Case Law Update
Forest County Potawatomi Tribal Court Law Day
April 30, 2015
Stifel Nicolaus v. Lac Courte Oreilles
Band, 13-CV-121 (6-19-14)

LCO Band had issued and sold bonds in 2006 for ~ $31M.
Used for various projects including refinancing 2003
bonds.

It eventually came to light that Stifel allegedly breached a
fiduciary responsibility with respect to how the bond
transactions were structured and carried out.

The Band sued Stifel in LCO Tribal Court.

Stifel then sued in federal court, Western District of
Wisconsin.
Stifel Nicolaus v. Lac Courte Oreilles
Band, 13-CV-121 (6-19-14)

The Bond Purchase Agreement executed between Stifel
and the Band contained language in which the Band
expressly consented to jurisdiction in federal court with
state court as a back up.

The BPA also contained language that the parties agreed
that the transaction did not take place on the LCO
Reservation.
Stifel Nicolaus v. Lac Courte Oreilles
Band, 13-CV-121 (6-19-14)

The Court ruled that Stifel must litigate in Tribal Court
first.

First Montana exception applied – consensual relationship

Language about situs of transaction not dispositive.
Harris v. Lake of the Torches, 14 AP 1692

Benjamin Harris worked at LDF Lake of the Torches Casino

Injured thumb badly in kitchen.

Some treatment; separated employment.

Sued in state court for workers compensation benefits

Case transferred to tribal court

Trial held in tribal court.
Harris v. Lake of the Torches

After trial, no decision from the trial court for 11 months.

Mr. Harris seeks to have the case returned to state court.

State court judge grants motion to return to state court.

Issues decision in favor of Mr. Harris based on record from
tribal trial court.

Tribe then moves for dismissal based on sovereign
immunity.

State trial court grants the motion
Harris v. Lake of the Torches

Issues:

Length of time for trial tribal court decision

Sovereign immunity

801.54 application – twice
Jackson v. Payday Financial, No. 122617, (7th Cir., Aug. 22, 2014).




Defendant Payday Financial offers loans over the
Internet; short-term high interest.
Plaintiffs want out of the agreement.
Sue in state court; Defendants remove to federal
court.
Two main issues:
 Validity of arbitration clause
 Validity of forum selection clause / Tribal court
exhaustion
Jackson v. Payday Financial, No. 122617, (7th Cir., Aug. 22, 2014).

Arbitration clause held invalid:
 No arbitration rules on the Reservation
 Choice

of arbitrator had no method
 Not substantively or procedurally sound
Forum selection clause requiring litigation in Cheyenne
River Sioux Court held invalid:
 No tribal court jurisdiction: no activity occurred on the
Reservation.
 No “colorable” claim of jurisdiction
Jackson v. Payday Financial, No. 122617, (7th Cir., Aug. 22, 2014).

Take aways:
 Not
great facts
 Defendant
is an individual tribal member
 Development
of laws
Colville Indian Housing Authority v. Edwards,
6 CTCR 12 (Colville Confederated 3/11/2014)

Colville Indian Housing Authority (CIHA) filed unlawful detainer
action against Ms. Edwards. (Essentially an eviction).

Day of hearing a memo appears in the file from a third party
that Ms. Edwards is incarcerated and wants a continuance.
Judge authorizes a continuance.

Before the next date, the CIHA requests that Ms. Edwards
appear by phone if she is still incarcerated. Judge re-schedules
again.

Tribal law requires a hearing within 30 days on detainer actions;
well past 30 days.
Colville Indian Housing Authority v. Edwards,
6 CTCR 12 (Colville Confederated 3/11/2014)

CIHA makes an interoluctory appeal to the Colville Supreme Court.

Supreme Court chides the Trial Court that it must treat both sides fairly
and not grant continuances where the defendant had not actually
requested one.
A judge is to conduct hearing objectively and fairly. This includes
conducting the hearing without looking like she is taking one side or
the other. Even if the judge hasn't taken one side or the other, if it
looks like she is, this violated procedural due process.
Evans v. Shoshone Bannock Tribes, 1335003 (9th Cir. 12/05/2013)

Evans, a non-Indian on his own fee land, was constructing
a single-family residence. Land is within the Fort Hall
Indian Reservation.

The Tribe’s Land Use Commission ordered him to stop and
eventually sued him in Tribal Court.

Evans filed suit in federal court; Tribe claimed Evans had
to exhaust in Tribal Court first.

The District Court ruled with the Tribe; the Ninth Circuit
reversed.
Evans v. Shoshone Bannock Tribes, 1335003 (9th Cir. 12/05/2013)

The Tribe argued that it had authority to zone non-Indian land
pursuant to Brendale. Ninth Circuit disagreed because Evans’
land was in a relatively open part of the reservation near a
municipal airport; very different than facts in Brendale.

