swimmer Indian law blog

Paul Ryan's Voting Record on Indian Affairs

Please read the following post courtesy of Turtle Talk discussing Paul Ryan's indian affairs vote.

http://turtletalk.wordpress.com/2012/08/15/paul-ryans-indian-affairs-votes-in-111th-and-112th-congresses/

Penn State Get Record $60 million penalty but where is the compensation for the victims

Penn State will pay a $60 million fine over the course of the next five years but none of it will go to the victims. This money will go to pay for programs for the detection, prevention and treatment of child abuse. But none of it will go to pay the victims.

Penn State for years has straddled the line between a public and private university. Claiming it is private when it comes to open records request, and claiming it is public shield by sovereign immunity to avoid claims from Sandusky victims. The Victims will have to fight statute of limitation claims that are one year for intentional torts: Rape is an intentional tort that falls under battery. Personal injury claims are limited to two years. Minors under 18 have an extended statute of limitations but still cannot recover medical expenses. I think the Legislature and NCAA should guarantee some of these funds go to the victims of this tragedy, and not use the money to line some special interest group pocket.

Pay the victims first, and pay them now!

Wisconsin Supreme Court to Hear Sovereign Immunity Case

2011AP364 Koscielak v. Stockbridge-Munsee Community
This case examines whether tribal sovereign immunity bars a state law tort claim arising from a slip-and-fall incident and the proper legal standard involved in guiding that analysis.

Some background: On Feb. 22, 2008, Robert Koscielak sustained injuries when he slipped and fell on ice in the Pine Hills Golf and Supper Club parking lot in Gresham, Wis. He and his wife, Mary Koscielak, filed suit against the Stockbridge-Munsee Band of Mohicans under the tribe's business name, Pine Hills, on June 1, 2010, alleging a variety of tort claims.

Pine Hills moved to dismiss the lawsuit and its motion was converted to a motion for summary judgment. The Tribe argued that Pine Hills was a subordinate economic entity of the Tribe such that Pine Hills was entitled to the sovereign immunity conferred upon the Tribe by federal law. The circuit court agreed. The court also ruled that because the Koscielaks' claims against the tribe were barred, their claims against the tribe's insurer, First Americans Insurance, were barred, too.

The Koscielaks appealed, arguing, among other things, the circuit court erred in applying the doctrine of tribal immunity under the specific facts presented. The Court of Appeals affirmed.

The Court of Appeals ultimately concluded that Wisconsin law has never before distinguished between tort and contract claims for tribal immunity purposes. The court thus declined to draw such a distinction here, stating that the "matter is best left to the Wisconsin Supreme Court or the federal courts." The Koscielaks do not directly challenge tribal immunity, per se. Rather, they argue that Pine Hills is not entitled to tribal sovereign immunity because its business activities are too attenuated from the Tribe.

More specifically, they state the issues as follows:

• Does a federally recognized Indian tribe enjoy sovereign immunity from suit on a state law tort claim not arising out of a contract with the tribe, of a Wisconsin citizen who is not a member of any Indian tribe, for personal injuries sustained at an off-reservation tribally owned for profit supper club open to the general public, to extend to a true "arm of the tribe" business?
• Is the multi-factor "arm of the tribe" analysis set forth in McNally CPA's & Consultants, S.C. v. DJ Hosts, Inc., 2004 WI App 221, ¶8, 277 Wis. 2d 801, 692 N.W.2d 247, which the Court of Appeals discredited and failed to apply to the business at issue, the controlling legal test for Wisconsin courts to apply to determine when any sovereign immunity enjoyed by a tribe may properly extend to a tribally-owned business entity?
• Based on a de novo review with proper application of that test, or other "arm of the tribe" test that this court may establish, is Pine Hills Golf Course and Supper Club an "arm of the tribe"?
• Under an "occurrence" type insurance policy, are the Koscielaks entitled to the benefit of mandated non-immune liability insurance coverage based on the tribe's legal position at the time of the "occurrence" in an unrelated federal case that Pine Hills was a gaming entity under its Gaming Compact?

The tribe and First American frame the issues as follows:

• Does this court have any reason or authority to create an exception to the established rule of tribal sovereign immunity?
• Do the facts of this case, which involve a unit of the tribe itself, present any occasion for clarifying or modifying factors developed by other courts for determining whether a tribe's immunity extends to a separately-incorporated organization?
• May an ordinary commercial general liability carrier be held directly liable to an injured party if its insured is immune?

From Shawano County.

