BLOGGING ALL OVER THE WORLD IN 2016

blogging-all-over-the-world-in-2016

By:      Ted J. Griswold | Partner | ted.griswold@procopio.com

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016.  Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year.  Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising.  It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for?  The top 10 Blogging Circle articles reviewed in 2016 were:

1. No Dice for California Indian Casinos?

2. Aviation in Indian Country: Seminole Tribe of Florida

3. “What’s Up? Native American Aviation and Airspace

4. Standing Rock Sioux Water Protectors Win a Battle, But More Battles to Come

5. Pride or Prejudice: Native Regalia and Graduation Ceremonies

6. Bully’s Beware: Tribal Elected Officials CAN be Sued in State Court

7. Indian Tribes May Gain Relief from NLRB Actions

8. Where are they now? 9 and Counting…The Procopio Native American Internship Alumni

9. Increasing the Numbers: Effective Recruitment of Native American Law Students (Guest column)

10. Now Accepting Applications for Procopio’s Summer 2017 Native American Law Internship Program

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year.  Wishing you a happy, safe and prosperous New Year.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Tribes Not “Persons” Under the Federal Credit Reporting Act, Immune From Individual Suit

Tribes Not “Persons” Under the Federal Credit Reporting Act

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com

The United States District Court for the Eastern District of Wisconsin held on September 4, 2015 that the Oneida Tribe of Indians of Wisconsin (the “Oneida Tribe”) is immune from the suit by an individual plaintiff for alleged violations of federal lending laws. The suit alleged that on three occasions in February 2015, establishments owned and operated by the Oneida Tribe printed receipts displaying more than the last five digits of Plaintiff’s credit card number and the expiration date, in violation of the Fair and Accurate Credit Transactions Act (FACTA), an amendment to the Fair Credit Reporting Act (FCRA). 15 U.S.C. § 1681c(g)(1). The Oneida Tribe argued that the plaintiff’s claims were barred under the doctrine of tribal sovereign immunity, among other things. Continue reading

Bully’s Beware: Tribal Elected Officials CAN BE Sued in State Court

By: Stephanie A. Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Benedict Cosentino started as table games dealer at the Pechanga Casino. Then he started to notice certain criminal activity on the casino floor during his shifts. He followed company policy and reported it. When he wasn’t dealing cards, he became an external informant to criminal activities to California Department of Justice. His information led to several criminal convictions over a period of years.

You’d think he’d get a promotion, right? Well, not so much.

Four years later, in 2011, he felt he was retaliated against by a Pechanga Gaming Commission official, who had a relationship with some of the people who had been prosecuted because of Cosentino’s information. His gaming license was suspended and ultimately revoked. Because he had a license revoked from another gaming facility, he was unemployable at other tribal gaming enterprises. The economic impact and emotional distress led to the lawsuit, Benedict Cosentino v. Stella Fuller.

Defendants moved to dismiss the case on the basis that the State court lacked subject matter jurisdiction for the case, as all Defendants were elected tribal officials. Cosentino did not sue Pechanga’s Tribal Government or Gaming Commission. Instead he sued certain Gaming Commission Members in their individual capacity. The court decided that retaliation may have occurred (trial court to decide) and that tribal officials cannot retaliate as individuals from their position on the Gaming Commission and hide behind their cloak of sovereign immunity.

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity AND within the scope of their official authority. Super. Ct. No. MCC1300396

This case reaffirms that there is no sovereign immunity for tribal officials who intentionally abuse their authority and act beyond their official scope. When tribal officials “act out of personal interest rather than to benefit the tribe” (Turner v. Martire, (2000) 82 Cal. App. 4th 1042, 1055.) they will be held accountable – even if they are elected. The case has been allowed to proceed and has been remanded to the state trial court to determine if retaliation occurred.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Don’t “Waive” Goodbye to Sovereign Immunity…

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

For those of us interested in the more wonky corners of the profession, there is an ever-expanding jurisdictional split on the horizon at the intersection of Civil Procedure and Federal Indian law. As one of those enthusiasts, I found this most recent case to be fascinating both for its approach to Federal Indian Law generally and its take on sovereign immunity. The United States District Court for the Eastern District of California recently held that a Tribe’s sovereign immunity is effectively waived by removal of an action to federal court. Bodi v. Shingle Springs Band of Miwok Indians, 2:13-CV-01044-LKK-CKD (2014).

Under the Supreme Court’s Kiowa ruling, there are only two means by which a tribe’s sovereign immunity may be abrogated, an act of Congress and explicit waiver by the tribe. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751 (1998). Courts are now split over how to analyze the question of waiver by removal of a case to federal court. One District Court appropriated State sovereign immunity principles for the tribal context, and another, in addition to the 11th Circuit, relied on the Supreme Court’s explicit comparison of tribal sovereign immunity to that of foreign nations in Kiowa. Id. at 759.

The District Court at bar took a third approach, that of treating tribal sovereign immunity as its own discrete issue not to be compared with the immunity of a State or foreign nation. This was refreshing, as too many decisions have attempted to force the round peg of Federal Indian law into the square hole of existing non-Native law. In this case, however, the Court’s ostensibly favorable approach did not lead to the tribal government’s desired end.

This disparate treatment can only lead to more fractured decisions, and tribal governments would be far safer first contesting jurisdiction on sovereign immunity grounds prior to taking any step toward removal, even if the desire to escape State court jurisdiction is at its peak.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Opportunities and Threats to Indian Country Business: E-Commerce and Tribal Sovereignty

By: Christopher Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Many tribal governments are in serious need of economic development avenues. As sovereign nations within U.S. borders, they have the inherent authority to bypass laws and regulations that regulate business relationships with non-tribal online retailers, tech start-ups, and even larger digitally-focused companies interested in hospitable climates for expansion.  E-commerce, once a fledgling industry, is on track to far surpass in-person transacting by both volume and value.  The Internet could provide those tribal governments and their businesses with a virtual mobility sufficient to maintain a worldwide customer base.

In order to curtail that growth, the states could force the courts to address the issue of what I have termed “e-sovereignty” in the most unfavorable context for tribal governments — that of payday lending.  For sovereigns and their advocates, the time is now to carve out a niche for tribal e-commerce both online and in the case law.

One case in particular that should be watched closely is Otoe-Missouria Tribe v. New York Dept. of Financial Regulation.  The State of New York has attempted to shut down the tribal governments payday lending operation with cease-and-desist letters and other investigatory tactics.  The tribal government has responded with a lawsuit seeking injunctive and declaratory relief as against the State’s regulators and its usury laws.  The New York State District Court that first heard the case ruled last year in favor of the State, relying on general principles of lending law outside of either the online or tribal context.  A Second Circuit’s decision on the Otoe-Missouria’s appeal is due soon, and its reasoning could lay the groundwork for future decisions involving tribal e-commerce far beyond the realm of lending.

It would behoove both Tribal businesses and their champions to maintain a vigilant focus on this area of the law and to make their voices heard in support of e-sovereignty.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law. 

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.