Next, the Tribe argued that under the second Montana exception
that Evans’ activity “threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare
of the tribe.”
Evans v. Shoshone Bannock Tribes, 1335003 (9th Cir. 12/05/2013)

Three allegations: 1) Ground water contamination; 2)
improper disposal of debris; 3) increased risk of fire.

The Court said that some harm is not enough; the activity
must “imperil the subsistence” of the tribal community.
Plains Commerce, 554 U.S. at 341 (quoting Montana, 450
U.S. at 566)).
Fort Yates Public School District #4 v.
Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)

The School District, Tribe and State entered Joint
Powers agreement under which two school
boards—state and tribal—operate elementary,
junior high and high schools.

CMB and AK were in a fight (or AK “attacked”
CMB). AK suspended for 10 days and CMB
obtained tribal court restraining order against AK.
Fort Yates Public School District #4 v.
Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)

AK violated restraining order several months later.
AK suspended again for 10 days.

CMB’s mother, Murphy, filed suit in Tribal Court
against the School District alleging 1) breach of
duty to provide a safe learning environment; 2)
negligent training/hiring; and 3) failure to respect
a tribal court restraining order.
Fort Yates Public School District #4 v.
Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)

School District filed suit in federal court seeking 1)
declaration that tribal court doesn’t have jurisdiction
and 2) injunction stopping tribal court from
proceeding.

District Court ruled in favor of Murphy. Montana does
not apply. Allegations arose on tribal lands + the
Joint Powers agreement represents a consensual
agreement under the 1st Montana exception.
Fort Yates Public School District #4 v.
Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)
The Court shares the tribal court's concern that if the tribal
court lacks jurisdiction over civil claims such as these, tribal
members may be left without recourse against non-Indian
entities that operate on the reservation when they have
legitimate grievances.
The tribal court ought to be afforded the opportunity and
tasked with the responsibility of adjudicating civil problems
involving its tribal members against the School District who
has entered into a contractual arrangement to collaboratively
operate schools on tribal trust land.
Fort Yates Public School District #4 v.
Murphy, 1:12-cv-135 (D.N.D. 02/04/2014)

Even if Montana applied, the Court would still
rule that the Tribal Court has jurisdiction as Joint
Powers Agreement is a consensual relationship
and the causes of action are related to the nature
of the relationship.
Las Vegas Paiute Tribe v. Phebus, 2:13-cv02000-RCJ-CWH, (D.NV. March 24, 2014)

Christopher Phebus disenrolled in 1999 from the Tribe.
Since 1999 prosecuted in Paiute Tribal Court for various
crimes.

Phebus appealed one of the convictions and the Tribal
appellate court ruled that the tribal trial court did not
have jurisdiction over Phebus.

The Tribe then filed a declaratory action in federal
court seeking ruling that it did have criminal jurisdiction
over Phebus.
Las Vegas Paiute Tribe v. Phebus, 2:13-cv02000-RCJ-CWH, (D.NV. March 24, 2014)

District Court agreed that Phebus’ disenrollment
created legal issues with respect to the Tribe’s
claim of criminal jurisdiction over him.

Federal law (statutes, Duro, Lara, etc.) is based
on political affiliation. If race (being Indian) is
issue, then equal protection problems.
Las Vegas Paiute Tribe v. Phebus, 2:13-cv02000-RCJ-CWH, (D.NV. March 24, 2014)

District Court found that in order to exercise
jurisdiction in a criminal matter against Phebus,
an element of the crime includes showing that he
is Indian.

Therefore, the tribal trial court must find beyond
a reasonable doubt that Phebus is Indian.
Lightfoot v. Jewell et al., 13-2985 (D. Minn)

Competing jurisdiction case.

Sheryl Lightfoot, KB member and Ken Thomas, Shakopee
Sioux member, both filed for divorce in separate courts.

Lightfoot filed in Canada; Thomas in the SMSC Tribal
Court.

Lightfoot then filed in federal court for a preliminary
injunction against the Tribal Court to stop its proceedings.

Lightfoot alleged that the domestic relations code
violated PL 280.

Lightfoot noted that under tribal law, Thomas’
$64,000/mo tribal income would be considered nonmarital property.
Lightfoot v. Jewell et al., 13-2985 (D.
Minn)

Court denied the request for injunction in December, 2013.

Letter to Court on September 8, 2014:
 Tribal Court and Canadian judge held a joint motion hearing.
 Both judges agreed to bifurcate the proceedings.
 Custody and parenting time issues will go forth in British
Columbia; spousal support, property division, and the end of
the marital relationship issues will go forward in tribal
court.
 Parties then reached agreement on child custody issues.
 Litigating spousal support and property. Two-day trial in
October.

Time permitting: Wisconsin Safe Haven and ICWA
/ WICWA

https://docs.legis.wisconsin.gov/misc/lc/study/2
014/1198

Memo No. 2 “The Safe Haven Law and the Indian
Child Welfare Act” (October 9, 2014).
Attorney Paul Stenzel
www.paulstenzel.com
414-534-5376