, thedefendants filed a proposal seeking approval for thetribe to conduct a sweepstakes in which participantsobtained entries through ‘‘various free methods orthrough a donation to the Tribe.’’ The court refusedpermission to conduct the sweepstakes described in theproposal, finding that the proposal lacked sufficientlydetailed information regarding the proposed use of elec-tronic gaming devices.

Order Violated

In spite of the order, the tribe did not cease sweepstakesoperations at Speaking Rock, and at some time between2010 and 2012, the tribe opened a second sweepstakesoperation at the Socorro Entertainment Center.

In September 2013, the State of Texas filed its secondmotion for contempt for violation of the 2001 in-junction order. After a serious of amendments, thestate filed the instant motion for contempt in March2014, asserting that the defendants are in violation ofthe modified injunction for operating an unauthorizedtribal sweepstakes, for operating illegal lotteries underTexas law and for operating illegal gambling devicesunder Texas law.

Following a show-cause hearing, Judge KathleenCardone granted the contempt motion, holding thatthe defendants are in contempt for operating un-approved tribal sweepstakes. Judge Cardone said thatcontrary to the defendants’ argument, the modifiedinjunction is not ambiguous and that the court‘‘made clear that in order to offer any gaming on itslands, the Tribe must first ‘petition the Court for amodification of any of the terms of the [Original][I]njunction that they believe might limit their abilityto participate in any legal gaming activity for which theyhave qualified under Texas law.’ ’’

Judge Cardone also held that the tribe’s sweepstakesare not national third-party vendor sweepstakes suchas those permitted under the modified injunction.The current sweepstakes are prohibited conduct, mean-ing the defendants are in contempt of the modifiedinjunction, the judge added.

LotteriesJudge Cardone said that because she found the defen-dants in contempt for operating tribal sweepstakeswithout approval, she need not reach the issue ofwhether the current sweepstakes are prohibited lotteriesunder Texas law. But because the court provided thedefendants with the opportunity to submit to the courta detailed sweepstakes proposal, Judge Cardone notedthat the current sweepstakes may potentially fall withinthe provisions of the Sweepstakes Act. As such, in anyproposal submitted to the court, the defendants mustaddress whether provisions of the Sweepstakes Actapply to the gaming operations submitted in the pro-posal, she added.

Any response the state makes should address the lawthat separates a legal promotional sweepstakes froma prohibited lottery under state law and how any pro-posal by the defendants does or does not comply withthat state law, Judge Cardone said. To date, evidence


8

submitted by the state has fallen short of the standardrequired, she added.

William T. Deane of the Office of the Attorney Generalin Austin, Texas, represents Texas. Justin J. Solimonand Randolph Barnhouse of Luebben Johnson & Barn-house in Albuquerque, N.M., and Richard AndrewBonner of Kemp Smith in El Paso represent thedefendants.

(Additional documents available: Contempt brief.Document #96-150325-036B. Blue Stone opposi-tion brief. Document #96-150325-037B. Puebloopposition brief. Document #96-150325-038B.) �

Tribal Officers ClaimSovereign Immunity InMichigan Casino DisputeGRAND RAPIDS, Mich. — Claims by the State ofMichigan that Indian tribal officers violated a 1993compact with the state by seeking to expand casinogambling operations outside the tribe’s reservationshould be dismissed because the ‘‘tribal officers re-main cloaked in the sovereign immunity of the Tribeitself,’’ the officers argue in a March 20 brief filed inMichigan federal court (State of Michigan v. AaronPayment, et al., No. 1:12-cv-962, W.D. Mich.).

(Brief in support of motion to dismiss available.Document #96-150325-061B.)

Land Trusts

The Sault Ste. Marie Tribe of Chippewa Indians oper-ates five casinos on Indian lands in the Upper Peninsulaof Michigan pursuant to a class III gaming compactbetween the state and the tribe entered into under theIndian Gaming Regulatory Act (IGRA).

In 2012, Michigan sued the tribe and 13 tribal officersin the U.S. District Court for the Western District ofMichigan, alleging that the tribe’s submission to theDepartment of the Interior to have nontribal landtaken into trust pursuant to the Michigan IndianLand Claims Settlement Act (MILCSA) violated thegaming compact with the state. The court dismissedall claims against the individual defendants without

prejudice but entered a preliminary injunction againstthe tribe barring it from filing its trust submission.

The Sixth Circuit U.S. Court of Appeals reversed anddissolved the injunction, finding that the District Courtlacked jurisdiction based on sovereign immunity. TheSixth Circuit also said that the issue of whether casinogambling on nontribal land violates the IGRA compactif the tribe’s trust submission is successful ‘‘is not ripefor adjudication because it depends on contingentfuture events that may never occur.’’

After the District Court dismissed the action, the tribein June 2014 filed two applications with the Depart-ment of the Interior to have two properties taken intotrust to operate casinos on the land. In response, thestate on Feb. 3 filed an amended complaint, again alle-ging breach of contract/compact claims but namingonly the tribal officers as defendants. The named defen-dants are Aaron Payment, Lana Causely, Cathy Abram-son, Keith Massaway, Dennis McKelvie, JenniferMcLeod, Debra Ann Pine, D.J. Malloy, CatherineHollowell, Darcy Marrow, Denise Chase, Bridget Sor-enson and Joan Anderson.

(Amended complaint available. Document #96-150325-062C.)

Sovereign ImmunityThe defendants, again arguing that the action shouldbe dismissed because the claims are barred by sovereignimmunity, say that the District Court ‘‘should reject theState’s naked effort to make an end-run around IGRAand the Sixth Circuit’s decision.’’

‘‘The Tribe itself, of course, is immune from suit atthis time, as the Sixth Circuit held and as this Courtrecognized in dismissing all claims against the Tribe.The State may not circumvent the Tribe’s immunityby changing the caption of its complaint to sue tribalofficers for the same alleged breach of compact,’’ thedefendants say.

Also, the defendants argue, the action should be dis-missed because the tribe itself is a party to the allega-tions but is immune to the claims.

‘‘The core allegation underlying each of the State’sfour claims is that the Tribe’s MILCSA submissionsbreached the gaming compact between two parties,


9

the State and the Tribe. It is a matter of both law andcommon sense that such a compact dispute cannotproperly be litigated when one contractual party (theTribe) is not present in the case because it is immune,’’the defendants say. ‘‘The complaint should thus bedismissed for failure to join a necessary party.’’

The suit also should be dismissed ‘‘under simple andblack-letter rules of contract and tort law’’ for failure tostate a claim under Federal Rule of Civil Procedure12(b)(6), the defendants say.

CounselThe defendants are represented by Seth P. Waxman,Danielle Spinelli, Kelly P. Dunbar and MatthewGuarnieri of Wilmer Cutler Pickering Hale and Dorrin Washington, D.C., and R. John Wernet Jr. of SaultSte. Marie Tribe of Chippewa Indians in Sault Ste.Marie, Mich.

The state is represented by Assistant Attorneys GeneralKelly Drake and Nate Gambill and Special AssistantAttorney General Louis B. Reinwasser of the MichiganDepartment of Attorney General, Environment, NaturalResources and Agriculture Division, in Lansing, Mich. �

California Federal Judge:Water Right Reserved, ButLand Act Extinguished ClaimRIVERSIDE, Calif. — A federal judge in California onMarch 20 granted partial summary judgment in favorof the Agua Caliente Band of Cahuilla Indians and theUnited States’ claim that the government implicitlyreserved appurtenant water sources, including under-lying groundwater, when it created the tribe’s reserva-tion, but granted the defendants partial summaryjudgment on the tribe’s aboriginal title claims, sayinga land act effectively extinguished any such right (AguaCaliente Band of Cahuilla Indians v. Coachella ValleyWater District, et al., No. 13-883, C.D. Calif.).

(Opinion in Section D. Document #96-150325-063Z.)

Water RightsThe Agua Caliente Band of Cahuilla Indians have livedin the Coachella Valley, which sits to the east of the San

Jacinto Mountains in southern California, since beforeAmerican or European settlers arrived in the area nowknown as California. The tribe has used surface waterand groundwater resources there for ‘‘cultural, domesticand agricultural subsistence purposes.’’

In May 1876, President Ulysses S. Grant establishedthe tribe’s reservation in an executive order. The reser-vation was expanded by President Rutherford B. Hayesin September 1877. The United States, pursuant tostatute, holds the lands of the reservation in trust forthe tribe.

In May 2013, the Agua Caliente sued the CoachellaValley Water District (CVWD) and the Desert WaterAgency (DWA) in the U.S. District Court for the Cen-tral District of California, seeking a declaration thattheir federal reserved water rights, which arise underthe doctrine of Winters v. United States (207 U.S.564 [1908]) extend to groundwater. The Agua Calienteclaim that the ‘‘establishment of the Reservation pur-suant to federal law impliedly reserved to the Tribe andits members the right to surface water and groundwatersufficient to accomplish the purposes of the reservation,including establishing a homeland for the Tribe andits members.’’ The Agua Caliente contends that thosereserved rights ‘‘are the most senior’’ in the region, and,as such, the Ague Caliente may prevent CVWD andDWA from adversely affecting the quantity and qualityof their water.

In June 2014, the court granted the United States’motion to intervene as a plaintiff in its capacity forthe tribe’s reservation. The United States’ complaintin intervention asserts claims materially similar to thetribe’s complaint regarding the claim for a declarationof federally reserved water rights, but it does not, how-ever, assert a claim regarding aboriginal water rights.

Phase IThe parties agreed to trifurcate the action into threephases. Phase I seeks to resolve the primarily legal ques-tions regarding the existence of the Agua Caliente’sfederal reserved rights to groundwater under the Win-ters doctrine and the tribe’s aboriginal rights to ground-water. Phase II, contingent to an extent on Phase I’sresolution, seeks to address the ownership of certain‘‘pore space’’ beneath the reservation, the legal questionof whether a right to quantity of groundwater encom-passes a right to water of a certain quality and some of


10

the equitable defenses asserted by the CVWD andDWA. In Phase III, if necessary, the court will under-take the fact-intensive task of quantifying the AguaCaliente’s rights to groundwater and pore space andcrafting appropriate injunctive relief.

All four parties moved for summary judgment pertain-ing to Phase I. The Agua Caliente argued that federallaw recognizes the tribe’s reserved right to groundwaterand that it also holds aboriginal title to land in theCoachella Valley to which groundwater rights attach.The United States’ motion echoes the tribe’s Wintersrights argument and emphasizes the supremacy of fed-eral water rights over those created by state law but doesnot claim tribal aboriginal title on the Agua Caliente’sbehalf.

CVWD argued that Congress extinguished any abori-ginal groundwater rights and that Winters rights impli-citly reserved for the tribe do not extend to groundwater,and even if they do extend to groundwater, the purposesof the Agua Caliente’s reservation will not ‘‘entirely fail’’without a reserved right to groundwater. DWA’smotion parallels CVWD’s motion.

Reserved RightsJudge Jesus G. Bernal held that the tribe’s federalreserved water rights may include groundwater, butits aboriginal right of occupancy was extinguishedlong ago, such that the tribe has no derivative right togroundwater.

‘‘For over a century, the Supreme Court has held thatwhen the United States ‘withdraws its land from thepublic domain and reserves it for a federal purpose, theGovernment, by implication, reserves appurtenantwater then unappropriated to the extent needed toaccomplish the purposes of the reservation,’ ’’ JudgeBernal said, citing Cappaert v. United States (426U.S. 128, 138 [1976]). ‘‘Impliedly reserved water rights‘vest[] on the date of the reservation and [are] superiorto the rights of future appropriators,’ ’’ the judge added.‘‘Winters rights arise under federal law, and are thusan exception to the normal rule that assigns waterresources regulations to the states.’’

‘‘The federal government intended to reserve water forthe Tribe’s use on its reservation,’’ Judge Bernal said.‘‘Rights to the groundwater underlying the reservationare appurtenant to the reservation itself. Accordingly,

the Court concludes the federal government impliedlyreserved groundwater, as well as surface water, for theAgua Caliente when it created the reservation. Whethergroundwater resources are necessary to fulfill the re-servation’s purpose, however, is a question that mustbe addressed in a later phase of this litigation.’’

Judge Bernal held that the tribe and the United Stateswere entitled to partial summary judgment on thePhase I issue of whether the tribe’s federally reservedwater rights encompass groundwater underlying thereservation.

Aboriginal Right

The tribe also asserted an aboriginal right to usegroundwater beneath the Coachella Valley, with apriority date of time immemorial. The tribe arguedthat federal law recognizes certain rights connected tooriginal Indian occupancy lands and that lands en-compassed by the Treaty of Guadalupe Hidalgo fallunder the original occupancy doctrine. Further, thetribe contends that is has continuously and exclusivelyoccupied the Coachella Valley, which was ceded aspart of the Treaty of Guadalupe Hidalgo, so it possessesan aboriginal right to groundwater underlying itsreservation.

The defendants countered that Congress, via the LandClaims Act of 1851 statute, required the presentationof land claims in California to a commission for vali-dation and that the tribe did not assert such a claim,so the land the tribe occupied in the Coachella Valleyreverted to public domain. As such, the tribe’s claim toan aboriginal occupancy fails, the defendants said.

Judge Bernal agreed with the defendants, sayingthe tribe admitted that no claim was filed on its behalfas part of the claims process under the act. As such, likethe Indians in all other cases interpreting the act, theAgua Caliente’s aboriginal claim was effectively extin-guished after the two-year claims window closed, andits territory subsumed within the public domain, thejudge added.

Judge Bernal granted partial summary judgment to thedefendants regarding the tribe’s aboriginal title claim.

He then certified the order for interlocutory appeal,should the parties seek review.


11

AttorneysEmil W. Herich and Catherine F. Munson of Kilpa-trick Townsend and Stockton in Beverly Hills, Calif.,David J. Masutani of AlvaradoSmith in Los Angeles,Heather Whiteman Runs Him and Steven C. Mooreof Native American Rights Fund in Boulder, Colo., andMark H. Reeves of Kilpatrick Townsend and Stocktonin Augusta, Ga., represent the Agua Caliente. DaronT. Carreiro, F. Patrick Barry and Yosef M. Negose ofthe U.S. Department of Justice in Washington, D.C.,represent the United States.

Steven B. Abbott, Gerald D. Shoaf and Julianna K.Strong of Redwine & Sherrill in Riverside representthe CVWD. Roderick E. Walston and Gene Tanakaof Best Best and Krieger in Walnut Creek, Calif., Ste-ven George Martin of Best Best in San Diego andArthur L. Littleworth and Piero C. Dallarda of BestBest in Riverside represent DWA.

(Additional documents available: Coachella summaryjudgment brief. Document #96-150325-064B. Uni-ted States summary judgment brief. 96-150325-065B. Desert Water agency summary judgmentbrief. Document #96-150325-066B. Agua Calientesummary judgment brief. Document #96-150325-067B.) �

Nevada Federal Judge Dismisses1 Count In Challenge ToWater Pipeline ApprovalLAS VEGAS — A Nevada federal judge on Feb. 24dismissed one count of a consolidated action broughtagainst the federal government for its approval of asouthern Nevada water pipeline project (Center forBiological Diversity v. United States Bureau of LandManagement, et al., No. 14-226, White Pine County,et al. v. United States Bureau of Land Management,et al., No. 14-228, D. Nev.; 2015 U.S. Dist. LEXIS2355).


The federal government granted a right of way to theSouthern Nevada Water Authority to construct a pipe-line to carry groundwater from other parts of Nevada toClark County, Nev. Two separate lawsuits challenging

the government’s authority were filed in the U.S.District Court for the District of Nevada by the Centerfor Biological Diversity and by White Pine County and11 other plaintiffs including Native American tribes,water authorities, environmental and advocacy groups.The cases were consolidated.

The United States moved to dismiss parts of one com-plaint. Judge Andrew P. Gordon erroneously denied themotion as moot but then reinstated it and ruled on it.

Native American, Water RightsThe federal government moved to dismiss on threegrounds. First, it said that one count relies on the Amer-ican Indian Religious Freedom Act, which it says givesno judicially enforceable rights.

Second, the federal government said it does not owe anyenhanced trust duties to a Native American tribe underthe Federal Land Policy and Management Act (FLPMA),the National Environmental Policy Act (MEPA) or theNational Historic Preservation Act (NHPA). It arguedthat compliance with the statutes fulfills the government’sobligations.

Finally, the federal government said there is no law im-posing on it a trust duty to manage or mitigate adverseeffects on a tribe’s reserved water rights.

Plaintiffs Clarify ClaimsIn response, the plaintiffs said they do not assert aclaim under the American Indian Religious FreedomAct or on reserved water rights. Instead, the plaintiffssaid they are claiming that the federal government’sfailure to consider the tribes’ religious and ceremonialpractices and reserved water rights violated the NationalEnvironmental Policy Act.

They said they are not asserting a claim for an in-dependent breach of fiduciary duty. They said theyare alleging that under the Federal Land Policy andManagement Act, the National Environmental PolicyAct or the National Historic Preservation Act, the gov-ernment must fulfill its statutory duties with specialconsideration for the tribes’ interests.

Judge Gordon said that since the plaintiffs clarified theyare not asserting independent claims under the Amer-ican Indian Religious Freedom Act or for reserved waterrights, he denied the motion to dismiss those counts.


12

No Enhanced ObligationsWith respect to enhanced trust obligations, JudgeGordon said the government acts not as a private trus-tee but as a sovereign interest. ‘‘[T]he federal govern-ment’s compliance with the FLPMA, NEPA, ANDNHPA satisfies its general trust obligations to Indiantribes,’’ the judge held.

The plaintiffs argued that there is an open questionabout whether the federal government has to take spe-cial consideration of tribal interests when complyingwith applicable statutes and regulations. ‘‘Yet, the pre-vailing rule of law remains that the federal government’strust obligation is satisfied by compliance with generalstatutes and regulations not aimed at protecting Indiantribes unless some statute or regulation imposes uponthe government a specific duty with respect to Indians,’’the judge wrote.

The judge said ‘‘the complaint does not identify anyspecific duty the Treaty [Treaty of Peace and Friend-ship with the Goshute Shoshone Indians in 1863] orany related statute or regulation imposes on the federalgovernment.’’ He said the applicable count in the com-plaint seeks to impose enhanced statutory duties on thegovernment beyond what the FLPMA, NEPA andNHPA already require.

CounselThe Center for Biological Diversity is represented byMarc D. Fink of Duluth, Minn., and Julie Cavanaugh-Bill of the Cavanaugh-Bill Law Offices in Elko, Nev.

The United States is represented by Maureen E.Rudolph of the U.S. Justice Department in Washing-ton, D.C., and Luther L. Jajek of the Justice Depart-ment in Denver.

White Pine County and other defendants are repre-sented by White Pine County District Attorney KellyC. Brown of the District Attorney’s Office in Ely, Nev.,and Simeon M. Herskovitz of Advocates for Commu-nity and Environment in El Prado, N.M. �

Crow Water Allottees LackStanding For Legal Defense,Indian Affairs SaysBILLINGS, Mont. — The U.S. government on Feb. 25asked a Montana federal court to enter judgment

against water rights allottees of the Crow Native Amer-ican tribe, arguing that the court lacks jurisdiction andthat there is no obligation by the government to providethe plaintiffs with legal representation (Crow AllotteesAssociation, et al. v. United States Bureau of IndianAffairs, No. 14-62, D. Mont., Billings Div.).

(Brief available. Document #95-150312-016B.)

In May, the Crow Allottees Association and 35 indivi-dual members sued the U.S. Bureau of Indian Affairs(BIA) and the judges of the Montana Water Court inthe U.S. District Court for the District of Montana.The plaintiffs want the BIA to provide them with legalrepresentation under terms of the Crow Tribal Com-pact, which provides them with reserved water rightson the Crow reservation in Montana.

The plaintiffs say their water rights have been recog-nized in subsequent legislation and agreements, includ-ing the Crow Act of 1920, the 1999 Crow Compactand the Crow Tribal Water Rights Settlement of 2010.

The Crow Allottees say the most recent compactrequires the Crow tribe to develop a water code withintwo years but does not specify protection of the allot-tees’ rights. They say that since their rights are not beingdistinguished from other rights, they cannot be ade-quately represented by the Tribal Administration andwant the BIA to provide them with legal representation.

Stay Pending Dismissal MotionThe complaint alleges that the BIA is in breach of itsfiduciary duties and that the allottees are being denieddue process by not being represented in the process ofdeveloping a tribal water code.

Water Court Judges Russell McElyea and DouglasRitter have moved to dismiss the claims against them.

On Feb. 4, the parties said they agreed to stay proceed-ings in the case so the court can hear the BIA’s motionfor judgment on the pleadings under Federal Rule ofCivil Procedure 12(c). They said the outcome of thedispositive motion may affect the need for discovery.

On Feb. 6, Judge Susan P. Watters stayed discoveryand ordered briefing on the BIA’s dismissal motion.

Underlying Case Must ConcludeIn its Feb. 25 motion for judgment, the BIA says theplaintiffs have not pleaded any injury that establishes


13

their standing. It says the U.S. Interior Department’swaiver of the allottees’ claims will not be effective untilthe Water Court proceedings are resolved.

The BIA says that once the waiver becomes effective,the allottees will receive ‘‘substitute resources equal to orgreater than the value of the waived claims.’’ ‘‘To claimany injury now is speculative and cannot establishstanding,’’ the government says.

The BIA says the allottees have not identified anywaiver of sovereign immunity by the federal govern-ment. It says that to invoke the federal AdministrativeProcedure Act, a plaintiff must challenge a final agencyaction or a failure to perform an enforceable legal duty.‘‘The Plaintiffs have done neither here,’’ the agency says.

No Duty To DefendFinally, the BIA says the allottees fail to state a claimbecause they do not allege any violation of law. It saysthe allottees claims violations of a federal duty to pro-vide independent counsel but says none of the citedlaws creates such a duty.

The allottees are represented by Hertha L. Lund ofLund Law in Bozeman, Mont.

The BIA is represented by John C. Cruden and Ty Bairof the U.S. Justice Department in Washington, D.C.The Water Court is represented by Jeffrey M. Doudof the Montana Attorney General’s Office in Helena,Mont. �

Natural Resources CommitteeOutlines Process ForWater Rights SettlementsWASHINGTON, D.C. — Rob Bishop, chairmanof the U.S. House of Representatives Committee onNatural Resources, sent a letter dated Feb. 26 to Attor-ney General Eric Holder and Sally Jewell, secretary ofthe Interior, outlining the process the committeeintends to follow when considering future Indianwater rights settlements.

(Letter available. Document #96-150325-025X.)

The House Natural Resources Committee has primaryauthorizing jurisdiction over the legislative resolution

of Indian water rights claims within the House ofRepresentatives. The United States has a longstandingpolicy that disputes regarding Indian water rightsshould be resolved through negotiated settlementrather than through litigation, and the Department ofJustice and Department of the Interior play key rolesin negotiating and developing settlements regardingthe claims before they are considered by Congress,Bishop says in the letter.

The executive branch is charged with implementingexisting Indian water rights settlement criteria andprocedures designed to meet the goal of implementingthe settlements, Bishop says. If crafted correctly, thesettlements can provide relief to the United Statesfrom burdensome legal obligations that benefit allAmerican taxpayers, Bishop says.

The letter outlines the process the committee intendsto follow when considering future Indiana water rightssettlements and to inform the attorney general andsecretary of the assistance the committee will needfrom them and their designees.

As part of the process, Bishop says that the departments‘‘must convey support for and forward the settlementsand the proposed authorizing legislation, specificallyincluding federal spending levels, before any Commit-tee consideration takes place.’’

Outline Of Actions

Also, the committee has outlined the following pro-cesses it intends to follow when considering futureIndian water right settlements:

� Holder and Jewell ‘‘will provide a statement to theCommittee affirming that each proposed settlementresolution transmitted by your Department willadhere to the current criteria and procedures.’’

� The departments are to ‘‘specifically affirm tothe Committee that a settlement meets Criteria 4and 5(a) and (b) [as included in the Federal Reg-ister] to ensure that the American taxpayer isderiving benefits from any such settlement priorto Committee consideration. Related to such adetermination, both Departments will be expectedto affirm that a particular settlement represents anet benefit to the American taxpayer as comparedto the consequences and costs of not settling


14

litigation, and specifically support the federal fin-ancial authorization included in the proposedlegislative text.’’

� ‘‘For settlement legislation to be considered, theAttorney General or his/her designee must haveconveyed to a court and all settling parties haveagreed, in writing, to the settlement pending a leg-islative resolution before it is forwarded to theCommittee for it to be considered.’’

� ‘‘Both Departments and the settling parties musthave approved, in writing, the legislative textneeded to codify the settlement before it is trans-mitted to the Committee and have provided thatproposed text to the relevant court.’’

� ‘‘Based on precedent, the Committee requests thatthe Department of Justice consent to being availableto testify if any legislative text is considered by theCommittee related to such proposals.’’

� ‘‘Both Departments must list the legal claims beingsettled in any document transmitting legislativetext.’’

� ‘‘Such settlements and proposed legislation shall notinclude financial authorizations for claims alreadysettlement by Congress or claims that have no legalbasis.’’ �

Government Asks JudgeTo Dismiss Indian Tribe’sACA Employer Mandate ChallengeCHEYENNE, Wyo. — An Indian tribe waived itsobjections to the Patient Protection and AffordableCare Act (ACA)’s large employer mandate by not rais-ing them during the rulemaking process, and its actionruns afoul of the Anti-Injunction Act’s (AIA) bar ontax challenges taxes, the government told a federal judgeon March 19 (Northern Arapaho Tribe, et al. v. SylviaBurwell, et al., No. 14-247, D. Wyo.; 2015 U.S. Dist.LEXIS 30480).

(Memo available. Document #93-150325-017B.)

The Northern Arapaho Tribe sued the U.S. Depart-ment of Health and Human Services, Sylvia Burwell,secretary of the Health and Human Services, the U.S.Department of Treasury and Jacob Lew, secretary of

the Department of Treasury, seeking an exemptionfrom the ACA’s large-employer mandate.

Northern Arapaho Tribe operates several businesses,including a casino, convenience store, gas station andgrocery store. The ACA defines employers with morethan 50 full-time employees as large employers andrequires them to provide health insurance plans orface ‘‘assessable payment’’ tax. Northern Arapahoemploys more than 900 people.

Employer MandateThe Northern Arapaho Tribe discovered after theACA’s passage that its employees could find moreaffordable insurance through the federal exchangeand offered to pay up to 80 percent of the employees’costs in obtaining insurance through the exchange.

In January 2015, the ACA’s large employer mandatebecame effective. The tribe filed suit, arguing thatany insurance coverage it offered employees would beinferior to that which they could obtain through theexchange. The challenged regulations are at 26 Code ofFederal Regulations Sections 54.4980H-1, 301.6045-1and 1.6055-1.

The tribe moved for a preliminary injunction, whichwas denied in February.

Anti-InjunctionThe government then moved for dismissal, arguing thatas Judge Scott W. Skavdahl found in denying the tribean injunction, the AIA bar on lawsuits involving taxesforecloses on the suit. Section 4940H repeatedly usesthe term ‘‘tax,’’ the government argues.

The U.S. Supreme Court has repeatedly made this barclear, the government argues. The concurring opinionin Hobby Lobby Stores Inc. v. Sebelius (723 F.3d 1144[10th Cir. 2013]) finding that the AIA was nonjurisdic-tional did not ‘‘disturb settled circuit law on this point’’and is not binding on the court because it was joined byonly three of the eight justices, the government argues.

ACA PurposeFurther, the tribe has not stated a claim on which reliefcan be granted, the government argues. The tribewaived its challenge by not raising the issues it nowcomplains of during the notice-and-comment periodof the rulemaking process, the government argues.


15

Additionally, the regulations are ‘‘consistent with thelanguage, structure and purpose of the ACA,’’ the gov-ernment argues. Section 4980H applies to all largeemployers, including governments, the governmentargues. Section 4980H’s purpose was to help employersprovide adequate insurance coverage, and there is noreason to assume that Congress wanted to excludeIndian tribes from that goal, the government argues.Had it wanted to do so, Congress was more than cap-able of excluding Indian tribes from the mandate, thegovernment argues.

Andrew W. Baldwin, Janet E. Millard, Kelly A. Rudd,Mandi Anne Vuinovich and Berthenia S. Crocker ofBaldwin, Crocker & Rudd in Lander, Wyo., representthe tribe. Benjamin C. Mizer, Sheila M. Lieber, AliceS. LaCou, Christopher A. Crofts, Nicholas Vassalloand Jacek Pruski of the U.S. Department of Justicein Washington, D.C., represent the government. �

Plan Participant Need NotExhaust Tribal RemediesUnder ERISA, Judge RulesKANSAS CITY, Kan. — A participant in a nongovern-mental health need not exhaust tribal remedies prior tobringing a claim for recovery of health benefits underthe Employee Retirement Income Security Act, a fed-eral judge in Kansas ruled March 13 (Amy Coppe v.The Sac & Fox Casino Healthcare Plan, et al., No. 14-2598, D. Kan.; 2015 U.S. Dist. LEXIS 30992).

(Memorandum and order available. Document #54-150408-022Z.)

Amy Coppe, a participant in the Sac & Fox CasinoHealthcare Plan, sued the plan and Benefit Manage-ment Inc., the plan’s third-party administrator, (collec-tively, the plan) asserting that the defendants wrongfullydenied her claim for medical benefits under ERISASection 502(a)(1)(B).

The plan moved to dismiss or for a stay for failure to ex-haust tribal remedies. The plan asserted that the casinois a noncorporate operating arm of the Sac and FoxNation of Missouri, a federally recognized Indiantribe, that the money to fund the plan came from thecasino’s general operating expenses, that the plan was

managed by the tribe’s council members and thata judgment against the plan would likely come di-rectly from the tribal treasury or the casino’s generaloperating fund.

‘Preemptive Intent’In ruling that tribal courts do not have jurisdiction overERISA actions, U.S. Judge Richard D. Rogers of theDistrict of Kansas initially noted that the plan did notallege that it is a ‘‘governmental plan’’ within the mean-ing of ERISA Section 3(32).

Judge Rogers then concluded that ‘‘tribal rights to makelaws governing members and to regulate activity uponthe reservation does not exclude federal authority asexpressed in ERISA to occupy and preempt the fieldof ERISA rights enforcement for nongovernmentalplans.’’ The judge noted that ‘‘if an ERISA claim wasbrought in tribal court against a nonmember defen-dant or if an ERISA claim against a nongovernmentalERISA plan had to be brought first in tribal court, . . .[t]he power of an ERISA defendant to remove theaction to federal court, as exists for state court ERISAdefendants, would not be present. And, the right of anERISA plaintiff to choose a federal forum at the outsetof an action would be infringed.’’

This conclusion is true even as to members of a tribebecause of ‘‘the preemptive intent of Congress in pas-sing ERISA,’’ the judge said.

Access To Federal CourtsJudge Rogers also rejected the plan’s argument thatERISA does not provide for federal preemption of ben-efit claims under Section 502(a)(1)(B) because statecourts have concurrent jurisdiction over such claims.

‘‘The key point is that access to a federal forum mustbe allowed to ERISA defendants and plaintiffs andthat such access via removal would be denied toERISA defendants if tribal courts had jurisdictionto decide ERISA claims, and such access for ERISAplaintiffs would be denied or at least infringed if caseswere forced to be brought initially in tribal court,’’ thejudge said.

Because the court held that the tribal court lacks jur-isdiction, the judge said that he did not need to con-sider exhaustion of tribal court remedies as a matterof comity.


16

Coppe is represented by Dean Nash and Brian Fran-ciskato in Kansas City, Mo. The plan is representedby Christopher C. Halbert of Halbert, Dunn & Hal-bert in Hiawatha, Kan., and Joseph V. Messineo ofFredericks Peebles & Morgan in Omaha, Neb. �

Breach Claim Dismissed;Reimbursement ClaimContinues In Funding DisputePHOENIX — A federal judge in Arizona on March 6dismissed a breach-of-trust claim from a dispute overthe funding for contract health care services the GilaRiver Indian Community provided to members of theTohono O’odham Reservation but allowed a claim forreimbursement to continue (Gila River Indian Com-munity v. Sylvia Matthews Burwell, et al., No. 14-943,D. Ariz.; 2015 U.S. Dist. LEXIS 27595).


Final Offer RejectedGila River Indian Community is a federally recognizedIndian tribe. Until 1995, Indian Health Services (IHS)provided health care for community members andoperated a hospital in Sacaton, Ariz. The communitythen entered into a self-governance contract with IHSpursuant to the Indian Self-Determination and Educa-tion Assistance Act (ISDEAA). The contract allowedthe community to take control of its health care servicesand the hospital, with the support of federal funds. In2002, the community entered into a self-governance‘‘compact’’ with IHS pursuant to ISDEAA amend-ments that Congress had passed. The compact grantedthe community greater autonomy in providing healthcare services.

Since the community assumed control of its healthcare services, members of the Tohono O’odham Reser-vation have received care at the community’s hospital.as well as contract health care services paid by thecommunity. The funding agreements — which wereentered into annually by the community and IHSunder the self-governance contract and compact —never specifically identified funding for the contracthealth care services for Tohono O’odham members.

In 2013, the community requested and IHS agreedto additional funding for contract health care services

for Tohono O’odham members. For the 2014 fundingagreement, the community again requested additionalfunding for the services, but IHS declined the requestand also declined to delineate what portions of the2014 funding agreement were allocated to health careservices for Tohono O’odham members.

On Nov. 15, 2014, the community sent IHS a ‘‘FinalOffer,’’ which contained an amendment to the 2014funding agreement. The proposed amendment re-quired IHS to delineate what amounts in the fundingagreements from 1996 to 2014 were allocated to healthcare services for Tohono O’odham members. If IHSfailed to do this, or evidence showed that the fundinghad been deficient, the amendment required an addi-tional $963,114 for the 2014 funding agreement andreimbursement for the deficiencies in the previousfunding agreements.

IHS rejected the final offer and the proposed amendment.

Claims Dismissal SoughtFurther negotiations failed, and the community suedSylvia Matthews Burwell, secretary of Health andHuman Services, and Yvette Roubideaux, acting direc-tor for IHS, in the U.S. District Court for the Districtof Arizona. In its amended complaint, the communityseeks injunctive and declaratory relief for violation of25 U.S. Code Section 458aaa-6 for failing to approvethe amendment to the 2014 funding agreement, vio-lation of 25 U.S. Code Section 458aaa-6 for failingto sever the portions of the amendment that wereacceptable to the defendants and for breach of varioustrust duties owed to the community. The communityalso claimed that it was entitled to reimbursementfor fund spent on health care services for Tohono O’od-ham members.

The defendants moved to dismiss the community’sbreach-of-trust claim and its request for reimbursement,arguing that the court lacked subject matter jurisdictionover the claims. Other than the reimbursement remedy,the defendants did not ask the court to dismiss thecommunity’s claims for violation of the ISDEAA.

JurisdictionAt the outset, Judge David G. Campbell noted thatbecause Burwell and Roubideaux were being sued intheir official capacities, sovereign immunity may barportions of the suit. The ISDEAA does contain a waiver


17

of sovereign immunity. Under the statute, the federalgovernment waives its immunity and grants districtcourts ‘‘original jurisdiction over any civil action orclaim against the appropriate Secretary arising under[the ISDEAA].’’ The statute also grants district courts,subject to the provisions of the Contract Disputes Act(CDA), jurisdiction ‘‘over any civil action or claimagainst the Secretary for money damages arisingunder contracts authorized by this subchapter.’’ Thewaiver of immunity extends to claims arising underself-governance compacts, Judge Campbell said.

Under Federal Rule of Civil Procedure (FRCP)12(b)(1), defendants may move to dismiss a case forlack of subject matter jurisdiction. A FRCP 12(b)(1)jurisdictional attack may be facial or factual, JudgeCampbell said. Although the parties’ briefing is difficultto characterize, Judge Campbell said it appears thatthe defendants have mounted a facial attack on subjectmatter jurisdiction. Regardless, the central issues arewhether the community has pleaded a cognizablebreach-of-trust claim and whether its claim for reim-bursement may be asserted only under the CDA,Judge Campbell said.

Breach Of TrustThe community has not pleaded a viable breach-of-trust claim, so the claim must be dismissed because itdoes not fall within the limited waiver of sovereignimmunity and for failure to state a claim, Judge Camp-bell said.

Judge Campbell said he could not accept the commu-nity’s argument that it can sustain a breach-of-trustclaim for two reasons. First, United States v. NavajoNation (547 U.S. 488, 506, S. Ct. 1079 [2003]) makesclear that a mere substantive source of statutory regu-latory duties is not sufficient to give rise to a breach-of-trust claim, Judge Campbell said.

The statutes and regulations in this case ‘‘simply donot give the federal government full responsibility tomanage Indian resources for the benefit of Indians,’’Judge Campbell said. ‘‘Nor can the government’s generaltrust obligations provide the missing elements of Com-munity’s breach-of-trust claim’’ because Navajo makes‘‘clear that the general trust obligation can ‘reinforce theconclusion that the relevant statute or regulation im-poses fiduciary duties,’’’ but ‘‘it is not sufficient to sup-port that conclusion in the absence of comprehensive

statutes and regulations. Thus, the Community’s argu-ment that the general trust relationship is recognizedin the ISDEAA or other Indian health care legislationdoes not enable him to find a cognizable breach-of-trustclaim,’’ Judge Campbell said.

The judge said he could not conclude ‘‘that the statutesand regulations relied on by the Community show thatthe United States has accepted trust responsibilities forthe healthcare related duties the Community seeks toenforce.’’

Further, ‘‘[t]his case does not involve a traditional cor-pus,’’ Judge Campbell said. ‘‘There is no property ormoney held in trust by the federal government for thebenefit of the Community. THIS case does involveappropriations Congress makes to IHS, part of whichare used to fund tribal self-governance compacts forhealthcare.’’

‘‘A congressional appropriation of government funds isqualitatively different from the tribal-owned real prop-erty managed by the government on behalf of Indiantribes,’’ Judge Campbell said. ‘‘The appropriation con-sists of moneys of the United States, and cannot be saidto constitute property of the tribes when it has not beenset aside in trust as tribal property.’’

ReimbursementJudge Campbell held, however, that the community’sreimbursement claim complies with the statutoryrequirements asserting a claim under the ISDEAA;therefore, it cannot be dismissed at this stage of thelitigation on the ground that it may be brought onlyunder the CDA.

The ISDEAA allows an Indian tribe to bring suit infederal court for IHS’s failure to accept a final offer,Judge Campbell said. The community submitted afinal offer to defendants, which IHS rejected. The com-munity then filed this lawsuit, claiming that the def-endants improperly rejected the final offer and theproposed amendment, the judge said. The comm-unity’s actions closely track the requirements of theISDEAA, which states that the community may‘‘directly proceed to initiate and action in a Federaldistrict court pursuant to section 450m-1(a) of THIStitle,’’ the judge added.

Linus Everling and Thomas L. Murphy of the GilaRiver Indian Community in Sacaton, Robert Richard


18

Yoder of Yoder & Langford in Phoenix and Vernle C.Durocher Jr. of Dorsey & Whitney in Minneapolis rep-resent the community. Adam Ryan Smart of the U.S.Attorney Office in Phoenix represents the defendants.

(Additional documents available: Amended com-plaint. Document #96-150325-032C. Dismissalbrief. Document #96-150325-033B. Oppositionbrief. Document #96-150325-034B.) �

New Mexico Federal JudgeDeclines To Transfer DisputeOver Hospital FundingALBUQUERQUE, N.M. — A federal judge in NewMexico on Feb. 5 declined to dismiss or transfer adispute over the pulling of funding for a hospital pro-viding health care services on the Navajo Reservation,saying that although many of the events giving riseto the dispute occurred in Arizona, the court theplaintiffs filed the case in was more convenient for theparties and for obtaining documents (Navajo HealthFoundation — Sage Memorial Hospital Inc. v. SylviaMathew Burwell, et al., No. 14-958, D. N.M.; 2015U.S. Dist. LEXIS 19611).


Hospital TurnaroundNavajo Health Foundation — Sage Memorial HospitalInc. is a private nonprofit corporation that has ownedand operated a health care facility in Ganado, Ariz.,which lies within the Navajo Reservation, since 1974.The Navajo Nation Council designated Sage Hospitalas a ‘‘tribal organization’’ for the purpose of contractingwith the U.S. Department of Health and Human Ser-vices (HHS). HHS Secretary Sylvia Mathews Burwellis responsible for conducting all HHS duties, includingcontracting on behalf of the United States with tribalorganizations to provide health care to Native Ameri-cans. The Indian Health Service (IHS) is a divisionof the HHS that is the principal health care providerfor members of federally recognized American Indiantribes. Yvette Roubideaux is IHS’s acting directingand is responsible for contracting with tribal organiza-tions to provide health care to American Indians.John Hubbard Jr. is the area director of the Navajo-area IHS. Frank Dayish is the contracting officer for

the Navajo-area IHS. Dayish is responsible for negotia-ting and maintaining IHS’s contracts throughout theNavajo Reservation, including its contract with SageHospital. Dayish has the authority to sign Indian SelfDetermination and Education Assistant Act (ISDEA)contracts and funding agreements with Sage Hospitaland to award funds under those agreements.

From 1947 to 2007, Sage Hospital’s facilities ‘‘grewincreasingly obsolete, and the quality of its healthcareservices plummeted.’’ By 2007, Sage Hospital was fight-ing multiple regulatory and financial battles to stayafloat. Sage Hospital worked to turn its operationsaround, and by September 2009, the hospital receivedits unconditional Arizona Department of Health Ser-vices license and Centers for Medicare and MedicaidServices certification. The hospital received severalother awards. In September 2013, the Arizona Depart-ment of Health Services licensed Sage Hospitalthrough Sept. 30, 2016. In March 2014, the JointCommission on Accreditation of Health Care Organi-zations granted the hospital ‘‘Critical Access HospitalAccreditation,’’ stating that it did not identify anyareas for improvement. The hospital also received anunqualified — or ‘‘clean’’ — audit from its independentauditors every year from 2007 to 2013.

Support PulledDespite the hospital’s accomplishments, IHS failedto provide full contract support to the hospital. InOctober 2003, the Navajo Nation Council renewedSage Hospital’s tribal organization status through2005. In June 2005, the council reaffirmed the hos-pital’s tribal organization status, authorizing Sage Hos-pital to manage and operate contracts through IHSthrough Sept. 30, 2020. Soon after receiving tribalorganization status through Sept. 30, 2020, Sage Hos-pital entered into a contract with IHS that becameeffective in 2009. The contract was extended through2013. In an Aug. 22, 2013, letter to IHS, Sage Hospitaloffered two proposals — to extend IHS’s contract withSage Hospital through Sept. 30, 2016, and to approvean annual funding agreement for the 2014 fiscal yearwith no material changes in Sage Hospital’s budget,services or programs for the 2013 fiscal year.

IHS did not accept either of the proposals but in-stead chose to fund Sage Hospital on a monthly basiswhile conducting a performance monitoring review andforensic audit. IHS conducted the review, and Moss


19

Adams LLP, an independent accounting firm, con-ducted the audit. Sage Hospital contends that it wassupposed to be provided draft reports for review so itcould correct errors and discuss any adverse findingsbefore IHS finalized the report. The hospital said, how-ever, that it never received any documents, despite ask-ing for the draft reports.

In September 2014, IHS informed Sage Hospital thatit would not renew the hospital’s contract. The declina-tion stated that Sage Hospital’s board of directors wasmisusing government funding and providing inade-quate care to patients. Sage Hospital demanded thatIHS rescind the declination, but IHS did not.

After issuing the declination, IHS told Sage Hospital’ssupplier — without notifying Sage Hospital — toimmediately stop delivering pharmaceuticals to thehospital. IHS also informed the public through mediaadvisories that IHS would be changing how it providedhealth care services to beneficiaries in the Granado Ser-vice area who were formerly served by Sage Memorialbecause IHS was no longer funding the hospital.

Dismissal, Transfer Sought

In October 2014, Sage Hospital sued Burwell,Roudbideaux, Hubbard and Dayish in the U.S. DistrictCourt for the District of New Mexico, contending thatIHS’s declination of its contract proposal violated 25U.S. Code Section 450f(b)(2) and 25 Code Federal

Regulation Sections 900.32 and 900.33 and thatIHS’s declination of the contract proposal for fiscalyear 2015 — to the extent that it was substantiallythe same as the fiscal year 2014 proposal — violated25 U.S. Code Section 450f(b)(2) and 25 Code FederalRegulation Sections 900.32 and 900.33. Sage Hospitalsought immediate injunctive relief and said that be-cause it is entitled to immediate injunctive relief toreverse the declination and to compel Burwell toaward and fund the three-year contract proposal itsubmitted, the defendants are required to pay thehospital the full amount requested in the fiscal year2014 additional funding agreement. Sage Hospitalalso said IHS violated 41 U.S. Code Section 7103(f)(3).

In November, the defendants asked the court to dis-miss the case for improper venue under Federal Ruleof Civil Procedure 12(b)(3) or to transfer the case tothe U.S. District Court for the District of Arizonaunder 28 U.S. Code Section 1401(a).

Transfer DeniedJudge James O. Browning denied the defendants’motion to dismiss, finding that the District of NewMexico is a proper venue for the case pursuant toSection 1391(e)(1)(A) because Dayish is domiciled inNew Mexico. The District of New Mexico, however,is not a proper venue for the case under Section1391(e)(1)(B) because a ‘‘substantial part of the eventsor omissions giving rise to the claim’’ did not occur inNew Mexico, the judge added.

However, the judge declined to transfer the case, sayingSage Hospital filed the suit in the District of NewMexico and the court is a more convenient forum forthe witnesses, the parties and for obtaining the relevantdocuments than the District of Arizona.

Paul E. Frye of Frye Law Firm in Albuquerque rep-resents Sage Hospital. Angela M. Belgrove and PaulaR. Lee of the U.S. Department of Health and HumanServices in San Francisco and Karen Grohman of theU.S. Attorney’s Office in Albuquerque represent thedefendants.

