1. Case Law Update September 15, 2011 Attorney Paul Stenzel 1

2. FCP Law Day Most significant of interest in Wisconsin: Kroner v. Oneida Seven Generations Corp., 2010 AP 2533. Kroner was OSG’s CEO from 2001 to 2008; then terminated. 2

3. FCP Law Day  Kroner sued in state court. OSG sought to dismiss based on sovereign immunity and failure to state a claim.  While motions pending, trial court suggested transfer to tribal court under Wis. Stat. 801.54. 3

4. FCP Law Day Oneida Seven Generations brought formal motion for transfer. Trial court granted the transfer. Kroner appealed 4

5. FCP Law Day On appeal Kroner argued that tribal court did not have concurrent jurisdiction as required under Wis. Stat. 801.54. Court of appeals said yes under first Montana exception: consensual relationship. 5

6. FCP Law Day Next issue is whether trial court erroneously exercised discretion in applying the 801.54 factors. Highlights: trial court placed most importance on factor (a): whether the issues in the case require interpretation of tribe’s laws, etc. 6

7. FCP Law Day  Court of appeals noted factor (e) favored OSG, as the claim arose on the Reservation.  Kroner’s main argument was under (j); unfair for him to start all over again after two years of litigation in circuit court. 7

8. FCP Law Day OSG argues that Kroner claiming he was fired because he was a non-member; this weighs in favor of transfer. Court affirms but notes the better practice is for the Circuit Court to consider all factors on the record. Stay tuned: Petition for Review pending at WI Sup. Ct. 8

9. FCP Law Day  Water Wheel Camp Recreational Area Inc. v. LaRance, 642 F.3d 802 (9 th Cir. 2011).  Water Wheel Camp (WWC) and owner signed a 32-year lease with the Colorado River Indian Tribe in 1975. Stopped paying rent around 2000. When lease expired in 2007, failed to vacate. 9

10. FCP Law Day  CRIT brought action in tribal court for eviction, unpaid rent, damages and attorney’s fees.  Tribal court ruled in CRIT’s favor on all counts.  Tribal appellate court upheld finding jurisdiction based on Montana. 10

11. FCP Law Day Arizona district court found jurisdiction over WWC but not individual owner Robert Johnson. Both sides appealed. Ninth Circuit found jurisdiction over WWC and Johnson. 11

12. FCP Law Day  Ninth Circuit opinion found that because Tribe was seeking eviction on tribal lands, Montana did not apply.  Rather the Tribe’s inherent power to exclude is sufficient basis. Decision distinguishes, Montana, Hicks and Plains Commerce Bank. 12

13. FCP Law Day  “We therefore hold that the CRIT had regulatory jurisdiction over Water Wheel and Johnson for claims arising from their activities on tribal land, independent of Montana.” 13

14. FCP Law Day  “In this instance, where the non-Indian activity in question occurred on tribal land, the activity interfered directly with the tribe’s inherent powers to exclude and manage its own lands, 14

15. FCP Law Day And there are no competing state interests at play, the tribe’s status as landowner is enough to support regulatory jurisdiction without considering Montana.” 642 F.3d at 814. 15

16. FCP Law Day U.S. v. Cavanaugh, 643 F.3d 592 (8 th Cir. 2011) Issue is whether a tribal court conviction can be used to establish a defendant as a habitual offender under 18 USC 117 where defendant did not have right to counsel in tribal court conviction. 16

17. FCP Law Day Court noted:  Tribal court conviction complied with Indian Civil Rights Act.  No actual constitutional violation.  Comity 17

18. FCP Law Day Same issue in U.S. v. Shavanaux, 2011 U.S. App. LEXIS 15379. Same result as Cavanaugh. “We hold that tribal convictions obtained in compliance with ICRA are necessarily compatible with due process of law.” 18

19. FCP Law Day  API Services, Inc. v. Sac & Fox Tribe, 609 F.3d 927 (8 th Cir. 2010)  Attorney’s Process and Investigation entered into contract with Tribe when current chairman had been defeated in special election but refused to step down.  Opposition occupies casino. 19

20. FCP Law Day  API agents forced their way into Casino seizing information and allegedly causing damage to building.  New government takes office.  Tribe sued API in tribal court.  API alleging no jurisdiction under either Montana exception. 20

21. FCP Law Day  After API exhausted tribal remedies on jurisdiction issue, case goes to federal court.  8 th Circuit finds there is tribal court jurisdiction over the tort claims.  Tribe also brought conversion claim for money received by API (over $1M).  8 th Circuit remands on the conversion claim as district court did not address. 21

