Articles Posted in Native American Law

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Meyers used his credit card to make purchases at the Green Bay are Oneida Travel Center and Oneida One Stop retail locations, owned and operated by the federally‐recognized Oneida Indian tribe. He received electronically printed receipts that included more than the last five digits of his credit card and the card’s expiration date. He alleged, in a putative class action, that the Tribe issued these receipts in violation of the Fair and Accurate Credit Transaction Act, which states: [n]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction, 15 U.S.C. 1681c(g)(1). FACTA defines a person as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” The district court concluded that the Tribe was immune from suit. The Seventh Circuit affirmed, noting that whether a tribe is subject to a statute and whether the tribe may be sued for violating the statute are two different questions. Any ambiguity must be resolved in favor of immunity; “government or governmental subdivision or agency” does not unambiguously refer to tribes. View "Meyers v. Oneida Tribe of Indians of Wis." on Justia Law

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This appeal was the most recent appeal in a series of lawsuits that have arisen over the sale of bonds by a corporation wholly owned by the Lac du Flambeau Band of Lake Superior Chippewa Indians (collectively, “the Tribal Entities”). In a prior action, the Seventh Circuit held that a bond indenture constituted an unapproved management contract under the Indian Gaming Regulatory Act (“IGRA”) and was therefore void. Following more than three years of litigating the validity of other bond-related documents in federal and state court, the Tribal Entities instituted a tribal court action seeking a declaration that the bonds are invalid under the IGRA as well as tribal law. Certain “Financial Entities” and Godfrey & Kahn S.C. sought an injunction in the Western District of Wisconsin to preclude the Tribal Entities from pursuing their tribal court action. The district court preliminarily enjoined the Tribal Entities from proceeding against the Financial Entities but allowed the tribal action to proceed against Godfrey. The Seventh Circuit affirmed in part and reversed in part, holding that the district court (1) did not abuse its discretion in enjoining the tribal court action against the Financial Entities; but (2) made several errors of law in assessing whether Godfrey had established a likelihood of success on the merits. Remanded. View "Stifel, Nicolaus & Co., Inc. v. Lac Du Flambeau Band of Lake Superior Chippewa Indians" on Justia Law

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Wisconsin’s Governor has entered into gaming compacts with all of the state’s tribes (Wis. Stat. 14.035). The HoChunk Nation adopted an ordinance, authorizing Class I and Class II gaming on its lands. The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2703(6), (7), (8), defines Class I gaming as social games and traditional Indian gaming, regulated exclusively by tribes; Class II gaming includes bingo and certain nonbanked card games (players compete against one another rather than against the house) that are authorized by state laws. Class III gaming is a residual category, regulated under tribal-state compacts. A 2008 agreement between the state and the Nation does not restrict Class II gaming. Since 2010, the Nation has offered nonbanked electronic poker at Ho-Chunk Madison. Wisconsin sought an injunction to stop the poker, which, if classified as Class III would violate the Nation’s compact with the state. The district court ruled that the poker was a Class III game. The Seventh Circuit reversed. States may not prohibit a tribe from offering gaming that is roughly equivalent to what the state allows for its residents. A state must criminalize a gambling activity in order to prohibit the tribe from engaging in it. Wisconsin decriminalized nonbanked poker in 1999. IGRA does not permit interference with Class II poker on tribal land. View "Wisconsin v. Ho-Chunk Nation" on Justia Law

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Schlemm, a member of the Navajo Tribe, and a prisoner, sought an order requiring the prison to accommodate his religious practices under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc. Members of the Tribe honor the dead through dancing, praying, and eating traditional foods. Wisconsin concedes that this celebration is religious and that Schlemm sincerely believes that “traditional foods” should include game meat. The prison rejected his request for game meat or ground beef and his offer to secure a sealed platter from an outside vendor. The prison permits Jewish inmates to have outside vendors supply sealed Seder platters. Defendants maintain that serving venison would be too expensive, would exceed the capacity of institutional kitchens, and would violate a rule limiting prison foods to those certified by the USDA. The district court granted summary judgment, ruling that the denial does not impose a “substantial burden” on Schlemm’s religious exercise; the state has a “compelling governmental interest” in costs and using USDA-inspected meats; and that the denial is the “least restrictive means” of furthering those interests. The Seventh Circuit remanded, holding that the state was not entitled to summary judgment and ordering a preliminary injunction allowing Schlemm to order venison and to wear a multicolored headband while praying in his cell and during group ceremonies. View "Schlemm v. Frank" on Justia Law

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A 1991 judgment, not appealed, upheld a state statute prohibiting members of the Indian tribes from hunting deer at night outside the tribes’ reservations. Wisconsin Indians had hunted deer at night since before they had electricity. Tribe members sought relief from the judgment under Fed. R. Civ. P. 60(b)(5) on the ground that its continued enforcement would be “no longer equitable” and asserting that “tribal members need to hunt for subsistence purposes. Between 25% and 93% of Tribal members are unemployed. They also claimed that “tribal members need to hunt at night for cultural and religious reasons.” The district court denied the motion, precipitating this appeal. The Seventh Circuit reversed, noting that neighboring states allow night hunting; that the state has stringent regulations; and concerns about Indian cultural and dietary practices relating to deer hunting, poverty, and unemployment. Evidence presented by the tribes indicated that night hunting for deer in the identified territory is unlikely to create a serious safety problem.View "Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. WI" on Justia Law