(Additional documents available: Complaint. Docu-ment #96-150325-011C. Dismissal brief. Document#96-150325-012B. Opposition brief. Document#96-150325-013B. Reply brief. Document #96-150325-014B.) �

Our Copyright PolicySubscribers are encouraged to copy sections of this report for use in court submissions. You also are welcome to copy a single article to send to a client or colleague, and to copy and route our table of contents.

However, it is a violation of our copyright to copy substantial portions of this report for any other reasons without permission. Illegal copying can seriously undermine subscription-based publications like ours; moreover, the Copyright Act of 1976 provides for damages for illegal copying.

If you wish to copy and distribute sections of the report, simply contact [email protected].


20

Tribe Members’ Class ClaimsFor Compensation FiledToo Late, Judge FindsSIOUX FALLS, S.D. — Class claims filed by fourmembers of the Cheyenne River Sioux Tribe allegingthat the United States violated its trust and fiduciaryduties by taking their land without just compensationare barred by the statute of limitations and becausethere is no waiver of sovereign immunity, a SouthDakota federal judge ruled Feb. 26 in granting thegovernment’s motion to dismiss the claims (CasimirL. Lebeau, et al. v. United States of America, No. 14-4056, D. S.D.; 2015 U.S. Dist. LEXIS 23093).

(Decision available. Document #96-150325-054Z.)

Oahe Dam ProjectSioux Tribe members Casimir L. Lebeau, ClarenceMoretenson, Raymond Charles Handboy Sr. and Fred-die Lebeau filed a class complaint April 11, 2014,against the United States of America in the U.S. DistrictCourt for the District of South Dakota, alleging claimsfor breach of trust, breach of fiduciary duty andaccounting.

The plaintiffs owned land that was taken by the UnitedStates in the 1940s for the Oahe Dam project on theMissouri River. Construction of the dam flooded370,000 acres in North Dakota and South Dakota,including 104,420 acres in the Cheyenne River SiouxIndian Reservation. About half of that land was ownedby the Cheyenne River Sioux Tribe, and the otherhalf was owned by individual members of the tribe.More than 180 tribal families were forced to leavetheir homes because of the dam.

In 1954, Congress passed an act to provide compen-sation to the tribe and individual landowners for thetaking of their land. In 2000, Congress passed theCheyenne River Sioux Tribe Equitable CompensationAct (CRSTECA), which recognized that the 1954act did not provide adequate compensation to thetribe for the land flooded by the dam. The CRSTECAappropriated money for a trust fund that provided addi-tional compensation to the tribe.

The plaintiffs assert that the taking of their land withoutproper compensation violates the trust and fiduciaryduties the United States owed to them and to all other

individual landowners whose land was taken. They alsoallege that their claims fall under the Indian TrustAccounting Statute and that a constructive trust existswith respect to the money that would provide justcompensation for the taking of their land. The plaintiffsalso assert that they are entitled to an accounting.

‘Sympathetic Claims’On July 14, the United States moved to dismiss thecomplaint for lack of jurisdiction and failure to state aclaim. The plaintiffs filed their opposition to the motionon Sept. 8.

(Memorandum in support of motion to dismissavailable. Document #96-150325-055B. Oppositionmemorandum available. Document #96-150325-056B.)

Judge Karen E. Schreier reluctantly granted the motion,finding that the plaintiffs waited too long to bring theirclaims and that the United States had not waived itssovereign immunity.

‘‘Plaintiffs’ claims accrued decades ago and are thereforebarred by the statute of limitations. As this court statedin 2013, it is sympathetic to the claims made by plain-tiffs. But even sympathetic claims must comply withjurisdictional requirements,’’ the judge said, referringto her ruling in a previous case that individual tribemembers were not entitled to money from the trustcreated by the CRSTECA. ‘‘Because there is no validwaiver of sovereign immunity, this court has no juris-diction to entertain this suit. Plaintiffs may deservecompensation, but that compensation must comefrom Congress.’’

Trust ObligationJudge Schreier rejected the plaintiffs’ argument thatbecause the 1868 Treaty of Fort Laramie, the GeneralAllotment Act and the Act of March 2, 1889, impose atrust obligation on the United States to prevent thealienation of land, the laws are sufficient to supportthe breach of trust and fiduciary duty claims.

‘‘Even if the United States had a trust obligation orfiduciary duty to plaintiffs as to their land, any breachof trust or fiduciary duty would have occurred and beenknown to plaintiffs when their land was flooded,’’ thejudge said. ‘‘Plaintiffs do not present any argumentor evidence to show that they were unaware of the


21

alienation of their land at the time it occurred orthat the flooding of their land was somehow concealedfrom them. Thus, any claim plaintiffs had relating toa breach of trust or fiduciary duty based on the aliena-tion of their land accrued no later than when the landwas flooded because all events fixing liability hadoccurred and the plaintiffs knew of their claim.’’

The plaintiffs had argued that tribal landowners did notreceive fair value for their land even though similarlysituated white landowners did receive fair value, and the1954 act imposed a trust obligation on the UnitedStates to pay just compensation for the plaintiffs’ land.

‘‘But any compensation decisions would have beenknown to plaintiffs at the time the United States madeits payments to them. In fact, plaintiffs indicate thatthey signed statements accepting the values even thoughthey thought at the time the values were too low.Thus, plaintiffs’ claims based on unfair compensationaccrued at that time because all facts fixing the UnitedStates’ liability had occurred,’’ Judge Schreier held.

CounselThe plaintiffs are represented by Judith K. Zeiglerof Judith K. Zeigler Law in Sioux Falls and VernleC. Durocher, Kristin M. Stastny and Forrest K. Tah-dooahnippah of Dorsey & Whitney in Minneapolis.

The United States is represented by U.S. AttorneyBrendan V. Johnson and Assistant U.S. AttorneyCamela C. Theeler in Sioux Falls; Acting AssistantAttorney General Sam Hirsch of the U.S. Departmentof Justice Environment and Natural Resources Divi-sion in Washington, D.C.; Devon Lehman McCuneof the Department of Justice Environment and NaturalResources Division in Denver; and Kenneth Daltonand Ericka Howard of the U.S. Department of theInterior in Washington.

(Additional document available. Complaint. Docu-ment #96-150325-057C.) �

Chippewa Indian TribeOpposes High Court ReviewOf Hunting DecisionWASHINGTON, D.C. — The Lac Courte OreillesBand of Lake Superior Chippewa Indians on March 9

asked the U.S. Supreme Court to deny a petition forwrit of certiorari filed by the State of Wisconsin andleave intact a Seventh Circuit U.S. Court of Appealsdecision finding that the tribe had met its burden toshow that a total ban on the nighttime hunting of deerwas no longer necessary to ensure public safety (Stateof Wisconsin, et al. v. Lac Courte Oreilles Band ofLake Superior Chippewa Indians, et al., No. 14-792,U.S. Sup.).

(Opposition brief available. Document #96-150325-068B.)

In 1991, the U.S. District Court for the Western Dis-trict of Wisconsin upheld a state statute, through theapplication of Wisconsin Administrative Code SectionNR 13.54, prohibiting members of several WisconsinIndian tribes from hunting deer at night outside thetribes’ reservations.

Several Wisconsin Indian tribes moved the DistrictCourt under Federal Rule of Civil Procedure 60(b)(5)to relieve them from the final judgment on the groundthat its continued enforcement would be ‘‘no longerequitable.’’

The District Court denied the motion.

Comparative EvidenceIn reversing and remanding, the Seventh Circuit said,‘‘The burden of production should be placed on thestate, for as the record stands the evidence presentedby the tribes that night hunting for deer in the cededterritory is unlikely to create a serious safety problemprovides a compelling reason for vacating the 1991judgment that prohibited Indians from hunting deerat night in that territory.’’

The panel commented that it would leave to the Dis-trict Court the decision whether to invite the parties tosubmit evidence from Oregon, Washington, Minne-sota and Michigan, which are states that allow Indiansto hunt deer at night.

Burden ShiftedIn January, the state filed a petition for writ of certiorariwith the Supreme Court, saying that the Seventh Cir-cuit’s opinion shifted the burden to the nonmovingparty to justify an underlying judgment that nighthunting of deer was fundamentally unsafe. The state


22

asked the court to determine whether Rule 60(b)(5)permits such a shift.

The state says that it does not and that the SeventhCircuit’s decision ‘‘undermines the proper function ofthe Rule, is in conflict with this Court’s and othercircuits’ precedent, and introduces an improperlyexpansive approach to reopening judgments withinthe Seventh Circuit and, potentially, in other circuits.’’

‘‘The Rule is an extraordinary remedy that reflects thevalue our legal system places on finality. The presump-tion against reopening an earlier judgment is enforcedby keeping the burden of proof where it belongs (on themovant), keeping the focus of the substantive inquirywhere it belongs (on whether circumstances outsidethe movant’s control have changed significantly sincethe entry of judgment), keeping the primary decision-making duties where they belong (with the districtcourt whose decision is reviewed for abuse of discre-tion), and keeping the fact-finding duties where theybelong (in the trial court),’’ the state says. ‘‘The SeventhCircuit’s approach turns these imperatives on theirheads. If allowed to stand, it threatens to generate futurevexatious relitigation and uncertainty in a variety ofcontexts. That is especially true for the States, whichare commonly parties to judgments and consent decreeswith ongoing effect, including those involving Indiantribes.’’

Petition Opposed‘‘The Seventh Circuit’s unanimous decision was basedon the unique factual circumstances presented in thiscase,’’ the tribe says in its opposition brief. ‘‘It does notpose an issue of national importance, it does not createa circuit split in authority, and it is not at odds withany precedent of this Court. Consequently, there is noreason to grant review over this interlocutory appeal.’’

A closer examination of the state’s argument reveals thatthe state ‘‘simply disagrees with the Seventh Circuit’sapplication of the traditional Rule 60(b)(5) standard,which is insufficient grounds for granting certiorari,’’the tribe says.

Precedent establishes that a party is entitled to relieffrom a final litigated judgment under Rule 60(b)(5)if the movant can establish new facts or laws that, ifthey had been before the lower court in the originalpetition, would have produced a decision in favor of

the moving party, the tribe says, adding that those arethe circumstances of the present case.

Also, contrary to the state’s argument, the SeventhCircuit’s decision does not shift the burden of provingchanged circumstances to the nonmoving party, thetribe says. The Seventh Circuit believed that the tribehad established the existence of changed circumstances,the tribe says. Rather than compelling the DistrictCourt to reopen the final judgment, the Seventh Cir-cuit noted that the court could, on remand, permit theintroduction of evidence of safety of nighttime deerhunting in other jurisdictions. If the District Courtdid so, however, the Seventh Circuit indicated thatthe burden of production should be shifted to thestate to produce the evidence, the tribe says. ‘‘Thismade sense, because the Tribes had already met theirburden.’’

The tribes are represented by James Henry SchlenderJr. of the Lac Courte Oreilles Legal Departmentin Hayward, Wis. Wisconsin is represented by DianeL. Milligan of the Office of the Attorney General, Wis-consin Department of Justice, in Madison, Wis.

(Additional document available. Petition for writ ofcertiorari. Document #96-150325-073B.) �

Wyoming Federal Judge:Eagle Permit ViolatesExercise Of ReligionCHEYENNE, Wyo. — Calling the issue one of firstimpression, a Wyoming federal judge on March 12held that the First Amendment to the U.S. Constitu-tion forbids the federal government from imposingthe burden of law on one federally recognized Indiantribe’s free exercise of religion for the benefit of an-other Indian tribe (Northern Arapaho Tribe v. DanielAshe, in his official capacity of U.S. Fish & WildlifeService Director, No. 11-347, D. Wyo.; 2015 U.S.Dist. LEXIS 31435).

(Opinion in Section A. Document #96-150325-040B.)

Eagle PermitIn 2009, the Northern Arapaho Tribe (NAT) and thechairman of the Northern Arapaho Business Council


23

filed an application for a permit with the U.S. Fish andWildlife Service to take bald eagles within the WindRiver Reservation, pursuant to the Bald and GoldenEagle Protection Act (BGEPA). While processing theapplication, the service learned that the EasternShoshone Tribe (EST) objected to the NAT’s takingeagles within the Wind River Reservation based oncultural and religious grounds. The two tribes sharethe reservation. A series of letters and meetings fol-lowed, but no decision was rendered on the permit.

In November 2011, the NAT sued the service inthe U.S. District Court for the District of Wyoming,alleging that ‘‘Defendants have failed or refused to issuea federal permit to allow the taking of an eagle bymembers of the Northern Arapaho Tribe for traditionalNative American religious purposes.’’

More letters were exchanged between the NAT andservice and the EST and the service. Finally, inMarch 2012, the service decided to issue the NAT apermit to take two bald eagles within Wyoming butoutside of the Wind River Reservation because doingso ‘‘would allow the NAT to take a live eagle forreligious purposes in a manner that would avoid . . .burdening the religious and cultural beliefs and prac-tices of the EST.’’

In March 2012, the NAT filed an amended complaint,alleging that the service denied its permit applicationby excluding the Wind River Reservation from the areawhere the take could occur. The NAT alleged that theservice’s refusal to all eagle take within the Wind RiverReservation violated the Religious Freedom RestorationAct (RFRA), the free exercise clause and the Adminis-trative Procedure Act (APA).

In May 2012, the NAT filed a motion on its RFRAclaim. In November 2012, the court held that the ser-vice ‘‘did not violate RFRA because it advanced andbalanced its compelling interests via the least restrictivemeans.’’

The NAT moved for reconsideration, which wasdenied.

Permit ChallengedOn March 22, 2013, the parties filed a joint stipulationfor stay of proceedings. When the first permit wasissued, if the tribe were to take an eagle pursuant to

the permit within Wyoming but outside of the WindRiver Reservation, the tribe would have violated statelaw absent a separate exemption from the state.

In February 2013, the state Legislature amendedWyoming Statute Annotated Section 23-3-101 to pro-vide a new exception to the prohibition on takingeagles within Wyoming: ‘‘Any person who takes aneagle is guilty of a high misdemeanor . . . unless thetaking is authorized by federal law or commissionrules adopted in compliance within federal law.’’ Thesame month, the service issued a new permit for thetribe to take up to two eagles during the period ofMarch 1, 2013, to Feb. 28, 2014. The second permitcontained the same location restriction as the first. Asa result, the parties requested the state ‘‘to allow theparties to consider the possible effects of the recentlyenacted amendment’’ on the tribe’s remaining claims.

The court stayed the proceedings and then extendedthe stay. During this time, the service filed supplementsto the administrative record concerning the secondpermit issued. The service stated that ‘‘Based on dis-cussions during consultations with the EST, and asconfirmed by the EST Attorney General in court pro-ceedings, USFWS finds that the EST has a sincerereligious and cultural belief in protecting eagles. Allow-ing taking on the Wind Reservation would burden theEST’s religious and cultural beliefs.’’

In October 2014, the NAT moved for summaryjudgment, and the service cross-moved for summaryjudgment.

Not Arbitrary, CapriciousJudge Alan B. Johnson said he must determine whetherthe service’s informal adjudication of the NAT’s permitapplication was arbitrary or capricious in violation ofthe APA. The NAT argued that the service incorrectlyinterpreted 50 Code of Federal Regulation Section22.22 as allowing the service to consider the cultureand religion of the EST and that the service’s conclu-sion that eagles taken by the NAT offends the cultureand religion of the EST is not supported by substantialevidence.

Judge Johnson held that the service’s interpretation ofSection 22.22 was not plainly erroneous or inconsistentwith the regulation. When an administrative agency isinterpreting its own regulations, a reviewing court must


24

give considerable deference to that interpretation, JudgeJohnson said. The service interpreted its own regulationand in particular the phrase ‘‘among other criteria’’ toinclude considerations such as the federal government’scompelling interests under the RFRA, and such aninterpretation is not plainly erroneous or inconsistentwith the regulation, Judge Johnson said.

Further, the service’s factual conclusion that the eagletake by the NAT offends the culture and religion ofthe EST was not arbitrary or capricious, Judge Johnsonsaid. It appears that the service examined the data ithad before it concerning the EST’s cultural or religiousobjection to the NAT taking eagles on the reservation,Judge Johnson said. Although the administrative recordis sparse, there is evidence of a cultural or religiousobjection on the part of the EST, so the service’s factualconclusion regarding the EST’s cultural or religiousobjection was not arbitrary or capricious.

Constitutional ViolationNext, Judge Johnson said he must consider whether theservice’s informal adjudication of the permit applicationviolated the NAT’s right to free exercise under the FirstAmendment. First, the judge held that NAT’s chal-lenge is to the service’s constitutional decision andnot a challenge to the BGEPA itself.

Judge Johnson went on to find that the service’s infor-mal adjudication of the permit application was faciallydiscriminatory and thus subject to strict scrutiny. Assuch, the service’s decision to limit the area where theNAT could take bald eagles because of the cultural orreligious objection of the EST must be justified by acompelling interest and must be narrowly tailored toadvance that interest, the judge said.

Although in his November 2012 order, Judge Johnsonsaid the ‘‘current permit reflects the least restrictivemeans of furthering the [defendants’] compelling inter-ests,’’ two U.S. Supreme Courts cases since then meanhe must reconsider the holding of that order. JudgeJohnson said it would be clearly erroneous and resultin manifest injustice if he ignored the Supreme Court’sholdings in Burwell v. Hobby Lobby Stores Inc. (134S. Ct. 2751, 189 L. Ed 2d 675 [2014]) and Holt v.Hobbs (135 S. Ct. 853, 190 L. Ed. 2d 747 [2015]).

Judge Johnson went on to say that in light of thoseSupreme Court decisions, the decision to limit theNAT’s permit to areas outside of the Wind River

Reservation is not justified by a compelling interestand he must depart from the holding of the November2012 order.

Burden On ReligionThe decision of the service to exclude the Wind RiverReservation from the area where the NAT could takeup to two bald eagles per year violates the free exerciseclause and burdens the NAT’s free exercise of religion,Judge Johnson said. The Wind Reservation is sharedby the NAT and the EST, and not allowing the NATto participate in the sincere religious practice on itsland constitutes a burden on their free exercise ofreligion, Judge Johnson said.

Further, the decision to exclude the Wind Reservationfrom the area where the NAT could take up to two baldeagles per year is not justified by a compelling interest,Judge Johnson said.

‘‘There is no doubt that the federal government hasgeneral interests in preserving Native American cultureand religion in-and-of themselves and in fulfilling trustobligations to Native Americans,’’ Judge Johnson said.‘‘But the argument that taking up to two bald eaglesper year within the Wind River Reservation wouldseriously compromise the federal government’s generalinterest in protecting and fostering the EasternShoshone Tribe’s culture is unavailing.’’

‘‘If take of two bald eagles within the Wind River Reser-vation harms the government’s compelling interest infostering and protecting the culture and religion of theEastern Shoshone Tribe, then certainly take of twobald eagles one foot outside of the Wind Reservationand bringing those eagles back to the reservationwould produce ‘substantial harm or alleged harmof the same sort,’ ’’ Judge Johnson said. ‘‘Defendants’decision to limit the area where Plaintiffs can take upto two bald eagles per year to Wyoming but outsidethe Wind River Reservation ‘leaves appreciable dam-age to that supposedly vital interest unprohibited.’ ’’

Also, the service’s decision to exclude the reservationfrom the area where the NAT could take the eagles isnot narrowly tailored to advance the asserted interest,Judge Johnson added.

CounselTerri V. Smith and Andrew W. Baldwin of BaldwinCrocker & Rudd in Lander, Wyo., represent the NAT.


25

Carter Healy Coby Howell and Barbara M. R. Marvinof the U.S. Department of Justice in Washington,D.C., and Nicholas Vassallo of the U.S. Attorney’sOffice in Cheyenne represent the service.

Robert S. Hitchcock, attorney general of the EST inFort Washakie, Wyo., represents the EST.

(Additional documents available: Plaintiff’s sum-mary judgment brief. Document #96-150325-040B.Defendant’s summary judgment brief. Document#96-150325-041B. Plaintiff’s opposition brief. Docu-ment #96-150325-042B. Plaintiff’s reply brief. Docu-ment #96-150325-043B. Amended complaint.Document #96-150325-044C.) �

10th Circuit Affirms PrisonDid Not Violate NativeAmerican’s Religious RightsDENVER — A panel of the 10th Circuit U.S. Courtof Appeals on March 20 affirmed the dismissal of asuit brought by a Native American inmate challenginga decision upholding the prison’s denial of his requestto wear a colored bandana outside of group worshipservices (Jose Rojas v. James Heimgartner, No. 14-3178, 10th Cir.; 2015 U.S. App. LEXIS 4548).


Religious RequestJose Rojas is an inmate in the Kansas Department ofCorrections. The policies of the prison in which Rojas isincarcerated permit inmates whose religion is classifiedas ‘‘Native American’’ to wear white bandanas duringworship services. In 2011, Rojas submitted a requestto wear a bandana. The director of Religious Programsat the prison responded that bandanas could be wornduring group worship services. Rojas submitted a grie-vance to Warden James Heimgartner requesting per-mission to wear colored bandanas and to wear thebandanas outside of group worship services. Aroundthe time Rojas made the request, 15 other prisoners,most of whom were members or suspected membersof prison gangs, also sought permission to wear coloredbandanas. Rojas’ request was denied because of con-cerns that individuals in prison gangs could use coloredbandanas to communicate coded messages.

Rojas sued the warden in the U.S. District Court forthe District of Kansas, alleging violations of his Firstand 14th Amendment rights as well as a violation ofthe American Indian Religious Freedom Act.

The District Court granted summary judgment in favorof the warden, and Rojas appealed to the 10th Circuit.

AccommodationInmates retain protections afforded by the FirstAmendment, including its directive that no law shallprohibit the free exercise of religion, the appeals courtsaid. However, ‘‘a prison regulation imping[ing] oninmates’ constitutional rights . . . is valid if it is reason-ably related to legitimate penological interests,’’ theappeals court added.

To state a claim for a free exercise of religion violation,a prisoner must show that a prison regulation ‘‘sub-stantially burdened . . . sincerely-held religious beliefs,’’the appeals court said. Once a prisoner has made thisshowing, courts must examine whether a prison regu-lation reasonably curtails those constitutional rights,the appeals court said.

The District Court correctly held that a rational con-nection existed for the prison policy regulation andthat a legitimate governmental interest was advancedby the regulation, the appeals court said. The recordshows that prisoners requesting to wear coloredbandanas outside of group worship raised ‘‘valid secur-ity concerns,’’ the appeals court said. Rojas was per-mitted an alternative means of exercising his religiousrights, the appeals court said. Accommodating Rojas’religious rights in Rojas’ ‘‘preferred fashion wouldrequire close monitoring by guards to prevent the trans-mission of gang messages, and could lead to gang activ-ity that injures other prisoners,’’ the appeals courtadded.

Further, Rojas did not identify an obvious alternativethat would accommodate his rights without posingsimilar problems, the appeals court said.

The District Court also correctly denied Rojas’ equalprotection claim, the appeals court said. ‘‘Although theregulations permit black kufi caps or tams and disallowbandanas, the former types of headwear do not presentthe same security concerns as bandanas, justifying dif-ferential treatment in light of legitimate penologicalinterests.’’


26

No Cause Of ActionThe District Court also correctly held that the Amer-ican Indian Religious Freedom Act does not create acause of action; therefore, Rojas’ claim under the statuteis unavailing, the appeals court said.

Judge Carlos F. Lucero wrote the opinion for the courtin which Judges Paul J. Kelly Jr. and Carolyn B.McHugh concurred.

Rojas of El Dorado, Kan., is pro se. John WesleySmith of the Office of Attorney General for the Stateof Kansas in Topeka, Kan., represents Heimgartner. �

Parties File Summary JudgmentMotions In ‘Redskins’Trademarks SuitALEXANDRIA, Va. — The owners of the Washing-ton Redskins professional football team on Feb. 23filed a motion for summary judgment in a Virginiafederal court in its challenge to the cancellation of sixfederal trademark registrations relating to the team,while the defendants on Feb. 26 filed a motion forpartial summary judgment, saying that there was noerror committed in the cancellation of the marksbecause the evidence shows the marks ‘‘may disparage’’Native Americans (Pro-Football Inc. v. Amanda Black-horse, et al., No. 14-1043, E.D. Va.).

(Pro-Football Inc.’s summary judgment brief avail-able. Document #96-150325-017B. Defendants’summary judgment brief available. Document #96-150325-019B.)

Trademark Registrations CanceledIn June, the Trademark Trial and Appeal Board(TTAB) ordered the cancellation of six federal trade-mark registrations containing the word ‘‘Redskins’’ asused in connection with the Washington, D.C., profes-sional football team, on the ground that the trademarks‘‘may disparage’’ Native Americans.

In August, Pro-Football Inc. (PFI) sued AmandaBlackhorse, Marcus Briggs-Cloud, Phillip Gover, JillianPappan and Courtney Tsotigh in the U.S. DistrictCourt for the Eastern District of Virginia, saying thatthe TTAB’s decision violates the First and Fifth

Amendments to the U.S. Constitution. Blackhorse,Briggs-Cloud, Gover, Pappan and Tsotigh are theindividuals who petitioned the TTAB to cancel thefederal registrations of the Redskins marks.

PFI alleges that the Washington Redskins is one ofthe most storied sports franchises in the United Statesand has for more than eight decades continuouslyused the name ‘‘Redskins’’ as the name of its profes-sional football team and has held federal trademarkregistrations for nearly 50 years. The PFI seeks a denovo review, pursuant to 15 U.S. Code Section1071(b), of the decision by the TTAB to cancel thetrademark registrations.

PFI alleges that the ‘‘TTAB action was based on asparingly used statutory provision, Section 2(a) of theLanham Act, 15 U.S.C. § 1052(a), which is rarelyinvoked to cancel any registered trademarks, let alonelong-held valuable registrations such as the RedskinsMarks.’’ The test under Section 2(a) for whether amark ‘‘consists of or comprises . . . matter which maydisparage’’ turns ‘‘not on present-day perceptions ofthe matter at issue, but rather on the views of thereferenced group at the time of the registration,’’ PFIsays. The inquiry in this case is limited to whetherthe Redskins marks were disparaging to a substantialcomposite of Native Americans in a time periodranging from 1967-1990, when each was registered.The TTAB found that, as of the registration date foreach Redskins mark at issue, ‘‘a substantial compositeof Native Americans found the terms REDSKINS tobe disparaging in connection with respondent’s servicesduring the relevant time frame of 1967-1990,’’ PFIsays. The TTAB, however, erred in numerous respectsin taking this action, which PFI says deprives it of itslongheld and extremely valuable rights in its federalregistrations for the Redskins marks.

In its complaint, PFI seeks a declaration of nondispar-agement, a declaration of noncontempt or disrepute, adeclaration that Section 2(a) of the Lanham Act violatesthe First Amendment, a declaration that Section 2(a)of the Lanham Act is void for vagueness, a declarationthat the TTAB order violates the due process clauseof the Fifth Amendment, a declaration that theTTAB order violates the takings clause of the FifthAmendment and a declaration that the defendants’petition was barred by the doctrine of laches.


27

UnconstitutionalPFI moved for summary judgment on its constitutionalclaims, arguing that Section 2(a) of the Lanham Actviolates the First Amendment because ‘‘[i]t is axiomaticthat the government may not regulate speech based onits substantive content or the message it conveys,’’ but thatSection 2(a) does both of those things on its face.

‘‘Viewpoint-based regulations such as Section 2(a)generally amount to ‘blatant’ violations of the FirstAmendment,’’ PFI says. ‘‘This effectively ends the ana-lysis here — the Court can and should find Section 2(a)unconstitutional on the basis of its viewpoint-basedrestrictions alone.’’

Even if the court does not determine that Section 2(a)is an impermissible viewpoint-based restriction, thesection still violates the First Amendment because ‘‘it:(1) restricts protected speech; and (2) does not directlyadvance a substantial and legitimate state interest,’’PFI says.

Section 2(a) also is unconstitutionally vague becauseit ‘‘fail[s] to provide the kind of notice that will en-able ordinary people to understand what conduct isprohibited,’’ PFI says. The section is also void for vague-ness because ‘‘its inherent subjectivity ‘authorize[s] andeven encourage[s] arbitrary and discriminatory enforce-ment,’’’ PFI says.

Regardless if the section is void for vagueness, PFIargues that the section is at least impermissibly vagueas applied to PFI. ‘‘The Redskins Marks were registereddecades before the TTAB provided any gloss on thetext of Section 2(a); thus PFI had no way to knowthat its marks would be adjudicated as disparagingyears after the fact based on the later-professed viewsof it as a ‘substantial composite’ of Native Americans.’’

Taking Of PropertyPFI also argues that the TTAB’s order unconstitution-ally takes PFI’s property without just compensation.The Redskins marks constitute ‘‘property’’ for takingsclause purposes and are therefore subject to FifthAmendment constitutional protection, PFI says. Thecancellation of the Redskins marks also effects a regu-latory taking because it ‘‘significantly impedes a corecharacteristic that makes trademarks economicallyviable — the right to exclude — thereby effecting aregulatory ‘taking’ of PFI’s property,’’ PFI says.

The marks are extraordinarily valuable, with Forbesmagazine ranking the Redskins as the NFL’s mostvaluable franchise at $1.423 billion, PFI says. ‘‘Cancel-lation of the Redskins Marks not only divests PFI ofstatutory protections accompanying federal registrationthat enforces exclusivity, but also substantially interfereswith PFI’s ability to protect the exclusivity of its marksunder state statutes and common law.’’

Further, PFI argues that is has been deprived of itsproperty without due process.

‘May Disparage’The defendants seek partial summary judgment onthe claims for declaration of nondisparagement,declaration of noncontempt or disrepute and a declara-tion that the defendants’ petition was not barred by thedoctrine of laches.

The defendants say that they have supplied evidencethat the trademarks contain matter that ‘‘may dis-parage’’ Native Americans. Using the framework ofanalysis employed by the TTAB and appeals court insuch cases, ‘‘[t]he evidence establishes that there is nogenuine issue of material fact that PFI’s trademarkscontain matter that may disparage Native Americans,’’the defendants say.

There also is no genuine issue of material fact thatthe TTAB did not err in its alternative ruling thatthe trademarks bring Native Americans into contemptor disrepute, the defendants say.

Further, PFI’s argument that the TTAB erred by notdismissing the defendants’ petition due to laches hasno merit because the petition raised issues of broadpublic interest, the defendants say. Also, the defendantssay they did not unreasonably delay in bringing thepetition, so PFI cannot demonstrate any reliance onany unreasonable delay.

CounselCraig C. Reilly of The Law Office of Craig C. Reillyin Alexandria and Robert L. Raskopf, Todd Anten andClaudia T. Bogdanos of Quinn Emanuel Urquhart &Sullivan in New York represent PFI.

Jesse A. Witten, Jeffrey J. Lopez, Adam Scott Kunz,Tore T. DeBella and Jennifer T. Criss of DrinkerBiddle & Reath in Washington, D.C., represent thedefendants.


28

(Additional document available. Complaint. Docu-ment #96-150325-018C.) �

Supreme Court DeniesReview Of Ruling OnWashington Escrow StatuteWASHINGTON, D.C. — The U.S. Supreme CourtMarch 9 denied a petition for review of a ruling re-quiring a tobacco distributor owned by the YakamaIndian Nation to escrow funds to reimburse the Stateof Washington for health care costs related to tobaccouse (Confederated Tribes and Bands of the YakamaIndian Nation, et al. v. Robert McKenna, No. 14-947, U.S. Sup.).

The high court let stand a Nov. 3 order by the NinthCircuit U.S. Court of Appeals denying reconsiderationof its Sept. 26 ruling finding that Washington’s escrowstatute is nondiscriminatory and applies to productssold by King Mountain Tobacco. Co., owned andoperated by Delbert Wheeler, an enrolled member ofthe Yakama Nation. The Ninth Circuit held thatYakama Treaty of 1855 does not preclude enforce-ment of the escrow statute and rejected the YakamaNation’s argument that the treaty should be interpretedfrom the perspective of the tribe at the time of itssigning.

MSAWashington, like a number of states, adopted theescrow statute as a means of funding health care costsrelated to products manufactured by tobacco com-panies that did not participate in the 1998 Master Set-tlement Agreement (MSA) between state governmentsand the major tobacco producers. Under the MSA, theparticipating companies agreed to make annual cashpayments to the settling states in return for a releaseof certain past and future tobacco-related claims againstthem. The Washington statute requires nonparti-cipants in the MSA to make a flat-fee payment intoan escrow fund for each unit of tobacco sold. Themanufacturers earn interest on the escrow accountfunds, which can be released only to pay a judgmentor settlement, issue a refund to the manufacturerfor overpayment to the account or as a refund to themanufacturer after the funds have been in the accountfor 25 years.

King Mountain produces almost 40 percent of itstobacco on reservation land. The crop is shipped toTennessee to be threshed, then sent to a factory inNorth Carolina, where it is blended with tobaccogrown elsewhere, then sent back to the reservation foruse in cigarettes and other tobacco products sold onthe reservation, throughout Washington and in 16other states.

Suit FiledKing Mountain, which is not a participant in theMSA, originally complied with the statute but even-tually filed suit against the state and Attorney GeneralRobert McKenna in the U.S. District Court for theEastern District of Washington in 2011. JudgeLonny R. Suko entered summary judgment for thestate, finding that King Mountain failed to identifyany express federal law exempting its business fromstate regulation or to cite case law invalidating appli-cation of any state’s escrow statute based on an Indiantreaty or other federal law.

Affirming, the Ninth Circuit said that the statute isnondiscriminatory and that the bulk of King Moun-tain’s tobacco-related activities occur off-reservation,subjecting King Mountain’s business to regulation bythe state. Further, the panel said, the language of theYakama Treaty does not create an exemption from theescrow law.

9th Circuit RulingThe Ninth Circuit rejected King Mountain’s argumentthat Article II of the treaty, which sets the boundariesfor the Yakama reservation and reserves it for Yakamause, should be interpreted as providing that the reser-vation’s residents are to be the sole beneficiaries of theresources cultivated there, thereby precluding collectionof the escrow funds. ‘‘Washington’s escrow statute doesnot interfere with King Mountain’s ability to growtobacco on reservation lands and benefit from the saleof its tobacco products,’’ the panel said.

Further, the panel said, the lower court did not err inrefusing to consider the treaty’s meaning to the Yakamapeople at the time of its signing ‘‘because the meaningto the Yakama people cannot overcome the clear wordsof the Treaty.’’

Conflict With Precedent

In seeking review, the Yakama Nation and KingMountain renewed their argument that the treaty


29

should be interpreted from the perspective of the tribe,saying, ‘‘The ruling by the Ninth Circuit Court ofAppeals conflicts with Supreme Court precedentrequiring Indian treaties in general, and the YakamaTreaty in particular, to be interpreted as the Indiansunderstood the treaty terms when courts are addressingtreaty challenges to state regulation.’’

King Mountain is represented by Randolph H. Barn-house and Justin Solimon of Johnson Barnhouse &Keegan in Albuquerque, N.M. McKenna is representedby David M. Hankins, Senior Counsel in the Office ofthe Washington Attorney General in Olympia, Wash. �

Judge: New York May SeekDiscovery From Owner Of NativeAmerican Tobacco CompanyCENTRAL ISLIP, N.Y. — The State of New Yorkmay seek discovery aimed at establishing personal jur-isdiction over the owner of a Native American tobaccomanufacturer, a federal magistrate judge ruled Feb. 26(State of New York v. Mountain Tobacco Co., et al.,No. 12-6276, E.D. N.Y.; 2015 U.S. Dist. LEXIS24966).

(Order available. Document #04-150318-007R.)

In a suit filed the U.S. District Court for the EasternDistrict of New York in December 2012, the statealleges that Mountain Tobacco Co., a corporationformed under the laws of the Yakama Nation of Indiansand doing business as King Mountain Tobacco Co.,distributed large quantities of unstamped, untaxed andunreported cigarettes in the state in violation of theContraband Cigarette Trafficking Act (CCTA) andthe Prevent All Cigarette Trafficking Act (PACT Act)and state statutes. The suit also names Delbert Wheeler,president and 50 percent owner of the company. Thecorporation has its headquarters in White Swan, Wash.Wheeler is a resident of Washington.

Personal JurisdictionWheeler moved to dismiss, arguing that the state lackspersonal jurisdiction over him. U.S. Judge Arthur D.Spatt of the Eastern District of New York deniedWheeler’s motion in October, finding that while thestate had failed to establish an agency theory of personal

jurisdiction, the state was entitled to conduct juris-dictional discovery to ‘‘develop a record relevant tothe extent of Wheeler’s contacts with New YorkState.’’ Following that order, Magistrate Judge StevenI. Locke entered an order scheduling a deposition ofWheeler on or before Feb. 13. The state then movedto compel responses to its discovery requests and toreschedule the deposition to a date after the responsesare provided.

Specifically, the state seeks information about thenumber of cigarettes sold by each distributor of KingMountain products, including financial statements;revenue, profits and losses derived from the sale ofcigarettes by each distributor; and any distribution ofdividends to Wheeler or anyone acting on his behalf.

Partially denying the state’s motion, Magistrate JudgeLocke found that information about the volume ofcigarettes sold and the resultant revenue derived ‘‘maybe relevant to establishing the breadth of KingMountain’s activities in New York,’’ but that therequests, in their current form, ‘‘are not reasonablycalculated’’ to lead to the discovery of informationshowing that King Mountain engaged in activities‘‘for the benefit of, and with the knowledge and con-sent of’’ Wheeler. The state may serve a more narrowlytailored discovery request, the magistrate judge said.

Financial InformationHowever, the magistrate judge granted the state’smotion with respect to the information about divi-dends, finding that the request is ‘‘designed to elicitinformation demonstrating the financial interrelation-ship between Wheeler and King Mountain.’’

The magistrate judge also granted the state’s motionwith respect to information identifying ‘‘any asset, pur-chase, investment, loan, security, or agreement made orprovided or entered into by Wheeler’’ and informationconcerning any asset held by King Mountain, includingits ‘‘production facility, buildings, warehouse, equip-ment, vehicles, inventory and property upon whichKing Mountain’s tobacco is grown.’’ The state mayalso seek information about bank and securitiesaccounts held by or for Wheeler or King Mountain,the magistrate judge said.

Finally, the magistrate judge ordered Wheeler to pro-vide the requested documents by March 27 and held


30

that the state must take Wheeler’s deposition within45 days after the information is produced.

The state is represented by Attorney General Eric T.Schneiderman and Assistant Attorneys General Chris-topher K. Leung and Dana H. Bilberman in New York.Mountain Tobacco is represented by Kelli J. Keeganand Randolph Barnhouse of Johnson Barnhouse &Keegan in Ranchos De Albuq, N.M., and Nelson A.Boxer and Jill C. Barnhart of Petrillo Klein & Boxerin New York. Wheeler is represented by Andrew K.Martingale and David N. Yaffe of Hamburger,Maxon, Yaffe & McNally in New York. �

Loan Company PetitionsHigh Court Over ArbitrationRuling In Loan DisputeWASHINGTON, D.C. — A consumer loan com-pany owned by a member of the Cheyenne RiverSioux Tribe on Feb. 13 filed a petition for writ ofcertiorari with the U.S. Supreme Court, asking thecourt to reverse a finding by the Seventh Circuit U.S.Court of Appeals voiding an arbitration clause con-tained in the loan agreements and holding that a dis-pute over the loans could not be litigated in tribal courtbecause the individuals obtaining the loan had neverset foot on the reservation, saying that such a decisiongives an ‘‘unreasonably restrictive view of tribal courtjurisdiction that impedes the ability of tribal businessesto compete in a modern economy’’ (Western SkyFinancial, et al. v. Deborah Jackson, et al., No. 14-991, U.S. Sup.).

(Petition for writ of certiorari in Section B. Docu-ment #96-150325-026B.)

Arbitration ProvisionsIn 2010 and 2011, Deborah Jackson, Linda Gonnellaand James Binkowski (collectively, respondents) receivedunsecured installment loans over the Internet withWestern Sky Financial, which is owned by an enrolledmember of the Cheyenne River Sioux Tribe (CRST) —Martin A. ‘‘Butch’’ Webb — and operates on the Chey-enne River Indian Reservation in South Dakota.

The loan agreements contain two distinct dispute reso-lution provisions that precluded the respondents from

bringing suit in federal court. The first provision — thearbitration clause — states that any disputes relatingto the respondents’ loans must be arbitrated by eithera ‘‘Tribal Elder’’ or a panel of three members of theTribal Council. The arbitration clause states that therespondents would not have to pay the arbitrationfiling fee or any other fees charged by the arbitratorand that the arbitration could be conducted viaphone or video conference. The second provision —the forum-selection clause — requires that, to theextent any dispute may be brought in court, the disputecould be heard only in CRST courts.

Western Sky later transferred the loans to WS Funding,which assigned the servicing rights to CashCall Inc.

Arbitration Not Possible

In October 2011, the respondents brought a classaction against Western Sky, Webb, WS Funding andCashCall in the Cook County Circuit Court, allegingthat the loans violated Illinois civil and criminal sta-tutes, including the Illinois Consumer Fraud andDeceptive Business Practices Act.

The defendants removed the case to the U.S. DistrictCourt for the Northern District of Illinois and movedto dismiss the case in favor of arbitration pursuant tothe arbitration clause in the agreements.

The District Court treated the motion to dismiss andto compel arbitration ‘‘as an objection to venue’’ underFederal Rule of Civil Procedure 12(b)(3) and then ana-lyzed the arbitration clause as a type of ‘‘forum selectionclause.’’ The District Court held that the respondents’claims that the loan agreements were illegal could notbe addressed before arbitration and rejected the claimthat the loan agreements were procured by duress. TheDistrict Court also concluded that Illinois public policywould not invalidate borrowers’ ‘‘freely contractedchoice to litigate their dispute in the Tribal forum.’’

The respondents appealed to the Seventh CircuitU.S. Court of Appeals, which issued a limited remandfor the District Court to conduct further fact-findingon whether the CRST has ‘‘(1) applicable tribal lawreadily available to the public’’ and ‘‘(2) an authorizedarbitration mechanism available to the parties andwhether the arbitrator and method of arbitrationrequired under the contract is actually available.’’


31

In August 2013, the District Court concluded that eachparty was able to secure a copy of the relevant substan-tive tribal law, meaning that the applicable tribal lawwas readily available to the public. The District Courtconcluded, however, that arbitration was not possiblein accordance with the arbitration clause because anyarbitrator selected would be bias due to his membershipin the CRST. The District Court also concluded thatarbitration was not available because the ‘‘intrusion ofthe [CRST] into the [Arbitration Clause] appears to bemerely an attempt to escape otherwise applicable limitson interest charges.’’

Clause Unconscionable

On appeal, the Seventh Circuit concluded in an August2014 opinion that the arbitral forum and proceduralrules listed in the arbitration clause were unavailable;therefore, the entire arbitration clause was unreasonableand unenforceable. The Seventh Circuit stated that thearbitration clause was a ‘‘specialized forum selection

clause’’ and held that the validity of the arbitrationclause is therefore gauged by the same test used for atraditional forum selection clause. The court stated thatan arbitration clause is invalid whenever it is ‘‘unreason-able’’ under the multi-prong common-law test set forthby the U.S. Supreme Court in M/S Bremen v. ZapataOff-Shore Co. (407 U.S. 1, 10 [1972]). Applying theBremen test to the arbitration clause at issue, theSeventh Circuit concluded that the arbitrator desig-nated in the loan agreements was unavailable becausethe CRST does not ‘‘involve itself in the hiring of arbi-trators’’ and does not have readily identifiable consumerdispute rules. The court went on to say that the chosenarbitral forum was ‘‘illusory,’’ therefore, the arbitrationclause was unenforceable.

The Seventh Circuit held that the arbitration clause alsowas unenforceable under Illinois law regarding forumselection clauses and that the unavailability of the arbi-trator and rules meant that the respondents could ‘‘nothave ascertained or understood the arbitration proce-dure to which they were agreeing.’’

The Seventh Circuit held the arbitration clause tobe unconscionable and void and compelled the partiesto litigate. The court also held that because the respon-dents never physically entered the reservation, the loantransactions were not the kind of ‘‘on-reservation’’ activ-ity amenable to tribal regulations.

Questions PresentedThe defendants filed a petition for writ of certiorariwith the Supreme Court, saying that the Seventh Cir-cuit’s decision warrants review on three issues.

The first question presented ‘‘is whether an arbitrationclause’s enforceability is judged exclusively by the ex-press statutory requirements of the FAA [Federal Arbi-tration Act], as many lower courts have held; or insteadby the common-law ‘reasonableness’ test, as the SeventhCircuit held below.’’ The petitioners argue that theSeventh Circuit’s application of a ‘‘reasonableness’’ testto an arbitration clause undercuts the FAA by makingit considerably easier for a party to void an arbitrationclause. Such a decision warrants plenary review or sum-mary reversal on this basis alone, the petitioners say.

The second question presented is ‘‘whether a courtmay — as the Seventh Circuit also did here — employstate law to void an entire arbitration clause merely

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license.© 2012, LexisNexis. All rights reserved. OFF02211-0 2012

We’re listening.

If you have news to report, simply contact the editor of this report.


32

because the contractually-selected arbitral forum andrules are found to be unavailable.’’ Section 5 of theFAA requires that when the parties’ selected arbitratoris unavailable, ‘‘the court shall designate and appointan arbitrator,’’ the petitioners say. Instead of followingthe statute, the Seventh Circuit held that the entirearbitration agreement was void and unenforceableunder Illinois law, the petitioners say. ‘‘The court ofappeals thus applied a state law defense in a mannerthat conflicts directly with the FAA, frustrates its obj-ectives, and disfavors arbitration, all in contraventionof this Court’s ruling in AT&T Mobility LLC v. Con-cepcion, 131 S. Ct. 1740, 1747-48 (2011),’’ the peti-tioners say.

Tribal JurisdictionThe third question presented relates to the scope oftribal jurisdiction over non-tribal members who donot physically enter the tribe’s reservation. The partiesagreed in the forum selection clause that any in-courtlitigation would occur only in the tribal court, the peti-tioners say. The Seventh Circuit held, however, thatthe clause was unenforceable because the respondents,who are not Indians, never entered the reservation, thepetitioners say.