22. FCP Law Day  API v. Sac and Fox Tribe, 2011 U.S. Dist. LEXIS 92780 (N.D. Iowa, 2011)  On remand the district court was asked to evaluate whether the tribal court had jurisdiction under the first Montana exception over the Tribe’s conversion claim over API for $1 million in fees. 22

23. FCP Law Day Court reasoned that in order to even get to first Montana exception, the conduct at issue must have occurred within the boundaries of the Reservation. No evidence or factual development that conversion took place on the reservation. Therefore, no tribal court jurisdiction. 23

24. FCP Law Day Shakopee Mdewakanton Sioux Gaming Enterprise v. Prescott, 779 N.W.2d 320 (Minn. App. 2010). Former CEO and chairman of the Board of Little Six, Inc., Prescott applied for gaming license. License denied; three court cases ensued. 24

25. FCP Law Day Little Six sought reimbursement of legal fees from Prescott of $500,000. Obtained money judgment in tribal court. Tribe sought enforcement in state courts. Trial court denied enforcement because of conflicting judgments in the tribal court system. 25

26. FCP Law Day Not only does the district court's decision essentially ignore the tribal court's determination that the judgments do not conflict, but the district court's analysis of the issue appears to be an independent review of the merits of a foreign judgment made before deciding whether to recognize it;..... 26

27. FCP Law Day See Medellin v. Dretke, 544 U.S. 660, 670, 125 S. Ct. 2088, 2094, 161 L. Ed. 2d 982 (2005) ("It is the long-recognized general rule that, when a judgment binds or is respected as a matter of comity, a 'let's see if we agree' approach is out of order."); Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S. Ct. 139, 158, 40 L. Ed. 95 (1895) (stating that where the "comity of this nation" calls for recognition of a foreign judgment, "the merits of the case should not... be tried afresh... upon the mere assertion... that the judgment was erroneous in law or in fact").Medellin v. Dretke, 544 U.S. 660, 670, 125 S. Ct. 2088, 2094, 161 L. Ed. 2d 982 (2005)Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S. Ct. 139, 158, 40 L. Ed. 95 (1895) 27

28. FCP Law Day Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842 (9 th Cir. 2009) 28

29.  Non-Indian woman got lost on the White Mountain Apache reservation.  Lit signal fire to attract attention of helicopter.  Fire joined in with the already-burning Rodeo fire to form the Rodeo-Chediski fire; 400,000 acres burned; millions of $ in damages. 29

30. FCP Law Day 30

31. FCP Law Day 31

32. FCP Law Day  Exceptions to the requirement of tribal court exhaustion:  (1) when an assertion of tribal court jurisdiction is "motivated by a desire to harass or is conducted in bad faith";  (2) when the tribal court action is "patently violative of express jurisdictional prohibitions"; 32

33. FCP Law Day  (3) when "exhaustion would be futile because of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction"; and  (4) when it is "plain" that tribal court jurisdiction is lacking, so that the exhaustion requirement "would serve no purpose other than delay." 33

34. FCP Law Day Court found that under Montana test, there is at least colorable tribal court jurisdiction under second exception relating to health, safety and welfare of the community. 34

35. FCP Law Day Auto Owners Insurance Co. v. Azure et al., Case No. 08-CV-117 (D.N.D. 12/22/2009) 35

36. FCP Law Day Neighbor dispute on the Turtle Mountain Reservation. Neighbor 1 pours cement down the sewer clean out causing back up and damage to Neighbor 2’s basement. 36

37. FCP Law Day Neighbor 2 filed action against Neighbor 1 in Turtle Mountain Tribal Court. Neighbor 1’s insurance company says intentional act not covered + doesn’t want to be in tribal court. 37

38. FCP Law Day Focus is first Montana exception. “Consensual relationship.” Court finds insurance company entered consensual relationship with member by issuing policy. Sufficient nexus under Strate. 38

39. FCP Law Day OTHER CASES of interest: Nason v. 1991 Buick, 2010 Minn. App. Unpub. LEXIS 113 (County can seize automobile from a Fond du Lac member on the Mille Lacs Reservation due to strong public safety interest). 39

40. FCP Law Day Swenson v. Nickaboine, 793 N.W.2d 738 (Minn. 2011): Interaction of PL 280, workers’ comp claim on trust land and contract provision. 40

41. FCP Law Day  EXC, Inc. v. Kayenta District Court, No SC-CV- 07-10 (Nav. Sup. Ct. 2010): Analysis of jurisdiction over non-Indian businesses after tourist bus collided with car carrying Navajo family; father killed; mother lost fetus. 41

42. FCP Law Day Attorney Paul Stenzel All presentations available at my web site: www.paulstenzel.com 42