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The Plaintiffs sued Payday Financial, Webb, an enrolled member of the Cheyenne River Sioux Tribe, and other entities associated with Webb, alleging violations of civil and criminal statutes related to loans that they had received from the defendants. The businesses maintain several websites that offer small, high-interest loans to customers. The entire transaction is completed online; a potential customer applies for, and agrees to, the loan terms from his computer. The district court dismissed for improper venue, finding that the loan agreements required that all disputes be resolved through arbitration conducted by the Cheyenne River Sioux Tribe on their Reservation in South Dakota. Following a limited remand, the district court concluded that, although the tribal law could be ascertained, the arbitral mechanism detailed in the agreement did not exist. The Seventh Circuit held that the action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. Rejecting an alternative argument that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation, the court stated that tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. View "Jackson v. Payday Fin., LLC" on Justia Law

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The Ho-Chunk Nation, a federally recognized Indian Tribe, operates casinos in Wisconsin and nets more than $200 million annually from its gambling operations. Cash Systems, one of three businesses involved in this case, engaged in issuing cash to casino customers via automated teller machines and kiosks, check-cashing, and credit- and debit-card advances. Whiteagle, a member of the Nation, held himself out as an insider and offered vendors an entrée into the tribe’s governance and gaming operations. Cash Systems engaged Whiteagle in 2002 as a confidential consultant. Cash Systems served as the Nation’s cash-access services vendor for the next six years, earning more than seven million dollars, while it paid Whiteagle just under two million dollars. Whiteagles’s “in” was his relationship with Pettibone, who had been serving in the Ho-Chunk legislature since 1995. Ultimately, Whiteagle, Pettibone, and another were charged with conspiracy (18 U.S.C. 371) to commit bribery in connection with the contracts with the Ho-Chunk Nation and substantive bribery (18 U.S.C. 666). Whiteagle was also charged with tax evasion and witness tampering. Pettibone pleaded guilty to corruptly accepting a car with the intent to be influenced in connection with a contract. Whiteagle admitted that he had solicited money and other things of value for Pettibone from three companies, but denied actually paying bribes to Pettibone and insisted that he and Pettibone had advocated for Whiteagle’s clients based on what they believed to be the genuine merits of those clients. Convicted on all counts, Whiteagle was sentenced, below-guidelines, to 120 months. The Seventh Circuit affirmed, rejecting challenges to the sufficiency of the evidence on the bribery charges, the loss calculation, and admission of certain evidence. View "United States v. Whiteagle" on Justia Law

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In 2007 Hobart, Wisconsin passed an ordinance assessing stormwater management fees on all parcels in the village, including land owned by the Oneida Nation of Wisconsin, an Indian tribe, to finance construction and operation of a stormwater management system. Title to 148 parcels in Hobart, about 1400 acres or 6.6 percent of the village’s total land, is held by the United States in trust for the Oneida tribe (25 U.S.C. 465). Tribal land is interspersed with non-tribal land in a “checkerboard” pattern. The tribe sought a declaratory judgment that the assessment could not lawfully be imposed on it. Hobart argued that if that were true, the federal government must pay the fees; it filed a third‐party complaint against the United States. The district court entered summary judgment for the tribe and dismissed the third‐party claim. The Seventh Circuit affirmed, holding that the federal Clean Water Act did not submit the land to state taxing jurisdiction and that the government’s status as trustee rather than merely donor of tribal lands is designed to preserve tribal sovereignty, not to make the federal government pay tribal debts. View "Oneida Tribe of Indians of WI v. Village of Hobart, WI" on Justia Law

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In 2000 the Tribe received funding under the Hazardous Fuels Reduction program, created by the Bureau of Indian Affairs to gradually reintroduce the beneficial aspects of fire into ecosystems such as densely-wooded forests. After obtaining BIA approval, the Tribe began HFR work in December 2000, and began invoicing BIA in 2001. Reports of diversions of funds prompted an inspection. Inspectors concluded that the invoices overstated the work done and that some of the work actually increased the risk of fire. A second inspection led to the conclusion that the defendants were submitting false invoices. After further investigation and failed settlement negotiations, the government filed a False Claims Act suit, 31 U.S.C. 3729-33, in 2007. After a nine-day trial, the defendants prevailed; they moved for attorney's fees under Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), or sanctions under Rule 37(c)(2). The district court denied both motions. The Seventh Circuit affirmed, acknowledging its discomfort with apparent "government overreaching." The government’s position throughout trial was substantially justified, so the district court did not abuse its discretion in denying the EAJA motion.

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The Tribe operates a Wisconsin casino and financed investment in a Natchez, Mississippi riverboat casino by issuing bonds backed by casino revenue. The bank, as trustee, alleged that the Tribe had breached a bond indenture and sought appointment of a receiver to manage the trust security on behalf of the bondholder. The district court dismissed, holding that the indenture was void, as a gaming facility management contract not approved by the National Indian Gaming Commission (25 U.S.C. 2710(d)(9), 2711(a)(1)), and that the Tribe's waiver of sovereign immunity in the indenture was consequently void. The Seventh Circuit affirmed in part and reversed in part. The indenture was void so that the waiver of sovereign immunity cannot serve as a predicate for jurisdiction. The district court should have permitted the bank to file an amended complaint to the extent that it presented claims for legal and equitable relief in connection with the bond transaction on its own behalf and on behalf of the bondholder so that it could address whether the bank has standing to litigate claims on behalf of the bondholder and determine whether collateral documents, when read separately or together, waive sovereign immunity with respect to any such claims.