‘‘In doing so, the Seventh Circuit held that Petitionerslacked even a colorable argument that the tribal courthas jurisdiction over this dispute, and thus refused toorder Respondents to comply with the tribal exhaustiondoctrine, which would require them to bring suit in thetribal court and allow that court to determine in the firstinstance whether it has jurisdiction,’’ the petitioners say.

‘‘The Seventh Circuit thus adopted an unprecedentedand unreasonably restrictive view of tribal court juris-diction that impedes the ability of tribal businesses tocompete in a modern economy, where countless trans-actions now cross jurisdictional boundaries even wherethe parties themselves do not,’’ the petitioners say.‘‘Under the Seventh Circuit’s rule, a tribal court maynever exercise jurisdiction over non-tribal membersunless they set foot on the reservation, even if the non-members voluntarily enter into commercial relation-ships with tribal members and sign contracts statingthat tribal law will govern their disputes, as Respon-dents did here.’’

Katya Jestin, Neil M. Barofsky, Brian J. Fischer, R.Trent McCotter and Esteban M. Morin of Jenner &Block in New York and Barry Levenstam, Michael

T. Brody and Daniel T. Fenske of Jenner & Blockin Chicago represent the petitioners. Cathleen M.Combs, Daniel A. Edelman, James O. Latturner andThomas E. Soule of Edelman Combs Latturner &Goodwin in Chicago represent the respondents.

(Additional documents available: 7th Circuit opinion.Document #96-150325-027Z. Appellant brief.Document #96-150325-028B. Appellee brief. Docu-ment #96-150325-029B. Reply brief. Document#96-150325-030B.) �

Wisconsin Appeals CourtAffirms Indian Tribe DidNot Waive Sovereign ImmunityWAUSAU, Wis. — In a per curiam opinion, a Wis-consin appeals court on March 10 affirmed that a res-taurant owned by the Lac du Flambeau Band of LakeSuperior Chippewa Indians did not waive its sovereignimmunity from suit in state court and, therefore, a statecourt was correct in voiding its judgment awarding theplaintiff damages in his workers’ compensation case(Benjamin D. Harris v. Lake of the Torches Resort &Casino, No. 2014AP1692, Wis. App., Dist. 3).


Physical Injury

In 2007, Benjamin Harris was hired as a back-up/prepcook at the Eagle’s Nest Restaurant at Lake of theTorches Resort & Casino. Lake of the Torches isowned by the Torches Economic DevelopmentCorp., which is owned by the Lac du Flambeau Bandof Lake Superior Chippewa Indians.

In October 2008, Harris injured his right hand whileat work while operating an industrial mixer. He soughtmedical attention on Oct. 20, 2008, and learned thatthree of his fingers were fractured. Lake of the Torcheshad a written policy governing workers’ compensation.The policy provided, in part, that Lake of the Torchesemployees were ‘‘covered under a Tribal WorkersCompensation Insurance program and not subject toState Workers Compensation.’’ Lake of the Torcheswas self-insured for workers’ compensation purposesand used a third-party workers’ compensation systemadministrator, Crawford & Co. Pursuant to the policy,


33

Lake of the Torches paid Harris lost wages from thedate of injury until Dec. 5, 2008. Harris’ medicalexpenses also were paid during that time.

On Dec. 4, 2008, Lake of the Torches’ safety manager,Mark Wilke, received a return-to-work form fromHarris’ doctor stating that Harris could return tolight-duty work. On Dec. 5, 2008, Wilke contactedHarris to offer him a temporary light-duty position asa host in the Eagle’s Nest Restaurant. For reasons indispute, Harris did not return to work. Consequently,Lake of the Torches terminated Harris and ceased pay-ing him lost wage benefits and medical benefits.

Harris subsequently obtained additional medicaltreatment and physical therapy for his hand injury.He underwent seven surgeries, and one physician diag-nosed him with a 100 percent permanent disability tohis right hand.

Tribal CourtIn June 2011, Harris sued Lake of the Torches andCrawford in the Vilas County Circuit Court. In July2011, Lake of the Torches, by special appearance, fileda motion for a temporary stay of the Circuit Courtproceedings pending an allocation of jurisdictionbetween the Circuit Court and the Lac du FlambeauTribal Court. The motion asserted that the TribalCourt was the appropriate forum for the claims becausethey involved a dispute between a tribal employer anda tribal employee related to activities that occurredon tribal land. The motion further asserted thatLake of the Torches ‘‘reserve[d] the right to raise alljurisdictional objections including a lack of jurisdictiondue to sovereign immunity.’’

Also in July 2011, Lake of the Torches moved totransfer jurisdiction to the Tribal Court pursuant toWisconsin Statute Section 801.54. Lake of the Torchesagain asserted it ‘‘reserve[d] the right to raise all juris-dictional objections including a lack of jurisdiction dueto sovereign immunity.’’ Lake of the Torches thenanswered Harris’ complaint, expressly asserting as anaffirmative defense that the Circuit Court lacked jur-isdiction because Lake of the Torches ‘‘enjoy[ed] thesovereign immunity of the Tribe.’’

In September 2011, the Circuit Court granted Lakeof the Torches’ motion to transfer the case to TribalCourt.

The Tribal Court held a trial on Harris’ claims onAug. 9, 2012, but 11 months later it had yet to issuea decision. So, on July 13, 2013, Harris filed a motionin the Circuit Court requesting that the case be trans-ferred back to the Circuit Court. On Aug. 7, 2013, theTribal Court issued a decision denying Harris relief.

Sovereign ImmunityThe Circuit Court, however, subsequently grantedHarris’ motion to transfer the case back to the CircuitCourt, reasoning that the Tribal Court’s decision wasinvalid because it was not ‘‘procured in compliance withprocedures required by the rendering court.’’ While theCircuit Court also recognized that Lake of the Torcheshad asserted sovereign immunity as a defense in theinitial Circuit Court proceedings, it concluded thatLake of the Torches later waived that defense by failingto assert it in the Tribal Court. As such, the CircuitCourt held that sovereign immunity did not bar itfrom exercising subject matter jurisdiction over Harris’claims.

Harris submitted a trial brief to the Circuit Court, andthe court undertook an independent review of the Tri-bal Court record. Lake of the Torches did not partici-pate in the proceedings. The court entered judgment infavor of Harris for $197,152.98 in damages.

Lake of the Torches moved to vacate the court’s judg-ment pursuant to Wisconsin Statute Section 806.07.The Circuit Court granted the motion, finding thatcontrary to its previous opinion, Lake of the Torcheshad not waived sovereign immunity in either the Cir-cuit Court or the Tribal Court. As a result, the CircuitCourt held that the judgment against Lake of theTorches was void because the court ‘‘lacked subjectmatter jurisdiction over [Lake of the Torches] due toits sovereign immunity from suit.’’

Harris appealed to the District Three Wisconsin Courtof Appeals.

No WaiverOn appeal, Harris argued that the tribe waived Lakeof the Torches’ sovereign immunity when it enteredinto a gaming compact with the State of Wisconsinin 1992. Harris’ argument fails, however, for tworeasons, the appeals court held. First, Section XIX ofthe compact merely requires the tribe’s insurance policyto include a promise by the insurer that the insurer will


34

not attempt to escape liability under the terms of thepolicy by invoking sovereign immunity; it is not a clearand unequivocal waiver of Lake of the Torches’ sover-eign immunity, the appeals court said. Second, theappeals court said it agreed with Lake of the Torchesthat any waiver of sovereign immunity contained inSection XIX of the compact applies only to claimsrelated to Class III gaming activities and Harris wasnot injured in connection with Class III gamingactivities.

Harris also argued that Lake of the Torches waivedits sovereign immunity from suit by failing to raisesovereign immunity as a defense. Lake of the Torches,however, reserved its right to raise all jurisdictionalobjections, including lack of jurisdiction due to sover-eign immunity in its first two Circuit Court filings andagain during the hearing on its motion to transfer, theappeals court said.

Lastly, Harris argued that three specific acts by Lakeof the Torches or its representatives were sufficient towaive sovereign immunity. Harris argued that Craw-ford waived Lake of the Torches’ sovereign immunityby writing a Harris a letter indicating it would continuepaying his medical bills as they related to the workinjury. A waiver of sovereign immunity, however,must be approved by the tribe’s governing body, andHarris provided no evidence that the tribal councilgranted Crawford authority to waive Lake of theTorches’ sovereign immunity, the appeals court said.Regardless, even if Crawford had authority to waiveLake of the Torches’ sovereign immunity, Harris didnot explain why Crawford’s promise to pay benefitswould constitute a waiver of immunity from suit instate court, the appeals court added.

Harris then argued that Lake of the Torches waivedits sovereign immunity by failing to participate in theCircuit Court proceedings after Harris moved to trans-fer the case back to Circuit Court. Regardless of thereason for Lake of the Torches’ failure to participatein the Circuit Court proceedings, ‘‘its failure did notconstitute a clear, unequivocal, and advertent waiverof sovereign immunity,’’ the appeals court said. Shortlyafter Harris filed his motion to transfer the case backto the Circuit Court, Lake of the Torches obtained abinding judgment in its favor from the Tribal Court, soat this point there is no need for Lake of the Torches to

return to the Circuit Court to defend the action, theappeals court added.

Judge Michael W. Hoover, Lisa K. Stark and ThomasM. Hruz served on the panel.

Todd R. McEldowney and Amy Ferguson of O’Melia,Schiek & McEldowney in Rhinelander, Wis., andStanley H. Riffle of Arenz, Molter, Macy, Riffle &Larson in Waukesha, Wis., represent Harris. AndrewAdams, Jessica Intermill, William Szotkowski andJessie Stomski III of Hogen Adams in St. Paul,Minn., represent Lake of the Torches. �

California Federal JudgeDismisses Dispute OverPay For Lack Of JurisdictionSACRAMENTO, Calif. — In dismissing a com-plaint without prejudice, a federal judge in Californiaon Feb. 12 held that he lacks jurisdiction to hear adispute over the payment and demand for reimburse-ment of back pay, saying that the plaintiff failedto exhaust tribal remedies in Tribal Court as requiredbefore seeking relief in federal court (Resources ForIndian Student Education Inc. v. Cedarville Rancheriaof Northern Paiute Indians, et al., No. 14-2543, E.D.Calif.; 2015 U.S. Dist. LEXIS 18290).


Pay DisputeAt some point prior to December 2013, DuannaKnighton resigned from her job with the CedarvilleRancheria of Northern Paiute Indians. At the sametime, Knighton also was employed with Resourcesfor Indian Student Education Inc. (RISE). At thetime of her resignation, Knighton and the tribe agreedthat she was owed $29,925 for accrued but unusedsick leave of 665 hours. Knighton contends that ‘‘itwas understood that the sum would be paid to RISEto maintain health insurance’’ for her. However, onDec. 18, 2013, Knighton received a letter from thetribe demanding reimbursement of the $29,925 paidto RISE on her behalf.

In October, the tribe filed a complaint in the CedarvilleRancheria Tribal Court against RISE and Knighton,


35

alleging multiple causes of action against Knightonfor ‘‘poor investments’’ that she made while employedwith the tribe. The tribe also filed an ex parte appli-cation for a temporary restraining order against RISEand Knighton in the action.

RISE contended that the application was granted with-out providing RISE ‘‘with prior notice of the [a]pplica-tion or a chance to be heard.’’ RISE also contended that‘‘the Tribal Court unilaterally ruled that is has subjectmatter jurisdiction over the action[.]’’

Also in October, RISE sued the tribe and the TribalCourt in the U.S. District Court for the Eastern Districtof California, seeking declarative and injunctive relief.RISE also filed a motion for a temporary restrainingorder, which was denied for failure to provide noticeto the defendants. In November, RISE re-filed themotion, which again was denied on the ground thatRISE failed to show the need for an expedited ruling.

RISE then converted the motion into a motion for apreliminary injunction.

The tribe and the Tribal Court moved to dismiss, andthe tribe moved for sanctions.

No JurisdictionThe tribe and the Tribal Court both argued that thecomplaint must be dismissed because RISE failed toexhaust remedies by challenging jurisdiction in theTribal Court. RISE conceded that it had not exhaustedremedies in the Tribal Court but argued that theexhaustion requirement did not apply because ‘‘(a)the assertion of tribal court jurisdiction is ‘motivatedby a desire to harass or is conducted in bad faith;’ (b)the tribal court action is ‘patently violative of expressjurisdictional prohibitions;’ (c) ‘exhaustion would befutile because of the lack of an adequate opportunityto challenge the tribal court’s jurisdiction;’ and (d) it is‘plain’ that jurisdiction is lacking, so that the exhaustionrequirement ‘would serve no purpose other thandelay.’’’

Judge John A. Mendez noted that the Ninth CircuitU.S. Court of Appeals has held that ‘‘[f]ederal law haslong recognized a respect for comity and deference tothe tribal court as the appropriate court of first im-pression to determine its jurisdiction.’’ As such, ‘‘non-Indian defendants must exhaust tribal court remediesbefore seeking relief in federal court,’’ the judgeadded. The Ninth Circuit has held that this exhaustionrequirement applies ‘‘even where defendants allegethat proceedings in tribal court exceed tribal sovereignjurisdiction,’’ Judge Mendez said. As such, ‘‘federalcourts should not even make a ruling on tribal juris-diction . . . until tribal remedies are exhausted,’’ thejudge added.

Four exceptions do apply to the exhaustion require-ment, Judge Mendez said. RISE, however, concededthat it did not exhaust tribal remedies or argue that italready challenged the Tribal Court’s jurisdiction inthe Tribal Court, Judge Mendez said. Instead, RISEargued that it would be forced ‘‘to expend substantialmoney and resources to establish the lack of theTribal Court’s jurisdiction by exhausting TribalCourt remedies where’’ each of the exceptions apply,Judge Mendez said. RISE, however, did nothing butname each of the four exceptions, and without anysupporting allegations or argument ‘‘to connect the

If you have an article or opinion to share, consider authoring a commentary article. For details, simply contact the editor of this report.



36

facts of this case’’ to one of the exceptions, none of theexceptions apply, Judge Mendez said.

‘‘In light of Plaintiff’s failure to exhaust its tribal courtremedies, this Court may ‘not even make a ruling ontribal court jurisdiction,’’’ Judge Mendez said. BecauseRISE can cure the jurisdictional defect by exhaustingthe Tribal Court remedies, the motions to dismiss aregranted without prejudice, the judge added.

Sanctions, Injunction

Judge Mendez denied the motion for sanctions, sayingthat although RISE failed to convince the court thatthe failure to exhaust the Tribal Court remedies shouldbe excused, the complaint was not frivolous or broughtfor an improper purpose.

The judge said that because the motions to dismiss weregranted, the court did not have jurisdiction to considerthe motion for a preliminary injunction.

Richard Ross Clouse and Anthony C. Ferguson ofCihigoyenetche, Grossberg & Clouse in Rancho Cuca-monga, Calif., represent RISE. Jack Duran Jr. of DuranLaw Office in Roseville, Calif., represents the tribe.Duran and Marisa Renee Chaves of Vasquez Estrada &Conway in San Rafael, Calif., represent the Tribal Court.

(Additional documents available: Complaint. Docu-ment #96-150325-002C. Cedarville Rancheria dismis-sal brief. Document #96-150325-003B. Tribal councildismissal brief. Document #96-150325-004B. Briefsupporting sanctions. Document #96-150325-005B.Brief supporting preliminary injunction. Document#96-150325-006B. Brief opposing Cedarville Ran-cheria’s motion. Document #96-150325-007B. Briefopposing sanctions. Document #96-150325-008B.Brief opposing tribal council’s motion. Document#96-150325-009B.) �

Utah Federal Judge DeclinesTo Dismiss Dispute OverElection District BoundariesSALT LAKE CITY — A federal judge in Utah onMarch 12 declined to dismiss a suit challenging theredrawing of election district boundaries, saying that

the plaintiff Navajo Nation Indian tribe was not bring-ing claims seeking to modify a previous settle-ment reached by the defendant and the United States(Navajo Nation v. San Juan County, No. 12-39, D.Utah; 2015 U.S. Dist. LEXIS 31195).


Voting Boundaries

Navajo Nation is a federally recognized Indian tribe,occupying lands held in trust by the United States,some of which are located in part of San Juan County,a governmental subdivision in the State of Utah. Thecounty’s executive and legislative body is the San JuanCounty Commission.

In 1983, the U.S. Justice Department sued the countyin the U.S. District Court for the District of Utah,alleging that the election of commissioners throughan at-large election system diluted the voting strengthof Native Americans. The litigation resulted in aninjunction against the county and an entry of an agreedsettlement in 1984. The settlement stated that ‘‘theprocess leading to the selection of County Com-missioners in San Juan County’’ had failed to ‘‘complyfully’’ with Section 2 of the Voting Rights Act anddirected the county to pursue a change in its formof government to remedy the failure. The settlementenvisioned an alternative form of government basedon ‘‘fairly drawn single member districts,’’ replacingthe at-large system.

Three single-member election districts were created in1984. Since then, commissioners elected from DistrictsOne and Two have been white, and the commissionersfrom District Three have been Native American.

Navajo Nation sought reapportionment of the threedistricts through political means based on the currentdemographics of San Juan County. The 2010 U.S.Census determined that the total population of SanJuan County was 14,746 and that the non-Hispanicwhite percentage was 46.2 percent. Navajo Nationclaims that the county’s current population of NativeAmericans is 52.17 percent of the total population,and that the voting-age population is 50.33 percent.Navajo Nation contends that District Three has aninordinately large population of Native Americans,thus ‘‘packing’’ minority voters into one district. Navajo


37

Nation contends that the commission should havetwo or more single-member districts with majorityvoting-age Native American populations.

Boundary Changes

In November 2011, the commission considered plansfor redrawing election district boundaries. Representa-tives of Navajo Nation attending the meeting presenteda proposed reapportionment plan, which the commis-sion did not adopt. Instead, the commission madeboundary changes to commission election DistrictsOne and Two, but not to District Three. NavajoNation contends that the reapportionment retainedan inordinate concentration of white voters in DistrictOne and Two and of Native American voters in Dis-trict Three.

Navajo Nation sued the commissioner in the U.S.District Court for the District of Utah, assertingclaims for violations of the 14th and 15th amendmentsto the U.S. Constitution and Section 2 of the VotingRights Act.

San Juan moved to dismiss, arguing that the court lackssubject matter jurisdiction to decide the case, which itconsiders a collateral attack on the consent decree towhich another court retains jurisdiction. San Juan alsoargued that the settlement is a form of contract andthat modifying that contract is impermissible.

Jurisdiction

Judge Robert J. Shelby concluded that the court doeshave subject matter jurisdiction to hear the case. SanJuan’s first argument fails because Navajo Nation’sclaims under the Constitution are not a collateral attackon the settlement, Judge Shelby said. The county’ssecond argument fails because Navajo Nation is notseeking to modify the settlement, the judge added.

The settlement involves questions regarding the formof government and not the particulars of its com-position, Judge Shelby said. Navajo Nation is not seek-ing to replace at-large district with single-memberdistricts, which was accomplished in 1984, the judgesaid. Navajo Nation instead is arguing that the single-member districts as presently drawn violate the Con-stitution and the Voting Rights Act and seeks alterationof the districts’ boundaries and demographic composi-tion, Judge Shelby said.

Further, San Juan’s position is at odds with its priorconduct, Judge Shelby said. ‘‘If alteration of electiondistrict boundaries is permissible only through the ori-ginal litigation, then it is unclear how the Commissioncould have redrawn its boundaries in 2011 withoutfirst obtain relief from the original court. Given thatthe original court was not involved, and that San JuanCounty has provided no reason to believe that theCommission’s actions in 2011 were unauthorized,San Juan cannot fairly argue that its construction ofthe scope and preclusive effect of the Settlement barsNavajo Nation’s present claims.’’

San Juan also argued that Navajo Nation’s claimsshould be precluded because they modify the settle-ment, but San Juan’s claim that the boundaries werea part of the consent decree is inaccurate, Judge Shelbysaid. The decree did not establish the boundaries, eitherexplicitly or by reference, Judge Shelby said. If NavajoNation prevails, the remedy would involve drawingone of both of Districts One and Two, thereby addres-sing actions taken in 2011, rather than in 1984, thejudge added.

Indispensable PartySan Juan also argued that because the settlement isa contractual agreement, the United States is an in-dispensable party.

Judge Shelby disagreed, saying that the relief sought byNavajo Nation does not seek relief under the settle-ment, does not address the subject matter of the settle-ment and is not seeking to modify the settlement;therefore, the United States is not an indispensableparty.

Eric P. Swenson in Salt Lake City, Maya Leonard Kanesand Steven C. Boos of Maynes Bradford Shipps &Sheftel in Durango Colo., and D. Harrison Tsosie ofthe Navajo Nation Office of Attorney General in Win-dow Rock, Ariz., represent Navajo Nation.

Britton R. Butterfield, Carl F. Huefner and Jesse C.Trentadue of Suitter Axland in Salt Lake City representSan Juan.

(Additional documents available: Amended com-plaint. Document #96-150325-046C. Dismissalbrief. Document #96-150325-047B. Oppositionbrief. Document #96-150325-048B.) �


38

Judge Splits ArbitrationOrder For PlaintiffsIn Interest Rate SuitMILWAUKEE — A federal judge in Wisconsinon March 17 held that one plaintiff in a class actionlawsuit alleging violations of interest rate laws by loansoriginating on the Cheyenne River Sioux Tribe Reser-vation must arbitrate his claims but that the arbitrationprovision in a second plaintiff’s loan agreement couldnot be enforced (Eric Williams, et al. v. CashCall Inc.,No. 14-903, E.D. Wis.; 2015 U.S. Dist. LEXIS 32620).

(Opinion in Section C. Document #96-150325-050Z.)

Interest RatesWestern Sky Financial is a lender that offers high inter-est loans to consumers. It is located on the CheyenneRiver Sioux Tribe Nation Reservation in South Dakotaand is wholly owned by tribal member Martin Webb.

In November 2011, Lisa Walker borrowed $2,525at an interest rate of 139.12 percent, and in February2012, Eric Williams borrowed $1,000 at an interestrate of 233.91 percent. After the funds were advancedto Walker and Williams, their loans were sold to WSFunding and serviced by CashCall Inc., a Californiacorporation.

Walker and Williams filed a class action lawsuit againstCashCall in a Wisconsin state court, claiming thatCashCall violated Wisconsin’s usury law by charginginterest rates above 18 percent without first obtaininga license from the Wisconsin Division of Banking. As aresult, the plaintiffs contend that they are not obligatedto repay their loans.

CashCall removed the case to the U.S. District Courtfor the Eastern District of Wisconsin. All parties con-sented to the full jurisdiction of a magistrate judge.

CashCall moved to dismiss, which the court convertedinto a motion for summary judgment. Alternatively,CashCall moved the court to compel arbitration.

CashCall argued that the forum selection clausefound in the plaintiffs’ loan agreements mandates thatany in-court litigation occur in the courts of the tribeand that the tribal exhaustion doctrine requires that

plaintiffs, whose claims implicate the jurisdiction of afederally recognized Indian tribe, must first bring suitin tribal court before they may later challenge thescope of tribal jurisdiction in federal court. Both argu-ments were previously rejected by the Seventh CircuitU.S. Court of Appeals in Jackson v. Payday Financial(764 F.3d 765 [2014]), but CashCall stated that it in-cluded the arguments for ‘‘preservation only.’’ As such,Magistrate Judge William E. Duffin said he would notaddress the arguments.

ArbitrationJudge Duffin said he must first determine what lawgoverns the determination of the enforceability of thearbitration clauses contained in the loans. The loansinvolved each contain a choice-of-law provision statingthat ‘‘[t]his Loan Agreement is subject solely to theexclusive laws and jurisdiction of the [Tribe], CheyenneRiver Indian Reservation,’’ but there does not appearto be any tribal law addressing the enforceability offorum-selection clauses, Judge Duffin said. The partiesappear to concede that when tribal law is lacking, tribalcourts will borrow from federal law; therefore, JudgeDuffin said he would apply federal law in determiningthe enforceability of the arbitration clauses.

For purposes relevant to CashCall’s motion to compelarbitration, the arbitration provision in Walker’s loanagreement is identical to the one found in the loanagreements at issue in Jackson, Judge Duffin said.CashCall has acknowledged that the arbitral forumand associated procedural rules set forth in Walker’sloan agreement are not available, but argues — forpreservation purposes — that the Seventh Circuit gotit wrong in Jackson and that the District Court shouldcompel arbitration of the claims. CashCall, however,concedes that given the holding in Jackson, the DistrictCourt cannot enforce the arbitration clause in Walker’sloan agreement, and Judge Duffin said he agreed.

Clause EnforcedHowever, the arbitration provision in Williams’ loanagreement has a material difference stating that ‘‘Regard-less of who demands arbitration, you shall have the rightto select any of the following arbitration organizationsto administer the arbitration: the American Arbitra-tion Association . . .; JAMS . . .; or an arbitration orga-nization agreed upon by you and the other parties tothe Dispute. The arbitration will be governed by thechosen arbitration organization’s rules and procedures


39

applicable to consumer disputes, to the extent thatthose rules and procedures do not contradict either thelaw of the . . . Tribe or the express terms of this Agree-ment to Arbitrate.’’

Courts have split on how to read this new language,Judge Duffin said. Judge Duffin said that ‘‘one couldread Mr. Williams’ arbitration clause as requiring thatthe arbitrator be an authorized Tribal representative,who would interpret the loan agreement and resolvethe dispute, with the selected arbitration organizationproviding administrative support and the governingrules.’’

However, it does not appear that the tribe would be ableto provide an authorized representative, Judge Duffinsaid. As such, a proceeding subject to tribal oversight is‘‘simply not a possibility,’’ Judge Duffin said. But havingsaid that, the parties clearly agreed to resolve their dis-putes by arbitration, and that matters, the judge added.

The Federal Arbitration Act provides that if for ‘‘any’’reason there is a ‘‘lapse in the naming of an arbitrator,’’the court shall appoint an arbitrator, Judge Duffinsaid. Williams’ only argument as to why the arbitrationprovision is unenforceable is that it calls for the arbi-trator to apply tribal law, which he contends does notexist, but that is not true, Judge Duffin said. There issubstantive tribal law on contract disputes, includingcontract cases in the tribe’s court and the tribe’s Com-mercial Code, Rules of Civil Procedure, Constitutionand By-Laws and Laws & Code, the judge said.

‘‘The most reasonable reading of Mr. Williams’s loanagreement is that he has the option of choosing toarbitrate any claims that he has relating to his agreementbefore the AAA, JAMS or another mutually acceptableorganization, applying the consumer dispute rulesof the selected administering organization and con-ducted by an arbitrator from the selected organization’ssystems,’’ Judge Duffin said. ‘‘Therefore, unlike Ms.Walker, Mr. Williams is required to pursue his claimsagainst CashCall in arbitration,’’ and his complaint shallbe dismissed.

Summary JudgmentCashCall initially moved to dismiss the complaintfor failure to state a claim upon which relief can begranted, but Judge Duffin converted the motion to

one for summary judgment after CashCall submittedmaterials outside of the pleadings and allowing theparties additional time to file supplementary materials.

Given the ruling compelling Williams to pursue hisclaims in arbitration, CashCall’s motion to dismiss Wil-liams’ claim will have to be addressed by the arbitrator.

CashCall argued that Walker’s claim must be dismissedbecause the dormant commerce clause of the U.S. Con-stitution precludes the application of Wisconsin law.CashCall argued that when a contract is formed outsideof a state’s borders, it is beyond the state’s regulatoryauthority, and it alleges that Walker’s loan agreementwas formed on the tribe’s reservation.

Walker opposed the motion, saying that she did nottravel to the tribe’s reservation to enter into the loanagreement and that she was physically present in Wis-consin when the loan offer was made and she acceptedit. She also contends that the money was wired to her inWisconsin and that she made payments fromWisconsin.

In denying the motion, Judge Duffin said that at thisstage he cannot conclude that no genuine issues ofmaterial fact show that CashCall is entitled to judgmentas a matter of law.

Stay Denied

Judge Duffin also declined CashCall’s request to stayWalker’s claim pending the conclusion of Williams’arbitration.

Heidi N. Miller and Nathan E. DeLadurantey ofDeLadurantey Law Office in Milwaukee and ThomasJohn Lyrons Jr. of the Consumer Justice Center inVadnais Heights, Minn., represent the plaintiffs. JohnA. Busch of Hansen Reynolds Dickinson Crueger inMilwaukee; Paul F. Linn and Adam E. Witkov ofMichael Best & Friedrich in Milwaukee; Brian J.Fischer of Jenner & Block in New York; and DanielT. Fenske and Michael T. Brody of Jenner & Block inChicago represent CashCall.

(Additional documents available: Dismissal brief.Document #96-150325-051B. Opposition brief.Document #96-150325-052B. Reply brief. Docu-ment #96-150325-053B.) �


40

Parties To Maintain StatusQuo Pending AppealIn Disenrollment ProceedingsDEMING, Wash. — Saying that the plaintiffs facedthe possibility of disenrollment from the NooksackIndian Tribe, a Nooksack Tribal Court judge onFeb. 26 ordered the parties to maintain the statusquo pending resolution of the plaintiffs’ appeal ofthe disenrollment proceedings before the InteriorBoard of Indian Appeals (IBIA) (Michelle Joan Roberts,et al. v. Robert Kelly, et al., Belmont, et al. v. RobertKelly, et al., Nos. 2013-CI-CL-003, 2014-CI-CL-007,Nooksack Tribal).


Intent To DisenrollIn December 2012, the Tribal Council of the NooksackIndian Tribe became aware of the possibility of erro-neous enrollments. After researching the issue and find-ing a lack of supporting documents for approximately300 enrolled Nooksack members, the Tribal Councilpassed Resolution 13-02. The resolution provided thatnotices of intent to disenroll should be sent to thosetribal members believed to be erroneously enrolled. Sev-eral tribal members requested that the Tribal Councilhold meetings to consider their disenrollment.

On March 1, 2013, the Tribal Council passed Re-solution No. 13-38, which authorized a request for asecretarial election to amend the constitution by delet-ing Section 1(h). The secretary of the Interior held anelection on June 21, 2013, and the constitutionalamendment was certified. Several of the tribal memberssued, and in Lomeli v. Kelly (2013-I-APL-002), theNooksack Court of Appeals upheld Resolution No.13-02, Title 63 (the Enrollment Ordinance), Resolu-tion No. 13-38, the related constitutional amendmentand the dismissal of the plaintiffs’ other concerns.

On Aug. 8, 2013, the Tribal Council passed ResolutionNo. 13-111, which provided for disenrollment proce-dures. Several individuals sued Robert Kelly, chairmanof the Nooksack Tribal Council, and others in theTribal Court of the Nooksack Tribe of Indians forthe Nooksack Indian Tribe, requesting injunctive reliefand challenging the procedures as violating their dueprocess rights. In the appeal of Roberts v. Kelly (No.2013 CI-APL-003), the Nooksack Court of Appeals

upheld the procedures in Resolution No. 13-111,finding that due process rights were not violated, butalso held that the procedures were rules requiringsecretarial approval under Article II, Sections 2 and 4,of the Constitution. On March 13, 2014, the TribalCourt permanently enjoined the Tribal Councilfrom ‘‘undertaking disenrollment proceedings underResolution 13-111.’’

Secretarial ApprovalIn May 2014, members Eleanor Belmont and OliveOshiro were sent notices of July 1, 2014, disenrollmentmeetings. The two sued, and in Eleanor Belmont v.Robert Kelly, the Tribal Court held that the noticesrequired secretarial approval and issued a preliminaryinjunction against the use of the notices until the TribalCouncil obtained secretarial approval of the notices.

On Oct. 10, 2014, the Tribal Council passed Resolu-tion No. 14-112, which amended Title 63 to includethe disenrollment procedures that were approved bythe Roberts v. Kelly Court of Appeals decision andrequested secretarial approval. The acting superin-tendent of the Bureau of Indian Affairs (BIA) PugetSound Agency approved Resolution No. 14-112 andthe amended Title 64 on Oct. 24. The acting super-intendent sent Resolution No. 14-112 and theamended Title 63 to the BIA Northwest Regionaldirector for review.

On Jan. 15, the regional director concurred with theacting superintendent’s approval of Resolution No. 14-112 and the amended Title 63 with an effectiveapproval date of Oct. 24, 2014. On Jan. 13, the actingsuperintendent informed the Tribal Council of theregional director’s concurrence and stated that theapproval was effective Oct. 24.

On Jan. 31, the Tribal Council sent notices of March 4,2015, disenrollment meetings under the secretariallyapproved Resolution No. 14-112 and amended Title63 to seven individuals — Honorato Rapada III,Robert Rabang Sr., Naricisco Cunanan, Olive Oshiro,Michael Rabang, Phillip Narte and Elanor Belmont.Council for these individuals sent a notice of appealon behalf of 271 people to the acting superintendentand the IBIA. The notice of appeals purported to appealthe acting superintendent’s approval of resolution No.14-112 and/or the regional director’s approval —whichever was found to be appealable. The plaintiffs


41

argued that their federal administrative appeal meansthe secretarial approval disappeared Feb. 3, 2015, andis not effective under the Nooksack Constitution.

Emergency Injunction SoughtOn Feb. 10, the plaintiffs filed in the Tribal Court anemergency motion to enforce injunction orders and anaccompanying response in opposition to the defen-dants’ ‘‘Notice of Noncomplianace.’’ The plaintiffssought enforcement if the order enjoining disenroll-ment proceedings in Roberts v. Kelly and the ordergranting the motion for preliminary injunction in Bel-mont v. Kelly.

The plaintiffs argued that the defendants failed to havethe two injunctions orders dissolved or vacated beforerecommencing disenrollment proceedings against theplaintiffs. As such, the plaintiffs argued that the defen-dants were in contempt of court.

Further, the ‘‘approv[al] by the Department of Interior’’cited in the notices of compliance, which the defen-dants admit is ‘‘required by’’ both injunction orders,is not yet in effect, the plaintiffs said.

Immune From SuitOn Feb. 19, the defendants filed a brief opposing themotion for emergency injunction, saying they areimmune from suit. The defendants said the TribalCourt’s contempt powers do not apply to them. Further,the defendants said that neither the Tribal Councilnor its individual members violated the injunctionissued in Roberts v. Kelly or the preliminary injunctionused in Belmont v. Kelly.

Resolution No. 14-112 and the amended Title 63 havesecretarial approval, and the plaintiffs’ ‘‘frivolousadministrative appeal cannot strip the approval’s effectfor purposes of the tribal action taken in accordancewith the Nooksack Constitution,’’ the defendants said.

Status QuoIn his order, Judge Pro Tem Randy Doucet noted thathis ruling was merely a procedural ruling and involvednothing regarding Nooksack tribal membership status.

Judge Doucet went on to say that the Tribal Councilwas not in contempt because the defendants reasonablyrelied on the secretary of the Interior’s approval ofResolution No. 14-112 and the amended Title 63.

The IBIA is in the best position to hear the argumentconcerning the plaintiffs’ IBIA appeal, he added.

However, Judge Doucet said he must balance thedelay of the Tribal Council disenrollment meetingsagainst the potential harm to the plaintiffs if theirIBIA appeal is not heard. The plaintiffs suffer thepossibility of disenrollment, even if they may seekreconsideration or reapply for enrollment, the judgesaid. As such, Judge Doucet ordered the parties tomaintain the status quo pending disposition of theissues before the IBIA and until a decision approvingTitle 63 becomes final for the Department of theInterior.

Gabriel S. Galanda, Anthony S. Broadman and RyanD. Dreveskracht of Galanda Broadman in Seattle repre-sent the plaintiffs. Thomas P. Schlosser and RebeccaJCH Jackson of Morisset, Schlosser, Jozwiak & Somer-ville in Seattle represent the defendants.

(Additional documents available: Plaintiffs’ motion toenforce injunction. Document #96-150325-021M.Plaintiffs’ response in opposition to defendants’notice of compliance. Document #96-150325-022B.Defendants’ opposition brief. Document #96-150325-023B. Plaintiffs’ reply brief. Document #96-150325-024B.) �

Doctrine Of Ex Parte YoungDoes Not Permit DisenrollmentLawsuit, 9th Circuit HoldsSAN FRANCISCO — A federal district court didnot have jurisdiction over a disenrollment case broughtby former members of the Pala Band of MissionIndians, the Ninth Circuit U.S. Court of Appealsaffirmed March 16 in an unpublished opinion (RonaldD. Allen, Jr., et al. v. Robert H. Smith, et al., No. 13-55552, 9th Cir.; 2015 U.S. App. LEXIS 4131).

(Memorandum opinion available. Document #96-150325-069Z.)

The Pala Band of Mission Indians disenrolled RonaldAllen and 26 other former members. Allen and the otherformer members sued present and former members


42

of the tribe’s executive committee in their individualcapacities, asserting violations of federal statutes andcommon-law principles.

The former members sought declaratory and injunctiverelief and compensatory and punitive damages.

Suit Against Tribe

The U.S. District Court for the Southern District ofCalifornia dismissed the case for want of subject matterjurisdiction.

In affirming, the Ninth Circuit panel found that therelief sought in the instant case ‘‘clearly operates againstthe Tribe. The requested relief would prevent the Tribefrom disenrolling the Appellants and compel it to rein-state their membership and tribal benefits. Even therequest for compensatory and punitive damages (tobe paid by the Appellees, not the Tribe) would interferewith the Tribe’s public administration, because themonetary damages are predicated on this court’s deter-mination that the disenrollment of the Appellants wasimproper.’’

Sovereign Immunity

In addition, the defendants were protected by the tri-be’s sovereign immunity because they were acting intheir official capacities when they disenrolled theformer members.

The panel rejected the former members’ argument thatthe doctrine of Ex Parte Young (209 U.S. 123 [1908])allowed them to seek injunctive relief against thetribe’s officials. Ex Parte Young allows injunctive suitsin federal courts against officials when the tribe vio-lated federal law, and the former members argueda violation of federal law only on the basis that thedefendants were collaterally estopped from makinga membership decision that runs contrary to a U.S.Department of Interior 1989 administrative decision.

‘‘Even assuming that the preclusive effect of an agencydecision qualifies as federal law under Ex Parte Young,Appellants’ briefing does not demonstrate why the1989 decision has preclusive effect against the Appel-lees,’’ the court said.

Circuit Judges Stephen R. Reinhardt, N. Randy Smithand Andrew D. Hurwitz joined in the opinion.

The former members are represented by ElizabethP. Lin of The Lin Law Firm in Diamond Bar, Calif.The defendants are represented by Paula M. Yost, IanR. Barker and Sara Dutschke Setshwaelo of DentonsUS in San Francisco.

(Additional documents available: Appellant brief.Document #96-150325-070B. Response. Document#96-150325-071B. Appellant reply brief. Document#96-150325-072B.) �

2 Minors Covered UnderIndian Child Welfare Act,California Appeals Court RulesVENTURA, Calif. — A California appeals court onFeb. 24 reversed a juvenile court’s decision to terminateparental rights to two minor children after receivingconfirmation that the children are of Eskimo descententitled to protections as Native American childrenunder the Indian Child Welfare Act (ICWA) (VenturaCounty Human Services Agency v. B.G., et al., No.B255712, Calif. App., 2nd Dist., Div. 6; 2015 Cal.App. LEXIS 173).

(Published decision available. Document #96-150325-059Z.)

Eskimo HeritageVentura County Human Services Agency (HSA) fileda dependency action against parents identified as B.G.and C.C. in the Ventura County Superior Court. Afterthe father submitted an ICWA form claiming possibleEskimo heritage, the HSA informed the court thatICWA does not apply to Eskimo families. The courtagreed, found the ICWA inapplicable and issuedan order terminating parental rights to the two minorchildren and selecting adoption as the permanent plan.

The parents appealed to the Second District CaliforniaCourt of Appeal, which stated in its decision that theHSA now concedes that the ICWA applies to the casebecause the federal definition of ‘‘Indian’’ includes‘‘Eskimos and other aboriginal peoples of Alaska.’’

The appeals court then said the Noorvik Native Com-munity (NNC), a federally recognized Alaskan Indiantribe, has submitted documents confirming that the


43

minors at issue are lineal descendants of their paternalgrandmother, who is a tribe member.

‘‘ICWA reflects a congressional determination that itis in the best interests of Indian children to retain tribalties and cultural heritage and in the interest of the tribeto preserve its future generations,’’ the appeals courtsaid. ‘‘Now that NNC has confirmed minors are tribemembers, the parties agree they are Indian childrenunder ICWA.’’

New Hearing

Because the Superior Court found the ICWA in-applicable, the appeals court said, it failed to considerthe heightened requirements needed to terminateparental rights to a Native American child, such aswhether ‘‘active efforts’’ were made to provide servicesdesigned to prevent the breakup of the family andwhether the parents’ continued custody of the children‘‘is likely to result in serious emotional or physicaldamage.’’

Also, NNC was not afforded an opportunity to inter-vene in the case, as permitted under the ICWA, theappeals court said.

The court, therefore, reversed and remanded withinstructions to conduct a new hearing under Welfareand Institutions Code Section 366.26 in conformitywith the provisions of the ICWA and state law.

‘‘We recognize our decision further delays permanencyfor minors, ‘but cannot conclude that the prospectof such a delay excuses non-compliance at the expenseof those that ICWA is intended to protect,’ ’’ the courtsaid, quoting In re Alice M. ([2008] 161 Cal.App.4th1189, 1197). ‘‘We urge the juvenile court and theparties to expedite resolution of these proceedings onremand.’’

Panel, Counsel

The opinion was written by Justice Steven Z. Perren,with Presiding Justice Arthur Gilbert and Justice Ken-neth R. Yegan concurring.

The HSA is represented by County Counsel LeroySmith and Assistant County Counsel Joseph J. Ran-dazzo and Patricia McCourt of the Office of theCounty Counsel in Ventura.

B.G. is represented by Ernesto Paz Rey in Arleta, Calif.C.C. is represented by Maureen L. Keaney in PacificGrove, Calif. �

Bureau Of Indian AffairsAnnounces ProposedRule To Govern Child WelfareWASHINGTON, D.C. — The Bureau of IndianAffairs (BIA) on March 18 announced that it haspublished a proposed rule to govern the implementa-tion of the Indian Child Welfare Act of 1978 (ICWA)by state courts and child welfare agencies. The proposedrule also includes changes to current regulations thatgovern notice to state agencies under ICWA.

(Proposed rule available. Document #96-150325-049L.)

Custody ProceedingsCongress enacted the ICWA in 1978 to address thefederal, state and private agency policies and practicesthat resulted in the ‘‘wholesale separation of Indianchildren from their families’’ after finding ‘‘that analarmingly high percentage of Indian families are bro-ken up by the removal, often unwarranted, of theirchildren from them by nontribal public and privateagencies and that an alarmingly high percentageof such children are placed in non-Indian foster andadoptive homes and institutions,’’ according to theproposed rule.

Following the enactment of the ICWA in July 1979,the BIA issued regulations addressing notice proceduresfor involuntary child custody proceedings involvingIndian children, as well as governing the provisionof funding for and administration of Indian childrenand family service programs as authorized by theICWA. The regulations did not address the specificrequirements and standards that ICWA imposesupon state court child custody proceedings, beyondthe requirements for contents of the notice. Also in1979, the BIA published guidelines for state courts touse in interpreting many of ICWA’s requirements inIndian child custody proceedings.

In 2014, the BIA invited comments to determinewhether to update its guidelines, and if so, what changes


44

should be made. Commenters requested that the BIAupdate its ICWA guidelines and also issue regulationsaddressing the requirements and standards that ICWAimposes upon state court child custody proceedings.The BIA then developed the instant proposed rule.

Rule Overview

In its overview section, the proposed rule notes that itaddresses ‘‘ICWA implementation by state courts andchild welfare agencies, including updating definitions,and replacing current notice provisions at 25 CFR23.11 with a proposed new subpart I to 25 CFR part23. The proposed new subpart also addresses otheraspects of ICWA compliance by state courts andchild welfare agencies including, but not limited to,other pretrial requirements, procedures for requestingtransfer of an Indian child custody proceeding to tribalcourt, adjudications of involuntary placements, adop-tions, and termination of parental rights, voluntary pro-ceedings, dispositions, and post-trial rights.’’

The proposed rule ‘‘clarifies ICWA applicability andcodifies that there is no ‘Existing Indian Family Ex-ception (EIF)’ to ICWA. Since first identification ofthe EIF in 1982, the majority of state appellate courtsthat have considered the EIF have rejected it as contraryto the plain language of ICWA. Some state legislatureshave also explicitly rejected the EIF within their stateICWA statutes. When Congress enacted ICWA, itintended that an ‘Indian child’ was the threshold forapplication of ICWA. The Department agrees with theStates that have concluded that there is no existingIndian family exception to application of ICWA. Theproposed rule also promotes the early identification ofICWA applicability. Such identifications will promoteproper implementation of ICWA at an early stage, toprevent — as much as possible — delayed discoveriesthat ICWA applies.’’

The BIA will be conducting tribal consultations andpublic meetings on the proposed rule through May2015. Tribal consultations are open only to representa-tives of federally recognized Indian tribes. Public meet-ings are open to everyone. �

New Statute ProvidesFor Same-Sex MarriagesIn Tlingit, Haida TribesJUNEAU, Alaska — By a unanimous vote on Feb. 20,the Central Council of the Tlingit and Haida IndianTribes of Alaska’s (Central Council) Executive Counciladopted a new tribal statute authorizing the TribalCourt to conduct marriage ceremonies, divorce pro-ceedings and establish custody arrangements, accordingto a press release issued by the tribe.

(Title 5 available. Document #96-150325-060L.)

In the release, the tribe noted that passage of ‘‘Title 5 —Marriage, Divorce and Custody’’ is notable ‘‘because itclearly defines that any person may enter into a legalmarriage with another person regardless of gender.Central Council is the latest to join a growing listof tribes in the United States that have either amendedor adopted new tribal codes to recognize gender equal-ity in their marriage statutes.’’

‘‘The impetus for the new tribal code on marriage camefrom two places; exercising our self-determination andsovereign authority and making sure that we provide forequal treatment of our tribal citizens,’’ PresidentRichard Peterson said in the release. ‘‘All of our tribalcitizens should be provided the same rights. It’s animportant statement for the Tribe to make and onethat was not difficult for our Executive Council tostand behind.’’ �


45

Mealey’s™ Online

Access additional documents not found in this report.Perform headline searches on any Mealey title.View and download full-text court documents.Search the Mealey editorial archives as far back as the 1980s.


Visit www.mealeysonline.com


46

Docum

ents

Andre

w W

. Bald

win (

Wy.

Bar N

o. 5-2

114)

Berth

enia

S. Cr

ocke

r (W

y. Ba

r No.

5-182

1)Ke

lly A

. Rud

d (W

y. Ba

r No.

6-392

8)Te

rri V

. Smi

th (W

y. Ba

r No.

7-468

5)Ba

ldwin,

Croc

ker &

Rud

d, P.C

.P.O

. Box

1229

Land

er, W

Y 82

520

(307)

332-3

385 /

FAX

(307)

332-2

507

Attor

neys

for P

lainti

ffs

UNIT

ED ST

ATES

DIS

TRIC

T CO

URT

DIST

RICT

OF W

YOM

ING

NORT

HERN

ARA

PAHO

TRIB

E,)

on its

own b

ehalf

and o

n beh

alf of

its)

memb

ers, a

nd) )

DARR

ELL O

’NEA

L, Sr.

)Ch

airma

n, No

rthern

Arap

aho B

usine

ss )

Coun

cil, in

his o

fficia

l and

indiv

idual

)ca

pacit

ies,

)Pla

intiff

s,)

vs.

) )Ci

vil. N

o. 11

-CV-

347-J

DANI

EL M

. ASH

E,)

Direc

tor, U

.S. Fi

sh an

d Wild

life S

ervice

,)

and

) )MA

TT H

OGAN

,)

Assis

tant R

egion

al Di

rector

, Reg

ion 6,

)

Migr

atory

Birds

and S

tate P

rogram

s) )

in the

ir offi

cial c

apac

ities,

) )De

fenda

nts.

)__

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

__

MEM

ORAN

DUM

IN SU

PPOR

T OF

PLAI

NTIF

FS’ M

OTIO

NFO

R SU

MM

ARY

JUDG

MEN

T ON

REM

AINI

NG C

LAIM

S__

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

___

Case

2:1

1-cv

-003

47-A

BJ

Docu

men

t 79

File

d 10

/14/

13

Page

1 o

f 32

INTR

ODUC

TION

This

case

presen

ts the

quest

ion of

whe

ther a

n age

ncy o

f the U

nited

State

s Gov

ernme

nt

can b

an ad

heren

ts of

the N

orthe

rn Ar

apah

o reli

gion f

rom pr

actic

ing a

cerem

ony c

entra

l to th

eir

faith

on th

e rese

rvatio

n tha

t is th

eir ho

me. T

he U

.S. Fi

sh an

d Wild

life S

ervice

(“FW

S,”

“Age

ncy”

or “G

overn

ment”

) has

fashio

ned a

polic

y and

issu

ed a

perm

it tha

t proh

ibits

the Tr

ibe

and i

ts me

mbers

from

doing

so. T

he pr

ohibi

tion i

s oste

nsibl

y base

d on “

religi

ous b

eliefs

” and

“obje

ction

s” of

certa

in me

mbers

of a

neigh

bor tr

ibe. T

he G

overn

ment

eleva

tes an

d con

verts

those

objec

tions

into

a perm

it rest

rictio

n tha

t viol

ates t

he Fi

rst A

mend

ment,

disre

gardi

ng on

e of

the m

ost c

heris

hed p

rincip

les of

libert

y in A

meric

an de

mocra

cy –

the in

dividu

al rig

ht to

the fr

ee

exerc

ise of

relig

ion.

This

memo

randu

m is

subm

itted i

n sup

port o

f Plai

ntiffs

’ Moti

on fo

r Sum

mary

Judg

ment

on R

emain

ing C

laims

, whic

h see

ks de

clarat

ory an

d inju

nctiv

e reli

ef un

der th

e Firs

t Ame

ndme

nt

and s

imila

r reli

ef un

der th

e Adm

inistr

ative

Proc

edure

s Act

(“APA

”). P

lainti

ffs’ c

laims

unde

r the

Relig

ious F

reedo

m Re

storat

ion A

ct (“R

FRA”

) were

dism

issed

by th

e Cou

rt (Do

c.# 45

and 4

9).

Man

y of th

e fac

ts, le

gal a

uthori

ties a

nd is

sues

involv

ed in

the R

FRA

claim

overl

ap w

ith th

e

claim

s at is

sue h

ere. P

lainti

ffs in

corpo

rate h

erein

by re

feren

ce th

eir ea

rlier

subm

ission

s and

memo

randa

to th

e Cou

rt (Do

c.# 29

, 30,

42, 4

6) an

d add

ress t

he C

onsti

tution

al an

d APA

claim

s

more

spec

ifica

lly be

low.

PROC

EDUR

AL B

ACKG

ROUN

D

Plaint

iffs (

“Trib

e” or

“NAT

”) ap

plied

to th

e Gov

ernme

nt for

an ea

gle ta

ke pe

rmit u

nder

the B

ald an

d Gold

en Ea

gle Pr

otecti

on A

ct (“B

GEPA

”), 16

U.S.

C. §6

68 et

seq.,

in O

ctobe

r, 200

9.

FWS R

OD at

0002

24-27

; 000

235-3

8; an

d 000

528,

para.

1.

On Ju

ne 8,

2011

, the G

overn

ment

met w

ith bo

th the

Nort

hern

Arap

aho B

usine

ss Co

uncil

and t

he Ea

stern

Shos

hone

Bus

iness

Coun

cil (“

SBC”

) sitti

ng in

joint

sessi

on (“

JBC”

) in Fo

rt

Wash

akie,

Wyo

ming

. Id.

The S

BC di

d not

objec

t to N

AT’s

perm

it app

licati

on, b

ut req

ueste

d an

addit

ional

thirty

days

to co

nsult

with

elde

rs of

both

Tribe

s.Se

e FW

S ROD

at 00

0138

.

- 2 -

Case

2:1

1-cv

-003

47-A

BJ

Docu

men

t 79

File

d 10

/14/

13

Page

2 o

f 32

The T

ribe f

iled t

his la

wsuit

on N

ovem

ber 7

, 201

1, be

caus

e the

Gov

ernme

nt sti

ll had

not

acted

on N

AT’s

perm

it app

licati

on. I

n resp

onse

to the

laws

uit, o

n Marc

h 9, 2

012,

FWS i

ssued

an ea

gle ta

ke pe

rmit.

The p

ermit b

ars Pl

aintif

fs fro

m the

take

of ea

gle on

the W

ind R

iver I

ndian

Reser

vatio

n, wh

ere m

ost N

orthe

rn Ar

apah

o peo

ple liv

e.

The G

overn

ment

has e

xplai

ned t

hat th

e Age

ncy f

ashion

ed th

e perm

it rest

rictio

n base

d on

objec

tions

from

certa

in me

mbers

of th

e East

ern Sh

osho

ne Tr

ibe (“

EST”

), who

claim

that

the

cerem

onial

take

of an

eagle

in th

e Arap

aho r

eligio

us tra

dition

offen

ds th

e “rel

igiou

s beli

efs” o

f

the ob

jector

s. C

onsu

ltatio

n betw

een t

he FW

S and

EST “

was c

omple

te” on

Dec

embe

r 13,

2011

,

FWS R

OD at

0022

91, p

ara. 1

1.

The G

overn

ment

cons

idered

U.S.

v. W

ilgus,

638 F

.3d 12

74, 1

290 (

10th C

ir. 20

11), a

nd

cons

trued

the h

olding

to re

quire

FWS t

o give

grea

t weig

ht to

the ob

jectio

n. FW

S ROD

at

0005

32, p

ara. 1

8 (“th

e EST

’s rel

igiou

s beli

efs w

ere in

fring

ed by

gran

ting t

he N

AT’s

perm

it

appli

catio

n.”).

The G

overn

ment

reach

ed a

decis

ion th

at req

uires

reserv

ation

resid

ents

who

practi

ce in

the A

rapah

o reli

gious

tradit

ion to

trave

l awa

y from

the p

lace w

here

they l

ive to

cond

uct c

ertain

cerem

onies

to av

oid of

fendin

g the

sens

ibiliti

es of

the ob

jector

s.

RECE

NT R

ECOR

D DE

VELO

PMEN

TS

The G

overn

ment

subm

itted a

supp

lemen

tal ad

minis

trativ

e rec

ord to

the C

ourt r

egard

ing

the se

cond

perm

it (eff

ectiv

e Marc

h 1, 2

013)

(Doc

.#74).

It th

en su

bmitte

d add

itiona

l

supp

lemen

ts to

its or

igina

l reco

rd (D

oc.#7

5), in

cludin

g obje

ction

s to a

NAT

perm

it from

certa

in

EST m

embe

rs. T

he G

overn

ment’

s issu

ance

of an

off-r

eserva

tion p

ermit,

and i

ts de

nial o

f an o

n-

reserv

ation

one,

create

d a un

ique s

et of

religi

ous q

uesti

ons a

nd co

ncern

s for

the N

AT, w

hich a

re

nowh

ere ad

dresse

d in t

he G

overn

ment’

s orig

inal o

r sup

pleme

ntal re

cord.

The N

AT, in

its go

vernm

ental

role,

unde

rtook

a rev

iew of

these

conc

erns w

hich w

as

open

to th

e pub

lic an

d resu

lted i

n inp

ut fro

m tri

bal e

lders

and o

ther E

ST an

d NAT

mem

bers

and

acad

emici

ans.

NAT

ende

avore

d to d

eterm

ine w

hethe

r a pe

rmit a

llowi

ng th

e cere

monia

l take

of

an ea

gle in

Wyo

ming

, but

bann

ing th

e cere

monia

l take

on th

e Wind

Rive

r Rese

rvatio

n (“W

RR”),

- 3 -

Case

2:1

1-cv

-003

47-A

BJ

Docu

men

t 79

File

d 10

/14/

13

Page

3 o

f 32

NO

RT

HE

RN

AR

AP

AH

Ov.

AS

HE

,P

LA

INT

IFF’S

SU

MM

AR

YJU

DG

ME

NT

BR

IEF

A-1


meets

the r

eligiou

s need

s of th

ose wh

o prac

tice in

the N

AT tra

dition

. NAT

concl

uded t

hat it

does n

ot. T

he Tri

be det

ermine

d cert

ain fa

cts an

d reac

hed co

nclusi

ons re

gardin

g both

the f

ederal

and th

e Trib

e’s pe

rmit s

ystem

, whic

h is o

perate

d unde

r the la

ws of

the T

ribe (

declar

ation o

f

Susan

Johns

ton an

d reco

rds of

the N

AT, at

tached

as Pl

aintiff

s’ Exhi

bit 3)

.1 Refe

rences

to th

e

NAT’s

admi

nistra

tive r

ecord

are to

NAT R

OD at

[page]

, and r

eferen

ces to

the G

overnm

ent’s

admini

strativ

e reco

rd are

to FW

S ROD

at [pa

ge]. A

timelin

e of k

ey eve

nts of

recor

d is p

rovide

d

in Ap

pendix

A, att

ached

hereto

.

Among

other

facts

, the N

AT re

cord s

hows th

at one

curren

t mem

ber of

the E

ST Bu

siness

Counc

il, alo

ng wit

h many

other

EST m

ember

s, is a

yearl

y part

icipant

in th

e NAT

Sun D

ance;

NAT R

OD at

028 an

d 032-

33; th

at trad

itional

ly, ES

T “got

their

eagle

s from

the w

ild,” N

AT

ROD a

t 038;

and t

hat “th

is obje

ction [

by ES

T] is p

olitica

l and n

ot a r

eal di

spute o

ver tra

dition

al

values

and c

eremo

nies,”

NAT R

OD at

040. “

It is u

nfortu

nate th

at the

Shosh

one ele

cted l

eaders

have o

pposed

Arapa

ho tra

dition

al cere

monia

l need

s.” N

AT RO

D at 0

36.

UNDI

SPUT

ED FA

CTS

The f

ollow

ing su

mmari

zes m

ateria

l facts

which

are b

efore

the Co

urt an

d not

subjec

t to

disput

e. 1.Th

e take

of eag

les pr

oposed

by Pl

aintiff

s is fo

r bona

fide r

eligiou

s purp

oses.

The

Gover

nment

admi

ts that

the p

ropose

d take

of ba

ld eag

les by

the N

AT “is

for b

ona fid

e relig

ious

purpos

es.” F

WS RO

D at 0

00531,

para.

16. T

hese r

eligiou

s purp

oses in

clude

“the ta

king o

f an

eagle”

for th

e Sun

Dance

which

occur

s “onc

e ever

y year

.”Id.

Beca

use a “

clean”

eagle

is

requir

ed, th

e use

of eag

le part

s from

the N

ational

Eagle

Repos

itory

“was

not a r

easona

ble

option

” for

the Tr

ibe. F

WS RO

D at 0

00533,

para.

26. U

se of

the Re

posito

ry “is

not th

e least

restric

tive m

eans o

f achi

eving

the Se

rvice’

s com

pellin

g inte

rests i

n prot

ecting

bald

eagle

popula

tions

and pr

otectin

g NAT

relig

ion an

d cult

ure.”

FWS R

OD at

000533

, para.

26.

1 Plain

tiffs’ E

xhibit

1 (Tit

le 13, N

orther

n Arap

aho Co

de - R

eligiou

s Free

dom) a

nd 2

(July

5, 2011

, letter

from

Defen

dant H

ogan)

are att

ached

to its

initial

Comp

laint, D

oc.#1.

- 4 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 4 of

32

2.Th

e take

of an

eagle i

s itsel

f a ce

ntral

religi

ous ce

remoni

al pra

ctice a

nd is p

art of

the Su

n Danc

e cere

mony.

The

Gover

nment

admi

ts that

“[t]h

e take

of the

eagle

used

in the

offeri

ng for

the S

un Da

nce is

itself p

art of

the c

eremo

nies le

ading

up to

the Su

n Danc

e... th

e

sponso

r’s ro

le and

respon

sibilit

ies, in

cludin

g the

taking

of an

eagle

, are im

portan

t comp

onents

of

the Su

n Danc

e and

are pa

rt of th

e acce

pted c

ultura

l prac

tices le

ading

up to

the Su

n Danc

e.”

FWS R

OD at

531 (1

6). Se

e also

NAT R

OD at

011 (A

nderso

n lette

r) (“ea

gle hu

nting

was a

nd is

a cere

monia

l prac

tice ca

refull

y done

withi

n [pre

scribe

d] lim

its...”)

; NAT

ROD a

t 035

(C’Ha

ir

declar

ation)

(“The

take o

f an e

agle is

itself

a relig

ious c

eremo

nial p

ractice

”); an

d NAT

ROD a

t

071.

3.Th

e prop

osed t

ake is

compat

ible w

ith pr

eserva

tion o

f a he

althy

eagle p

opulat

ion.

The G

overnm

ent ad

mits t

hat NA

T’s pr

oposed

take o

f eagl

es on

the W

RR fo

r relig

ious u

se “is

within

the a

nnual t

ake th

reshol

d esta

blishe

d by t

he Ser

vice.”

FWS R

OD at

000531

, para.

15.

The p

ropose

d take

by NA

T “is c

ompat

ible w

ith th

e pres

ervatio

n of th

e bald

eagle

” unde

r

applica

ble re

gulato

ry sta

ndards

.Id.

4.Th

e Gove

rnment

’s ban

of the

take

on the

WRR

is gro

unded

solely

on ob

jectio

ns

from S

hoshon

e triba

l mem

bers w

ho are

offen

ded by

Arapa

ho rel

igious

pract

ices.

The

Gover

nment

found

that “

[a]llo

wing t

ake on

the W

RR wo

uld bu

rden t

he ES

T’s re

ligiou

s and

cultur

al belie

fs.” F

WS RO

D at 0

02280,

para.

8. Th

e Agen

cy has

been

steadf

ast in

its po

sition

that o

bjectio

ns by

the ES

T mem

bers p

revent

it fro

m iss

uing a

perm

it on t

he WR

R. FW

S ROD

at

002278

, para.

2, 000

842, 00

0922-2

3, 0001

89, an

d 0005

32, pa

ra. 18

.

As di

scusse

d belo

w, the

quest

ion wh

ether

these

object

ions a

re bon

a fide

“relig

ious

belief

s” attr

ibutab

le to a

ll Shos

hone p

eople i

s high

ly dub

ious a

nd in

disput

e. Ne

verthe

less, t

he

record

is now

clear

that th

e Gove

rnment

’s deci

sion i

s base

d sole

ly on

those

object

ions.

5.Th

e prop

osed t

ake do

es not

burde

n relig

ious p

ractice

s of m

ember

s of a

nother

Tribe.

The

take o

f eagl

es by

NAT d

oes no

t prev

ent Sh

oshone

tribal

mem

bers fr

om pr

acticin

g in

any re

ligiou

s tradi

tion t

hat an

y Shos

hone tr

ibal m

ember

may

choose

. The

propos

ed tak

e does

- 5 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 5 of

32

not pr

event

Shosh

ones fr

om ob

taining

their

own e

agles

and ea

gle pa

rts for

relig

ious u

se fro

m the

Federa

l Repo

sitory,

which

some

prefe

r (Doc.

#44, 9-

28-12

motio

n proc

eeding

s trans

., Vari

lek at

51-52)

and s

ee NA

T ROD

at 072

-74 an

d at 0

39, Le

onard

declar

ation (

“The

take o

f an e

agle,

when

done p

roperl

y in a

ccorda

nce wi

th tra

dition

, does

not ef

fect [s

ic] or

inter

fere w

ith th

e

tradit

ions o

r relig

ious ri

ghts o

f Shos

hone m

ember

s [like

myse

lf]”).

The p

ropose

d take

in no

way

burden

s Shos

hone m

ember

s who

practic

e in th

e Nort

hern A

rapaho

tradit

ion an

d who

need a

“clean

” eagl

e for

the NA

T Sun

Dance

in wh

ich th

ey par

ticipat

e. NA

T ROD

at 028

, 032-3

3. No

r

would

the p

ropose

d take

preve

nt Sh

oshone

s from

partic

ipatin

g in a

ny oth

er rel

igious

activ

ity,

like s

ervice

s at th

e Rom

an Ca

tholic

or La

tter Da

y Sain

ts chur

ches in

Fort W

ashaki

e, loca

ted on

the W

RR. There

is no

eviden

ce in

the re

cord t

hat th

e cere

monia

l take

of an

eagle b

y NAT

on th

e

WRR (

or any

where

) woul

d crim

inalize

, preve

nt, or

burde

n any

religi

ous pr

actice

of m

ember

s of

the ES

T, nor

pose

a “thr

eat of

extin

ction”

to ES

T, U.S

. v. Ha

rdman,

297 F

.3d 11

16, 11

28 (10

th

Cir. 20

02).2

DISP

UTED

FACT

S

The f

ollow

ing ar

e mate

rial fa

cts be

fore th

e Cour

t, rega

rding

which

there

is a s

ubstan

tial

disput

e: 1.Th

e ques

tion w

hether

the o

bjectio

ns upo

n whic

h the

Gover

nment

relied

are b

ased

on “re

ligiou

s belie

f” is d

ispute

d.Am

icus h

as ass

erted

that S

hoshon

e triba

l mem

bers d

o not

take

eagles

for re

ligiou

s purp

oses a

nd obj

ected

to an

on-res

ervatio

n NAT

perm

it on t

hose g

rounds

.

There

is no

substa

ntial e

videnc

e to su

pport t

his cla

im. A

caref

ul rev

iew of

the r

ecord

shows

that

the ob

jectio

ns are

more

accur

ately

charac

terize

d as a

n asse

rted “

50% rig

ht and

inter

est in

every

2 The

Gover

nment

does

make

the ba

re ass

ertion

at one

point

that t

he cer

emoni

al take

ofan

eagle w

ould b

urden

EST “

religi

ous pr

actice

s conc

erning

the s

acredn

ess of

bald

eagles

.” Do

c.#47

at 3. B

ut it i

dentifi

es no

cerem

ony or

pract

ice of

the E

ST cu

rtailed

by an

inten

tional

eagle t

ake by

NAT.

The G

overnm

ent ha

s sinc

e clar

ified i

ts relia

nce on

the th

eory t

hat a N

ATper

mit b

urdens

“EST

’s relig

ious a

nd cul

tural b

eliefs.”

FWS

ROD a

t 0022

80, pa

ra. 8.

- 6 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 6 of

32

A-2


eagle,”

Doc.#

36 at 2

8, or a

nti-A

rapaho

preju

dice th

at is p

ersona

l or p

olitica

l in na

ture, r

ather

than a

“belie

f” tha

t is re

ligiou

s. See

Doc.#

30 at 1

2, Doc.

#46 at

3, and

NAT R

OD at

072-07

4.

2.Th

e ques

tion w

hether

“killi

ng eag

les” i

s proh

ibited

as a m

atter

of Sho

shone

religi

on and

cultu

re is d

ispute

d. Th

is is c

losely

relate

d to t

he que

stion a

bout w

hether

certa

in

EST m

ember

s are

really

objec

ting o

n thei

r own

“relig

ious”

ground

s, but

is also

a disti

nct

questio

n abou

t Shos

hone h

istory

and cu

lture.

In th

e even

t the C

ourt u

ltimate

ly con

cludes

that

FWS h

as a d

uty re

gardin

g EST

tradit

ional r

eligiou

s belie

fs, NA

T disp

utes th

at thei

r prop

osed

take o

n the

WRR o

ffends

those

belief

s. See

Doc.#

30 at 1

2, Doc.

#46 at

3, and

NAT R

OD at

072-

074.

In lig

ht of

these

disput

ed fac

ts, it w

ould b

e impro

per fo

r the C

ourt to

dism

iss NA

T’s

Comp

laint b

ased o

n eith

er of

these

disput

ed fac

tual p

remise

s.3

Nonet

heless

, as de

scribe

d belo

w, the

Court

can g

rant su

mmary

judgm

ent to

the N

AT

becaus

e, rega

rdless

of th

ese fa

ctual d

ispute

s, the

Gover

nment

has fa

iled un

der str

ict scr

utiny

to

meet i

ts burd

en by

demons

tratin

g a co

mpelli

ng gov

ernme

ntal in

terest

in ba

nning

the tak

e of a

n

eagle b

y Arap

ahos o

n the

WRR.

Likew

ise, as

a matte

r of la

w, the

Gover

nment

’s actio

n viol

ates

the AP

A and

must b

e set a

side.

LEGA

L STA

NDAR

D

A moti

on und

er Fed

.R.Civ

.P. 56

shoul

d be g

ranted

where

the m

oving

party

shows

there

is no g

enuine

issue

of ma

terial

fact an

d that

it is e

ntitled

to ju

dgment

as a m

atter o

f law.

Ander

son v.

Libert

y Lobb

y, Inc.

, 477 U

.S. 24

2, 247-

48 (19

86).

3 When

the C

ourt g

ranted

summ

ary ju

dgment

to FW

S sua

sponte

at an

earlier

proce

dural

stage,

it had

not y

et had

the op

portun

ity fo

r a ca

reful

review

of th

e Agen

cy’s fa

ctual f

inding

s and

determ

inatio

ns und

er the

APA.

- 7 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 7 of

32

ARGU

MENT

I.Th

e Perm

it Rest

rictio

n Viol

ates th

e Relig

ion Cl

auses

of th

e Firs

t Ame

ndme

nt.

Gover

nment

al actio

n that

“crim

inalize

s relig

iously

inspi

red ac

tivity

” is su

bject t

o stric

t

scruti

ny.Bo

wen v

. Roy,

476 U

.S. 69

3, 706

(1986)

. “To

satisf

y the

comma

nds of

the F

irst

Amend

ment,

a law

restri

ctive o

f relig

ious p

ractice

must

advan

ce ‘in

terest

s of th

e high

est or

der’

and m

ust be

narro

wly tai

lored

in pur

suit o

f those

inter

ests.”

Chur

ch of

the Lu

kumi B

abalu

Aye,

Inc. v.

City o

f Hial

eah, 50

8 U.S.

520, 5

46 (in

ternal

citatio

ns om

itted)

(1993)

. “A l

aw th

at targ

ets

religi

ous co

nduct f

or dis

tinctiv

e treat

ment

or adv

ances

legitim

ate go

vernm

ental i

nteres

ts only

agains

t condu

ct with

a relig

ious m

otivat

ion wi

ll surv

ive str

ict scr

utiny

only i

n rare

cases

.” Id.

The g

overnm

ent’s b

urden

is spec

ific – i

t must

demo

nstrat

e that t

he com

pellin

g inte

rest te

st is

satisfi

ed thr

ough a

pplica

tion o

f the c

hallen

ged law

to “th

e part

icular

claim

ant wh

ose sin

cere

exerci

se of

religi

on is b

eing s

ubstan

tially

burden

ed.”O

Centr

o Espi

rita Be

neficie

nte Un

iao De

Veget

al v. A

shcrof

t, 546

U.S. 41

8, 430-

31 (20

06). T

he Re

ligion

Claus

es (Fr

ee Ex

ercise

and

Establ

ishme

nt) ar

e mutu

ally su

pportiv

e, and

doctrin

es und

er one

are r

elevan

t to th

e othe

r as w

ell.

Lawr

ence H

. Trib

e, Ame

rican

Const

itutio

nal La

w (Ne

w York

, 1978)

at 814

-15.4

The p

arties

agree

that t

he Go

vernm

ent ha

s a co

mpelli

ng gov

ernme

ntal in

terest

in

protec

ting e

agles

as a s

pecies

,5 but th

at com

pellin

g inte

rest is

not at

issue

here b

ecause

the

Gover

nment

conce

des th

at NAT

’s prop

osed t

ake do

es not

threa

ten th

e eagl

e popu

lation.

Instea

d, the

Gover

nment

conte

nds th

at the

compel

ling g

overnm

ental i

nteres

t that j

ustifie

s

4 “Allo

cating

relig

ious c

hoices

to th

e unfe

ttered

consci

ences

of ind

ividua

ls unde

r the f

reeexe

rcise

clause

rema

ins, in

part,

a mean

s of a

ssurin

g that

churc

h and

state d

o not

unite t

o crea

tethe

many

dange

rs and

divisio

ns oft

en im

plicit

in suc

h an e

stabli

shed u

nion.

Similar

ly,for

biddin

g exce

ssive

identi

ficatio

n of c

hurch

and sta

te thro

ugh th

e esta

blishm

ent cla

use re

mains

,in

part, a

mean

s of a

ssurin

g that

gover

nment

does

not ex

cessiv

ely in

trude

upon r

eligiou

s liber

ty.”

Id.

5See

Amend

ed Co

mplain

t and A

nswer,

Doc.#

18 and

Doc.#

22, pa

ra. 33

in ea

ch.

- 8 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 8 of

32

the ba

n on N

AT re

ligiou

s activ

ity ar

ises fr

om ob

jectio

ns fro

m cer

tain Sh

oshone

indiv

iduals

who

claim

the A

rapaho

relig

ious p

ractice

offen

ds the

ir “rel

igious

belief

s.” In

addit

ion to

the f

actual

deficie

ncies

in the

recor

d, the

Gover

nment

errs a

s a m

atter o

f law.

The f

act th

at som

e may

harbor

“relig

ious b

eliefs”

that a

re “of

fended

” by t

he rel

igious

pract

ices o

f othe

rs cann

ot

constit

ute a c

ompel

ling g

overnm

ent in

terest

. Nava

jo Na

tion v

. U.S.

Fores

t Serv

ice, 53

5 F.3d

1058, 1

063 (9

th Cir. 2

008).

Furth

er, th

e perm

it rest

rictio

n, base

d as it

was o

n a no

n-exis

tent

compel

ling i

nteres

t, crea

tes ex

cessiv

e enta

nglem

ent wi

th rel

igion.

NAT i

s enti

tled to

summ

ary ju

dgment

on its

First

Amend

ment

claim

becau

se the

follow

ing ele

ments

are e

stabli

shed b

eyond

genuin

e disp

ute: (

1) the

Gover

nment

actio

n burd

ens

religi

ous ac

tivity

by cr

imina

lizing

it; (2)

the G

overnm

ent ha

s no c

ompel

ling i

nteres

t in do

ing so

;

and (3

) the G

overnm

ent ig

nores

the lea

st rest

rictiv

e mean

s requi

rement

in fa

shioni

ng its

permi

t

restric

tions. A.

Denia

l of a

n eagl

e tak

e perm

it on t

he WR

R burd

ens th

e relig

ious a

ctivit

y of

practi

tioner

s of th

e Nort

hern A

rapah

o Relig

ion by

crim

inalizi

ng th

atact

ivity.

On be

half o

f itsel

f and

its me

mbers

, NAT

sough

t an ea

gle tak

e perm

it with

in the

WRR

.

FWS R

OD at

000226

and 0

00236.

The

WRR,

where

most

NAT m

ember

s live,

comp

rises

approx

imate

ly 2.3

milli

on acr

es of

land i

n cent

ral W

yoming

. U.S.

v. Mazu

rie, 41

9 U.S.

544, 5

46

(1975)

. The

Gover

nment

denie

d this

reque

st. Th

e perm

its iss

ued by

FWS (

2012 a

nd 201

3)

catego

rically

exclu

de the

take o

f an e

agle f

or rel

igious

purpo

ses by

mem

bers o

f the N

AT

anywh

ere wi

thin t

he WR

R.6 With

out a p

ermit,

the tak

e of a

n eagl

e on t

he WR

R is a

crim

e.

6 The

2012 p

ermit p

rovide

s that t

he “lo

cation

where

autho

rized

activi

ty ma

y be

conduc

ted” is

“Wyom

ing, ou

tside th

e exte

rior b

oundar

ies of

Wind

River

Reser

vation

.” FW

SRO

D at 0

00671,

para.

10. T

he sam

e rest

rictio

n appl

ies to

the 2

013 pe

rmit.

FWS R

OD at

002241

, para.

10.

- 9 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 9 of

32

A-3


16 U.S

.C. §6

68(a);

U.S. v

. Frid

ay, 52

5 F.3d

938 a

t 941

(10th Ci

r. 2008

).7 The

prohib

ition a

gainst

religi

ous tak

e of a

n eagl

e on t

he WR

R “cri

minal

izes re

ligiou

sly in

spired

activ

ity.”

Bowe

n at

706. A

s such

, the G

overnm

ent m

ust sh

ow a “

compel

ling g

overnm

ental i

nteres

t” in o

verrid

ing

NAT’s

free e

xercis

e righ

ts and

that th

e Gove

rnment

has m

et that

comp

elling

intere

st usin

g the

least r

estric

tive m

eans.

Lukum

i at 53

3.

B.Th

e Gove

rnment

has n

ot dem

onstr

ated a

ny co

mpelli

ng in

terest

which

justifi

es cri

mina

lizing

the r

eligiou

s acti

vity o

f Arap

aho p

ractiti

oners

.

The G

overnm

ent co

ntends

that a

relig

ious-b

ased o

bjectio

n by c

ertain

mem

bers o

f the

EST,

who d

o not

believ

e in tak

ing an

eagle

for re

ligiou

s purp

oses, s

erves

as its

compel

ling

intere

st and

justifi

es ma

king c

rimina

l the c

eremo

nial ta

ke of

an eag

le by m

ember

s of th

e NAT

for th

eir ow

n relig

ious p

urpose

s. Th

e Gove

rnment

’s anal

ysis d

oes no

t with

stand

scruti

ny.

1.Th

e Gove

rnment

was m

isled i

nto co

nclud

ing th

at all

Shosh

one p

eople

are of

fended

by th

e use

of eag

les in

the A

rapah

o relig

ious tr

aditio

n.

As its

own r

ecord

makes

clear,

the G

overnm

ent’s d

eterm

inatio

n that

Shosh

one pe

ople

have “

religi

ous be

liefs”

that ar

e “off

ended”

by th

e takin

g of e

agles

is base

d on i

nput fr

om a

handfu

l of in

dividu

al com

mento

rs: (1

) Mr. W

ade Le

Beau;

(2) K

imber

ly Va

rilek, E

sq, At

torney

Gener

al for

the ES

T; and

(3) u

nident

ified e

lders a

nd me

mbers

of SB

C on a

confe

rence

call w

ith

FWS.

Viewe

d thro

ugh th

e lens

of stri

ct scru

tiny, w

here th

e Gove

rnment

must

carry

the b

urden,

these

comme

nts ca

nnot su

pport t

he det

ermina

tion t

hat all

tradit

ional S

hoshon

e peop

le hold

“relig

ious b

eliefs”

that a

re off

ended

by a r

eligiou

s cere

mony

of the

Arapa

ho.

Mr. L

eBeau

may

well b

e one

of the

unide

ntifie

d EST

“elde

rs” on

whom

the G

overnm

ent

relies

, but an

y relia

nce on

Mr. L

eBeau

is mi

splace

d. Mr

. LeB

eau is

a disg

runtled

form

er NA

T

7 Mr. F

riday

“was

charge

d unde

r feder

al law

with

shooti

ng an

eagle w

ithout

a perm

it [on

the W

RR], w

hich i

s forbi

dden b

y the

Bald

and Go

lden E

agle P

rotect

ion Ac

t.” Id

.

- 10 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 10 o

f 32

emplo

yee wh

o devo

tes lo

ng hou

rs to e

spousi

ng hat

eful v

iews th

at the

NAT a

nd its

memb

ers

have n

o righ

ts at al

l at th

e Wind

River

Reser

vation

.8 Mr. L

eBeau

has h

imsel

f said

the di

spute

betwe

en the

Tribe

s in th

e case

at bar

is pol

itical o

r legal

, not re

ligiou

s:

This w

as NE

VER a

bout re

ligiou

s freed

om, it

is abo

ut the

disho

norabl

e Arap

ahoe

trying

to se

t prec

edent

that y

ou don

’t have

to as

k the

TREA

TY TR

IBE fo

rper

missi

on to

do any

thing.

BUT

YOU D

O!! T

his is

about

the Ar

apahoe

trying

totak

e this r

eserva

tion f

rom th

e SHO

SHON

E trib

e.

Plaint

iffs’ E

xhibit

4. W

hen an

Arapa

ho say

s the c

ase at

bar “is

NOT a

bout tr

eaty r

ights..

. it’s

about

the re

ligiou

s right

s... of

north

ern ar

apaho

tribal m

ember

s,” M

r. LeB

eau re

sponds

:

Only

people

WITH

OUT t

reaty

rights

say [

what]

you s

ay.

* * *

The A

rapaho

e tribe

LOST

the E

AGLE

case

becaus

e the S

hoshon

e Trib

e oppo

sedit.

Every

case

that co

mes u

p that

will i

nvolve

them

actua

lly ha

ving e

qual ri

ghts to

the Sh

oshone

will b

e shot

down

becau

se the

SHOS

HONE

are th

e ONL

Y trib

ewit

h trea

ty rig

hts.”

Id.

In res

ponse

to a d

raft W

yoming

inter

pretiv

e plan

which

inclu

des so

me Ar

apaho

histor

y

about

the Sa

nd Cre

ek ma

ssacre

, Mr. L

eBeau

assur

es the

State

emplo

yee th

at she

will b

e bann

ed

from

the W

ind Ri

ver Re

servat

ion, w

hich h

e sees

as su

bject s

olely

to Sh

oshone

rule:

You c

annot

place

a foot

on ou

r reser

vation

... This

is the

SHOS

HONE

RESE

RVAT

ION a

nd we

are g

oing t

o make

sure

we ar

e repr

esente

d corr

ectly

ASWE

DICT

ATE.

8 In ju

st one

examp

le, Mr

. LeB

eau tel

ls the

Arapa

ho to

“Get o

ut of

here.

Go. A

ssert

your tr

eaty r

ights.

Go. Q

uit m

oochin

g off S

hoshon

e peop

le. Go

. You

can’t c

ause y

ou hav

eNO

THIN

G with

out th

e Shos

hone tr

ibe! W

e don’

t need

you t

o be h

ere, yo

u need

us. A

nd you

know t

hat an

d hate

it.” P

laintiff

s’ Exhi

bit 4,

attache

d here

to.

- 11 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 11 o

f 32

Plaint

iffs’ E

xhibit

5. Pr

otectin

g the

sensib

ilities

of M

r. LeB

eau fro

m off

ense d

oes no

t const

itute

a com

pellin

g gove

rnment

al inte

rest.

See Ev

erson

v. Boar

d of E

ducati

on, 33

0 U.S.

1, 12

(1947)

(“crue

l pers

ecutio

ns we

re the

inevi

table r

esult o

f gove

rnment

estab

lished

religi

ons”).

Similar

ly, th

e repr

esenta

tions

of the

Shosh

one At

torney

Gener

al at o

ral ar

gument

canno

t

suppor

t the d

eterm

inatio

n of th

e Gove

rnment

. State

ments

of co

unsel a

re not

evide

nce.

Olenho

use v.

Comm

odity C

redit C

orp., 4

2 F.3d

1560,

1576

(10th Ci

r. 1994

). Th

e Gove

rnment

impro

perly

gives

Ms. V

arilek

’s com

ments

speci

al emp

hasis,

having

made

them

part o

f its

admini

strativ

e reco

rd, FW

S ROD

at 002

287-88

. A ca

reful

review

of he

r com

ments

durin

g the

pre-de

cision

al phas

e of th

e reco

rd rev

eals o

bjectio

ns tha

t are p

ersona

l or p

olitica

l in na

ture,

rather

than

religi

ous.S

ee Do

c.#30

at 12, f

n. 16, F

WS RO

D at 0

01016-

20. T

he Go

vernm

ent

ignore

d her

appare

nt pol

itical a

lliance

with

Mr. L

eBeau

, as we

ll as th

e fact

that s

he wa

s runni

ng

for re

appoin

tment

on an

anti-A

rapaho

platf

orm. I

d. Mo

re tro

ubling

ly, co

mment

s prov

ided b

y

Ms. V

arilek

make

no m

ention

of th

e fact

that m

any ES

T trib

al mem

bers p

ractice

in th

e Nort

hern

Arapa

ho rel

igious

tradit

ion. N

AT RO

D at 0

73. In

using

her o

ffice to

chara

cteriz

e the “

offens

e”

and “r

eligiou

s belie

fs” of

the E

ST, M

s. Vari

lek ha

s left m

any m

ember

s of th

at Trib

e behi

nd, an

d

effect

ively

misle

d the

Agenc

y.9 In th

e post

-decis

ional r

ecord

compil

ed by

the Go

vernm

ent, w

e

see in

creasi

ng em

phasis

from

Ms. V

arilek

on ES

T “rel

igious

belief

s,” wh

ich se

rves to

bend

what

began

as pol

itical o

bjectio

ns int

o the

rhetor

ic of W

ilgus.

The

views

are e

ntitled

to no

more

weigh

t that t

hose o

f othe

r gove

rnment

attorn

eys wh

o argu

e in fa

vor of

gover

nment

actio

n or

legisla

tion t

hat in

fringes

on th

e First

Amend

ment

rights

of in

dividu

als. S

ee, e.g

., 1987

Fla. O

p.

Atty. G

en. 14

6 (198

7) (op

ining

that th

e City

of Hi

aleah

“may

adopt

an ord

inance

prohi

biting

the

9 “If th

ere is

any fix

ed sta

r in ou

r cons

titutio

nal co

nstella

tion, i

t is th

at no o

fficial,

high

or pet

ty, ca

n pres

cribe

what s

hall b

e orth

odox i

n poli

tics, na

tional

ism, re

ligion

or ot

her m

atters o

fopi

nion o

r force

citize

ns to

confes

s by w

ord or

act th

eir fa

ith th

erein.

If th

ere ar

e any

circum

stance

s whic

h perm

it an e

xcepti

on, th

ey do

not no

w occu

r to us

.” We

st Virg

inia S

tate

Board

of Ed

ucatio

n v. B

arnette

, 319 U

.S. 62

4, 642

(1943)

.

- 12 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 12 o

f 32

A-4


religi

ous sa

crific

e of a

nimals

withi

n the

city) (v

iew re

jected

by th

e Supr

eme C

ourt in

Lukum

i.)

The E

ST AG

’s advo

cacy i

n prot

ecting

certa

in con

stituen

ts from

offen

se is n

ot evi

dence

to be

weigh

ed in

the ba

lance,

and d

oes no

t const

itute a

comp

elling

govern

ment

intere

st that

satisf

ies

the re

quirem

ents o

f stric

t scrut

iny.

Aside

from

the co

mment

ary by

Mr. L

eBeau

and M

s. Vari

lek, th

e rem

ainder

of th

e

eviden

ce of

Shosh

one “r

eligiou

s belie

fs” is

derive

d from

a conf

erence

call,

where

unide

ntifie

d

partici

pants e

xpress

ed a v

iew th

at thei

r belie

fs were

offen

ded by

Arapa

ho rel

igious

pract

ice an

d

descri

bed a t

raditio

nal Sh

oshone

catch

and r

elease

10 techni

que to

harve

st eagl

e tail f

eather

s. Th

e

partici

pants i

n the

call g

lossed

over

eagle b

one wh

istles,

whole

eagle

wings

, and t

ail fan

s used

in

the Sh

oshone

relig

ious tr

aditio

n, faili

ng to

explain

how t

he eag

le migh

t have

fared

witho

ut the

se

parts a

fter it

s “cat

ch and

relea

se.” N

AT RO

D at 0

73. T

hrough

the le

ns of

strict s

crutin

y, this

phone

call is

inade

quate t

o esta

blish

a com

pellin

g gove

rnment

al inte

rest.

Moreo

ver, th

e

charac

teriza

tion o

f the c

all con

flicts w

ith th

e weig

ht of

eviden

ce bef

ore th

e Cour

t about

Shosh

one “r

eligiou

s belie

fs.”Id.

2.Pr

otecti

ng “r

eligiou

s belie

f” fro

m off

ense is

not a

comp

elling

inter

estun

derNa

vajo.

If we s

et asid

e the e

vident

iary p

roblem

s with

FWS’

determ

inatio

n that

Shosh

one

“relig

ious b

eliefs”

are “

offend

ed” by

Arapa

ho rel

igious

pract

ice, an

d acce

pt, ar

guendo

, these

assert

ions a

t face

value,

the G

overnm

ent sti

ll cann

ot ove

rcome

its bu

rden u

nder st

rict sc

rutiny

to

demons

trate a

comp

elling

govern

ment

intere

st.

The G

overnm

ent co

ntends

that i

ts com

pellin

g inte

rest li

es in

protec

ting c

ertain

Shosh

one

“relig

ious b

eliefs”

that a

re off

ended

by Ar

apaho

religi

ous pr

actice

. Here

, the G

overnm

ent

10 “C

atch a

nd rel

ease”

is a “ta

ke” un

der FW

S regu

lations

. “Ta

ke me

ans pu

rsue, s

hoot,

shoot

at, poi

son, w

ound, k

ill, ca

pture,

trap, c

ollect

, destro

y, mole

st or d

isturb.

” 50 C

.F.R.

§22.3.

Appar

ently,

the G

overnm

ent lo

oks th

e othe

r way

when

EST m

ember

s perf

orm th

e “cat

ch and

releas

e” for

m of

take, w

hich i

s also

a crim

e unle

ss don

e purs

uant to

a fede

ral pe

rmit.

- 13 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 13 o

f 32

equate

s “rel

igious

belief

s” wit

h “rel

igious

pract

ices,”

and i

gnores

the c

rucial

distin

ction b

etween

these

two co

ncepts

clarifi

ed in

the lea

ding c

ase th

at addr

esses

it head

-on.11

InNa

vajo N

ation

v. U.S.

Fores

t Serv

ice, 53

5 F.3d

1058

(9th Cir. 2

008), I

ndian

tribes

and

their m

ember

s oppo

sed th

e use

of rec

ycled

waste

water

to m

ake ar

tificia

l snow

for sk

iing i

n the

San Fr

ancisc

o Peak

s on t

he gro

unds th

at doin

g so “

will sp

iritual

ly con

tamina

te the

entire

mount

ain an

d deva

lue th

eir re

ligiou

s exer

cises”

there

. Id. a

t 1063

. The

Distric

t Cour

t found

that

althoug

h the

religi

ous be

liefs w

ere sin

cere:

... ther

e are

no pla

nts, sp

rings,

natur

al reso

urces,

shrin

es wit

h relig

ious

signif

icance

, or re

ligiou

s cere

monie

s that w

ould b

e phys

ically

affec

ted by

the u

seof

such a

rtificia

l snow

... Plain

tiffs c

ontinu

e to ha

ve vir

tually

unlim

ited ac

cess to

the m

ountain

, inclu

ding t

he ski

area,

for re

ligiou

s and

cultur

al purp

oses.

On th

emo

untain

, they

contin

ue to

pray, c

onduct

their

relig

ious c

eremo

nies, a

nd col

lect

plants

for re

ligiou

s use.

Id. T

he gra

nt of

a perm

it to N

AT wo

uld no

t phys

ically

affec

t any E

ST re

ligiou

s cere

mony;

nor

would

any e

agle p

opulati

on be

advers

ely af

fected

. EST

mem

bers w

ho obj

ect to

the N

AT pe

rmit

remain

free to

pray,

condu

ct thei

r cere

monie

s and

obtain

their

eagle

s from

the F

ederal

Repos

itory,

and t

o enjo

y the

unimp

aired

wild p

opulati

on of

eagles

that t

ravers

e the W

RR.

The N

inth C

ircuit

analy

zed th

e diffe

rence

betwe

en bur

dens o

n trad

itional

India

n relig

ious

beliefs

and b

urdens

on In

dian r

eligiou

s activ

ity, sa

ying:

Thus,

the s

ole ef

fect o

f the a

rtificia

l snow

is on

the Pl

aintiff

s’ subj

ective

spirit

ualexp

erienc

e. Th

at is, t

he pre

sence

of the

artifi

cial sn

ow on

the P

eaks is

offen

sive

to the

Plain

tiffs’ f

eeling

s abou

t their

relig

ion an

d will

decrea

se the

spirit

ualful

fillme

nt Pla

intiffs

get fr

om pr

acticin

g thei

r relig

ion on

the m

ountain

. Ne

verthe

less, a

gover

nment

actio

n that

decre

ases th

e spir

itualit

y, the

fervor

, or th

esat

isfactio

n with

which

a belie

ver pr

actice

s his r

eligion

is not

what C

ongres

s has

labele

d a ‘su

bstant

ial bur

den’ -

a term

of ar

t chose

n by C

ongres

s to be

defin

ed by

refere

nce to

Supre

me Co

urt pr

eceden

t - on

the fre

e exer

cise o

f relig

ion. W

here,

11 B

y cont

rast, t

he dis

tinctio

n was

not an

issue

in Wi

lgus, w

here th

e cour

t seem

s to us

ethe

terms

indis

crimi

nately

.

- 14 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 14 o

f 32

as her

e, ther

e is no

show

ing th

e gove

rnment

has c

oerced

the P

laintiff

s to ac

tcon

trary

to the

ir relig

ious b

eliefs u

nder th

e threa

t of sa

nction

s, or c

onditio

ned a

govern

menta

l bene

fit upo

n cond

uct wh

ich wo

uld vi

olate P

laintiff

s’ relig

ious

belief

s,ther

e is no

‘subst

antial

burde

n’ on

the ex

ercise

of th

eir re

ligion

. Were

itoth

erwise

... [e]a

ch citi

zen wo

uld ho

ld an

individ

ual ve

to to

prohib

it the

govern

ment

action

solely

becau

se it o

ffends

his re

ligiou

s belie

fs, sen

sibilit

ies, or

tastes

, or fa

ils to

satisfy

his r

eligiou

s desi

res. F

urther

, givin

g one

religi

ous se

ct avet

o over

the u

se of

public

park l

and wo

uld de

prive

others

of th

e righ

t to us

e [tha

tlan

d].

Id. at

1063-6

4 (em

phasis

added

). He

re, th

e “sol

e effe

ct” re

lied up

on by

the Go

vernm

ent as

a

compel

ling i

nteres

t is th

e cont

ention

by so

me m

ember

s of th

e EST

that t

heir “

subjec

tive s

piritu

al

experi

ence”

may b

e dim

inishe

d if th

ey kno

w that

NAT m

ember

s will

take a

n eagl

e for

the NA

T

Sun D

ance b

ecause

that p

ractice

offen

ds the

m.12 D

efenda

nts im

proper

ly gra

nt som

e EST

memb

ers ve

to pow

er ove

r the u

se of

all lan

ds on

the W

RR fo

r the c

eremo

nial ta

ke of

an eag

le

becaus

e it of

fends

the se

nsibil

ities o

f those

mem

bers.

The p

ositio

n urge

d by t

he Tri

bes in

Navaj

o Nati

on, if

adopte

d, also

would

have

create

d

unmana

geable

gover

nment

al obli

gation

s. Go

vernm

ent co

uld no

t funct

ion ef

fectiv

ely if

it

prohib

ited ac

tivitie

s base

d on t

he “re

ligiou

s sens

ibiliti

es,” a

nd the

relig

ious-b

ased o

bjectio

ns, of

tribal m

ember

s. Id.

at 106

4, citin

g Lyng

v. No

rthwe

st. Ind

ian Ce

meter

y Prot

ective

Ass’n

., 485,

U.S. 43

9, 452

(1988)

. In t

he im

plicit

recogn

ition o

f this i

mport

ant di

stinctio

n, fede

ral ag

encies

are di

rected

“to ac

commo

date N

ative A

meric

an rel

igious

pract

ices,”

not b

eliefs (

empha

sis

added)

. Mem

orandu

m of

Presid

ent Cl

inton,

April

29, 19

94, 59

F.R.

22953.

12 T

he Ag

ency i

s appa

rently

less c

oncern

ed wit

h the

“subje

ctive s

piritu

al expe

rience

” of

EST m

ember

s who

worsh

ip in

the Ar

apaho

tradit

ion. C

onvers

ely, th

e Gove

rnment

gives

short

shrift

to ind

ividua

ls who

might

have

“relig

ious b

eliefs”

that a

re “of

fended

” by A

rapaho

pract

ices

but liv

e off-r

eserva

tion a

nd are

there

fore m

ore ex

posed

to hav

ing th

eir “s

ubject

ive sp

iritual

experi

ence”

interf

ered w

ith by

an Ar

apaho

practit

ioner

with a

perm

it to t

ake an

eagle

off th

eWR

R.

- 15 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 15 o

f 32

A-5


3.Go

vernm

ent ha

s ident

ified n

o com

pellin

g inte

rest th

at ad

vances

publi

c safe

ty, pe

ace or

order

.

With

the un

dersta

nding

from

Navaj

othat

burde

ning r

eligiou

s “bel

iefs”

is diffe

rent th

an

burden

ing re

ligiou

s “pra

ctices,

” it be

comes

even m

ore cle

ar tha

t the G

overnm

ent ha

s failed

to

identi

fy a c

ompel

ling g

overnm

ental i

nteres

t that j

ustifie

s the p

ermit r

estric

tion.

Gover

nment

actio

n whic

h adva

nces e

ven leg

itimate

gover

nment

al int

erests

when

measu

red “o

nly ag

ainst c

onduct

with

a relig

ious m

otivat

ion wi

ll surv

ive str

ict scr

utiny

only i

n

rare c

ases.”

Lukum

i at 54

6. “A

ctions

and pr

actice

s fallin

g with

in the

bound

s of th

e free

exerc

ise

clause

can o

nly be

overc

ome b

y gove

rnment

al inte

rests ‘

of the

highe

st orde

r’.” In

ternat

ional

Society

for K

rishna

Consc

iousne

ss, In

c. v. B

arber,

650 F

.2d 43

0, 444

(2nd Cir. 1

981), c

iting

Wisco

nsin v

. Yode

r, 406

U.S. 20

5 at 2

15 (19

72). L

imitat

ions o

n free

exerc

ise “a

re jus

tified

only

by a c

ompel

ling i

nteres

t in pu

blic s

afety,

peace

or or

der.”

Id.13

There

is not

hing i

n the

record

that s

hows th

at the

permi

t restri

ction s

erves

to pro

tect

public

safety

, peace

or or

der.

4.Th

e Gove

rnment

’s relia

nce on

Wilg

us is m

isplac

ed.

The G

overnm

ent re

lies on

Wilg

us and

relate

d prec

edent

as the

basis

for it

s cont

ention

that

protec

ting c

ertain

Shosh

one “r

eligiou

s belie

fs” am

ounts t

o a co

mpelli

ng int

erest.

Broad

ly, th

e

Wilgu

scase

stands

for th

e prin

ciple t

hat pr

otectio

n of tr

aditio

nal re

ligiou

s prac

tices o

f feder

ally

recogn

ized I

ndian

tribes

can se

rve as

a com

pellin

g gove

rnment

al inte

rest w

hen th

e supp

ly of

eagle p

arts is

limited

. Beyo

nd tha

t, Wilg

us doe

s not

suppor

t the G

overnm

ent’s c

rimina

lizatio

n of

the ce

remoni

al take

of an

eagle

by tri

bal m

ember

s on t

he WR

R. Th

e fact

ual cir

cumsta

nces in

Wilgu

s are

marke

dly di

ssimi

lar fro

m tho

se in

the ca

se at b

ar.

13 T

hus, a

compel

ling i

nteres

t in pu

blic s

afety,

peace

or or

der wa

s suff

icient

to ove

rcome

religi

ously

motiv

ated p

olygam

y and

the fo

rced s

ale of

relig

ious p

eriodi

cals b

y mino

r chil

dren.

SeeRe

ynolds

v. U.S

., 98 U

.S. 14

5 (187

8) and

Princ

e v. C

ommo

nweal

th of

Massa

chuset

ts, 321

U.S. 15

8 (194

4).

- 16 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 16 o

f 32

(a)Th

e supp

ly and

dema

nd pro

blem

addres

sed in

Wilg

us doe

s not

apply

to the

case

at bar.

Wilgu

swas

narrow

ly con

cerned

with

the pr

oblem

of all

ocatin

g scar

ce eag

le part

s from

the Re

posito

ry bet

ween

Indian

and n

on-Ind

ian pr

actitio

ners w

hen th

ere ar

e not

enough

parts

to

meet d

emand

. Wilg

us rel

ied up

on cer

tain ke

y fact

s in its

analy

sis. F

irst, th

e fact

that e

agle

popula

tions

are on

the r

ise do

es not

neces

sarily

mean

the F

ederal

Repos

itory

will se

e a

corres

pondin

g incr

ease in

eagle

parts

and fe

athers

.Wilg

us at 1

291. T

herefo

re, th

e popu

lation

rise wo

uld no

t reduc

e or m

itigate

comp

etition

as be

tween

Indian

s and

non-In

dians

for ea

gles

from

the Re

posito

ry. S

econd,

the d

emand

for e

agles

by trib

al mem

bers fa

r outs

trips th

e supp

ly

availab

le from

the R

eposito

ry. Id

. If th

e dem

and we

re low

er, m

aking

eagles

availa

ble to

non-

Indian

s migh

t not

be as

harmf

ul to

tribal m

ember

s. Th

ird, th

e cour

t found

it dif

ficult

to es

timate

non-In

dian d

emand

on pa

rts fro

m the

Repos

itory,

if the

y were

allow

ed acc

ess. H

oweve

r,

Afro-

Carib

bean r

eligiou

s prac

titione

rs alon

e coul

d num

ber as

many

as on

e milli

on, an

d cert

ainly

would

incre

ase de

mand

on lim

ited Re

posito

ry res

ources

. Id.

The c

ourt re

garded

“the d

emand

for ea

gle fe

athers

to be

essen

tially

a zero

-sum

game.”

Id. at

1293.

None

of the

se fac

ts is p

resent

in th

e case

at bar

. Noth

ing in

the r

ecord

sugges

ts that

the

cerem

onial t

ake fro

m the

wild

sought

by NA

T will

have a

ny im

pact o

n the

supply

of ea

gle pa

rts

availab

le to E

ST fro

m the

Repos

itory.

In fa

ct, the

Gover

nment

has c

onclud

ed tha

t the

cerem

onial t

ake pr

oposed

by NA

T will

have n

o appr

eciabl

e effe

ct on t

he wil

d popu

lation,

from

which

the R

eposito

ry is u

ltimate

ly sup

plied.

FWS

ROD a

t 0005

31 at p

ara. 15

. “Th

e vast

major

ity of

decea

sed bi

rds tu

rned i

n to t

he Re

posito

ry die

from

electr

ocutio

n or c

ollisio

n with

a

vehicle

.”Wi

lgus a

t 1291

.

Wilgu

s rejec

ted op

tions

that w

ould a

llow n

on-Ind

ians to

obtain

eagle

s from

the

Repos

itory

becaus

e “fea

thers a

nd eag

le part

s will

be div

erted

away

from

memb

ers of

feder

ally

recogn

ized t

ribes,

the v

ery pe

ople th

at the

govern

menta

l inter

est pr

otects

.” Id.

at 129

5.

- 17 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 17 o

f 32

Allow

ing th

e cere

monia

l take

of an

eagle b

y NAT

on th

e WRR

prote

cts NA

T mem

bers w

ithout

limitin

g the

supply

of ea

gles o

r eagl

e part

s avai

lable t

o EST

throu

gh the

Feder

al Repo

sitory.

The f

ederal

inter

est in

prote

cting “

religi

ous be

liefs”

of ind

ividua

l EST

mem

bers w

ho

have p

ut for

th obj

ection

s, if it

exten

ds tha

t far, i

s not

“of th

e high

est or

der” s

ufficie

nt to

overco

me th

e Free

Exerc

ise rig

hts of

India

n prac

titione

rs of N

AT re

ligion

. Wilg

us

acknow

ledges

a valid

gover

nment

al inte

rest in

the p

rotect

ion of

tribal

cerem

onies

based

on the

politic

al statu

s of In

dian t

ribes

when

the su

pply o

f eagl

e part

s was

limited

. But

protec

tion f

rom

offens

e of th

e asse

rted r

eligiou

s belie

fs of so

me in

dividu

al trib

al mem

bers h

as nev

er bee

n held

to

be “of

the h

ighest

order

” nece

ssary

to pro

tect p

ublic s

afety,

peace

or or

der, or

other

wise

suffic

ient to

overc

ome th

e Free

Exerc

ise rig

hts of

anyon

e, let a

lone to

crim

inalize

the r

eligiou

s

activi

ties of

anoth

er Tri

be or

its me

mbers

.

(b)Wi

lgus c

reates

no co

mpelli

ng gov

ernme

ntal in

terest

in su

ppress

ingInd

ian re

ligion

s.

By cr

imina

lizing

the ce

remoni

al take

of an

eagle

by NA

T on t

he WR

R, the

Gover

nment

has ef

fectiv

ely su

ppress

ed NA

T relig

ion. T

he ES

T and

the NA

T is e

ach a s

eparat

ely fe

derally

recogn

ized I

ndian

Tribe,

and n

othing

in W

ilgus

or BG

EPA s

upport

s feder

al actio

n crim

inalizi

ng

the re

ligiou

s prac

tices o

f one

Tribe

in ord

er to

avoid

offend

ing th

e belie

fs of so

me m

ember

s of

anothe

r Trib

e.Wi

lgus p

rotect

s triba

l mem

bers w

ho nee

d eagl

es and

eagle

parts

or fea

thers f

or

tradit

ional c

eremo

nial p

ractice

s. It d

oes no

t empow

er one

Tribe

to us

e the G

overnm

ent to

block

anothe

r Trib

e’s ef

forts t

o obta

in an

eagle f

or cer

emoni

al purp

oses.

The G

overnm

ent tu

rns

Wilgu

son i

ts head

in co

nstrui

ng it a

s a ba

rrier to

acces

sing e

agle p

arts fo

r Nativ

e Ame

ricans

who

practic

e in th

e Nort

hern A

rapaho

tradit

ion.

If, und

er Wi

lgus, t

he fed

eral g

overnm

ent ca

n crim

inalize

a relig

ious c

eremo

ny of

the

NAT b

ased o

n the

alleged

relig

ious-b

ased o

bjectio

ns of

the ES

T, can

it als

o proh

ibit o

ther

cerem

onies

the ES

T or a

nother

tribe

finds

offens

ive to

its be

liefs?

Could

FWS b

an the

Hebre

w

- 18 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 18 o

f 32

A-6


cerem

ony of

Kapar

ot, or

cerem

onies

in the

Santo

ria fa

ith? T

he ans

wer is

no. L

ukumi.

Wilgu

s weig

hed th

e fede

ral in

terest

in (1

) prot

ecting

certa

in Ind

ian re

ligiou

s prac

tices,

couple

d with

(2) p

rotect

ing ea

gles a

s a sp

ecies,

again

st asse

rted F

ree Ex

ercise

rights

of

Mr. W

ilgus,

a non-

Indian

. The

ban ap

plicab

le to M

r. Wilg

us wa

s not

based

on the

idea

that

some tr

ibal m

ember

s woul

d be o

ffende

d by h

is relig

ious p

ractice

s. Ra

ther, t

he ban

appli

cable t

o

Mr. W

ilgus’

relig

ious a

ctivity

was s

upport

ed by

a need

to pr

otect e

agles

as a s

pecies

and t

o

protec

t India

n relig

ious a

ctivity

, whic

h depe

nds on

a supp

ly of

eagle p

arts a

nd fea

thers.

The

result

would

be en

tirely

differ

ent if

tribal m

ember

s were

mere

ly off

ended

by Mr

. Wilg

us’

religi

ous pr

actice

and h

is activ

ity ha

d no n

egativ

e effe

ct on t

he sup

ply of

decea

sed ea

gles

availab

le to t

ribal m

ember

s. In

that ca

se, M

r. Wilg

us’ Fr

ee Ex

ercise

rights

would

preva

il.

“The

Free E

xercis

e Clau

se com

mits g

overnm

ent its

elf to

relig

ious to

leranc

e, and

upon

even s

light

suspic

ion th

at prop

osals f

or sta

te inte

rventi

on ste

m fro

m ani

mosity

to re

ligion

or

distru

st of it

s prac

tices, a

ll offic

ials m

ust pa

use to

reme

mber

their o

wn hi

gh dut

y to t

he

Const

itutio

n and

to the

rights

it sec

ures.”

Lukum

iid. at

547.

C.Th

e Gove

rnment

’s gerr

yman

dering

of ge

ograp

hic ar

eas fo

r diffe

rent

religi

ous p

ractic

es is n

ot the

least r

estric

tive m

eans.

Even

if we a

ssume

the G

overnm

ent ca

n crim

inalize

NAT r

eligiou

s prac

tices o

n the

WRR

at the

reques

t of o

thers w

ho ma

y be o

ffende

d by t

hem, “[

t]he g

overnm

ent m

ust als

o show

that n

o

less re

strictiv

e mean

s to ac

hieve

its end

are a

vailab

le.” In

ternat

ional

Soc. at

444.

The

Gover

nment

has a

ttempte

d to “

balanc

e” wh

at it se

es as

compet

ing du

ties un

der W

ilgus

to two

Tribes

with

religi

ous tra

dition

s whic

h are

assert

ed to

be in

conflic

t by a

llowin

g the

NAT

religi

ous pr

actice

only

outsid

e the W

RR. T

he “ba

lance”

crim

inalize

s the c

eremo

nial ta

ke of

an

eagle a

nywher

e on t

he res

ervatio

n of th

e NAT

and r

equire

s NAT

(and

many

EST)

memb

ers to

go out

side o

f their

reser

vation

for th

is cent

ral pa

rt of th

eir Su

n Danc

e cere

monie

s. By

contr

ast,

those

EST m

ember

s who

are of

fended

by NA

T Sun

Dance

tradit

ion ar

e free

to pr

actice

and

- 19 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 19 o

f 32

promo

te thei

r view

s from

home

.

Relig

ious c

o-exis

tence

and to

leratio

n were

conte

mplate

d by a

uthors

of th

e Cons

titutio

n.

InLu

kumi, t

he Cit

y of H

ialeah

crimi

nalize

d cert

ain re

ligiou

s cond

uct (a

nimal s

acrific

e) by

memb

ers of

the C

hurch.

Id. at

527-2

8. Th

e Supr

eme C

ourt st

ruck d

own t

he app

licatio

n of C

ity

ordina

nces p

rohibi

ting t

hat re

ligiou

s activ

ity by

Churc

h mem

bers.

The C

ourt d

id not

once

sugges

t that t

he Fre

e Exer

cise C

lause

allowe

d a “b

alance

” of c

ompet

ing re

ligiou

s view

s betw

een

those

of the

Churc

h and

those

who o

pposed

it. N

or did

the S

uprem

e Cour

t allow

the C

ity to

ban

Churc

h activ

ities e

veryw

here e

xcept

outsid

e the b

oundar

ies of

the m

unicip

ality.

Yet, t

his is

precis

ely wh

at the

Gover

nment

has d

one in

the c

ase at

bar. N

AT m

ember

s may

only o

btain

an

eagle c

entral

for u

se in

the Su

n Danc

e if th

e cere

monia

l take

occurs

outsid

e the W

RR

bounda

ries, b

ecause

that r

eligiou

s activ

ity of

fends

the re

ligiou

s sens

ibiliti

es of

some m

ember

s of

the ES

T. If

this a

pproac

h were

valid

under

the F

ree Ex

ercise

Claus

e, Luku

mi wo

uld ha

ve had

a

comple

tely di

fferen

t outc

ome.

The G

overnm

ent’s d

enial o

f an o

n-Rese

rvatio

n perm

it and

issuan

ce of

an off

-Reser

vation

one a

ccomp

lishes

an im

permi

ssible

“relig

ious g

errym

ander”

reject

ed by

the Co

urt.I

d. at 5

35, cit

ing W

alz v.

Tax C

omm’

n of N

ew Yo

rk Cit

y, 397

U.S. 66

4 at

696 (1

970) (“

Neutr

ality i

n its a

pplica

tion r

equire

s an e

qual p

rotect

ion m

ode of

analy

sis. T

he

Court

must

surve

y metic

ulousl

y the

circum

stance

s of g

overnm

ental c

ategor

ies to

elimi

nate, a

s it

were,

relig

ious g

errym

anders

,” Harl

an, J.,

concu

rring).

Furth

ermore

, the G

overnm

ent’s d

ecisio

n to e

xclude

the e

ntire

reserv

ation f

rom th

e

cerem

onial t

ake of

an ea

gle by

NAT d

oes no

t furth

er any

prope

r inter

est un

der W

ilgus.

14 The

federa

l inter

est is

in pro

tectin

g exis

ting I

ndian

religi

ous pr

actice

s agai

nst re

pressi

on, no

t in

burden

ing th

ose pr

actice

s base

d on t

he rel

igious

belief

s asse

rted b

y som

e of th

e mem

bers o

f

14 T

he Ag

ency t

reats t

he loc

ation o

f a tak

e as ir

releva

nt. F

WS RO

D at 5

32 par

a.17.

The

NAT h

as exp

lained

the sig

nifica

nce of

the lo

cation

, whic

h is c

hosen

by the

eagle

itself

. NAT

ROD a

t 071-

72.

- 20 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 20 o

f 32

anothe

r tribe

.See

Memo

randum

of Pr

esiden

t Clin

ton, id

.

Finally

, the G

overnm

ent ha

s ackn

owled

ged, at

least i

n pass

ing, th

at the

Shosh

one an

d

Arapa

ho Tri

bal Co

urt co

uld ha

ve a r

ole in

decid

ing im

portan

t issue

s in th

is case

. FWS

ROD a

t

002278

, para.

2. Th

e only

way T

ribal C

ourt ca

n make

any m

eaning

ful de

termi

nation

is if t

he

Gover

nment

issues

the p

ermit,15 su

bject t

o any

applica

ble law

s of th

e Trib

e. In

fact, t

his

condit

ion alr

eady a

pplies

to th

e issue

d perm

it16 and i

s a sta

ndard

provis

ion on

FWS p

ermits

of

this k

ind. I

ssuanc

e of a

perm

it subj

ect to

Triba

l law a

llows

for th

e prot

ection

of leg

itimate

cultur

al or o

ther c

oncern

s of b

oth Tr

ibes in

the le

ast re

strictiv

e mean

s.

D.Gr

antin

g the

permi

t wou

ld avo

id exc

essive

entan

gleme

nt in

religi

ous is

sues.

Among

the a

ctions

forbid

den un

der th

e First

Amend

ment,

gover

nment

actio

n “mu

st not

foster

an ‘e

xcessi

ve gov

ernme

nt ent

anglem

ent wi

th rel

igion’

.” Lem

on v. K

urtzm

an, 40

3 U.S.

602, 61

3 (197

1), cit

ing W

alz at

674. H

ere, de

nial o

f the p

ermit o

n the

WRR e

ntangl

es FW

S in

identi

ficatio

n of th

e core

“tradi

tional

” EST

relig

ion (th

e one,

“true”

EST r

eligion

) subje

ct to

protec

tion u

nder W

ilgus.

17 It als

o enta

ngles

Gover

nment

in on

going

effect

s of th

e annu

al perm

it

on rel

igious

pract

ices o

f EST

and N

AT m

ember

s and

the in

tent o

f indiv

idual E

ST m

ember

s who

object

on “r

eligiou

s” gro

unds.

As we

have

seen, w

hether

EST t

raditio

nal re

ligion

is “of

fended

”

by the

cerem

onial t

ake of

an ea

gle re

mains

an iss

ue of

fact co

nteste

d by m

ember

s of b

oth Tr

ibes.

NAT R

OD at

072-74

.

15 A

s long

as the

perm

it on t

he WR

R is d

enied,

there

is not

hing t

he Tri

bal Co

urt ca

n do

to pre

vent cr

imina

l pros

ecutio

n by t

he Un

ited St

ates fo

r the c

eremo

nial ta

ke of

an eag

le by a

tribal m

ember

witho

ut a f

ederal

perm

it.

16 F

WS RO

D at 0

00071

(2012

permi

t) and

002241

(2013

perm

it), pa

ra. 11

.B. (“

The

validi

ty of

this p

ermit i

s also

condi

tioned

upon

strict o

bserva

nce of

all ap

plicab

le fore

ign, st

ate,

local,

tribal o

r othe

r feder

al law

.”)

17U.S

. v. Ba

llard,

322 U

.S. 78

, 86-87

(1944

) (“La

w in a

nonth

eocrat

ic state

canno

tme

asure

religi

ous tru

th.”).

- 21 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 21 o

f 32

A-7


These

very

concer

ns ma

y be r

esolve

d, and

are be

st reso

lved, b

y the

Tribes

them

selves

as

a matte

r of tr

ibal la

w and

custom

deter

mined

in th

eir Tr

ibal C

ourt.

NAT R

OD at

074-75

; see

Feder

al Ind

ian La

w, Co

hen (2

012 ed

.) at 4

.05[4]

. To a

void t

he con

tinuin

g enta

nglem

ent in

to

questio

ns of

a relig

ious n

ature,

the A

gency

should

issue

the pe

rmit s

ubject

to ap

plicab

le law

s of

the Tr

ibes, a

s FWS

custo

marily

does

with s

uch pe

rmits

and as

it has

alread

y done

for th

e off-

reserv

ation p

ermit.

FWS i

tself s

eemed

to fav

or, th

en ign

ore, th

is appr

oach.

The v

iews o

f Jame

s

Dubov

sky, th

e Chie

f of th

e Divi

sion o

f Migr

atory

Bird M

anagem

ent, M

ountain

and P

rairie

Regio

n were

that:

[Deni

al of th

e NAT

perm

it] bas

ed on

anothe

r tribe

not su

pportin

g issu

ance o

f that

permi

t... pu

ts us in

a very

bad p

ositio

n, as th

e arbi

ter of

appro

priate

dispo

sition

ofeag

les am

ong tri

bes... I

would

hope

we co

uld [is

sue th

e perm

it] wit

h the

unders

tandin

g that

the p

ermit d

oes no

t autho

rize a

ny act

ivity

that is

incon

sisten

twit

h trib

al law

s. Th

us, we

plan

to iss

ue the

perm

it, and

any i

ssues

remain

ing ar

ethe

resul

t of tr

ibal la

ws an

d regu

lations

and w

ould n

eed to

be wo

rked o

ut am

ongst

the tri

bes, an

d not

involv

e our

office

.

FWS R

OD at

000283

and 0

00908.

Defe

ndant

Matt H

ogan, A

ssista

nt Re

gional

Direc

tor, R

egion

6, Migr

atory

Birds

and St

ate Pr

ogram

s, conc

urred.

FWS

ROD a

t 0004

81-82.

For

reason

s not

explain

ed in

the re

cord, t

he Go

vernm

ent ha

s forec

losed

this v

aluabl

e appr

oach b

y cate

gorica

lly

denyin

g any

take p

ermit o

n the

WRR.

Relief

sough

t. NA

T requ

ests th

at the

Court

decla

re the

denia

l of a

n eagl

e take

permi

t to

NAT o

n the

WRR t

o viol

ate th

e Relig

ion Cl

auses

of the

First

Amend

ment

and en

join F

WS fro

m

enforc

ing th

at perm

it rest

rictio

n. Sta

ndard

permi

t condi

tions

requir

ing co

mplian

ce wit

h othe

r

applica

ble law

may

remain

in th

e perm

it. Qu

estion

s of tr

ibal la

w, cus

tom, an

d relig

ious tr

aditio

n

should

be lef

t to th

e Trib

es the

mselv

es to

resolv

e throu

gh the

Triba

l Cour

t or o

ther a

ppropr

iate

means

.

- 22 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 22 o

f 32

II.In

violat

ion of

the A

PA, th

e FWS

bans

a trad

itiona

l relig

ious c

eremo

ny of

the N

ATan

ywher

e on t

he Wi

nd Ri

ver In

dian R

eserva

tion.

Just as

the A

gency’

s refus

al to i

ssue a

perm

it to t

he NA

T fails

to m

eet th

e stric

t scrut

iny

standa

rds un

der th

e First

Amend

ment,

the d

ecisio

n like

wise d

oes no

t meet

the r

equire

ments

set

out in

the A

dmini

strativ

e Proc

edures

Act, 5

U.S.C

. §706(

2) (“A

PA”).

Revi

ew un

der th

ese

requir

ement

s esta

blishe

s that t

he dec

ision i

s unla

wful

and sh

ould b

e set a

side.

The F

WS is

charge

d by C

ongres

s with

the r

espons

ibility

of im

pleme

nting

the BG

EPA,

which

embod

ies Co

ngress

’ inten

t that N

ative A

meric

ans lik

e NAT

pract

itioner

s have

acces

s to

eagles

for re

ligiou

s purp

oses, a

nd pro

vides

a perm

it proc

ess fo

r takin

g eagl

es fro

m the

wild.

50 CF

R §22.

22. T

he AP

A prov

ides fo

r relief

when

govern

ment

agenci

es err

in im

pleme

nting

the

laws o

f the U

nited

States

, or ac

t errat

ically

or un

reason

ably i

n doin

g so.

In thi

s case

, the A

gency

has ve

ered e

rratica

lly ac

ross a

nd bey

ond th

e brea

dth of

its law

ful ob

ligatio

n to i

mplem

ent

BGEP

A. At

one e

xtrem

e, wher

e this c

ase be

gan, th

e Agen

cy iss

ues no

perm

its. T

he Ag

ency

then d

is-entr

enches

and q

uickly

reach

es a d

eterm

inatio

n that

the p

ermit p

oses n

o thre

at to a

viable

eagle

popul

ation, b

ut ran

ges be

yond t

heir d

iscret

ion an

d law

ful au

thority

into

an

evalua

tion o

f poli

tical an

d “rel

igious

” obje

ctions

to the

perm

it. As

descr

ibed b

elow,

the re

cord

reflec

ts a se

quence

of wr

ong tu

rns, w

here th

e Agen

cy’s c

onduct

is arb

itrary,

capri

cious

and

contra

ry to

law.

Stand

ard of

Revie

w

Judicia

l revie

w of a

gency

action

is gov

erned

by §70

6 of th

e APA

and r

equire

s a

“deter

minat

ion of

(1) w

hether

the a

gency

acted

within

the s

cope o

f its a

uthori

ty, (2

) whet

her th

e

agency

comp

lied wi

th pre

scribe

d proc

edures

, and (

3) wh

ether

the ac

tion i

s othe

rwise

arbit

rary,

capric

ious o

r an a

buse o

f disc

retion

.”Ole

nhouse

, id., a

t 1573

-74.

The d

uty of

a cour

t revie

wing a

gency

action

under

the “

arbitra

ry or

capric

ious”

standa

rd is t

o asce

rtain

wheth

er the

agenc

y exam

ined t

he rel

evant

data a

ndart

iculate

d a ra

tional

conne

ction b

etween

the f

acts fo

und an

d the

decisio

n made

.

- 23 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 23 o

f 32

In rev

iewing

the a

gency’

s expl

anatio

n, the

review

ing co

urt m

ust de

termi

newh

ether

the ag

ency c

onside

red all

relev

ant fa

ctors a

nd wh

ether

there

has be

en an

abuse

of dis

cretio

n. Ag

ency a

ction w

ill be

set as

ide “if

the a

gency

relied

onfac

tors w

hich C

ongres

s has

not in

tended

for it

to co

nsider

, entire

ly fai

led to

consid

er an

impor

tant as

pect o

f the p

roblem

, offer

ed an

explan

ation f

or its

decisio

n that

runs

counte

r to th

e evid

ence b

efore

the ag

ency, o

r is so

impla

usible

that it

could

not b

e ascr

ibed t

o a di

fferen

ce in

view o

r the p

roduct

of ag

ency

expert

ise.”

Id. at

1574 (

intern

al citat

ions o

mitted

).

A.Un

der 50

C.F.R

. §22.2

2, the

Agenc

y’s ch

arge is

to iss

ue per

mits b

ased o

nbio

logica

l scien

ce so

that v

iable e

agle p

opula

tions

are pr

otecte

d.

The r

egulati

on im

pleme

nting

the BG

EPA’

s exce

ption

for “I

ndian

religi

ous pu

rposes

”

appear

s at 5

0 C.F.

R. §22

.22. S

ubsect

ion (c

) of th

e regu

lation

answe

rs the

questio

n, “Ho

w do w

e

evalua

te your

appli

cation

for a

perm

it?” a

s follo

ws:

We wi

ll... on

ly iss

ue a p

ermit t

o take

... when

we de

termi

ne tha

t the ta

king...

iscom

patibl

e with

prese

rvatio

n of th

e... ea

gle. I

n maki

ng a d

eterm

inatio

n, we w

illcon

sider,

among

other

criter

ia, the

follo

wing:

(1) T

he dir

ect or

indir

ect ef

fect w

hich i

ssuing

such

a perm

it woul

d be

likely

to ha

ve upo

n the

wild p

opulati

ons of

... eag

les; an

d

(2) W

hether

the a

pplica

nt is a

n Indi

an wh

o is a

uthori

zed to

partic

ipate i

nbon

a fide

tribal

relig

ious c

eremo

nies.

Thus,

the o

nly en

umera

ted cr

iteria w

hich F

WS is

author

ized b

y its o

wn re

gulatio

n to e

valuat

e are

the vi

ability

of th

e popu

lation

and th

e sinc

erity

of the

relig

ious b

elief o

f the I

ndian

applica

nt.

The A

gency

found

both t

hese c

riteria

satisf

ied. T

hat sh

ould h

ave be

en the

end o

f its e

valuat

ion.

Inject

ing a n

ew cr

iterion

– nam

ely, w

hether

tradit

ional r

eligiou

s belie

fs of a

nother

India

n

Tribe

within

the g

eograp

hical a

rea of

the p

ermit a

pplica

tion w

ould b

e “off

ended”

– is c

learly

outsid

e the s

cope o

f the s

tatute a

nd the

regul

ations,

and i

ndeed

well b

eyond

the sta

tutory

- 24 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 24 o

f 32

A-8


author

ity an

d the

expert

ise of

the A

gency.

“For

Chevr

on18 defer

ence to

apply

, the A

gency

must

have r

eceive

d Cong

ressio

nal au

thority

to de

termi

ne the

partic

ular m

atter a

t issue

in th

e part

icular

manne

r adop

ted.”

City o

f Arlin

gton v

. F.C.

C., 13

3 S.Ct

. 1863,

1874

(2013)

(disti

nguish

ing

United

State

s v. M

ead Co

rp., 53

3 U.S.

218 (

2001),

denyi

ng Ch

evron

defere

nce to

actio

n by a

n

agency

with

rulem

aking

author

ity th

at was

not ru

lemaki

ng). W

hen an

agenc

y inte

rprets

a statu

te

lying

“outsid

e the c

ompas

s of it

s part

icular

exper

tise” n

o defe

rence

is due.

Hydr

o Reso

urces,

Inc. v.

U.S.E

.P.A.,

608 F

.3d 11

31, 11

46 (10

th Cir. 2

010).

Any s

uggest

ion th

at a re

ligiou

s

object

ion fa

ctor fa

lls wit

hin “o

ther c

riteria

” unde

r 50 C

.F.R.

§22.22

would

lack m

erit as

contr

ary

to the

purpo

se of

the sta

tute.

“Agen

cy act

ion wi

ll be s

et asid

e if th

e agen

cy rel

ied on

facto

rs

which

Congr

ess ha

s not

intend

ed for

it to

consid

er.”O

lenhou

se, id

. at 15

74.

B.Th

e Agen

cy’s u

ltra vir

es for

ay int

o “rel

igiou

s obje

ction

s” res

ulted

inerr

oneou

s factu

al det

ermina

tions.

Havin

g stra

yed be

yond t

he two

facto

rs set f

orth i

n the

regula

tion, t

he Go

vernm

ent

reache

d a co

nclusi

on tha

t an ea

gle tak

e is of

fensiv

e to Sh

oshone

relig

ious b

eliefs.

“Agen

cy

action

will b

e set a

side if

the a

gency.

.. offe

red an

expla

nation

for it

s deci

sion t

hat ru

ns cou

nter to

the ev

idence

befor

e the a

gency[

.]” O

lenhou

se,id.

at 157

4. As

discu

ssed e

arlier

in th

is

Memo

randum

, the A

gency

conclu

sion r

ests o

n a fla

wed f

actual

found

ation.

The p

re-dec

isional

record

comp

iled by

FWS r

eveals

no ev

idence

that “

religi

ous be

liefs”

are “o

ffende

d.”

Appen

dix A

summa

rizes

the co

ntents

of th

e adm

inistra

tive r

ecord

releva

nt to

the su

bstanc

e of

these

object

ions.

There

is no

substa

ntial e

videnc

e to su

pport t

he Ag

ency’s

concl

usion

about

“relig

ious o

bjectio

ns.”S

ee Ole

nhouse

,id. at

1575

(inter

nal cit

ations

omitte

d) (“a

gency

action

will b

e set a

side if

it is u

nsuppo

rted b

y subs

tantial

evide

nce... ‘

it is im

possib

le to c

onceiv

e of a

non-ar

bitrar

y fact

ual ju

dgment

suppo

rted b

y evid

ence th

at is n

ot sub

stanti

al in t

he AP

A sens

e’”).

Viewe

d gene

rously

, the r

ecord

contain

s three

refer

ences

to per

sonal o

r “cul

tural”

objec

tions

to

18 Ch

evron

U.S.A.

v. Na

tural

Resou

rces D

efense

Counc

il, Inc

., 467

U.S. 83

7 (198

4).

- 25 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 25 o

f 32

the pe

rmit.

One c

omes

from

Mr. L

ebeau.

See F

WS RO

D at 0

00381-

84. T

he oth

er com

es fro

m

Ms. V

arilek

.See

FWS R

OD at

002288

. The

last co

mes in

a find

ing, F

WS RO

D at 0

02291,

which

make

s pass

ing re

ferenc

e to a t

elepho

ne cal

l with

SBC a

nd uni

dentifi

ed eld

ers, th

e

substa

nce of

which

is not

conta

ined w

ithin

the re

cord.

These

scint

illa ar

e inade

quate t

o supp

ort

the Ag

ency’s

deter

minat

ion. O

lenhou

se,id.

at 158

1 (sci

ntilla

eviden

ce ina

dequat

e).19

Perhap

s the m

ost no

tewort

hy fea

ture o

f the p

re-dec

isional

recor

d is th

at Mess

rs. Ho

gan

and Du

bovsky

recom

mende

d issu

ance o

f the p

ermit t

o NAT

withi

n the

WRR a

nd the

State

of

Wyom

ing. S

ee p. 2

2, supr

a. So

mehow

, inter

nally,

these

recom

menda

tions

did no

t carry

the d

ay.

Instea

d, the

Agenc

y swe

rved o

ff into

the b

usines

s of “

religi

ous ob

jectio

ns.”

C.Th

e Agen

cy’s u

ltra vir

es for

ay int

o “rel

igiou

s obje

ction

s” ign

ored t

he Fir

stAm

endme

nt.

With

no spe

cial ex

pertise

in re

ligiou

s matte

rs, it i

s not

surpri

sing t

hat, w

hen th

e Agen

cy

began

consid

ering

religi

ous ob

jectio

ns as

factor

, that a

nalysi

s was

unteth

ered f

rom th

e First

Amend

ment.

As d

iscuss

ed ear

lier in

this M

emora

ndum,

the p

ermit r

estric

tion f

ashion

ed by

the

Agenc

y runs

afoul

of th

e Free

Exerc

ise Cl

ause.

Under

the A

PA, th

ese vi

olatio

ns of

the Fi

rst

Amend

ment

by the

Agenc

y are

“contr

ary to

law” a

nd mu

st be s

et asid

e.

Furth

ermore

, the A

gency’

s actio

n viol

ates th

e Esta

blishm

ent Cl

ause.

“[T]ru

e relig

ious

libert

y requ

ires th

at gove

rnment

... effe

ct no f

avoriti

sm am

ong se

cts... a

nd tha

t it wo

rk det

errenc

e

of no

religi

ous be

lief.”

Larso

n v. V

alente

, 456 U

.S. 22

8, 246

(1982)

(inter

nal cit

ations

omitte

d).

The G

overnm

ent’s d

enial o

f an o

n-rese

rvatio

n perm

it endo

rses th

e relig

ious b

eliefs o

f some

EST

memb

ers as

more

impor

tant th

an the

relig

ious b

eliefs a

nd pra

ctices

of any

India

n prac

ticing

in

the No

rthern

Arapa

ho rel

igion.

19 B

y cont

rast, e

videnc

e of th

e relig

ious p

ractice

s of th

e NAT

regar

ding t

he Su

n Danc

e,and

the c

eremo

nial ta

ke of

an eag

le requ

ired f

or Su

n Danc

e, are

well d

ocume

nted (

see U.

S. v.

Friday

, 525 F

.3d 93

8, 10th Ci

r. 2008

), NAT

ROD a

t 67-7

5, and

admitte

d as fa

cts by

the

Gover

nment

(see F

WS RO

D at 5

31, fin

ding 1

6). - 26 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 26 o

f 32

“When

gover

nment

assoc

iates o

ne set

of re

ligiou

s belie

fs with

the s

tate an

d iden

tifies

nonadh

erents

as ou

tsiders

, it en

croach

es upo

n the

indivi

dual’s

decisio

n abou

t whet

her an

d how

to wo

rship.

”McC

reary

Count

y, Ky. v

. ACL

U, 545

U.S.

844, 88

3 (200

5) (O

’Conno

r,

concur

ring).

“By e

nforci

ng the

[First

Amend

ment

and Es

tablish

ment]

Claus

es, we

have

kept

religi

on a m

atter fo

r the in

dividu

al cons

cience

, not fo

r the p

rosecu

tor or

burea

ucrat.”

Id. H

ere,

the Go

vernm

ent m

akes N

AT m

ember

s who

believ

e and

partici

pate in

the A

rapaho

Sun D

ance

“outsid

ers,” b

oth fig

urativ

ely an

d liter

ally. T

o cond

uct th

e cere

monia

l take

of an

eagle,

NAT

(and m

any ES

T) me

mbers

must

go ou

tside th

eir ow

n rese

rvatio

n hom

es, wh

ile oth

er ES

T

memb

ers en

joy th

e priv

ilege th

at com

es fro

m fed

eral su

pport f

or the

ir relig

ious-b

ased o

bjectio

n

to the

NAT r

eligiou

s cere

mony.

The

Gover

nment

leaves

the c

eremo

nial ta

ke of

an eag

le on t

he

WRR “

for th

e pros

ecutor

.” Th

is viol

ates th

e Esta

blishm

ent Cl

ause, a

nd is t

herefo

re con

trary

to

law un

der th

e APA

.

D.Th

e proc

edures

that

were

utilize

d by t

he Ag

ency v

iolate

due-p

rocess

.

An ag

ency’s

decis

ion is

“arbit

rary a

nd cap

riciou

s” if i

t was

not th

e resu

lt of p

rocedu

res

that co

mport

with

princi

ples o

f due-

proces

s and

fair p

lay. O

lenhou

se, id

. at 15

83. H

ere, th

e

record

revea

ls seri

ous du

e proc

ess vi

olatio

ns.

The “

religi

ous ob

jectio

ns” fa

ctor is

absen

t from

the B

GEPA

regul

ation, b

ut wa

s crea

ted

by the

Agenc

y in t

he cou

rse of

its re

view o

f the a

pplica

tion.

FWS f

ailed t

o noti

fy the

appli

cant

that “r

eligiou

s obje

ctions”

was a

facto

r at al

l, let a

lone th

e cent

ral on

e, in i

ts delib

eratio

n.See

Appen

dix A

(timelin

e). B

y crea

ting t

his fa

ctor a

nd fai

ling t

o prov

ide no

tice of

that a

ction t

o

NAT,

the Ag

ency v

iolate

d due

proces

s. “A

n elem

entary

and f

undam

ental r

equire

ment

of due

proces

s in an

y proc

eeding

which

is to

be acc

orded

finalit

y is n

otice

reason

ably c

alcula

ted, un

der

all of

the cir

cumsta

nces, t

o appr

ise in

terest

ed par

ties of

the p

endenc

y of th

e actio

n and

afford

them

an opp

ortuni

ty to

presen

t their

objec

tions.

” Mull

ane v.

Centr

al Ha

nover

Bank

& Tru

st Co.,

339 U.

S. 306

, 314 (

1950).

The

Agenc

y actio

n depr

ived N

AT of

an op

portun

ity to

put fo

rth

- 27 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 27 o

f 32

A-9


comme

nts th

at addr

ess th

e secr

et “rel

igious

objec

tions”

facto

r, in v

iolatio

n of d

ue pro

cess.

Id.

As a r

esult,

the re

cord c

ompil

ed by

the Ag

ency r

egardi

ng thi

s facto

r cons

ists on

ly of

object

ions

from

EST i

ndivid

uals.

These

objec

tions

were

provid

ed to

NAT a

fter th

is actio

n was

filed w

ith

the Co

urt an

d the

Agenc

y subm

itted i

ts ROD

. See

Appen

dix A

(timelin

e). N

AT ha

d no

opport

unity

to pro

vide in

put on

the “

religi

ous ob

jectio

ns” fa

ctor p

rior to

the A

gency

decisio

n,

which

viola

ted du

e proc

ess.20 “[

A]gen

cy act

ion wi

ll be s

et asid

e if th

e adm

inistra

tive p

rocess

emplo

yed vi

olated

basic

conce

pts of

fair p

lay.”

Olenho

use,id

. at 15

83.

The A

gency

also i

mprop

erly r

elies o

n post

-hoc r

ational

izatio

ns, in

viola

tion o

f the A

PA.

The A

gency

relies

on po

rtions21 of

transc

ripts o

f oral

argum

ent fro

m the

Amicu

s, with

recor

d

supple

ments

. The

oral ar

gument

took

place

approx

imate

ly six

-mont

hs aft

er fin

al agen

cy act

ion.

Decis

ions b

ased o

n “pos

t hoc”

ratio

naliza

tions

must b

e set a

side.

Olenho

use,id

. at 15

77.

E.Th

e Agen

cy fai

led to

prop

erly w

eigh t

he fed

eral in

terest

in fo

sterin

g NAT

cultur

e and

relig

ion.

Under

the A

PA, ag

ency a

ction w

ill be

set as

ide if

the ag

ency f

ailed t

o cons

ider a

n

“impor

tant as

pect” o

f the m

atter.

Olenho

use,id

. at 15

74. W

hile g

iving

preclu

sive w

eight

to

assert

ed ES

T trad

itional

belief

s in co

nnectio

n with

Wilg

us, th

e Agen

cy fai

led to

consi

der th

e

powerf

ul eff

ect of

a crim

inal b

an on

eagle t

ake by

pract

itioner

s of N

AT tra

dition

al relig

ion on

the W

RR an

d faile

d to p

roperl

y weig

h its o

bligat

ion un

der BG

EPA t

o ensu

re acc

ess to

“clea

n”

eagles

as a m

eans o

f foste

ring N

orther

n Arap

aho cu

lture

and re

ligion

. As p

art of

that f

ailure,

FWS i

gnored

the R

eligiou

s Free

dom Co

de, en

acted

by NA

T, wh

ich es

tablish

es an

on-res

ervatio

n

20 A

fter th

e FWS

ROD w

as file

d with

the C

ourt an

d obta

ined b

y NAT

, the T

ribe

undert

ook a c

areful

consi

deratio

n of p

ermit i

ssues

affect

ing th

e Trib

e, incl

uding

these

“relig

ious

object

ions.”

The

Tribe

provid

ed pub

lic not

ice an

d acce

pted p

ublic c

omme

nt dur

ing its

revie

w,and

issued

findin

gs and

concl

usions

in its

gover

nment

al role

. See

NAT R

OD at

067-75

.

21 P

roffer

ing tra

nscrip

t excer

pts fro

m one

partic

ular la

wyer

for in

clusio

n in t

headm

inistra

tive r

ecord,

as op

posed

to the

whole

transc

ript, i

s arbi

trary

and ca

pricio

us.

- 28 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 28 o

f 32

eagle t

ake pe

rmit s

ystem

for N

AT m

ember

s and

finds

that tr

aditio

nal ce

remoni

es of

the NA

T

“are a

n inte

gral p

art of

the T

ribe it

self a

nd ess

ential

to the

survi

val an

d well-

being

of the

Tribe

and its

mem

bers.”

13 N.

A.C. 10

1(a), F

WS RO

D at 0

00253

(ignor

ed in

Agenc

y find

ings, F

WS

ROD a

t 528-

33).

The c

eremo

nial ta

ke of

an eag

le on t

he WR

R is a

centr

al part

of th

e Trib

e’s ef

forts t

o

raise

its chi

ldren

in tra

dition

al Arap

aho wa

ys. “T

he his

tory a

nd cul

ture o

f West

ern civ

ilizatio

n

reflec

t a stro

ng tra

dition

of pa

rental

concer

n for

the nu

rture

and up

bringi

ng of

their c

hildre

n.

This p

rimary

role o

f the p

arents

in th

e upbr

inging

of th

eir ch

ildren

is now

estab

lished

beyond

debate

as an

endur

ing Am

erican

tradit

ion.”

Yoder

, 406 U

.S. at

232.Y

oder ru

led th

at Ami

sh

religi

ous be

liefs, a

nd the

right

of Am

ish pa

rents t

o teac

h thos

e belie

fs to t

heir c

hildre

n,

outwe

ighed

the St

ate’s i

nteres

t in co

mpuls

ory pu

blic e

ducatio

n past

the a

ge of

sixtee

n. Lik

e the

Amish

, the N

orther

n Arap

aho “m

ode of

life h

as thu

s com

e into

conflic

t incre

asingl

y with

requir

ement

s of c

ontem

porary

socie

ty exe

rting a

hydra

ulic in

sisten

ce on

confor

mity

to

major

itarian

standa

rds.”

Id. at

217. T

he cho

ice pr

esente

d by F

WS m

eans th

at NAT

mem

bers

may b

e imper

missi

bly “f

orced

to mi

grate t

o som

e othe

r and

more

tolera

nt reg

ion” id

. at 21

8,

outsid

e the W

RR, to

engag

e in th

e cere

monia

l take

of an

eagle a

nd to

teach

that tr

aditio

nal

practic

e to th

eir ch

ildren

. For

the Ar

apaho,

a more

toler

ant re

gion d

oes no

t appea

r to be

close

at

hand.

SeeLa

rge v.

Fremo

nt Co

unty, W

yo., 70

9 F. S

upp.2d

1176

(Wyo.

2010)

(“Th

e long

histor

y

of dis

crimi

nation

again

st Indi

ans in

the U

nited

States

, Wyom

ing, an

d Frem

ont Co

unty i

s

undeni

able...

discr

imina

tion i

s ongo

ing... [

and in

cludes

] cult

urally

-erosi

ve pol

icies...

” Id. a

t

1184).

The N

AT ha

s found

that i

ts abil

ity to

raise

its ch

ildren

“in tra

dition

al Arap

aho wa

ys is

vital t

o our

contin

ued ex

istence

as a p

eople.”

NAT

ROD a

t 070.

“Oppo

rtunit

ies to

teach

tradit

ional v

alues

and ce

remoni

es, an

d nurt

ure sp

iritual

under

standi

ng, is

natura

lly do

ne clo

se to

home, w

here w

e are

comfor

table a

nd wh

ere we

are n

ot sur

rounde

d by c

ustom

s and

expect

ations

- 29 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 29 o

f 32

that ex

ist in

non-In

dian c

ulture

.”Id.

“The

ability

to tea

ch our

child

ren all

of ou

r cere

monie

s,

includ

ing th

e Sun

Dance

and t

he pro

per wa

y an e

agle m

ay be

taken

for Su

n Danc

e, is in

terfer

ed

with i

f we c

annot

conduc

t one

of tho

se im

portan

t cerem

onies

here a

t hom

e, on t

he WR

IR.” N

AT

ROD a

t 039

(Leona

rd dec

.) and

070.

Relief

sough

t. NA

T requ

ests th

at the

Court

set as

ide th

at port

ion of

the F

WS de

cision

denyin

g the

eagle t

ake pe

rmit t

o NAT

on th

e WRR

as vi

olatin

g the

provis

ions o

f the A

PA. T

he

Agenc

y has

no spe

cial ex

pertise

regar

ding q

uestio

ns of

tribal l

aw, cu

stom,

and r

eligiou

s

tradit

ion, w

hich s

hould

be lef

t to th

e Trib

es the

mselv

es to

resolv

e throu

gh the

Triba

l Cour

t or

other

approp

riate m

eans.

III.

Concl

usion

.

The c

eremo

nial ta

ke of

an eag

le for

NAT S

un Da

nce ha

s been

an on

-going

relig

ious

practic

e on t

he WR

R for

over 1

35 yea

rs. Th

e Trib

e emb

arked

on a p

rotrac

ted pr

ocess

to obt

ain a

federa

l perm

it afte

r NAT

mem

ber W

inslow

Frida

y was

prosec

uted b

y the

Gover

nment

for ta

king

an eag

le for

Sun D

ance w

ithout

one.

Ultim

ately,

FWS d

enied

NAT’s

appli

cation

to tak

e an

eagle o

n the

Tribe’

s 2.3 m

illion

acre r

eserva

tion a

nd iss

ued, in

stead,

a perm

it for

areas

in

Wyom

ing ex

cludin

g the

WRR.

The b

an of

an eag

le take

by NA

T relig

ious p

ractiti

oners

crimi

nalize

s a ce

ntral c

eremo

nial p

ractice

of th

e NAT

on th

e Trib

e’s ow

n rese

rvatio

n. Th

e ban

is base

d on o

bjectio

ns fro

m ES

T mem

bers w

ho say

their

tradit

ional r

eligiou

s belie

fs are

offend

ed

by the

NAT r

eligiou

s prac

tice.

In den

ying t

he on-

reserv

ation p

ermit,

FWS s

trayed

beyon

d its s

tatutor

y and

regula

tory

author

ity, cr

eating

a “rel

igious

objec

tions”

facto

r in th

e proc

ess. O

n unfa

miliar

groun

d, the

Agenc

y allo

wed i

tself t

o be m

isled, b

y a m

ere sc

intilla

of ev

idence

, into

determ

ining

the on

e true

EST “

tradit

ional r

eligiou

s belie

f” and

then

conclu

ding t

hat th

e NAT

relig

ious p

ractice

is

offens

ive to

that b

elief.

The A

gency

ignore

d the

fact th

at eagl

e take

by NA

T has

create

d no

burden

on th

e relig

ious p

ractice

s of a

ny ES

T mem

bers.

Comp

oundin

g its l

egal an

d evid

entiar

y

- 30 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 30 o

f 32

A-10


errors

, FWS

gave

preclu

sive w

eight

to the

asser

ted ES

T belie

fs with

out fa

ir noti

ce or

opport

unity

to the

NAT t

o resp

ond an

d with

out ca

reful

consid

eratio

n of th

e effe

ct of th

e FWS

decis

ion on

NAT r

eligiou

s prac

titione

rs.

More

fundam

entally

, the A

gency’

s deni

al of a

n on-r

eserva

tion p

ermit v

iolate

s cent

ral

tenets

of Am

erican

demo

cracy

and Co

nstitu

tional

law – t

he ind

ividua

l’s rig

ht to

the fre

e exer

cise

of rel

igion

and to

raise

one’s

child

ren in

their

own r

eligiou

s tradi

tion.

The G

overnm

ent m

ust

show a

comp

elling

intere

st in p

reserv

ing th

e publ

ic peac

e, safe

ty or

order

to ove

rcome

these

basic r

ights.

The p

rotect

ion of

India

n relig

ious b

eliefs s

aid to

be of

fended

by a r

eligiou

s prac

tice

of oth

ers is

not su

ch an

intere

st. Ge

rryma

nderin

g zone

s of to

leranc

e, or o

f intol

erance

, based

on

religi

ous se

nsibil

ities is

not p

ermitte

d by t

he Fir

st Ame

ndment

. The

Agenc

y’s ch

arge is

to m

ake

eagles

availa

ble as

neede

d to p

rotect

the r

eligiou

s tradi

tions

of trib

al mem

bers, n

ot to

becom

e

entang

led in

deter

minin

g what

are, o

r are

not, tr

aditio

nal In

dian r

eligiou

s belie

fs or h

ow to

weigh

those,

one a

gainst

the o

ther.

The G

overnm

ent’s b

an on

eagle t

ake by

NAT r

eligiou

s

practit

ioners

on th

e WRR

must

be se

t aside

.

Dated

this 1

4th day o

f Octo

ber, 20

13.

North

ern Ar

apaho

Tribe

and Da

rrel O

’Neal

, Sr.,

Plaint

iffs

By:

/s/

Andre

w W. B

aldwin

Berth

enia S

. Croc

kerKe

lly A.

Rudd

Terri

V. Sm

ithBa

ldwin,

Crock

er &

Rudd,

P.C.

P.O. B

ox 122

9La

nder, W

Y 825

20-122

9(30

7) 332

-3385

ATTO

RNEY

S FOR

PLAI

NTIFF

S

- 31 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 31 o

f 32

CERT

IFICA

TE OF

SERV

ICE

The u

ndersig

ned he

reby c

ertifie

s that t

he for

egoing

MEM

ORAN

DUM

IN SU

PPOR

T OF

PLAI

NTIFF

S’ MO

TION F

OR SU

MMAR

Y JUD

GMEN

T ON R

EMAI

NING

CLAI

MS wa

sser

ved up

on the

follo

wing b

y the

metho

ds ind

icated

below

on th

e 14th da

y of O

ctober

, 2013:

Barba

ra M.

R. M

arvin

[ ]

By Fa

csimi

leDe

pt. of

Justic

e[

]By

U.S.

mail,

postag

e prep

aidEn

vironm

ental &

Natur

al Reso

urces

Div.

[ ]

By Ha

nd De

livery

P.O. B

ox 761

1[

]By

Overn

ight C

ourier

Washi

ngton,

DC 20

004[X

]Ele

ctroni

c Filin

g

Nichol

as Va

ssallo

[ ]

By Fa

csimi

leU.S

. Atto

rney’s

Offic

e[

]By

U.S.

mail,

postag

e prep

aidP.O

. Box

668[

]By

Hand

Deliv

eryCh

eyenne

, WY

82003-

0668

[ ]

By Ov

ernigh

t Cour

ier[X

]Ele

ctroni

c Filin

g

Coby

Howe

ll[

]By

Facsi

mile

Envir

onment

al & Na

tural R

esourc

es Div

.[

]By

U.S.

mail,

postag

e prep

aidWi

ldlife

and M

arine

Resou

rces S

ection

[ ]

By Ha

nd De

livery

c/o U.

S. Att

orney’

s Offic

e[

]By

Overn

ight C

ourier

1000 S

.W. T

hird A

venue

[X]

Electr

onic F

iling

Portla

nd, OR

97204

-2901

Kimber

ly Va

rilek

[ ]

By Fa

csimi

leOf

fice o

f Atto

rney G

eneral

[ ]

By U.

S. ma

il, pos

tage p

repaid

Easte

rn Sh

oshone

Tribe

[ ]

By Ha

nd De

livery

P.O. B

ox 164

4[

]By

Overn

ight C

ourier

Fort W

ashaki

e, WY

82520

[X]

Electr

onic F

iling

/s

/An

drew W

. Bald

win

- 32 -

Case

2:11

-cv-00

347-A

BJ D

ocum

ent 7

9 Fi

led 10

/14/13

Pag

e 32 o

f 32

A-11


WE

ST

ER

NS

KY

FIN

AN

CIA

Lv.

JA

CK

SO

N

B-1


B-2


B-3


B-4


B-5


B-6


B-7


B-8


B-9


B-10


B-11


B-12


B-13


B-14


B-15


B-16


UNIT

ED ST

ATES

DIST

RICT

COUR

TEA

STER

N DI

STRI

CT O

F WISC

ONSIN

ERIC

WILL

IAMS

,LIS

A WAL

KER,

Plaint

iffs,

v.Ca

se No

. 14-C

V-903

CASH

CALL

,INC.,

Defen

dant.

DECI

SION

AND

ORDE

R

Weste

rn Sk

y Fin

ancia

l, LL

C is

a len

der

that o

ffers

high

intere

st loa

ns to

consum

ers. (E

CF N

o. 12-

1 at 2

.) Itis

locat

ed on

the C

heyen

ne Ri

ver Si

oux T

ribe N

ation

(the T

ribe)

Reser

vatio

n in S

outh

Dako

ta an

d is w

holly

owne

d by T

ribal

memb

er Ma

rtin

Webb

. (EC

F No

. 12-1

at 2.

) Plai

ntiffs

Lisa

Walk

er an

d Eri

c Willi

ams a

re Wi

sconsi

n

reside

nts w

ho ap

plied

for a

nd re

ceived

consu

mer lo

ans fr

om W

estern

Sky.

(ECF N

o. 12-

1 at 2

, 13.)

In N

ovem

ber 2

011, M

s. Wa

lker b

orrow

ed $2

,525 a

t an

intere

st rat

e of

139.12

%; in

Febru

ary201

2, Mr

. Willi

ams b

orrow

ed $1

,000 a

t an i

nteres

t rate

of 233

.91%.

(ECF N

o. 12-

1 at 2

, 13.)

After

the f

unds

were

adva

nced t

o plai

ntiffs

, their

loan

s were

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

of 20

Doc

umen

t 36

2

sold

to WS

Fun

ding,

LLC

and

servic

ed b

y De

fenda

nt Ca

shCall

, Inc.

, a C

alifor

nia

corpo

ration

. (ECF

No.

12-1 a

t 3.)

Plaint

iffs br

ough

t a cl

ass ac

tion s

uit ag

ainst

CashC

allin

Wisco

nsin c

ircuit

court

claim

ingtha

t Cash

Callv

iolate

d Wisc

onsin

’susur

y law

(Wis.

Stat.§

138.0

9)by

charg

ing

intere

st rat

es ab

ove 1

8 perc

ent w

ithou

t firs

t obta

ining

a lice

nse fr

om th

e Wisc

onsin

Divis

ion of

Bank

ing. (E

CF N

o. 1-1

at 1-

3.) A

s a re

sult, p

lainti

ffs al

lege t

hat,p

ursua

nt to

Wis.

Stat. §

425.30

5,the

y are

not o

bliga

ted to

repa

y the

ir loa

ns. (E

CF N

o. 1-1

at 3.

)

CashC

allrem

oved

the m

atter

to fed

eral co

urt. (E

CF N

o. 1.)

In ac

corda

nce w

ith 28

U.S.C

.

§636(

c) an

d Fed

. R. C

iv. P.

73(b)

the p

arties

all c

onsen

ted to

the f

ull ju

risdic

tion o

f a

magis

trate

judge

. (ECF

Nos.

6,8.)

Now

pend

ing be

fore t

his co

urt is

CashC

all’s

motio

n

to dis

miss,

whic

hpurs

uant

toFe

d. R.

Civ. P

. 12(d

) the c

ourt

has c

onver

ted to

a mo

tion

forsum

mary

judgm

ent;a

lterna

tively

,Cash

Call m

oves

the co

urt to

compe

l arbi

tratio

n.

CashC

all’s

brief

in su

pport

of it

s moti

on in

clude

s two

argu

ments

prev

iously

reject

ed by

the S

eventh

Circu

it Cou

rt of A

ppeal

sin Ja

ckson

v. Pay

day Fi

nancia

l, LLC

,764

F.3d 7

65 (20

14). S

pecif

ically

, it ar

gues

that th

e foru

m sel

ection

claus

e fou

nd in

plain

tiffs’

loan a

greem

ents

mand

ates t

hat a

ny in

-court

litiga

tion o

ccur in

the c

ourts

of th

e Trib

e,

and t

hat th

e trib

al exh

austio

n doct

rine r

equir

es tha

t plai

ntiffs

,who

se cla

ims i

mplic

ate

the ju

risdic

tion o

f a fe

deral

ly rec

ogniz

ed In

dian t

ribe,

must

first b

ring s

uit in

Trib

al

court

before

they

may

later

chall

enge

the s

cope o

f Trib

al jur

isdict

ion in

fede

ral co

urt.

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 2

of 20

Doc

umen

t 36

3

CashC

all sta

tes th

at it i

nclud

es tho

se arg

umen

ts “for

prese

rvatio

n only

.” (EC

F No.

12at

18-23.

) Con

seque

ntly,

the co

urt w

ill no

t add

ress th

ose ar

gume

nts fu

rther.

I.MO

TION

TO CO

MPEL

ARBI

TRAT

ION

A.La

w Ap

plicab

le to

Deter

minin

g the

Enfo

rceab

ility

of the

Arbi

tratio

n Cl

auses

The

court

must

first d

eterm

ine w

hatl

aw g

overn

s the

dete

rmina

tion

of the

enfor

ceabil

ity of

thea

rbitra

tion

clause

s. Fe

deral

juris

dictio

n ov

er thi

s disp

uteexi

sts

pursu

ant t

o the

Clas

s Acti

on F

airne

ss Ac

t, wh

ich r

equir

es mi

nimal

divers

ity o

f

citize

nship

of the

part

ies. 2

8 U.S

.C.§1

332(d)

(2)(A

). Wh

en fe

deral

cou

rts o

btain

jurisd

iction

throu

gh di

versity

of cit

izensh

ip, th

eyord

inarily

will

apply

“the

subst

antiv

e

law of

the s

tate i

n whic

h the

distr

ict co

urt sit

s, incl

uding

choic

e of la

w rul

es.” W

achovi

a

Sec. v

. Banc

o Pana

meric

ano,I

nc.,6

74 F.3

d 743

, 751

(7th

Cir. 2

012) (

intern

al cit

ation

s

omitte

d). Howe

ver, a

n arbi

tratio

n clau

se is

a typ

e of f

orum

select

ion cl

ause.

Sherw

ood v.

Marqu

ette T

ransp.

Co.,

587 F.

3d 84

1, 844

(7th

Cir. 2

009).T

o dete

rmine

the v

alidit

y of a

forum

selec

tion c

lause,

the l

aw de

signa

ted in

the c

ontra

ct’s c

hoice

of la

w cla

use is

used.

Jackso

n, 764

F.3d

at 77

4-75(

citing

Abbot

t Labo

ratori

es v. T

akeda

Pharm

aceuti

cal Co

.,476

F.3d

421 (7

thCir

. 2007

)). He

re, th

e loa

n agre

emen

ts eac

h con

tain a

choic

e of la

w pro

vision

statin

g tha

t“[t]h

is Lo

an A

greem

ent i

s su

bject

solely

to th

e exc

lusive

laws

and

jurisd

iction

of th

e [Tri

be], C

heyen

ne Ri

ver In

dian R

eserva

tion.”

(ECF

No.

12-1 a

t 6, 1

3.)

Howe

ver, a

s the

defen

dants

conce

dedi

n Jack

son, 7

64 F.3

d at 7

75,the

re do

es no

t app

ear

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 3

of 20

Doc

umen

t 36

WIL

LIA

MS

v.C

AS

CA

LL

C-1


4

to be

any T

ribal

law ad

dressi

ng th

e enfo

rceab

ility o

fforum

selec

tion c

lauses

. The

partie

s

here

have

not d

irecte

d this

court

to th

e exis

tence

of an

y suc

h Trib

al law

. Acco

rding

to

the d

efend

ants

in Jac

kson,

when

Che

yenne

Rive

r Ind

ian T

ribal

law is

lacki

ng,T

ribal

courts

will

borro

w fro

mfed

eral la

w. Id

.at 7

76.He

re,the

partie

s app

ear to

conce

de th

at

this i

s corr

ect;b

oth C

ashCa

llan

d pla

intiffs

rely

on fe

deral

law

in dis

cussi

ng th

e

enfor

ceabil

ity of

the ar

bitrat

ion cla

uses in

the l

oan a

greem

ents.

There

fore, t

he co

urt w

ill

apply

fede

ral la

w in

deter

minin

g the

enfor

ceabil

ityof

the ar

bitrat

ion cla

uses.

B.Ar

bitrab

ility D

eterm

inatio

n

As a

thres

hold

matte

r, Ca

shCall

con

tends

that

the is

sue o

f whe

ther

Mr.

Willia

ms’s

arbitra

tion c

lause

is en

forcea

ble is

to be

resol

ved b

y the

arbit

rator,

not th

is

court,1 rel

ying u

pon t

he Su

preme

Court

’s deci

sion i

nRent

-A-Ce

nter, W

est, In

c.v. Ja

ckson,

561 U

.S. 63,

70-7

1 (20

10). I

n Re

nt-A-

Cente

r, in

a sec

tion

of the

con

tract

entitl

ed

“Arbi

tratio

n Proc

edure

s,” th

e part

ies ag

reed t

hat “

[t]he A

rbitra

tor…s

hall h

ave e

xclus

ive

autho

rity t

o res

olve

any

dispu

te rel

ating

to

the i

nterpr

etatio

n, ap

plicab

ility,

enfor

ceabil

ityor

forma

tiono

f this

Agre

emen

t inclu

ding,

but n

ot lim

ited t

o any

claim

that a

ll or a

ny pa

rt of th

is Agre

emen

t is vo

id or

voida

ble.” I

d.at 6

6.Beca

use th

e plai

ntiff

there

did no

t cha

lleng

e the

valid

ity of

the s

o-call

ed “d

elega

tion p

rovisio

n”spe

cifica

lly,

1 The s

ame a

rgume

nt wo

uld se

em to

apply

to M

s. Walk

er’s a

rbitra

tion c

lause,

but p

erhap

s view

ing it

as a

fait ac

compli

given

the d

ecisio

n in J

ackson

, as d

iscus

sed be

low, C

ashCa

ll does

not p

ress t

he ar

gume

nt as

again

st her

agree

ment.

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 4

of 20

Doc

umen

t 36

5

the Co

urt he

ld tha

t it w

as va

lid, le

aving

any c

halle

nge t

o the

valid

ity of

the a

rbitra

tion

agree

ment

as a w

hole f

or the

arbit

rator.

561 U

.S. at

71-72.

Mr. W

illiam

s’s lo

an ag

reeme

nt do

es no

t con

tain a

“dele

gatio

n prov

ision”

simila

r

to tha

t in

Rent-

A-Ce

nter.

Rathe

r, in

identi

fying

the ty

pes o

f disp

utes t

hat a

re to

be

resolv

ed by

arbit

ration

, a “D

ispute

” is d

efine

d to

includ

e, “b

y way

of ex

ample

and

witho

ut lim

itatio

n,…an

y issu

e con

cernin

g the

valid

ity, e

nforce

abilit

y, or

scope

of th

is

loan

or the

Arbi

tratio

n ag

reeme

nt.”(

ECF

No. 1

2-1 at

9.)C

ashCa

ll arg

ues t

hat t

his

langu

age e

viden

ces th

e part

ies’ a

greem

ent t

hat i

ssues

of arb

itrabil

ity a

re res

erved

exclus

ively

for th

e arbi

trator

.(ECF

No.

12 at

10.)

Chall

enge

s to t

he va

lidity

of ar

bitrat

ion ag

reeme

nts ca

n be

divide

d int

o two

types.

One

type

chall

enge

s spe

cifica

lly th

e agre

emen

t to ar

bitrat

e; the

othe

r cha

lleng

es

the co

ntract

as a

whole

. Buck

eye Ch

eck Ca

shing

, Inc. v

. Card

egna,5

46 U.S

. 440,

444 (

2006).

If the

chall

enge

is sp

ecific

ally t

o the

agree

ment

to arb

itrate,

the c

ourt

may p

roceed

to

adjud

icate

it. Re

nt-A-

Cente

r,561

U.S. a

t 70;

Prima

Paint

Corp.

v. Fl

ood &

Conkl

in Mf

g. Co

.,

388 U

.S. 395

, 403-

04 (19

67). In

oppo

sing C

ashCa

ll’s m

otion

to co

mpel

arbitra

tion,

Mr.

Willia

ms do

es no

t cha

lleng

e the

enfor

ceabil

ity of

the e

ntire

loan a

greem

ent; r

ather,

he

challe

nges

only

the en

forcea

bility

of th

e spe

cific

provis

ion re

quirin

g him

to ar

bitrat

e

dispu

tes u

nder

the lo

an a

greem

ent.

(ECF

No. 1

6 at

8-10.)

Includ

ed w

ithin

that

challe

nge,

by d

efinit

ion,is

a cha

lleng

e to t

he re

quire

ment

that t

he ar

bitrat

or res

olve

dispu

tes co

ncerni

ng th

e enfo

rceab

ility o

f the a

rbitra

tion a

greem

ent. T

hus, t

he co

urt w

ill

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 5

of 20

Doc

umen

t 36

6

procee

d to

addre

ss Mr

. Willi

ams’s

chall

enge

to th

e enfo

rceab

ility

of the

arbit

ration

provis

ion.

C.Pla

intiff

s’ Arbi

tratio

n Clau

ses

The F

edera

l Arbi

tratio

n Ac

t (“FA

A”) g

uides

the en

forcea

bility

of a

rbitra

tion

agree

ments

by st

rongly

favo

ring p

arties

’ con

tractu

al ag

reeme

nts to

arbit

rate d

ispute

s.

Am.E

xpress

Co. v

. Italia

n Colo

rs Re

st., 13

3 S. C

t. 2304

, 2309

(2013

). Sect

ion 2

of the

FAA

provid

es tha

t con

tractu

al ag

reeme

nts to

arbi

trate

“shall

be

valid

, irre

vocab

le, an

d

enfor

ceable

, sav

e upo

n suc

h grou

nds a

s exis

t at la

w or

in eq

uity f

or the

revo

cation

of

any

contra

ct.” 9

U.S.C

. §2.

As a

gen

eral r

ule, c

ourts

must

“rigo

rously

enfo

rce”

arbitra

tion c

lauses

accord

ing to

their

term

s, incl

uding

term

s that

specif

y with

who

m the

partie

s cho

ose to

arbit

rate t

heir d

ispute

s and

the r

ules u

nder

which

that

arbitra

tion w

ill

be con

ducte

d. Am

. Expr

ess Co

.,133

S.Ct

. at 2

309(qu

oting

Dean

Witte

r Reyn

olds, I

nc. v.

Byrd,

470 U.

S. 213,

221 (

1985))

.

As a

type o

f foru

m sel

ection

clau

se, th

e pres

umpti

ve va

lidity

of an

arbit

ration

clause

“can

be ov

ercom

e if th

e resi

sting

party

can s

how

it is ‘

unrea

sonab

le un

der t

he

circu

mstan

ces.’”

Jackso

n,764

F.3d

at 77

6 (qu

oting

M/S

Breme

n v. Z

apata

Off-S

hore C

o.,407

U.S. 1

, 10

(1972)

). Th

e Un

ited

States

Sup

reme

Court

has

identi

fied

three

sets o

f

circu

mstan

ces th

at wi

ll ren

der a

forum

selec

tion c

lause

“unre

asona

ble”:

(1) if

their

incorp

oratio

n into

the c

ontra

ct wa

s the

resul

t of fr

aud,

undu

e inf

luence

or ov

erween

ing ba

rgaini

ng po

wer;

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 6

of 20

Doc

umen

t 36

C-2


7

(2)if t

he se

lected

forum

is so

“grav

ely di

fficult

and i

nconv

enien

t that

[the

compla

ining

party

] will

for al

l prac

tical

purpo

ses be

depri

ved of

its da

y in

court[

]”; or

(3) if

enfor

cemen

t of th

e clau

ses w

ould

contra

vene a

stron

g pub

lic po

licy

of the

forum

in w

hich t

he su

it is b

rough

t, decl

ared b

y stat

ute or

judic

ial

decis

ion.

Id.(qu

oting

M/S B

remen,

407 U.

S. at 1

8).

1.Ms

. Walk

er’s A

rbitra

tion P

rovisi

on

For

all p

urpose

s rel

evant

to Ca

shCall

’s mo

tion

to com

pel a

rbitra

tion,

the

arbitra

tion p

rovisio

nin M

s. Wa

lker’s

loan

agree

ment

is ide

ntical

to th

at fou

nd in

the

loan a

greem

ents a

t issue

in Jac

kson:

Agree

ment

to Ar

bitrat

e. Yo

u agre

e tha

t any

Disp

ute, e

xcept

as pro

vided

bel

ow, w

ill be

resol

ved by

Arbi

tratio

n, wh

ich sh

all be

cond

ucted

by th

e [Tr

ibe] b

y an a

uthori

zed re

presen

tative

in ac

corda

nce w

ith its

consu

mer

dispu

te rul

es an

d the

term

s of th

is Agre

emen

t.

(ECF

No. 1

2-1 a

t 16.)

Two

para

graph

s lat

er, in

a p

aragra

ph e

ntitle

d “C

hoice

of

Arbit

rator,

” the

agree

ment

states

that

“Arbi

tratio

n sha

ll be c

ondu

cted i

n the

[Trib

e] by

a

pane

l of t

hree T

ribal

Elders

and

shall b

e con

ducte

d in

accord

ance

with

the [T

ribe’s

]

consum

er rul

es an

d the

term

s of th

is Agre

emen

t.” (E

CF N

o. 12-

1 at 1

6.)In

findin

g an

identi

cal ar

bitrat

ion pr

ovisio

n unre

asona

ble an

d une

nforce

able,

the Ja

ckson

court

relied

upon

the f

act th

atno

such

forum

exists

: the “

Tribe

does

not a

uthori

ze Ar

bitrat

ion, it

does

not i

nvolv

e itse

lf in

the h

iring

of arb

itrator

s, an

d it

does

not h

ave c

onsum

er

dispu

te rul

es.”J

ackson

,764

F.3d a

t 777

(quota

tion,

ellips

es, an

d brac

kets

omitte

d).As

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 7

of 20

Doc

umen

t 36

8

such,

the co

urt ha

d “no

hesit

ation

concl

uding

that

an ill

usory

forum

is un

reason

able.”

Id.(ci

ting M

/S Bre

men,

407 U.

S. at1

0).

CashC

allack

nowl

edge

s tha

t the a

rbitra

l forum

and a

ssocia

ted pr

ocedu

ral ru

les

set fo

rth in

Ms.

Walke

r’s lo

an a

greem

ent a

re no

t ava

ilable

. (EC

F No

. 12

at 12.

)

Never

theles

s, it a

rgues,

again

for p

reserv

ation

purpo

ses on

ly, th

at the

Seven

th Cir

cuit

Court

of Ap

peals

got it

wron

g in J

ackson

and t

hat th

is cou

rt sho

uld co

mpel a

rbitra

tion o

f

Ms. W

alker’

s clai

ms. H

oweve

r,it c

onced

es tha

t, give

n the

holdi

ng in

Jacks

on, th

is cou

rt

canno

t enfo

rce th

e arbi

tratio

nclau

se in

Ms. W

alker’

s loan

agree

ment.

The c

ourt a

grees.

2.Mr

. Willi

ams’s

Arbit

ration

Prov

ision

The

parag

raph

entitl

ed “

Agree

ment

to Ar

bitrat

e” in

Mr. W

illiam

s’s lo

an

agree

ment

is ide

ntical

to th

at in

Ms. W

alker’

s loa

n agre

emen

t(and

totho

se at

issue

in

Jackso

n).It s

tates:

You a

gree t

hat a

ny D

ispute

…will

be re

solved

by A

rbitra

tion,

which

shall

be con

ducte

d by t

he [T

ribe]

by an

autho

rized

repre

sentat

ive in

accor

dance

wi

th its

consu

mer d

ispute

rules

and t

he te

rms o

f this A

greem

ent.

(ECF N

o. 12-

1 at 9

(Emp

hasis

adde

d).)T

he m

ateria

l diffe

rence

comes

two p

aragra

phs

later,

whe

n,un

liket

he la

ngua

ge in

Ms.

Walke

r’sloa

n agre

emen

t,Mr. W

illiam

s’s lo

an

agree

ment

states

in ap

aragra

ph en

titled

“Cho

ice of

Arbit

rator”

:

Rega

rdless

of w

ho de

mand

s arbi

tratio

n, yo

usha

ll hav

e the

right

to sel

ect

any

of the

foll

owing

arbi

tratio

n org

aniza

tions

to ad

minis

ter t

he

arbitra

tion:

the A

meric

an A

rbitra

tion

Assoc

iation

…; J

AMS…

; or

an

arbitra

tion o

rganiz

ation

agree

d upo

n by y

ou an

d the

othe

r part

ies to

the

Dispu

te. T

he a

rbitra

tion

will

be g

overn

ed b

y the

cho

sen a

rbitra

tion

organ

izatio

n’s ru

les an

d proc

edure

s app

licable

to co

nsume

r disp

utes,

to

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 8

of 20

Doc

umen

t 36

9

the ex

tent th

at tho

se rul

es an

d proc

edure

s do n

ot con

tradic

t eith

er the

law

of the

…Trib

e or th

e exp

ress te

rms o

f this A

greem

ent to

Arbit

rate…

.

(ECF N

o. 12-

1 at 9

.) At le

ast on

e cou

rt ha

s desc

ribed

this

new

langu

age a

s crea

ting a

“conu

ndrum

.”See

Held

t v. P

ayday

Financ

ial, LL

C,12

F.Sup

p.3d

1170,

1190-9

1 (D.S

.D.

2014).

Abse

nt an

y info

rmati

on th

at an

y “au

thoriz

ed re

presen

tative

” of th

e Trib

e is a

n

arbitra

tor in

the A

AA or

JAMS

syste

ms, th

e Held

t cou

rt fou

nd th

at the

two p

rovisio

ns

areinc

onsis

tent in

term

s of w

ho th

e part

ies ag

reed s

hould

arbit

rate t

heir d

ispute

s. Id.

Howe

ver, a

nothe

r cou

rt rea

d the

two p

aragra

phs a

s prov

iding

the p

arties

with

the op

tion o

f cho

osing

eithe

r (a)

an au

thoriz

ed re

presen

tative

of th

e Trib

e app

lying

the

Tribe’

s con

sumer

dispu

te rul

esor

(b) an

arbit

rator

appo

inted

by th

e AAA

, JAMS

, or

other

accep

table o

rganiz

ation

, apply

ing th

e cho

sen or

ganiz

ation

’s rule

s and

proce

dures

.

In Ha

yes v.

Delbe

rt Serv

s. Corp

., No.

3:14-C

V-258

, 2015

WL 26

9483, a

t *4 (E

.D. Va

. Jan.

21,

2015),

the c

ourt f

ound

that,

as a r

esult o

f then

ewlan

guag

e in th

e“Ch

oice o

f Arbi

trator

”

parag

raph,

the pa

rties a

re no

longer

“limi

ted to

the il

lusory

‘auth

orized

repre

sentat

ives’

of the

[Trib

e]an

d its

non-e

xisten

t ‘con

sumer

dispu

te rul

es’”;

by pr

ovidi

ng th

e part

ies

with

recou

rse to

“well

-recog

nized

arbit

ration

orga

nizati

ons a

nd th

eir pr

ocedu

res,”

the

new

langu

age “

saves

the ar

bitrat

ion ag

reeme

nt fro

m me

eting

the s

ame f

ate as

”tha

t in

Jackso

n.Id. In

reachi

ng th

at con

clusio

n, the

court

in H

ayese

ssenti

ally

read

the la

ngua

ge

statin

g tha

t the

part

ies h

ave

the ri

ght t

o ha

ve the

arbi

tratio

n adm

iniste

red b

y an

organ

izatio

n like

the A

AA or

JAMS

as if

it sa

idtha

t the

y had

the r

ight t

o hav

e the

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 9

of 20

Doc

umen

t 36

C-3


10

arbitra

tion c

onduct

ed by

an ar

bitrat

or fro

m eit

her t

he A

AA or

JAMS

syste

ms—e

ven if

that p

erson

were

not a

n auth

orized

repre

sentat

ive of

the T

ribe. B

ut the

contr

act do

es no

t

say th

at, at

least n

ot cle

arly.

Provid

ing th

at an

orga

nizati

on li

ke th

eAA

A or

JAMS

will

admi

nister

an

arbitra

tion

is no

t nece

ssarily

the

same

as pro

viding

that

anarb

itrator

from

that

organ

izatio

n wi

ll con

duct

the ar

bitrat

ion.O

rganiz

ation

s tha

t adm

iniste

r arbi

tratio

n

“over

see[]

and

mana

ge[]

the a

rbitra

tion

from

incep

tion

throu

gh fi

nal a

ward.

Suc

h

admi

nistra

tion u

sually

invo

lves a

ctivit

ies su

ch as

screen

ing co

mmun

icatio

ns wi

th the

arbitra

tor, sc

hedu

ling h

earing

s, arra

nging

for t

he fil

ing an

d serv

ice of

brief

s and

othe

r

docu

ments

, and

colle

cting

arbit

rator

compe

nsatio

n.” A

LAN

S.GU

TTER

MAN,

BUSIN

ESS

TRAN

SACT

IONS

SOLU

TIONS

§101:

39(20

15);se

e also

Glen

H. S

pence

r, Adm

iniste

red vs

. Non-

Admi

nister

ed Ar

bitrat

ion,D

ISP.R

ESOL

.J., F

eb. 1

999, a

t 42,

43. Co

nvers

ely, a

rbitra

tions

are

“cond

ucted

” by

the ar

bitrat

ors th

emsel

ves—n

ot the

admi

nister

ing o

rganiz

ation

. See

Rule

7, JA

MS C

ompre

hensi

ve Ar

bitrat

ion R

ules &

Proc

edure

s, eff

ective

July

1, 201

4,

availab

le at

http:/

/www

.jamsad

r.com

/rules

-comp

rehen

sive-a

rbitra

tion/;

Rule

32,

AAA

Consu

mer

Arbit

ration

Ru

les,

Amen

ded

Sept.

1, 201

4, ava

ilable

at

https:

//www

.adr.o

rg/aaa

/faces

/rules

/.

One c

ould

readM

r. Willi

ams’s

arbit

ration

clau

se as

requir

ing th

at the

arbit

rator

be an

autho

rized

Triba

l rep

resen

tative

, who

wou

ld int

erpret

the l

oan a

greem

ent a

nd

resolv

e the

dispu

te, w

ith th

e sele

cted a

rbitra

tion o

rganiz

ation

prov

iding

admi

nistra

tive

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

0 of 2

0 D

ocum

ent 3

611

suppo

rt an

d the

gover

ning r

ules. S

ee Ine

tianbo

r v. C

ashCa

ll, Inc

., 768

F.3d 1

346, 1

350-51

(11th

Cir. 20

14) (“

We ca

n thin

k of n

o othe

r reas

onab

le int

erpret

ation

of th

e prov

ision f

or

arbitra

tion ‘

by’ t

he T

ribe b

efore

an ‘a

uthori

zed re

presen

tative

’ of t

he T

ribe t

han o

ne

requir

ing so

me di

rect p

articip

ation

by th

e Trib

e itse

lf.”).B

ut it d

oes no

t app

ear th

at the

Tribe

could

or wo

uld be

able

to pro

vide a

n auth

orized

repre

sentat

ive. T

he co

urt in

Jackso

n stat

ed th

at the

Tribe

“does

not a

uthori

ze arb

itratio

n”an

d “do

es no

t invo

lve its

elf

in the

hirin

g of…

arbitra

tors.”

765 F

.3d at

776.

“Alth

ough

the a

rbitra

tion

provis

ion

contem

plates

the in

volve

ment

and s

uperv

ision o

f the…

Tribe,

the re

cord e

stabli

shes th

at

the Tr

ibe do

es no

t und

ertak

e suc

h acti

vity.”

Id.a

t 780.

Thus,

a pro

ceedin

g sub

ject t

o

Triba

l over

sight

is “sim

ply no

t a po

ssibil

ity.” I

d. at 7

79.Ca

shCall

does

not d

ispute

these

conclu

sions,

ackn

owled

ging h

ere th

at a T

ribal

arbitra

l forum

is no

t ava

ilable

. (ECF

No.

12 at

12.) Ha

ving

said

that,

the p

arties

clea

rly a

greed

to r

esolve

their

disp

utes

by

arbitra

tion,

and u

nder

the FA

A an

d as e

mpha

sized

in Gr

een v.

U.S. C

ash Ad

vance

Illinoi

s,

LLC,

724 F.

3d 78

7 (7th

Cir. 2

013), t

hat m

atters

.It co

uld be

argu

ed th

at, no

twith

stand

ing

inartf

ul dra

fting,

the pa

rties d

idint

end t

hat th

ey w

ould

have

the op

tion o

f cho

osing

an

arbitra

tor se

lected

from

the A

AA or

JAMS

syste

ms as

an al

terna

tive t

o cho

osing

an

autho

rized

repre

sentat

ive fr

om th

e Trib

e. Afte

r all,

that la

ngua

ge is

found

in a

portio

n

of the

agree

ment

entitl

ed “C

hoice

of A

rbitra

tor.”

(ECF N

o. 12-

1 at 9

.)Even

if tha

t was

not a

reaso

nable

read

ing of

the c

ontra

ct, Sec

tion 5

of th

e FAA

prov

ides th

at,if f

or “an

y”

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

1 of 2

0 D

ocum

ent 3

612

reason

there

is a

“lapse

in th

e nam

ing of

an ar

bitrat

or,” t

he co

urt sh

all ap

point

an

arbitra

tor.9

U.S.C

. §5.

In oth

er wo

rds, “

Cong

ress…

provid

ed th

at a j

udge

can a

ppoin

t

an ar

bitrat

or wh

en fo

r ‘any

’ reaso

n som

ething

has g

one w

rong.”

Green

, 724

F.3d a

t 791

(citin

g Hall

Street

Assoc

iates,

L.L.C.

v. Ma

ttel, I

nc., 55

2 U.S.

576 (2

008)).

So w

hy di

dn’t t

he co

urt ap

point

an ar

bitrat

orin

Jackso

n? Th

e cou

rt the

re he

ld tha

t

the ar

bitrat

ion p

rovisio

n (lik

e the

one s

igned

by M

s. Wa

lker)

was v

oid “b

ecaus

e it

provid

es tha

t a de

cision

is to

be m

ade u

nder

a proc

ess th

at is

a sha

m fro

m ste

m to

stern.

” 764

F.3d a

t 779.

Not

only

was t

here

no au

thoriz

ed re

presen

tative

of th

e Trib

e to

presid

e over

the p

roceed

ing, “

the Tr

ibe ha

s no r

ules f

or the

cond

uct o

f the p

roced

ure.”

Id.(em

phasi

s in or

igina

l).By

prov

iding

the o

ption

of us

ingthe

consu

mer d

ispute

rules

of the

AAA

or JA

MS, M

r. Willi

ams’s

contra

ct sol

ves th

at pro

blem.

And b

y allo

wing

the

partie

s to us

e an a

rbitra

tor fro

m eit

her th

e AAA

or JA

MSsys

tems, t

he bi

as con

cerns

that

the Ja

ckson

court

had a

bout

using

a Tri

balm

embe

r as t

he ar

bitrat

or,id.

at 779

-80, a

re

elimi

nated

.

Mr.

Willia

ms’s

only

argum

ent

as to

why

the a

rbitra

tion

provis

ion i

s

unen

forcea

ble is

that it

calls

for th

e arbi

trator

to ap

ply Tr

ibal la

w, w

hich h

e con

tends

is

law th

at do

es no

t exis

t. (EC

F No

. 16 a

t 9.)

But t

hat i

s not

true,

as ev

idenc

ed b

y

substa

ntive

Triba

l law

on

contra

ct dis

putes

, incl

uding

contr

act ca

ses in

the T

ribe’s

courts

, and

the T

ribe’s

Com

merci

al Co

de, R

ules o

f Civi

l Proc

edure

, Con

stituti

on an

d

By-La

ws, an

d Law

& Co

de. (E

CF N

os. 12

-4, 12

-5, 12

-6, 12

-7, 12

-8, 21

.) Mr. W

illiam

s does

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

2 of 2

0 D

ocum

ent 3

6

C-4


13

not r

aise a

ny of

the p

roced

ural o

r sub

stanti

ve un

consci

onab

ility c

oncer

ns exp

ressed

by

the co

urt in

Jackso

n.

The m

ost re

asona

ble re

ading

of M

r. Willi

ams’s

loan

agree

ment

is tha

t he h

as the

optio

n of c

hoosi

ng to

arbit

rate a

ny cl

aims t

hat h

e has

relati

ng to

his a

greem

ent b

efore

the A

AA, JA

MS, o

r ano

ther m

utuall

y acce

ptable

orga

nizati

on, a

pplyi

ng th

e con

sumer

dispu

terul

es of

the se

lected

admi

nister

ing or

ganiz

ation

and c

ondu

cted b

y an a

rbitra

tor

from

the se

lected

orga

nizati

on’s

system

.The

refore

, unli

ke M

s. Walk

er, M

r. Willi

ams i

s

requir

ed to

pursu

e his

claim

s aga

inst C

ashCa

ll in a

rbitra

tion.

His c

ompla

int sh

all be

dismi

ssed.

II.MO

TION

FOR S

UMMA

RY JU

DGME

NT

CashC

all in

itially

mov

edto

dismi

ss pla

intiffs

’ com

plaint

unde

r Fed

. R. C

iv. P.

12(b)(

6) for

failu

re to

state

a clai

mup

on w

hich

relief

can

be g

ranted

.(EC

F No.

3.)

Howe

ver,

in sup

port

of its

motio

n Ca

shCall

submi

tted

mater

ials

outsi

de o

f the

plead

ings,

includ

ingan

affid

avit

from

a We

stern

Sky

emplo

yee,t

obo

lster

certai

n

factua

l state

ments

set fo

rth in

its su

pport

ing br

ief. (E

CF N

o. 4-1

at 2-3

.) Purs

uant

to Fe

d.

R. Civ

. P. 1

2(d), t

he co

urt co

nvert

ed C

ashCa

ll’s m

otion

to on

e for

summa

ry jud

gmen

t

and p

rovide

d the

partie

s add

itiona

l time

to fil

e sup

pleme

ntary

mater

ials o

utside

of th

e

plead

ings.

(ECF N

o. 26.

) Afte

reach

plain

tiff su

bmitte

dan a

ffidav

it (EC

F Nos.

30-31

)

and r

eque

stedl

eave t

o con

duct

discov

ery, C

ashCa

lloffe

red to

with

draw

itsaff

idavit

.

(ECF N

o. 35

at 2.)

Alth

ough

the c

ourt

finds

that

discov

ery is

not n

ecessa

ry,it b

elieve

s

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

3 of 2

0 D

ocum

ent 3

614

that it

wou

ld be

inapp

ropria

te (an

d ultim

ately

ineffic

ient) t

o disr

egard

the f

acts s

et for

th

in the

mate

rials s

ubmi

tted b

y the

partie

s.Con

seque

ntly,

CashC

all’s m

otion

will

remain

a moti

on fo

r sum

mary

judgm

ent.2

“The

court

shall

gran

t sum

mary

judgm

ent if

the m

ovan

t sho

ws th

at the

re is

no

genu

ine d

ispute

as to

any m

ateria

l fact

and

the m

ovan

t is en

titled

to ju

dgme

nt as

a

matte

r of l

aw.”

Fed. R

. Civ.

P. 56

(a). A

fact

is “m

ateria

l” on

ly if

it “mi

ght a

ffect

the

outco

me of

the s

uit” a

nd a

dispu

te is “

genu

ine” o

nly if

a reas

onab

le fin

der o

f fact

could

accep

t the

non-m

oving

party

’s po

sition

and

return

a ver

dict in

its f

avor.

And

erson

v.

Libert

y Lobb

y, 477

U.S. 24

2, 248

(1986)

. In re

solvin

g a m

otion

for s

umma

ry jud

gmen

t, the

court i

s to “c

onstr

ue al

l evid

ence

and d

raw al

l reaso

nable

infer

ences

from

that e

viden

ce

in” fa

vor o

f the n

on-m

ovan

t. E.Y.

v. Un

ited St

ates, 7

58 F.3

d 861,

863 (

7th Ci

r. 2014

) (citin

g

Gil v.

Reed,

535 F

.3d 55

1, 556

(7th

Cir. 2

008); D

el Raso

v. U

nited

States

, 244

F.3d 5

67, 57

0

(7th

Cir. 2

001)).

The

“court

may

not

make

credib

ility

deter

mina

tions,

weig

h the

evide

nce, o

r deci

de w

hich

infere

nces t

o dra

w fro

m the

facts

; the

se are

jobs

for a

factfin

der.”

Wash

ington

v. H

aupert

, 481

F.3d 5

43, 55

0 (7th

Cir.

2007)

(quoti

ng Pa

yne v

.

Pauley

, 337

F.3d

767, 7

70 (7t

h Cir

. 2003

)). “T

o sur

vive

summa

ry jud

gmen

t, the

nonm

ovan

t must

prod

uce

suffic

ient a

dmiss

ible

evide

nce, t

aken

in th

e lig

ht mo

st

favora

ble to

it, to

retur

n a ju

ry ver

dict in

its fa

vor.”

Fleis

hman

v. Cont

'l Cas.

Co., 6

98 F.3

d

2 Give

n the

court

’s ruli

ng co

mpell

ing M

r. Willi

ams to

pursu

e his c

laims

in ar

bitrat

ion, C

ashCa

ll’s m

otion

to

dismi

ss his

claim

will

have

to be

addre

ssed b

y the

arbit

rator.

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

4 of 2

0 D

ocum

ent 3

615

598, 6

03 (7t

h Cir.

2012)

(quoti

ng Be

rry v.

Chi. T

ransit

Auth.

, 618

F.3d 6

88, 69

0-91 (

7th Ci

r.

2010))

. CashC

allarg

uesth

at the

Dorm

ant C

omme

rce Cl

ause

preclu

desth

e app

licatio

n of

Wisco

nsin l

aw to

Ms. W

alker’

s loan

agree

ment.

Artic

le I o

f the U

.S. Co

nstitu

tion g

rants

Cong

ress t

he a

uthori

ty to

“to re

gulat

e com

merce

…amo

ng th

e seve

ral st

ates.”

U.S.

Const

. Art.

I, sec.

8, cl.

3. The

Unit

ed St

ates S

uprem

e Cou

rt has

held

that,b

y gran

ting t

o

Cong

ress t

heau

thority

to re

gulat

e inte

rstate

comm

erce,

the C

onstit

ution

impli

citly

limits

state

s from

regu

lating

comm

erce o

utside

of th

eirbo

rders.

Heal

y v. B

eer In

stitute

,

491 U

.S. 324

, 336

(1989)

. “Th

[e] ‘n

egati

ve’ as

pect

of the

Com

merce

Clau

se is

often

referr

ed t

o as

the ‘

Dorm

ant

Comm

erce

Clause

’ an

d is

invok

ed t

o inv

alida

te

overr

eachin

g prov

isions

of sta

te reg

ulatio

n of c

omme

rce.”

Allian

t Ener

gy Co

rp. v.

Bie,

330 F

.3d 90

4, 911

(7th

Cir. 2

003).

The D

orman

t “Co

mmerc

e Clau

se…pre

clude

s the

appli

cation

of a

state

statut

e to c

omme

rce th

at tak

es pla

ce wh

olly o

utside

of th

e Stat

e’s

borde

rs, w

hethe

r or n

ot the

comm

erce h

as eff

ects w

ithin

the St

ate.”

Healy

,491

U.S. a

t

336 (q

uotin

g Edga

r v. M

ITE Co

rp.,45

7 U.S.

624, 64

2-43(

1982))

.

Relyi

ng pr

imari

lyon

Midw

est Ti

tle Loa

ns v.

Mills,

593 F

.3d 66

0 (7th

Cir.

2010),

CashC

all ar

gues

that w

hen a

contr

act is

forme

d outs

ide of

a sta

te’s b

orders

it is b

eyon

d

the st

ate’s r

egulat

ory au

thority

. Cash

Calla

llege

s tha

t Ms. W

alker’

s loan

agree

ment

was

forme

don

the

Tribe’

sRese

rvatio

n.In

suppo

rt, it

point

s to

langu

age

in the

loan

agree

ment

that s

tates

“you

hereb

y exp

ressly

agree

that

this A

greem

ent is

execu

ted an

d

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

5 of 2

0 D

ocum

ent 3

6

C-5


16

perfo

rmed

solel

y with

in the

exter

ior bo

unda

ries o

fthe [

Tribe’

s] Re

serva

tion…

and t

hat

your

execu

tion o

fthis A

greem

ent is

mad

e as if

you w

ere ph

ysical

ly pre

sent w

ithin

the

exteri

or bo

unda

ries o

f the[

Tribe’

s] Rese

rvatio

n.” (E

CF N

o. 12-

1 at 1

5.)It f

urthe

r cite

s an

affida

vit fr

om a

Weste

rn Sk

y emp

loyee,

who a

sserte

d tha

t “[t]h

e criti

cal fin

al ste

ps to

accep

t loan

agree

ments

and f

und l

oans

all oc

curre

d on t

he Re

servat

ion.”

(ECF N

o. 12-

1

at 3.)

As su

ch,Ca

shCall

argu

es tha

t it w

ould

violat

e the

Dorm

ant C

omme

rce Cl

ause

to

apply

Wisco

nsin’s

usury

statut

etot

he lo

an ag

reeme

nt.(EC

F No.

12 at

13-18.

)

In Mi

dwest

Title,

an In

diana

law

requir

edcre

ditors

who

adver

tised

or so

licited

in

Indian

a to o

btain

an In

diana

licen

se.593

F.3d

at662

. An I

llinois

lend

er sue

d to e

njoin

the ap

plicat

ion of

India

na’s l

awto

loana

greem

ents

forme

d in I

llinois

.Id. A

lthou

gh th

e

defen

dant

lende

r adv

ertise

din

Indian

a, Ind

iana b

orrow

ers tr

avele

d to

the le

nder’

s

Illino

is offic

es to

obtai

n a lo

an. Id

. at 6

62. Th

e borr

owers

nego

tiated

the l

oan a

greem

ent

in Illi

nois,

read a

nd si

gned

the l

oan a

greem

ent in

Illino

is, rec

eived

a che

ck in

Illino

is

drawn

from

an Ill

inois b

ank,

and i

n turn

could

imme

diatel

y cash

their

check

s in Ill

inois.

Id. a

t 662-

69.Th

ebo

rrowe

rs als

o con

dition

ally

transf

erred

colla

teral

(title

to the

ir

autom

obile

s) in I

llinois

. Id.

Unlik

e the

situa

tion

in Mi

dwest

Title

, and

notw

ithsta

nding

the a

bove-

quote

d

contra

ctual

langu

age o

n whic

h Cash

Call r

elies,

it is

not c

leart

hat M

s. Wa

lker’s

loan

agree

ment

was c

onsu

mmate

d on t

he Tr

ibe’s

Reser

vatio

n. See

W. S

ky Fin

. V. M

arylan

d

Com’

r of F

in. Re

gulat

ion, N

o. CI

V. WD

Q-11-

1256, 2

012 W

L 1284

407, a

t *4 (D

. Md.

Apr. 9

,

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

6 of 2

0 D

ocum

ent 3

617

2012)

(holdi

ng th

at it w

as no

t an u

ndisp

uted f

act w

here

Weste

rn Sk

y’s lo

an ag

reeme

nt

was c

onsu

mmate

d).Ms

. Walk

ersta

tes th

at she

did no

ttrav

el to

the Tr

ibe’s r

eserva

tion

to en

ter in

to the

loan

agree

ment.

(ECF N

o. 31.

) She

was

physi

cally

presen

t in W

iscon

sin

both

when

West

ern Sk

y mad

e the

offer

to he

r and

whe

n she

accep

ted it.

(ECF

No.

31.)

Furth

er, W

estern

Sky w

ired t

he m

oney

to he

r in W

iscon

sin,an

d she

has m

ade p

ayme

nts

from

Wisco

nsin.

(EFC N

o. 31.

)

Moreo

ver, e

ven th

ough

Cash

Call a

rgues

that “

[t]he c

ritical

final

steps

to acc

ept

loan a

greem

ents

and f

und l

oans

all oc

curre

d on t

he Re

servat

ion” (

ECF N

o. 12-

1, ¶5

), it

appe

ars on

the f

ace of

the l

oan a

greem

entt

hatit

didn

ot bec

ome e

ffecti

ve un

til Ms

.

Walke

rnote

dher

compli

ance

with

its te

rms b

y che

cking

(elec

tronic

ally)

two b

oxes

on

its fin

al pa

ge.B

y che

cking

the s

econd

box,

she ac

know

ledge

d tha

t she

has “

read a

ll of

the te

rms a

nd co

nditio

ns of

this p

romiss

ory no

te an

d disc

losure

state

ment

and a

gree[s

]

tobe

boun

d the

reto.

You u

nders

tand a

nd ag

ree th

at yo

ur exe

cutio

n of th

is no

te sha

ll

have

the sa

me leg

al for

ce an

d effe

ct as a

pape

r con

tract.”

(ECF N

o. 12-

1 at 1

8).

The c

ourt

canno

t con

clude

at th

is sta

ge th

at the

re are

no

genu

ine is

sues o

f

mater

ial fa

ctsho

wing

that

CashC

all is

enti

tled

to jud

gmen

t as a

matt

er of

law.

CashC

all’s m

otion

for s

umma

ry jud

gmen

t as to

Ms. W

alker’

s com

plaint

isde

nied.

III.

MOTI

ON TO

STAY

MS.

WALK

ER’S

CLAI

MS

CashC

all as

ks thi

s cou

rt to

stay M

s. Walk

er’s l

awsui

t pen

ding t

he co

nclusi

on of

Mr. W

illiam

s’s ar

bitrat

ion an

d give

s thre

e reas

ons f

or its

reque

st. Fir

st, it a

rgues

that,

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

7 of 2

0 D

ocum

ent 3

618

since

both

Ms. W

alker’

s and

Mr. W

illiam

s’s su

bstan

tive c

laims

are i

denti

cal, a

llowi

ng

her l

awsui

t to

procee

d at

the sa

me ti

me M

r. Wi

lliams

is p

ursuin

g his

claim

s in

arbitra

tion “

would

resul

t in an

unne

cessar

y wast

e of th

is Cou

rt’s tim

e and

the p

arties

’

resou

rces.”

(EFC

No. 1

2 at 1

1.)Sec

ond,

it arg

ues t

hat r

esolut

ion o

f Mr.

Willia

ms’s

arbitra

tion “

may i

nflue

nce th

e outc

ome o

f proc

eeding

s in th

is case

.”(EC

F No.

12 at

11.)

Lastl

y, it a

rgues

that “

it is l

ikely

that th

e outc

ome o

f an a

rbitra

tion w

ould

inform

the

partie

s’ de

cision

on w

hethe

r to p

roceed

in th

is cas

e.” (E

CF N

o. 12

at 11.

) Ms.

Walke

r

oppo

ses th

e req

uest,

notin

g only

that

the de

cision

of th

e arbi

trator

in M

r. Wi

lliams

’s

case w

ould

not b

e bind

ing on

this c

ourt.

(ECF N

o. 16

at 9-1

0.)

Distr

ict co

urts h

ave b

road d

iscret

ion in

deter

minin

g whe

ther to

stay p

roceed

ings.

Clinto

n v. Jo

nes, 5

20 U.S

. 681,

706 (

1997).

“[T]he

powe

r to s

tay pr

oceed

ings i

s incid

ental

to the

pow

er inh

erent

in ev

ery co

urt to

contr

ol the

disp

ositio

n of

the ca

uses o

n its

docke

t with

econ

omy o

f time

and e

ffort

for its

elf, fo

r cou

nsel, a

nd fo

r litig

ants.”

Land

is

v. N.

Am. C

o., 299

U.S.

248, 2

54(19

36). In

deter

minin

g whe

ther to

stay

a pro

ceedin

gthe

follow

ing th

ree fa

ctors

are co

nside

red:“

(1) w

hethe

r litig

ation

is at

an ea

rly st

age;

(2)

wheth

er a s

tay w

ill sim

plify

the iss

ues in

quest

ion an

d tria

l of th

e case

; and

(3) w

hethe

r

a sta

y wo

uld u

nduly

prej

udice

or

presen

t a c

lear

tactic

al dis

adva

ntage

to th

e

nonm

oving

part

y.”Sea

quist

Closur

es LL

C v.

Rexam

Plas

tics, N

o. 08C

0106,

2008

WL

469179

2, at *1

(E.D.

Wis.

Oct. 2

2, 2008

).

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

8 of 2

0 D

ocum

ent 3

6

C-6


19

Consi

derin

g the

three

facto

rs list

ed ab

ove, t

he co

urt de

nies C

ashCa

ll’s re

quest

for

a stay

. Ms. W

alker

filed h

er law

suit i

n Jun

e of 2

014. A

s a re

sult o

f the r

emov

al to

this

court

and

subse

quen

t moti

ons,

it is

now

nearl

y nin

e mo

nths

later.

And

whil

e

arbitra

tions

often

times

move

quick

ertha

n law

suits,

that d

oesn’t

mean

they

move

quick

ly. M

r. Willi

ams’s

arbit

ration

could

take

man

y mon

ths or

long

er. M

oreov

er, th

ere

is no r

eason

to be

lieve

that a

stay

will

simpli

fy the

issue

s in q

uesti

on or

strea

mline

the

trial in

Ms. W

alker’

s case

. And

whil

e it’s

possi

ble th

at the

resol

ution

of M

r. Willi

ams’s

claim

in ar

bitrat

ion co

uld le

ad th

e part

ies in

Ms. W

alker’

s case

to an

earlie

r sett

lemen

t

than m

ight o

therw

ise be

the c

ase, th

at is n

ot a g

ood e

noug

h reas

on to

prev

ent h

er fro

m

movin

g forw

ard w

ith he

r laws

uit no

w.

IT IS

THE

REFO

REOR

DERE

Dtha

t, purs

uant

to the

findin

gs in

this D

ecisio

n

and O

rder, D

efend

ant’s

Motio

n to C

ompe

l Arbi

tratio

n as a

gains

tPlai

ntiff

Willia

ms is

grante

d. IT IS

FURT

HER

ORDE

RED

that D

efend

ant’s

Motio

n to C

ompe

l Arbi

tratio

n as

again

stPlai

ntiff W

alker

is den

ied.

IT IS

FURT

HER O

RDER

EDtha

t Defe

ndan

t’s Mo

tion f

or Su

mmary

Judg

ment

is

denie

d. IT IS

FURT

HER

ORDE

RED

that D

efend

ant’s

Motio

n to S

tay Pl

aintiff

Walk

er’s

procee

dings

is den

ied.

Case

2:14

-cv-00

903-W

ED F

iled 0

3/17/1

5 P

age 1

9 of 2

0 D

ocum

ent 3

620

Dated

at M

ilwau

kee,

Wisc

onsin

this

17th

day o

f Mar

ch,2

015.

WIL

LIAM

E. D

UFFI

NU.

S. M

agist

rate

Judg

e

Case

2:1

4-cv

-009

03-W

ED

Filed

03/

17/1

5 P

age

20 o

f 20

Doc

umen

t 36

C-7


Page1

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

UNITE

D STA

TES D

ISTRIC

T COU

RT

CENT

RAL D

ISTRIC

T OF C

ALIFO

RNIA

CIV

IL MI

NUTE

S—GE

NERA

L

Case

No.

EDCV

13–88

3–JGB

Da

te Ma

rch 20

, 2015

Title

Agua

Calien

te Band

of Ca

huilla

India

ns v. C

oachel

la Valle

y Wate

r Distr

ict et a

l.

Presen

t: The

Honor

able

JESUS

G. BE

RNAL

, UNI

TED S

TATE

S DIST

RICT J

UDGE

MAYN

OR GA

LVEZ

Not R

eporte

d De

puty C

lerk

Co

urt Re

porter

Attorn

ey(s) P

resent

for P

laintiff

(s):

Attorn

ey(s) P

resent

for D

efenda

nt(s):

None

Presen

t

None

Presen

t

Proce

eding

s:Or

derGR

ANTI

NG IN

PART

and D

ENYI

NG IN

PART

Plain

tiffs’ a

nd

Defen

dants

’ moti

ons fo

r part

ial su

mmary

judg

ment

“It is

probab

le that

no pr

oblem

of the

South

west s

ection

of the

Natio

n is mo

re criti

cal

than th

at of sc

arcity

of wa

ter.”

Color

ado Ri

ver W

ater C

onserv

ation D

ist. v.

United

State

s, 424

U.S. 80

0, 804

(1976)

.

The A

gua Ca

liente B

and of

Cahui

lla Ind

ians (“

Agua

Calien

te” or

“Trib

e”) cla

ims to

have

lived

in the

Coach

ella va

lley, w

hich s

its jus

t to th

e east

of the

San J

acinto

mount

ains in

south

ern

Califo

rnia, s

ince b

efore C

aliforn

ia was

admitte

d as a

State

in 185

0. Th

e Coac

hella v

alley f

orms

part of

the So

noran

desert

, wher

e wate

r is sc

arce.

The A

gua Ca

liente s

ued the

Coach

ella Va

lley

Water

Distri

ct (“C

VWD”

) and th

e Dese

rt Wate

r Agen

cy (“D

WA”),1 se

eking,

among

other

things

, a dec

laratio

n that t

heir fe

deral r

eserve

d wate

r right

s, whic

h arise

under

the do

ctrine

of

Winte

rs v. U

nited

States

, 207 U

.S. 56

4 (190

8), ex

tend to

groun

dwate

r. Th

e part

ies, pl

us the

Un

ited St

ates a

s Plain

tiff-in

terven

or, all

filed

motio

ns for

partia

l summ

ary jud

gment

. (Do

c. Nos.

82,

83, 84

, 85.)

After

consi

dering

all the

paper

s, the

exhibi

ts subm

itted w

ith the

m, and

the

parties

’ argum

ents a

t the M

arch 1

6, 2015

heari

ng, the

Court

concl

udes th

e Trib

e’s fed

eral

reserv

ed wa

ter rig

hts ma

y inclu

de gro

undwa

ter, bu

t the T

ribe’s

abori

ginal r

ight of

occup

ancy

was e

xtingu

ished

long a

go, so

the Tr

ibe ha

s no d

erivat

ive rig

ht to g

roundw

ater o

n that b

asis.

I. BA

CKGR

OUND

1 The C

ourt re

fers to

CVWD

and D

WA co

llectiv

ely as

“Defe

ndants

.”

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 1

of 14

Pag

e ID

#:653

6

Page2

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

A. Fa

ctual a

llegati

ons

Th

e Agua

Calien

te have

lived

in the

Coach

ella va

lley sin

ce bef

ore Am

erican

or Eu

ropean

set

tlers a

rrived

in what

is now

south

ern Ca

liforni

a, and

the Tr

ibe ha

s used

both s

urface

water

and

ground

water

resour

ces the

re for

“cultu

ral, do

mestic

and a

gricul

tural s

ubsiste

nce pu

rposes

.”(Co

mpl. ¶

4.) T

hose u

ses inc

luded

“stock

water

ing an

d agri

cultur

al irrig

ation,”

and th

e Trib

e rai

sed “a

bundan

t crops

of co

rn, ba

rley a

nd veg

etable

s” in t

he 185

0s. (C

ompl.

¶ 14–1

5.)Pre

sident

Ulyss

es S.

Grant

estab

lished

the Tr

ibe’s r

eserva

tion in

an Ex

ecutiv

e Orde

r issue

d May

15, 18

76, an

d the re

servat

ion wa

s expa

nded b

y Pres

ident R

utherf

ord B.

Hayes

on Se

ptemb

er 29,

1877.

(Id. ¶5

.) Th

e Unit

ed Sta

tes, pu

rsuant

to sta

tute, h

olds th

e lands

of the

reserv

ation in

trust

for the

tribe.

(Id.)

The

Agua

Calien

te claim

the “e

stabli

shment

of the

Reser

vation

pursu

ant to

federa

l law i

mplied

ly rese

rved to

the Tr

ibe an

d its m

ember

s the ri

ght to

surfac

e wate

r and

ground

water

suffic

ient to

accom

plish

the pu

rposes

of the

reserv

ation, i

ncludi

ng est

ablish

ing a

homela

nd for

the Tr

ibe an

d its m

ember

s.” (I

d. ¶ 6.)

In the

Tribe

’s view

, those

reserv

ed rig

hts

“are th

e most

senio

r” in th

e regio

n, and,

accor

dingly

, the A

gua Ca

liente m

ay pre

vent C

VWD a

nd DW

A from

adver

sely a

ffectin

g the q

uantity

and q

uality

of the

ir wate

r. (Id

. ¶¶ 7,

8.)

De

fendan

ts are c

reatur

es of

Califo

rnia s

tatutes

, or ind

ividua

ls sued

in the

ir offic

ial cap

acities

who c

ontrol

or ma

nage th

e CVW

D or D

WA. T

he CV

WD is

a coun

ty wate

r distr

ict,

and is

respon

sible f

or dev

elopin

g grou

ndwate

r wells

in the

Coach

ella va

lley an

d extr

acting

gro

undwa

ter. (

Comp

l. ¶ 10

.) Th

e DWA

is an

“indep

endent

speci

al distr

ict” cre

ated to

provi

de wa

ter to

the cit

y of P

alm Sp

rings

and are

as tha

t surro

und it

by dev

elopin

g grou

ndwate

r wells

and

extrac

ting g

roundw

ater.

(Id. ¶

12.) T

hrough

out the

twent

ieth ce

ntury,

Califo

rnians

displa

ced the

Ag

ua Ca

liente f

rom the

Coach

ella va

lley, an

d fuel

ed agr

icultu

ral ex

pansio

n in the

deser

t throu

gh the

increa

sed us

e of g

roundw

ater fo

r comm

ercial

irrigat

ion. (

Comp

l. ¶¶ 2

3–24.)

Th

e Trib

e’s ple

ading

furthe

r state

s the g

roundw

ater u

nderly

ing the

Coach

ella va

lley is

in a c

ontinu

al state

of “o

verdra

ft,” wh

ich me

ans the

outflo

ws fro

m the

aquife

r excee

d the in

flows

. (Co

mpl ¶

33.) T

he CV

WD tri

es to r

echarg

e the C

oachel

la valle

y’s gr

oundw

ater b

y impor

ting

water

from t

he Co

lorado

River

, but th

e Trib

e alleg

es tha

t wate

r is of

inferi

or qua

lity. (

Comp

l. ¶ 4

7.)

Th

e com

plaint

finally

allege

s the “

Tribe

and its

memb

ers ha

ve est

ablish

ed a h

omela

nd in

the Co

achella

valley

, inclu

ding h

ousing

, schoo

ls, gov

ernme

nt offic

es, an

d cult

ural an

d com

merci

al ente

rprise

s,” fo

r whic

h the T

ribe re

lies up

on its

reserv

ed gro

undwa

ter res

ources

.(Co

mpl. ¶

51.)

The A

gua Ca

liente s

eek rel

ief in

this c

ase to

“satisf

y the p

resent

and f

uture n

eeds

of the

Tribe

and it

s mem

bers”

and to

protec

t the T

ribe’s

reserv

ed wa

ter rig

hts fro

m over

draft a

nd deg

radatio

n. (Co

mpl. ¶

¶ 52–5

4.)2

B. Pr

ocedu

ral hi

story

2 The U

nited

States

’ com

plaint

in in

terven

tion a

sserts

claim

s mate

rially

simi

lar to

the

Tribe’

s com

plaint

regard

ing the

claim

for a

declar

ation o

f feder

ally res

erved

water

rights

. It do

es not

, howe

ver, as

sert a

claim

regard

ing ab

origin

al wate

r right

s.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 2

of 14

Pag

e ID

#:653

7

Page3

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

The A

gua Ca

liente f

iled thi

s actio

n for

declar

atory

and inj

unctiv

e relief

again

st both

def

endant

s in M

ay 201

3. (D

oc. No

. 1.) I

n June

2014

the Co

urt gr

anted

the Un

ited St

ates’

motio

n to int

ervene

as a P

laintiff

in its

capaci

ty as tr

ustee

for the

Tribe

’s rese

rvatio

n. (D

oc. No

s. 62,

70.)

Th

e part

ies sti

pulate

d to tri

furcat

e this a

ction in

to thre

e phas

es. (D

oc. No

. 49.)

Phase

I see

ks to r

esolve

the pr

imari

ly lega

l quest

ions re

gardin

g the e

xisten

ce of

(1) the

Agua

Calien

te’s

federa

l reser

ved rig

hts to

ground

water

under

the W

inters

doctr

ine, an

d (2)

the Tr

ibe’s a

borigi

nal

rights

to gro

undwa

ter. P

hase II

, conti

ngent t

o a ce

rtain e

xtent o

n Phas

e I’s re

soluti

on, wi

ll add

ress (1

) the o

wners

hip of

certa

in “por

e spac

e” ben

eath th

e reser

vation

; (2) th

e legal

quest

ion

of wh

ether a

right t

o a qu

antity

of gr

oundw

ater en

compas

ses a r

ight to

water

of a c

ertain

qualit

y; and

(3) so

me of

the eq

uitabl

e defe

nses a

sserte

d by th

e CVW

D and

DWA.

If nec

essary

, in Ph

ase

III the

Court

will u

nderta

ke the

fact-in

tensiv

e tasks

of qu

antify

ing the

Agua

Calien

te’s ri

ghts to

gro

undwa

ter an

d pore

space

, and c

raftin

g appr

opriate

injunc

tive re

lief.

All fo

ur par

ties ha

ve file

d moti

ons fo

r summ

ary jud

gment

. The

Tribe’

s moti

on, (D

oc.

No. 85

), argu

es fed

eral la

w reco

gnizes

the Tr

ibe’s r

eserve

d righ

t to gr

oundw

ater, a

nd tha

t it als

o hol

ds abo

rigina

l title

to land

in the

Coach

ella va

lley to

which

groun

dwate

r right

s attac

h. Th

e Un

ited St

ates’ m

otion,

(Doc.

No. 83

), echo

es the

Tribe

’s Wint

ers rig

hts arg

ument

and

empha

sizes

the su

prema

cy of

federa

l wate

r right

s over

those

create

d by s

tate law

, but do

es not

cla

im tri

bal ab

origin

al title

on the

Agua

Calien

te’s b

ehalf.

CV

WD ma

intain

s in its

motio

n that (

1) Co

ngress

extin

guishe

d any

aborig

inal

ground

water

rights

, and (

2) Wi

nters r

ights i

mplied

ly rese

rved f

or the

Tribe

do no

t exten

d to

ground

water

, and e

ven if

they e

xtend

to grou

ndwate

r, the

purpos

es of

the Ag

ua Ca

liente’

s res

ervatio

n will

not “e

ntirel

y fail”

witho

ut a res

erved

right t

o grou

ndwate

r. (D

oc. No

. 82.)

DWA’

s moti

on, (D

oc. No

. 84), l

argely

paral

lels tha

t of CV

WD; it

conte

nds the

Tribe

has n

o fed

eral re

served

right i

n grou

ndwate

r, and

the Tr

ibe’s a

borigi

nal wa

ter rig

hts cla

im wa

s ext

inguis

hed by

statut

e long

ago. II.

LEGA

L STA

NDAR

D

A cour

t shall

grant a

motio

n for

summa

ry jud

gment

when

there i

s no g

enuine

disput

e as

to any

mater

ial fac

t and th

e movi

ng par

ty is e

ntitled

to jud

gment

as a m

atter o

f law.

Fed. R

. Civ.

P. 56(

a); An

derson

v. Lib

erty L

obby, I

nc., 47

7 U.S.

242, 2

47–48

(1986)

. Sum

mary

judgm

ent is

approp

riate i

f “unde

r the g

overni

ng law

, there

can b

e but o

ne rea

sonabl

e conc

lusion

as to

the

verdic

t.” An

derson

, 477 U

.S. at

250. C

ourts c

onside

r cross

-moti

ons fo

r summ

ary jud

gment

ind

epende

ntly o

f one

anothe

r, each

on the

ir own

merits

, in lig

ht of al

l the e

videnc

e attac

hed to

both m

otions

. Fair

Hous.

Counc

il of R

iversid

e Cnty

., Inc.

v. Riv

erside

Two, 2

49 F.3

d 1132

, 113

6 (9th

Cir. 2

001).

A genu

ine iss

ue of

mater

ial fac

t exists

“if the

evide

nce is

such th

at a rea

sonabl

e jury

could r

eturn

a verd

ict for

the no

n-movi

ng par

ty,” A

nderso

n, 477

U.S. at

248; S

cott v.

Harris

, 550

U.S.

372, 38

0 (200

7), an

d the u

nderly

ing su

bstant

ive law

identi

fies w

hich f

acts a

re mate

rial.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 3

of 14

Pag

e ID

#:653

8

AG

UA

CA

LIE

NT

AB

AN

DO

FC

AH

UIL

LA

v.C

OA

CH

ELLA

D-1


Page4

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

Id. In

rulin

g on a

motio

n for

summa

ry jud

gment

, a cou

rt cons

trues

the ev

idence

in the

light m

ost

favora

ble to

the no

n-movi

ng par

ty. Sc

ott, 55

0 U.S.

at 380

.

III.

FACT

S

The fa

cts rel

evant t

o Phas

e I iss

ues, ta

ken fro

m the

parties

’ state

ments

of un

disput

ed fac

ts and

reques

ts for

judicia

l notice

, are n

ot in d

ispute

. Prec

eding

the cre

ation o

f the A

gua Ca

liente’

s res

ervatio

n, vari

ous go

vernm

ent of

ficials

report

ed tha

t they

intend

ed the

reserv

ation to

“meet

the

presen

t and f

uture w

ants o

f these

India

ns, by

giving

them t

he exc

lusive

and f

ree po

ssessi

on of

these

lands

[on wh

ich] th

ey wil

l be en

courag

ed to b

uild c

omfor

table h

ouses,

impro

ve the

ir acre

s, and

surro

und the

mselv

es wit

h hom

e com

forts.”

(E.g.,

Doc. N

o. 92–1

¶ 47.)

A “M

ission

India

n Ag

ent” c

orresp

onded

that hi

s depa

rtment

’s purp

ose wa

s to “s

ecure t

he Mi

ssion

Indian

s with

per

manen

t home

s, with

land a

nd wa

ter en

ough, t

hat ea

ch one

who w

ill go

upon a

reserv

ation

may h

ave to

cultiv

ate a p

iece o

f grou

nd as

large

as he

may d

esire.”

(Doc.

No. 92

–1 ¶ 5

8; see

also id

. ¶¶ 39

–59.)

A s

eries

of sev

en Ex

ecutiv

e Orde

rs, iss

ued pu

rsuant

to sta

tutory

autho

rity an

d date

d from

186

5–1881

, creat

ed wh

at is n

ow the

Agua

Calien

te’s re

servat

ion, al

though

the fir

st two

reserv

ed the

bulk o

f the la

nd. (S

ee Do

c. No. 9

2–1 ¶ 3

0.) A

ll the

Order

s are v

ery sh

ort. P

reside

nt Gran

t sta

ted in

the fir

st Orde

r that t

he lan

d desc

ribed

was “

withdr

awn f

rom sa

le and

set ap

art as

res

ervatio

ns for

the pe

rmane

nt use

and oc

cupanc

y of th

e Miss

ion In

dians

in sout

hern C

aliforn

ia.”

(Id. ¶

31.) T

he sub

sequen

t reser

vation

s eith

er inco

rporat

e the g

eneral

statem

ent of

purpo

se con

tained

in the

first, o

r simp

ly state

the res

ervatio

n shou

ld be u

sed fo

r “Indi

an pur

poses.

” (See

id.

¶¶ 32–

36.)

The g

roundw

ater b

asin w

hich u

nderlie

s the re

servat

ion ex

tends

beneat

h the e

ntire

Coach

ella va

lley, an

d the a

quifer

is in a

state o

f over

draft.

(Doc.

No. 92

–1 ¶ 6

9.) T

he gro

undwa

ter do

es not

“add

to, con

tribute

to or

suppor

t” any

surfac

e stre

am fro

m whic

h the T

ribe

divert

s wate

r or is

otherw

ise rel

evant t

o this l

itigatio

n (e.g

., the T

ahquit

z, Andr

eas, or

Chino

Cre

eks).

(Doc.

No. 96

–1 ¶ 1

.) Ne

ither t

he Tri

be nor

its all

ottees

produ

ce gro

undwa

ter, ra

ther,

they p

urchas

e their

water

from D

WA or

CVWD

. (Do

c. No. 9

8–9 ¶¶

1–2, 1

9.) S

ome n

on-Ind

ian

lessee

s who

occupy

reserv

ation te

rritory

do pr

oduce

ground

water

for th

eir us

e—spe

cifica

lly to

water

golf c

ourses

. (Do

c. No. 9

8–9 ¶ 2

0.)

In

1938, t

he Ca

liforni

a Supe

rior C

ourt fo

r Rive

rside C

ounty e

ntered

a decr

ee gov

erning

the

rights

to the

water

in the

Whit

ewate

r river

syste

m. (D

oc. No

. 84–5

Ex. 1.

) The

United

State

s par

ticipat

ed in t

hat ad

judica

tion v

ia a “S

uggest

ion,” (

Doc. N

o. 84–7

Ex. 8)

, and r

eceive

d a rig

ht to d

ivert s

ome s

urface

water

from t

he Ta

hquitz

and An

dreas

creeks

for th

e Trib

e’s us

e (Doc.

No.

84–5 E

x. 1 at

61–62)

. The

United

State

s, how

ever, s

pecific

ally sta

ted in

its Su

ggestio

n that i

t wa

s not “

submi

tting th

e right

s of th

e Unit

ed Sta

tes . .

. to the

jurisd

iction

of the

Depar

tment

of

Publi

c Work

s of th

e State

of Ca

liforni

a” and

also th

at the

court l

acked

“jurisd

iction

of the

water

rig

hts of

the Un

ited St

ates.”

(Doc.

No. 84

–7 Ex

. 8 at 4

6.)

IV.

DISC

USSIO

N

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 4

of 14

Pag

e ID

#:653

9

Page5

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

Ph

ase I o

f this c

ase ad

dresse

s, by s

tipula

tion o

f the p

arties

, (1) w

hether

the Tr

ibe’s f

ederal

res

erved

water

rights

includ

e grou

ndwate

r resou

rces, a

nd (2)

wheth

er the

Tribe

may a

ssert

aborig

inal ti

tle to g

roundw

ater u

nderly

ing its

reserv

ation.

The C

ourt ad

dresse

s the is

sues in

turn.

A. Un

ited S

tates

v. Wint

ers an

d fede

ral re

served

water

rights

1. Th

e law o

f feder

al rese

rved w

ater r

ights

Fo

r over

a cent

ury, th

e Supr

eme C

ourt ha

s held

that w

hen the

United

State

s “wit

hdraw

s its

land f

rom the

publi

c dom

ain an

d rese

rves it

for a

federa

l purpo

se, the

Gover

nment

, by

impli

cation

, reser

ves ap

purten

ant wa

ter the

n unap

propri

ated to

the ex

tent ne

eded to

accom

plish

the pu

rpose

of the

reserv

ation.”

3 Capp

aert v.

United

State

s, 426

U.S. 12

8, 138

(1976)

(citin

g U.S

. Cons

t. art.

I, § 8;

U.S. C

onst. a

rt. IV

, § 3);

see a

lso W

inters

v. Un

ited St

ates, 2

07 U.S

. 564

(1908)

; John

v. Unit

ed Sta

tes, 72

0 F.3d

1214;

1225–

26 (9t

h Cir.

2013);

Colvi

lle Co

nfeder

ated

Tribes

v. Wa

lton, 6

47 F.2

d 42 (

9th Ci

r. 1981

); Felix

S. Co

hen et

al., Co

hen’s H

andboo

k of

Federa

l India

n Law

§ 19.0

3 (201

2 ed.)

(“Cohe

n’s Ha

ndbook

”); 1 W

aters a

nd Wa

ter Ri

ghts

§ 37.0

2 (Am

y K. K

elley e

d., 3d

ed. 20

15). I

mplied

ly rese

rved w

ater ri

ghts “

vest[ ]

on the

date o

f the

reserv

ation a

nd [ar

e] supe

rior to

the rig

hts of

futur

e appr

opriato

rs.” Id

. Wint

ers rig

hts ari

se und

er fede

ral law

, and a

re thus

an ex

ceptio

n to the

norm

al rule

that as

signs

water

resour

ces

regula

tion to

the sta

tes.U

nited

States

v. Ne

w Mexi

co, 43

8 U.S.

696, 7

01–02

(1978)

; Capp

aert,

426 U.

S. at 1

45; Co

hen’s H

andboo

k § 19

.03[1]

.

Th

e amo

unt of

water

impli

edly r

eserve

d unde

r the W

inters

doctr

ine pr

esents

a toug

her

questio

n than

wheth

er or n

ot the

govern

ment r

eserve

d wate

r at all

. See

Walto

n, 647

F.2d a

t 48.

Arizo

na v. C

aliforn

ia, 373

U.S.

546 (1

963), p

rovide

s the a

nalyti

cal sta

rting p

oint fo

r a qua

ntific

ation o

f an In

dian tr

ibe’s W

inters

rights

. In A

rizona

, an or

iginal

proce

eding,

the

Supre

me Co

urt ag

reed w

ith the

speci

al mast

er’s c

onclus

ion tha

t “wate

r was

intend

ed to s

atisfy

the fu

ture a

s well

as the

prese

nt need

s of th

e India

n Rese

rvatio

ns and

. . . th

at enou

gh wa

ter wa

s res

erved

to irrig

ate all

the pr

actica

bly irr

igable

acrea

ge on

the res

ervatio

n.” 37

3 U.S.

at 600

.Fo

llowin

g Ariz

ona, th

e Cour

t expla

ined th

e feder

al gove

rnment

only r

eserve

s “tha

t amoun

t of

water

neces

sary to

fulfil

l the p

urpose

of the

reserv

ation, n

o more

.” Ca

ppaert

, 426 U

.S. at

141.

And in

a subs

equent

case

it drew

a disti

nction

betwe

en a re

servat

ion’s p

rimary

purpo

se, fo

r wh

ich wa

ter is

impli

edly r

eserve

d unde

r Wint

ers, an

d seco

ndary

uses, f

or wh

ich it

is not.

New

Mexic

o, 438

U.S. at

702.

3 Gene

rally,

the ph

rase “

public

domain

” refe

rs to

“the l

and ow

ned by

the [

federa

l] Go

vernm

ent, m

ostly

in the

West

, that

was a

vailab

le for

sale,

entry,

and s

ettlem

ent un

der th

e hom

estead

laws, o

r othe

r disp

ositio

n unde

r the g

eneral

body

of lan

d law

s.” H

agen v

. Utah

, 510

U.S. 3

99, 41

2 (199

4). T

he gov

ernme

nt res

erves

land,

literal

ly set

ting a

side “

parcel

s of la

nd bel

onging

to th

e Unit

ed Sta

tes .

. . for

variou

s purp

oses,

includ

ing In

dian

settlem

ent, b

ird

preser

vation

, and m

ilitary

insta

llation

s, when

it app

ear[s]

that t

he pub

lic int

erest w

ould b

e serv

ed by

withdr

awing

or re

servin

g part

s of th

e publ

ic dom

ain.”

Id. (i

nterna

l citat

ions a

nd quo

tation

marks

omitte

d).

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 5

of 14

Pag

e ID

#:654

0

Page6

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

The N

inth C

ircuit

appli

es Ne

w Mexi

co’s p

rimary

use–s

econda

ry use

distin

ction to

guide

the

impli

ed res

erved

water

rights

analy

sis inv

olving

India

n tribe

s and

reserv

ations,

althou

gh not

nec

essari

ly to c

ontrol

it.See

United

State

s v. A

dair, 7

23 F.2

d 1394

, 1408–

09 (9t

h Cir.

1983)

(citin

g New

Mexi

co, 43

8 U.S.

at 702

); Walto

n, 647

F.2d a

t 47 (w

riting

in the

proces

s of

quanti

fying

a tribe

’s Wint

ers rig

hts: “[

w]e a

pply th

e New

Mexi

co tes

t here”

).4 The

Ninth C

ircuit

has

furth

er expl

ained

the “g

eneral

” purp

ose of

an In

dian r

eserva

tion, a

nd thu

s the p

urpose

for

which

the fed

eral go

vernm

ent im

pliedl

y rese

rves w

ater ri

ghts, i

s to “p

rovide

a hom

e for th

e Ind

ians, [

which

] is a b

road o

ne and

must b

e liber

ally co

nstrue

d.” W

alton, 6

47 F.2

d at 47

& n.9

(“T

he rul

e of li

beral c

onstru

ction s

hould a

pply to

reserv

ations

create

d by E

xecuti

ve Or

der. S

ee [A

rizona

, 373 U

.S. at

598].

Congr

ess en

vision

ed agr

icultu

ral pu

rsuits

as onl

y a fir

st step

in the

‘ci

vilizin

g’ pro

cess.”

); Unit

ed Sta

tes v.

Ahtan

um Irr

igatio

n Dist.

, 236 F

.2d 32

1, 326

(9th C

ir. 195

6) (“I

t is ob

vious

that th

e quan

tum is

not me

asured

by the

use b

eing m

ade at

the tim

e the

treaty

was m

ade. T

he res

ervatio

n was

not me

rely f

or pre

sent bu

t for fu

ture u

se.”).

To ide

ntify

an Ind

ian res

ervatio

n’s pu

rposes

, the N

inth C

ircuit

consi

ders “

the [re

servat

ion’s f

ormativ

e] doc

ument

and c

ircum

stance

s surro

unding

its cre

ation, a

nd the

histor

y of th

e India

ns for

whom

it wa

s crea

ted,” a

s well

as the

tribe’

s “nee

d to ma

intain

thems

elves

under c

hanged

circum

stance

s.”Wa

lton, 6

47 F.2

d at 47

(citin

g Unit

ed Sta

tes v.

Winan

s, 198

U.S. 37

1, 381

(1905)

); acco

rd Un

ited St

ates v

. Wash

ington

, 375 F

. Supp

. 2d 10

50, 10

64 (W

.D. W

ash. 20

05), va

cated

pursua

nt to s

ettlem

ent, L

ummi

India

n Natio

n v. W

ashing

ton, N

o. C01–

0047Z

, 2007

WL 41

90400

(W.D.

Wa

sh. No

v. 20, 2

007).

Cases

addre

ssing

Winte

rs righ

ts proc

eed in

two dis

tinct a

nalyti

cal ste

ps. C

ourts f

irst

exami

ne the

existe

nce of

reserv

ed rig

hts—u

sually

a stra

ightfo

rward

inquir

y. Th

en com

es qua

ntific

ation, w

hich a

ddress

es the

scope

of the

gover

nment

’s imp

licatio

n. See

, e.g.,

New

Mexic

o, 438

U.S. at

698, 7

18 (fir

st rest

ating W

inters

rule,

then d

ecidin

g Cong

ress in

tended

to res

erve w

ater fr

om the

Rio M

imbre

s “onl

y wher

e nece

ssary

to pres

erve th

e timb

er or to

secur

e fav

orable

water

flows

for p

rivate

and p

ublic u

ses un

der sta

te law

”); Ca

ppaert

, 426 U

.S. at

138–

46 (ad

dressi

ng wh

ether t

he gov

ernme

nt rese

rved w

ater in

conne

ction w

ith the

addit

ion of

Devil

’s Ho

le to th

e Deat

h Valle

y Natio

nal M

onume

nt, and

then r

uling

that di

stant g

roundw

ater p

umpin

g cou

ld be e

njoine

d to pr

otect t

he fed

eral re

servat

ion); W

alton, 6

47 F.2

d at 47

(“We h

old tha

t wa

ter wa

s reser

ved wh

en the

. . . [r

]eserv

ation w

as cre

ated. .

. . Th

e more

diffic

ult qu

estion

con

cerns

the am

ount of

water

reserv

ed.”).

The u

pshot o

f this w

ell-est

ablish

ed fra

mewo

rk,

especi

ally in

light o

f the p

arties

’ agree

ment t

o spli

t this c

ase int

o three

phase

s, is th

at the

Court

add

resses

here o

nly the

existe

nce of

the Tr

ibe’s W

inters

rights

; quant

ificatio

n com

es late

r.

4 The C

ourt re

cogniz

es tha

t the p

rimary

use–s

econda

ry use

distin

ction m

ay be

best su

ited

to con

texts

where

a “pr

imary

purpo

se” of

a res

ervatio

n is m

ore cl

early

announ

ced, s

uch as

fed

eral r

eserva

tions

create

d purs

uant to

statu

te as

in Ne

w Me

xico.

See C

ohen’s

Hand

book

§ 19.0

3[4] (“

The s

ignific

ant di

fferen

ces be

tween

Indian

reser

vation

s and

federa

l reser

ved la

nds

indica

te tha

t the

[prim

ary–se

condar

y] dis

tinctio

n shou

ld not

apply

.”). N

otwith

standi

ng the

pra

ctical

diffic

ulty o

f ident

ifying

a trib

e’s re

servat

ion’s

prima

ry pur

pose, t

he Co

urt m

ust fo

llow

Ninth

Circui

t case

law,

which

expla

ins th

at Ne

w Me

xico,

“whil

e not

direct

ly app

licable

to

Winte

rs doc

trine r

ights

on Ind

ian re

servat

ions,”

at a

minim

um “e

stabli

sh[es]

sever

al use

ful

guidel

ines.”

Adai

r, 723

F.2d a

t 1409.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 6

of 14

Pag

e ID

#:654

1

D-2


Page7

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

2. Th

e feder

al gove

rnment

impli

edly r

eserve

d wate

r for th

e Trib

e’s re

servat

ion

Wh

en Pre

sident

s Gran

t and H

ayes w

ithdre

w port

ions o

f the C

oachel

la valle

y from

the

public

domain

by Ex

ecutiv

e Orde

r to cre

ate the

Agua

Calien

te’s re

servat

ion, th

ey als

o rese

rved,

by im

plicat

ion, th

e right

to app

urtena

nt wate

r in the

amoun

t neces

sary “

to fulf

ill the

purpo

ses of

the

reserv

ation.”

Cf. W

alton, 6

47 F.2

d at 46

–47. N

o case

interp

reting

Wint

ers dr

aws a

pri

nciple

d disti

nction

betwe

en sur

face w

ater p

hysica

lly loc

ated o

n a res

ervatio

n and

other

appurt

enant w

ater so

urces.

See,

e.g., C

appaer

t, 426

U.S. at

143; s

ee als

o Cohe

n’s Ha

ndbook

§ 1

9.03[2

][a] (“

Reser

ved rig

hts pr

esuma

bly att

ach to

all wa

ter so

urces—

ground

water

, strea

ms,

lakes,

and s

prings

—that

arise

on, bo

rder, t

ravers

e, unde

rlie, or

are en

compas

sed wi

thin I

ndian

reserv

ations.

”). In

stead,

the rel

evant l

egal co

nstrai

nts un

der W

inters

and it

s prog

eny are

wheth

er (1)

the res

erved

water

is nec

essary

to ful

fill the

purpo

ses of

the res

ervatio

n and

(2) the

reserv

ed wa

ter is

appurt

enant t

o the re

served

land.

Walto

n, 647

F.2d a

t 46.

a. Th

e rese

rvatio

n’s pu

rpose

Th

e docu

ments

conte

mpora

neous

with th

e crea

tion o

f the A

gua Ca

liente’

s reser

vation

are

vague,

which

is not

surpr

ising b

ecause

they’r

e appr

oxima

tely 15

0 year

s old.

But th

ose

docum

ents d

o adm

it that

the res

ervatio

n inten

ded to

provid

e the T

ribe w

ith a h

ome, a

nd int

ended

to do s

o with

some

measu

re of p

ermane

nce. W

alton g

uides

the int

erpret

ation o

f the A

gua

Calien

te’s re

servat

ion’s p

urpose

. In W

alton, l

ike in

this c

ase, th

e Pres

ident c

reated

the

reserv

ation b

y terse

Execu

tive O

rder in

the era

follo

wing th

e Civi

l War,

647 F.

2d at 4

7 n.8,

and

the Ni

nth Ci

rcuit c

aution

ed: “[t

]he sp

ecific

purpo

ses of

an In

dian r

eserva

tion, h

oweve

r, were

oft

en una

rticula

ted. T

he gen

eral pu

rpose,

to pro

vide a

home

for th

e India

ns, is

a broa

d one

and

must b

e liber

ally co

nstrue

d.” Id

. at 47

. The

court t

here h

eld the

tribe’

s reser

ved rig

hts ex

tended

to a

gricul

tural u

ses as

well a

s the “

develo

pment

and m

ainten

ance o

f repla

cement

fishin

g gro

unds”

due to

the ec

onomi

c and

religi

ous im

portan

ce of

fishing

to the

tribe.

Id. at

48.

Accor

dingly

, the C

ourt m

ust bo

th cons

true th

e gene

ral pu

rposes

of the

Tribe

’s rese

rvatio

n bro

adly, a

nd tak

e acco

unt tha

t Wint

ers rig

hts an

ticipat

e incre

ased o

r nove

l futur

e uses

. See

also

Ahtan

um Irr

igatio

n Dist.

, 236 F

.2d at

326. A

pplyin

g those

tenets

, the C

ourt ca

n safe

ly state

that

the res

ervatio

n impli

ed at l

east so

me wa

ter us

e; but e

xactly

how m

uch is

not a q

uestio

n pres

ented

by Ph

ase I o

f this c

ase.

b. Gr

ound

water

is ap

purte

nant

to the

Tribe

’s rese

rvatio

n

An

y attem

pt to li

mit ap

purten

ant wa

ter so

urces

to surf

ace wa

ter fai

ls as a

matter

of law

and

logic.

For ex

ample

, Calif

ornia l

aw rec

ognize

s that g

roundw

ater ri

ghts a

re inex

tricabl

y lin

ked to

the ov

erlyin

g land.

See

City o

f Bars

tow v.

Mojav

e Wate

r Agen

cy, 23

Cal. 4

th 1224

, 124

0 (200

0) (“A

n over

lying

right,

analog

ous to

that of

a ripa

rian o

wner i

n a su

rface

stream

, is

the rig

ht of th

e own

er of th

e land

to take

water

from t

he gro

und un

dernea

th for

use on

his lan

d wit

hin the

basin

or wa

tershe

d; the

right i

s base

d on o

wners

hip of

the lan

d and

is appu

rtenan

t the

reto.”

) (inte

rnal qu

otatio

n mark

s omi

tted).

And f

ederal

law, at

least b

y impli

cation

, treat

s sur

face w

ater an

d grou

ndwate

r simi

larly.

See C

appaer

t, 426

U.S. at

143 (

holdin

g the U

nited

States

can “

protec

t its w

ater fr

om su

bseque

nt dive

rsion, w

hether

the div

ersion

is of

surfac

e wate

r

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 7

of 14

Pag

e ID

#:654

2

Page8

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

or gro

undwa

ter”).

Taken

togeth

er, the

se aut

horitie

s sugge

st that

groun

dwate

r prov

ides a

n app

urtena

nt wate

r sourc

e, in th

e Wint

ers se

nse.

With o

ne exc

eption

, every

court

to add

ress th

e issue

agree

s that W

inters

rights

encom

pass

ground

water

resour

ces, as

well a

s surfa

ce wa

ter, ap

purten

ant to

reserv

ed lan

d. See

, e.g.,

Washi

ngton,

No. C

01–004

7Z, sl

ip op. a

t 8 (W

.D. W

ash. F

eb. 24

, 2003)

(“Thus

, as a m

atter o

f law

the Co

urt co

nclude

s that t

he res

erved

water

rights

doctr

ine ex

tends

to grou

ndwate

r even

if gro

undwa

ter is

not co

nnecte

d to su

rface

water

.”); Tw

eedy v

. Texa

s Co.,

286 F.

Supp.

383, 3

85 (D

. Mont

. 1968)

(“The

Winte

rs case

dealt

only w

ith the

surfa

ce wa

ter, bu

t the s

ame im

plicat

ions

which

led the

Supre

me Co

urt to

hold th

at surf

ace wa

ters h

ad bee

n rese

rved w

ould a

pply to

und

ergrou

nd wa

ters a

s well.

The

land w

as ari

d—wa

ter wo

uld ma

ke it m

ore us

eful, a

nd wh

ether

the wa

ters w

ere fo

und on

the su

rface

of the

land o

r unde

r it sh

ould m

ake no

differ

ence.”

); In r

e Gil

a Rive

r Sys.

& So

urce, 9

89 P.2

d 739,

747 (

Ariz.

1999)

(“The

signif

icant q

uestio

n for

the

purpos

e of th

e reser

ved rig

hts do

ctrine

is not

wheth

er the

water

runs

above

or bel

ow the

groun

d but

wheth

er it is

neces

sary to

accom

plish

the pu

rpose

of the

reserv

ation.”

); Conf

ederat

ed Sal

ish

& Koot

enai T

ribes

v. Stul

ts, 59

P.3d 1

093, 10

99 (M

ont. 20

02) (“W

e see

no rea

son to

limit t

he sco

pe of

our pr

ior ho

ldings

by ex

cludin

g grou

ndwate

r from

the Tr

ibes’ f

ederal

ly rese

rved w

ater

rights

in thi

s case

.”). B

ut see

In re B

ig Horn

River

Sys.,

753 P.

2d 76,

99–10

0 (Wy

o. 1988

), aff’d

by

an equ

ally div

ided c

ourt, W

yoming

v. Un

ited St

ates, 4

92 U.S

. 406 (

1989).

5

Ap

purten

ance, a

s that t

erm is

used b

y the W

inters

doctr

ine, m

ust pr

ovide

some le

gal

limitat

ion to

impli

edly r

eserve

d wate

r right

s; but p

ersuas

ive au

thority

sugge

sts tha

t limi

t shoul

d not

be dr

awn b

etween

surfa

ce and

groun

dwate

r sourc

es. C

f. Capp

aert, 4

26 U.S

. at 14

2–43

(empha

sizing

the rel

ation b

etween

surfa

ce wa

ter an

d grou

ndwate

r in the

hydro

logic c

ycle).

The

federa

l gover

nment

intend

ed to r

eserve

water

for th

e Trib

e’s us

e on it

s reser

vation

. Righ

ts to th

e gro

undwa

ter un

derlyi

ng the

reserv

ation a

re appu

rtenan

t to the

reserv

ation it

self.

Accor

dingly

, the

Court

concl

udes th

e feder

al gove

rnment

impli

edly r

eserve

d grou

ndwate

r, as w

ell as

surfac

e wa

ter, fo

r the A

gua Ca

liente w

hen it

create

d the re

servat

ion. W

hether

groun

dwate

r resou

rces a

re nec

essary

to ful

fill the

reserv

ation’s

purpo

se, ho

wever

, is a q

uestio

n that m

ust be

addre

ssed in

a late

r phas

e of th

is litig

ation.

3. De

fenda

nts’ a

rgume

nts ar

e large

ly irre

levan

t to Ph

ase I i

ssues

Th

e part

ies ag

reed to

addre

ss two

discre

te ques

tions

in Phas

e I of

this c

ase. T

he firs

t, and

the on

e relev

ant to

much

of De

fendan

ts’ wr

itten s

ubmiss

ions, a

sks fo

r clari

ficatio

n of th

e Trib

e’s

Winte

rs righ

ts—nam

ely wh

ether t

hey co

uld ex

tend to

groun

dwate

r unde

rlying

the res

ervatio

n.

5 The W

yoming

Supre

me Co

urt ad

mitted

that “

[t]he lo

gic wh

ich su

pports

a rese

rvatio

n of

surfac

e wate

r to fu

lfill th

e purp

ose of

the r

eserva

tion a

lso su

pports

reserv

ation o

f grou

ndwate

r,” but

never

theles

s ruled

again

st the

extens

ion of

Wint

ers rig

hts be

cause

“not a

single

case

applyi

ng the

reser

ved w

ater d

octrin

e to g

roundw

ater i

s cited

to us

.” 75

3 P.2d

at 99

. Th

e weig

ht of

author

ity on

the iss

ue has

shifte

d.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 8

of 14

Pag

e ID

#:654

3

Page9

of 14

CIVI

L MIN

UTES

—GEN

ERAL

Initial

s of D

eputy C

lerk m

g/wr

DWA a

nd CV

WD ha

ve arg

ued ex

tensiv

ely in

their b

riefin

g that a

ny Wi

nters r

ights p

ossess

ed by

the Ag

ua Ca

liente d

o not e

xtend

to grou

ndwate

r.Th

eir co

ntenti

ons, ho

wever

, main

ly talk

past

wheth

er Wint

ers rig

hts inc

lude g

roundw

ater, a

nd foc

us on

the qu

antum

of the

Tribe

’s ent

itleme

nt.

De

fendan

ts’ arg

ument

s large

ly take

two f

orms.

First,

Defen

dants c

ontend

that pr

incipl

es of

federa

lism an

d com

ity co

unsel a

gainst

an ex

tensio

n of W

inters

rights

to Ca

liforni

a gro

undwa

ter res

ources

. Seco

nd, De

fendan

ts claim

the Tr

ibe is

able to

funct

ion ad

equate

ly unde

r Ca

liforni

a’s gr

oundw

ater al

locatio

n fram

ework

witho

ut reso

rt to W

inters

rights

, so an

asser

ted

right b

eyond

their c

urrent

allotm

ent is

not ne

cessar

y to pr

event t

he res

ervatio

n’s pu

rpose

from

being

entire

ly defe

ated.6 N

either a

rgume

nt with

stands

scrut

iny.

It i

s neith

er nove

l nor co

ntrove

rsial th

at Wint

ers rig

hts de

rive fr

om fed

eral la

w, and

thus

displa

ce sta

te law

when

in conf

lict. E

.g., Ca

ppaert

, 426 U

.S. at

138–39

. The

case la

w spe

cifica

lly ho

lds tha

t the W

inters

doctr

ine do

es not

entail

a “bal

ancing

test” o

f comp

eting

intere

sts to

determ

ine the

existe

nce or

scope

of res

erved

rights

. Id.

Moreo

ver, th

e Calif

ornia

legisla

ture a

cknow

ledges

the su

prema

cy of

federa

l wate

r right

s, and

acquie

sces in

their p

riority

.See

Cal. W

ater C

ode § 1

0720.3

(“[I]n

the ma

nagem

ent of

a grou

ndwate

r basi

n or su

bbasin

by a

ground

water

susta

inabil

ity ag

ency o

r by th

e boar

d, fede

rally r

eserve

d righ

ts to g

roundw

ater sh

all be

respec

ted in

full. I

n case

of co

nflict

betwe

en fed

eral an

d state

law in

that . .

. mana

gement

, fed

eral la

w shal

l preva

il.”) (e

mphas

is adde

d). T

herefo

re, De

fendan

ts’ arg

ument

s regar

ding

federa

l-state

relatio

ns run

count

er to b

oth fed

eral an

d state

law.

De

fendan

ts’ add

itional

argum

ents h

inge o

n an u

nduly r

estric

tive re

ading

of Un

ited St

ates

v. New

Mexi

co, an

d a mi

sappre

hensio

n of th

at case

’s subs

equent

appli

cation

by the

Ninth

Cir

cuit to

cases

which

involv

e triba

l right

s. In

the Ne

w Mexi

co cas

e, the

Supre

me Co

urt

addres

sed the

scope

of res

erved

rights

in the

Rio M

imbre

s’s wa

ter co

nnecte

d to the

gover

nment

’s cre

ation o

f the G

ila Na

tional

Fores

t. 438

U.S. at

697–9

8. Co

ngress

estab

lished

that F

orest,

among

many

others

, pursu

ant to

the Or

ganic A

dmini

stratio

n Act o

f 1897

, whic

h inten

ded the

Na

tional

Fores

ts to “

conser

ve wa

ter flo

ws, an

d to fu

rnish

a cont

inuous

suppl

y of ti

mber f

or the

peo

ple.”

Id. at

706. T

he Su

preme

Court

held t

hose tw

o purp

oses th

e only

ones

for wh

ich the

gov

ernme

nt imp

liedly r

eserve

d wate

r, notw

ithsta

nding

later-e

nacted

statut

es wh

ich pr

omote

d oth

er uses

of the

Fores

t, like

“outd

oor rec

reatio

n” or

“wild

life an

d fish

purpo

ses.”

Id. at

714–15

.Th

e Cour

t drew

on the

legisla

tive h

istory

of the

Mult

iple-U

se Su

staine

d-Yield

Act of

1960

to hol

d the s

ubsequ

ently d

esigna

ted pu

rposes

were “

second

ary,” m

eaning

they w

ere no

t “so c

rucial

6 Alth

ough g

reatly

simp

lified

by the

Cour

t, this

argum

ent m

akes u

p a la

rge po

rtion o

f DW

A’s s

ubstan

tive b

riefin

g. Fo

r exam

ple, D

WA ar

gues (1

) the T

ribe h

as a c

orrela

tive r

ight to

gro

undwa

ter un

der Ca

liforni

a law

, whic

h, lik

e all o

ther g

roundw

ater u

sers is

subje

ct to

a state

con

stituti

onal s

tandar

d of r

easona

ble us

e, so

the Tr

ibe m

ay acc

ess th

ose re

source

s with

out a

declar

ation o

f Wint

ers ri

ghts j

ust lik

e any

other

overly

ing la

ndown

er; (2

) the

Tribe

has no

t dri

lled w

ells on

its pr

operty

, so g

roundw

ater is

not n

ecessa

ry for

the r

eserva

tion;

and (3

) the

United

State

s only

reque

sted

a cert

ain am

ount o

f surf

ace w

ater i

n the

1938

state

court

adj

udicat

ion of

the W

hitew

ater s

ystem

, so th

at am

ount is

adequ

ate to

satisf

y the

needs

of the

res

ervatio

n.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 9

of 14

Pag

e ID

#:654

4

D-3


Page1

0 of 1

4CI

VIL M

INUT

ES—G

ENER

ALIni

tials o

f Depu

ty Cler

k mg/w

r

as to r

equire

a rese

rvatio

n of ad

dition

al wate

r.” Id

. at 71

5. As

noted

above

, the N

inth C

ircuit

has

held th

e reaso

ning o

f New

Mexi

co onl

y “est

ablish

es use

ful gu

idelin

es” fo

r triba

l reser

vation

cas

es, an

d cour

ts shou

ld inst

ead fo

cus on

the br

oader c

omma

nd tha

t Wint

ers rig

hts en

compas

s “on

ly that

amoun

t of wa

ter ne

cessar

y to fu

lfill th

e purp

ose of

the res

ervatio

n, no m

ore.”

Adair

, 723

F.2d

at 1408

–09.

In

this c

ase the

re are n

o subs

equent

enact

ments

that im

pact th

e purp

oses o

f the T

ribe’s

res

ervatio

n, alth

ough to

be su

re the

govern

ment a

ugment

ed the

reserv

ation’s

territo

ry ove

r time

. Th

e reser

vation

’s purp

oses re

main t

he sam

e as w

hen the

gover

nment

create

d the re

servat

ion—t

o pro

vide th

e Agua

Calien

te with

a perm

anent h

omela

nd. T

he Nin

th Circ

uit ha

s speci

fically

em

phasiz

ed suc

h a pu

rpose’

s elas

ticity;

a trib

al rese

rvatio

n’s rea

son fo

r bein

g is no

t etche

d in

stone,

but sh

ifts to

meet f

uture n

eeds.

See W

alton, 6

47 F.2

d at 47

–48; A

htanum

Irriga

tion D

ist.,

236 F.

2d at 3

26.

Despi

te Defe

ndants

’ insis

tent re

liance

on Ne

w Mexi

co, tha

t case’

s reaso

ning s

imply

does

not im

pact P

hase I

of thi

s litig

ation.7 O

f cours

e, delin

eating

the res

ervatio

n’s pu

rpose

will

ultim

ately d

ictate t

he bre

adth o

f the T

ribe’s

Wint

ers rig

hts, bu

t the A

gua Ca

liente’

s reser

vation

, at a

minim

um, pr

ovides

the Tr

ibe wi

th a ho

melan

d for

now an

d for

the fu

ture, a

nd Wi

nters

ensure

s a fed

eral ri

ght to

appurt

enant w

ater to

realize

that en

d.

Accor

dingly

, the T

ribe a

nd the

United

State

s are e

ntitled

to par

tial su

mmary

judgm

ent on

the

Phase

I issu

e of w

hether

the Tr

ibe’s f

ederall

y rese

rved w

ater ri

ghts e

ncomp

ass gr

oundw

ater

underl

ying th

e reser

vation

.

B.Th

e Trib

e’s cla

im to

an ab

origin

al grou

ndwa

ter rig

ht fai

ls

7 Defen

dants a

lso arg

ue tha

t indiv

idual a

llottee

s and

lessee

s of re

servat

ion lan

d have

no

claim

to res

erved

water

rights

becau

se (1)

the Tr

ibe ha

s no s

uch rig

ht and

(2) res

ort go

lf cour

ses,

of the

kind m

aintain

ed by

some le

ssees,

do no

t fit D

efenda

nts’ co

ncepti

on of

the Tr

ibe’s

reserv

ation’s

purpo

se. C

ontent

ions re

gardin

g the d

erivat

ive rig

hts of

allott

ees an

d lesse

es fai

l for

the sa

me rea

sons th

eir oth

er argu

ments

fail—

they a

re sim

ply no

t relev

ant to

Phase

I of th

is case

. It i

s well-

establ

ished

that “I

ndian

allottee

s have

a righ

t to us

e a po

rtion o

f . . . r

eserve

d wate

r.”Ad

air, 72

3 F.2d

at 141

5. Ad

dition

ally, “t

he ful

l quant

ity of

water

availa

ble to

the In

dian a

llottee

thu

s may

be con

veyed

to the

non-In

dian p

urchas

er,” W

alton, 6

47 F.2

d at 51

, whic

h logic

surel

y tra

nslate

s to les

sees.

Thus,

for th

e sam

e reaso

ns De

fendan

ts othe

r argum

ents fa

il, thi

s one

fails

as we

ll due

to its d

erivat

ive na

ture.

To the

exten

t Defe

ndants

wish

to argu

e that r

esort g

olf

course

s, or an

y othe

r use,

does

not fal

l with

in the

class o

f perm

issibl

e uses

under

the W

inters

doc

trine, i

t may

so arg

ue in l

ater p

hases

of thi

s case

, whic

h will

deal w

ith the

scope

of the

im

plied

reserv

ation.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 10

of 14

Pag

e ID

#:654

5

Page1

1 of 1

4CI

VIL M

INUT

ES—G

ENER

ALIni

tials o

f Depu

ty Cler

k mg/w

r

The T

ribe’s

secon

d claim

in thi

s laws

uit as

serts a

n abor

iginal

right t

o use

ground

water

ben

eath th

e Coac

hella v

alley, w

ith a p

riority

date o

f time

imme

moria

l.8 Sim

plifie

d, the

Agua

Calien

te’s a

borigi

nal rig

hts arg

ument

proce

eds thu

sly: fe

deral l

aw rec

ognize

s cert

ain rig

hts

connec

ted to

origin

al Indi

an occ

upancy

; lands

encom

passed

by the

Treat

y of G

uadalu

pe Hid

algo9 fal

l under

the or

iginal

occup

ancy d

octrin

e; the

Tribe

has co

ntinua

lly an

d excl

usivel

y occ

upied

the Co

achella

valley

, whic

h was

ceded

as par

t of the

Treat

y of G

uadalu

pe Hid

algo,

since

centur

ies be

fore o

ther se

ttlers;

so the

Agua

Calien

te poss

ess an

abori

ginal r

ight to

gro

undwa

ter un

derlyi

ng its

reserv

ation.

(Tribe

’s Mot.

for Su

mm. J.

at 18–

23.) I

n oppo

sition

to the

Tribe

’s abor

iginal

rights

claim

, Defe

ndants

point

out th

at Cong

ress, v

ia an 1

851 sta

tute,

requir

ed the

prese

ntatio

n of la

nd cla

ims in

Califo

rnia to

a com

missi

on for

valid

ation, t

he Tri

be did

not as

sert su

ch a c

laim, so

the lan

d the T

ribe o

ccupie

d in the

Coach

ella va

lley rev

erted

to the

public

domain

. The

Tribe’

s claim

to an

aborig

inal oc

cupanc

y righ

t fails.

Federa

l law r

ecogni

zes a t

ribe’s

prope

rty rig

ht arisi

ng out

of or

iginal

territo

rial

occupa

ncy. S

ee Un

ited St

ates e

x rel.

Chuni

e v. R

ingros

e, 788

F.2d 6

38, 64

1–42 (

9th Ci

r. 1986

) (“I

ndian’

s abor

iginal

title d

erives

from t

heir p

resenc

e on th

e land

before

the arr

ival of

white

settler

s.”) (c

iting T

ee-Hit

-Ton I

ndians

v. Un

ited St

ates, 3

48 U.S

. 272, 2

79 (19

55)); s

ee als

o Co

hen’s H

andboo

k § 15

.04[3]

(“A tri

be wit

h orig

inal In

dian ti

tle ma

y brin

g a fed

eral co

mmon

law ac

tion to

enfor

ce ow

nershi

p righ

ts.”).

Abori

ginal p

ropert

y righ

ts whic

h arise

under

federa

l law

are no

t “own

ership

rights

,” but r

ather a

re “rig

ht[s] o

f occu

pancy

grante

d by th

e conq

uering

sov

ereign

. . . [a

nd are

] there

fore n

ecessa

rily a c

reatur

e of th

e conq

uering

sover

eign’s

law.”

Id.

at 642.

10 Chie

f Justic

e Mars

hall, i

n John

son v.

M’Int

osh, 21

U.S.

543 (1

823), l

aid do

wn the

rule

that “t

he con

querin

g gove

rnment

acqui

res the

exclu

sive ri

ght to

exting

uish I

ndian

title.”

Chun

ie, 788

F.2d

at 642.

Any

such d

ivestm

ent of

origi

nal In

dian ti

tle is p

urely a

matter

of Co

ngress

ional

prerog

ative.

United

State

s v. S

anta F

e Pac.

R. Co

., 314

U.S. 33

9, 347

(1941)

. And

althoug

h the

Supre

me Co

urt ha

s note

d exti

nguish

ment c

ould b

e acco

mplish

ed by

“treat

y . . . s

word

. . . ex

ercise

of co

mplete

domi

nion a

dverse

to the

right o

f occu

pancy,

or oth

erwise

,” id.,

a feder

al sta

tute e

mbodi

es a m

ore typ

ical le

gislati

ve div

estme

nt. Se

e id. at

347–4

8 (dis

cussin

g in de

pth

the eff

ects o

f vari

ous sta

tutes

on com

peting

land c

laims).

The U

nited

States

ratifie

d the T

reaty o

f Guad

alupe

Hidalg

o in 19

48. C

aliforn

ia was

admitte

d as a

state i

n 1850

. Shor

tly aft

er Calif

ornia’

s adm

ission

, in or

der to

“prote

ct prop

erty

8 The U

nited

States

’ comp

laint in

interv

ention

did no

t press

such

a claim

and n

either d

id its

motio

n for

summa

ry jud

gment

on Ph

ase I i

ssues.

The

United

State

s’ oppo

sition

to De

fendan

ts’ mo

tion f

or sum

mary

judgm

ent, ho

wever

, argue

s in fav

or of

such a

n abor

iginal

right.

9 The T

reaty

of Gu

adalup

e Hida

lgo, si

gned b

y the

United

State

s and

Mexic

o in 1

848,

ended

the M

exican

–Ame

rican

War.

See Su

mma C

orp. v

. Calif

ornia,

466 U.

S. 198

, 202

(1984)

. Un

der th

e term

s of th

e Trea

ty, Me

xico c

eded m

uch of

what

is no

w con

sidere

d the

Ameri

can

South

west

to the

Unit

ed Sta

tes, in

cludin

g the

territo

ry tha

t woul

d late

r beco

me th

e state

s of

Califo

rnia, N

evada,

and U

tah, an

d part

s of A

rizona

, New

Mexi

co, Co

lorado

, and W

yoming

. 10 Li

ke the

Nint

h Circ

uit ha

s done

past c

ases, i

n the

absenc

e of a

ny arg

ument

that

“the

Spani

sh or

Mexic

an law

of ab

origin

al title

diffe

rs from

our o

wn, [t

he Co

urt] w

ill ass

ume th

at it

does n

ot.” C

hunie,

788 F.

2d at 6

42.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 11

of 14

Pag

e ID

#:654

6

Page1

2 of 1

4CI

VIL M

INUT

ES—G

ENER

ALIni

tials o

f Depu

ty Cler

k mg/w

r

rights

of fo

rmer M

exican

citize

ns in t

he new

ly-acq

uired

territo

ry and

to set

tle lan

d claim

s, Co

ngress

passe

d the A

ct of M

arch 3

, 1851,

ch.41

, 9 Sta

t. 631,

” (“Ac

t of 18

51”).

Chuni

e, 788

F.2d a

t 644.

Three

of the

Act of

1851’

s num

erous

provis

ions im

pact th

is case

: sectio

n 8

institu

ted a l

and cla

ims p

rocess

for p

eople c

laiming

prope

rty rig

hts in

Califo

rnia; s

ection

13

impos

es a tw

o-year

time li

mit fo

r pres

enting

land c

laims; a

nd sec

tion 1

6 impos

ed a “

duty [

on]

the co

mmiss

ioners

herei

n prov

ided f

or to a

scerta

in and

report

. . . th

e tenur

e by w

hich th

e mi

ssion

lands

are he

ld, and

those

held b

y civi

lized I

ndians

.” See

Barke

r v. H

arvey,

181 U

.S.

481, 48

3–85 (

1901).

11

Federa

l court

s cons

true s

ection

s 8 an

d 13 b

roadly

; toget

her the

y bar I

ndians

who f

ailed to

ass

ert or

iginal

occup

ancy c

laims w

ithin t

he sta

tutory

two-y

ear wi

ndow f

rom rel

ying o

n such

a rig

ht in f

uture d

ispute

s:

[The S

uprem

e Cour

t], aft

er obse

rving

. . . the

United

State

s was

bound

to resp

ect the

rig

hts of

priva

te prop

erty in

the ce

ded ter

ritory,

said t

here c

ould b

e no d

oubt of

the po

wer

of the

United

State

s, cons

istentl

y with

such

obliga

tion, t

o prov

ide rea

sonabl

e mean

s for

determ

ining

the va

lidity

of all

titles

withi

n the c

eded te

rritory

, to req

uire a

ll claim

s to

lands

therei

n to be

prese

nted f

or exa

minat

ion, an

d to de

clare t

hat all

not pr

esente

d shou

ld be

regard

ed as

abando

ned. T

he Co

urt fu

rther s

aid the

purpo

se of

the ac

t of 18

51 wa

s to

give re

pose to

titles

as we

ll as to

fulfil

l treat

y obli

gation

s, and

that it

not on

ly perm

itted,

but req

uired,

all cla

ims to

be pr

esente

d to the

comm

ission

, and b

arred

all fro

m futu

re ass

ertion

which

were n

ot pres

ented

within

the 2 y

ears.

United

State

s v. T

itle In

s. & Tr

ust Co

., 265

U.S. 47

2, 483

(1924)

; see a

lso Su

mma C

orp. v.

Ca

liforni

a ex r

el. Sta

te Land

s Com

m’n, 4

66 U.S

. 198, 2

08 (19

84) (ex

plaini

ng tha

t the T

itle

Insura

nce ca

se “ap

plied

[the C

ourt’s]

decis

ion in

Barke

r to ho

ld that

becau

se the

India

ns fai

led to

assert

their i

nteres

t with

in the

timesp

an est

ablish

ed by

the 18

51 Ac

t, thei

r claim

ed rig

ht of

occupa

ncy wa

s barr

ed”); S

anta F

e, 314

U.S. at

351 (

discus

sing B

arker a

nd Tit

le Insu

rance,

and

noting

“the A

ct of 1

851 wa

s inter

preted

as co

ntaini

ng ma

chiner

y for

exting

uishm

ent of

claim

s, inc

luding

those

based

on Ind

ian rig

ht of o

ccupan

cy”).

The S

uprem

e Cour

t has h

eld rep

eatedl

y tha

t, desp

ite the

Act of

1851’

s text,

the “la

nd con

firmatio

n proc

eeding

s were

intend

ed to b

e all-

encom

passin

g” and

a failu

re to a

ssert a

borigi

nal tit

le with

in the

terms

of the

statut

e woul

d pre

clude

subseq

uent cl

aims to

land.

Chuni

e, 788

F.2d a

t 646 (

“Give

n the li

ne of

Supre

me Co

urt

decisio

ns rec

ognizin

g the e

xtensi

ve rea

ch of

the Ac

t of 18

51 . . .

the Ch

umash

, claim

ing a r

ight

of occ

upancy

based

on ab

origin

al title

, lost a

ll righ

ts in th

e land

when

they f

ailed to

prese

nt a

claim

to the

comm

ission

ers.”).

11 The A

ct of

1851’s

Sectio

n 8 sta

tes: “

[t]hat

each a

nd eve

ry per

son cl

aiming

lands

in

Califo

rnia b

y virtu

e of a

ny rig

ht or

title d

erived

from

the Sp

anish

or Me

xican

govern

ment

shall

presen

t the s

ame t

o the

said c

ommi

ssione

rs . . .

.” Ba

rker, 1

81 U.S

. at 48

3. Se

ction 1

3 hold

s: “[t

]hat a

ll land

s, the

claim

s to w

hich h

ave be

en fin

ally re

jected

. . . a

nd all

lands

the cl

aims to

wh

ich sh

all not

have

been p

resent

ed to

the sa

id com

missi

oners w

ithin

two ye

ars af

ter th

e date

of

this a

ct, sha

ll be d

eemed,

held

and co

nsider

ed as

part o

f the p

ublic d

omain

of th

e Unit

ed Sta

tes.”

Id. at

484.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 12

of 14

Pag

e ID

#:654

7

D-4


Page1

3 of 1

4CI

VIL M

INUT

ES—G

ENER

ALIni

tials o

f Depu

ty Cler

k mg/w

r

In

this c

ase, th

e Trib

e alleg

es the

y have

occup

ied the

Coach

ella va

lley sin

ce tim

e im

memo

rial. W

ithin t

he fra

mewo

rk est

ablish

ed by

Barke

r and C

hunie,

that m

eans th

ey hel

d an

aborig

inal ri

ght of

occup

ancy u

nder M

exican

law, an

d then

a right

of oc

cupanc

y unde

r Unit

ed Sta

tes law

follo

wing th

e Trea

ty of G

uadalu

pe Hid

algo.

The T

ribe a

dmits

that no

claim

was fi

led

on its

behalf

as pa

rt of th

e claim

s proc

ess un

der the

Act of

1851,

(Doc.

No. 82

–3 Ex

. 1–10)

, so

like th

e India

ns in a

ll othe

r cases

interp

reting

the Ac

t of 18

51, the

Agua

Calien

te’s a

borigi

nal

claim

was e

ffectiv

ely ex

tingui

shed a

fter th

e two-y

ear cla

ims w

indow

closed

, and it

s territ

ory

subsum

ed wit

hin the

publi

c dom

ain.

Cit

ing Cr

amer v

. Unit

ed Sta

tes, 26

1 U.S.

219 (

1923),

the Tr

ibe arg

ues alt

ernativ

ely tha

t eve

n if the

Act of

1851

exting

uished

its ab

origin

al title

, the T

ribe re

-estab

lished

such a

right b

y con

tinuou

s occu

pancy

from 1

853 un

til the

creatio

n of it

s reser

vation

in 187

6.12 (Trib

e’s M

ot. for

Su

mm. J.

at 23.

) But e

ven if

the Tr

ibe did

reclaim

a title

of or

iginal

occup

ancy in

the 23

years

bet

ween

the tim

e its c

laim wa

s exti

nguish

ed and

the cre

ation o

f its re

servat

ion, th

e reser

vation

eff

ective

ly re-e

xtingu

ished

that ri

ght. R

eserva

tion, r

ecall,

means

the Un

ited St

ates w

ithdra

ws

land w

hich it

then “

set[s]

apart

for p

ublic u

ses.”

Hagen

, 510 U

.S. at

966. A

borigi

nal rig

hts are

bas

ed on

“actua

l, excl

usive,

and c

ontinu

ous us

e and

occupa

ncy ‘fo

r a lon

g time

’ of th

e claim

ed are

a,” N

ative V

ill. of

Eyak

v. Blan

k, 688

F.3d 6

19, 62

2 (9th

Cir. 2

012).

Accor

dingly

, an

aborig

inal ri

ght of

occup

ancy is

funda

menta

lly inc

ompat

ible w

ith fed

eral ow

nershi

p.

Th

e Act o

f 1851

extin

guishe

d the T

ribe’s

abori

ginal o

ccupan

cy rig

ht, and

even

if the

Tribe

re-est

ablish

ed suc

h a rig

ht it w

as not

conti

nuous

and ex

clusiv

e and

contin

uous o

nce the

Un

ited St

ates c

reated

the Ag

ua Ca

liente’

s reser

vation

. Acco

rdingl

y, the

Tribe

cannot

asser

t an

origin

al occu

pancy

right,

and De

fendan

ts are e

ntitled

to sum

mary

judgm

ent on

this is

sue.

C. Int

erlocu

tory a

ppeal

under

28 U.

S.C. 12

92(b)

Usual

ly litig

ants m

ay onl

y appe

al fina

l judgm

ents o

f distr

ict cou

rts. S

ee 28

U.S.C.

§ 1

291. S

ection

1292,

howe

ver, co

nfers a

ppellat

e jurisd

iction

over a

limited

class o

f int

erlocu

tory d

ecisio

ns by

distric

t court

s, incl

uding

decisio

ns wh

ich inv

olve “

a cont

rollin

g que

stion o

f law a

s to wh

ich the

re is su

bstant

ial gro

und fo

r diffe

rence

of opi

nion a

nd tha

t an

imme

diate a

ppeal f

rom the

order

may m

ateria

lly ad

vance

the ult

imate

termi

nation

of the

liti

gation

.” 28

U.S.C.

1292(

b); se

e also

Couch

v. Te

lescop

e, Inc.

, 611 F

.3d 62

9, 632–

33 (9t

h Cir.

2010).

Wh

ether W

inters

rights

exten

d to gr

oundw

ater, i

n light

of Ca

liforni

a’s co

rrelati

ve rig

hts

legal f

ramew

ork fo

r grou

ndwate

r alloc

ation, e

ffectiv

ely co

ntrols

the ou

tcome

of thi

s case

. The

scope

of thi

s litig

ation w

ould, a

t the v

ery lea

st, shr

ink dr

amatic

ally if

the iss

ue res

olves

the oth

er

12 One p

oint of

clarifi

cation

is in o

rder: t

he Tri

be’s a

sserte

d righ

t to gr

oundw

ater b

ased o

n abo

rigina

l title

must

actua

lly co

nnect

to its

claim

for a

borigi

nal ti

tle.

That

is, no

such

freest

anding

abori

ginal

rights

to na

tural

resour

ces ex

ist, al

l deri

ve fro

m a r

ight to

occup

ancy.

See U

nited

States

v. Sh

oshone

Tribe

, 304

U.S. 1

11, 11

6–17 (

1938)

(“To t

hat en

d the

United

Sta

tes gr

anted

and as

sured

to the

tribe

peace

able a

nd unq

ualifie

d poss

ession

of th

e land

in

perpet

uity.

Miner

als an

d stan

ding ti

mber a

re cons

tituent

eleme

nts of

the lan

d itsel

f.”).

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 13

of 14

Pag

e ID

#:654

8

Page1

4 of 1

4CI

VIL M

INUT

ES—G

ENER

ALIni

tials o

f Depu

ty Cler

k mg/w

r

way, t

hus “a

dvanc[

ing] th

e ultim

ate ter

minat

ion” o

f the c

ase. S

ubstan

tial gr

ound f

or dif

ferenc

e of

opinio

n exis

ts on th

e legal

quest

ion—s

tate su

preme

court

s are s

plit on

the iss

ue and

no fed

eral

court o

f appea

ls has

passed

on it.

See

Couch

, F.3d

at 633

.13 Addi

tional

ly, the

Supre

me Co

urt’s

decisio

n in Ca

ppaert

speci

fically

avoid

ed dec

iding

the iss

ue, it

chose

instea

d to co

nstrue

distan

t gro

undwa

ter as

surfa

ce wa

ter. I

n this c

ase it

is undi

sputed

that th

e grou

ndwate

r at iss

ue is n

ot hyd

rologi

cally c

onnect

ed to t

he res

ervatio

n’s su

rface

water

, so it

sits un

comfor

tably o

utside

Ca

ppaert

’s expl

icit ho

lding.

And

althoug

h not o

ne of

§ 1292

(b)’s f

actors

, it’s w

orth n

oting

this

decisio

n may

be unr

eview

able a

s a pr

actica

l matte

r due

to the

likelih

ood of

settle

ment a

s the c

ase

progre

sses.

Cf. Un

ited St

ates e

x rel.

Lumm

i India

n Natio

n v. W

ashing

ton, N

o. C01–

0047Z

, 200

7 WL 4

190400

, at *1

(W.D.

Wash

. Nov.

20, 20

07).

In

accord

ance w

ith § 1

292(b)

, the C

ourt ce

rtifies

this O

rder fo

r inter

locuto

ry app

eal,

should

the pa

rties se

ek rev

iew.

V. CO

NCLU

SION

The C

ourt ha

s attem

pted to

addre

ss the

parties

’ argum

ents w

ithin t

he fra

mewo

rk set

out

by the

ir own

agree

ment,

which

was a

pprove

d by th

e Cour

t. The

conclu

sions

made

in this

Order

sho

uld be

read w

ith an

eye to

ward

the lar

ger pic

ture o

f this l

itigatio

n.

Based

on the

foreg

oing d

iscuss

ion of

the leg

al issu

es pre

sented

by Ph

ase I o

f this c

ase,

the Co

urt (1

) GRA

NTS p

artial

summa

ry jud

gment

to the

Agua

Calien

te and

the Un

ited St

ates o

n the

claim

that th

e gove

rnment

impli

edly r

eserve

d appu

rtenan

t wate

r sourc

es—inc

luding

und

erlyin

g grou

ndwate

r—wh

en it c

reated

the Tr

ibe’s r

eserva

tion; a

nd (2)

GRAN

TS pa

rtial

summa

ry jud

gment

to De

fendan

ts rega

rding

the Tr

ibe’s a

borigi

nal tit

le claim

s beca

use the

Land

Claim

s Act o

f 1851

, as int

erpret

ed by

the Su

preme

Court

, effec

tively

extin

guishe

d any

such

right.

IT IS

SO OR

DERE

D.

13 The N

inth C

ircuit

recent

ly expl

ained:

To de

termi

ne if a

“subs

tantial

groun

d for

differ

ence o

f opin

ion” e

xists u

nder §

1292(

b),

courts

must e

xamine

to w

hat ex

tent c

ontrol

ling l

aw is

unclea

r. Co

urts tr

aditio

nally

will

find t

hat a

substa

ntial

ground

for d

ifferen

ce of

opinio

n exis

ts wher

e “the

circu

its are

in

disput

e on t

he que

stion a

nd the

court

of ap

peals o

f the c

ircuit

has n

ot spo

ken on

the p

oint

. . . or

if nov

el and

diffic

ult qu

estion

s of fi

rst im

pressi

on are

prese

nted.”

Couch

, 611 F

.3d at

633.

Case

5:13

-cv-00

883-J

GB-S

P D

ocum

ent 1

15 F

iled 0

3/20/1

5 Pa

ge 14

of 14

Pag

e ID

#:654

9

D-5


Change is the only constant in the legal profession.

Navigate your way with confidence with resources from LexisNexis® Matthew Bender®, Mealey’s™, Michie™ and Shepard’s®.

Explore a variety of primary law and secondary law analytical resources serving your practice area and jurisdictional needs.

Visit the LexisNexis® Store today at www.lexisnexis.com/store

LexisNexis, Shepard’s and the Knowledge Burst logo are registered trademarks and Michie is a trademark of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. © 2012 LexisNexis. All rights reserved. OFF01902-0 2012

LexisNexis® Store

Have you won a case?Written an article?Filed a brief? If you have news to report, simply contact the editor of this report.


Date post:	15-Jul-2015
Category:	Law
Upload:	lexisnexis
View:	315 times
Download:	8 times