Getting land into trust just got a lot harder

 On June 18, 2012, the Supreme Court ruled 8-1 that David Patchak, an individual, has standing and can file suit against the government's decision to take land into trust on behalf of a Native American tribe. The court offered no conclusions regarding the merits of Patchak's case; it simply allows the case to proceed in the lower courts. This ruling has several implications for the gaming tribes trying to get land into trust:

(1) It is likely to result in increased challenges from anti-gaming interests regarding land-into-trust decisions for tribes, as it lengthens the statute of limitations on judicial review to six years from 30 days;

-(2) Raising capital for Native American casino projects could become more difficult/expensive, as investors are likely to have heightened concern about potential challenges regarding land-into-trust decisions;

-(3) Casino operators that face the possibility of increased competition from potential casino projects tied to land-into-trust decisions could benefit from a longer regulatory process;

(4) Anti-tribal interest will now be empowered to file suit to try to stop trust acquisitions.

History of the case

Patchak brought the suit to challenge the Department of Interior (DOI) Secretary's decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians in Michigan (Gun Lake Tribe) using the Administrative Procedures Act (APA), which allows the government to be sued if it fails to follow proper procedures, thereby waiving its sovereign immunity.

Patchak specifically cited that the Gun Lake Tribe was not recognized as of 1934 and therefore per the Indian Reorganization Act of 1934 (IRA), the Secretary could not take the land into trust (suit was filed before the 2009 Carcieri decision). The APA stipulates that other acts may void the sovereign immunity waiver provided by APA. The Gun Lake Tribe and the Government argued that the language in the Quiet Title Act (QTA) provides such language, citing the section that prohibits suits involving Indian land.

Wisconsin tribes like the Ho-Chunk and Menominee currently trying to get off-site casino will now have to face an additional hurdle as these challenges are likely for any Wisconsin tribe trying to site a casino.

 

 

 

 

Affirmative Action is Dead in California

The Ninth Circuit Court of Appeals rejects a challenge to the anti-affirmative action

constitutional amendment prop 209. In Coalition to Defend Affirmative Action

v. Brown, the Coalition looking to restore access to California schools by bringing an equal protection.

As you may recall, In November 1996, Californian voters adopted Proposition

209, which amended the California Constitution to provide:
(a) The state shall not discriminate against, or grant
preferential treatment to, any individual or group on
the basis of race, sex, color, ethnicity, or national
origin in the operation of public employment, public
education, or public contracting.
. . . .
(f) For the purposes of this section, “state” shall
include, but not necessarily be limited to, the state
itself, any city, county, city and county, public university
system, including the University of California,
community college district, school district,
special district, or any other political subdivision or
governmental instrumentality of or within the state.

Here is the cite:

http://www.ca9.uscourts.gov/datastore/opinions/2012/04/02/11-15100.pdf

As predicted minority enrollment has dropped in Calfornia Colleges and affirmative action is on life support

if it isn't already dead. I am certain at this point any appeal to Supreme Court will come back cert denied.

Speaking Event in Milwaukee November 10, 2011

Host's Message:	Attorney John Swimmer of Swimmer Law and member of the Milwaukee Bar Association will be on hand to give you a legal update about business and business development. This is a great opportunity to g... show more »
What:	Ask a Lawyer
Where:	Marketplace BID Office 2347 West Fond du Lac Avenue Milwaukee, WI 53206
When:	November 10th, 2011, 5:30pm - 7pm

Please attend if you get the chance.

http://www.pingg.com/rsvp/me2ckymc6mm4xax77

Village of Hobart Federal/State Anti-Indian Policy Briefing Workshop Please Show Up and Protest

Please show up and protest this workshop:

Federal/State Indian Policy Briefing Workshop

…Recent Rulings & Events in Federal Indian Policy

And their impact upon Wisconsin

DATE: Monday, October 31, 2011

TIME: 10:30 AM – 12:30 PM

LOCATION: CAPITOL BUILDING

RM. 415 NW

Madison, WI

WHO SHOULD ATTEND: State Legislators, legal counsels, Administrative Officials & Staff

The Village of Hobart has invited two Indian law experts to update legislators, legal counsels and Wisconsin administrative officials on recent U.S. Supreme Court and Federal Court of Appeal decisions, and current trends in federal policy that impact the State of Wisconsin. Recent court rulings have significantly strengthened State sovereignty, constrained Executive Branch authority, and diminished the federal “trust” relationship with Indian Tribes. These are groundbreaking shifts in federal Indian policy that have state, county and local impacts specific to land status, fee-to-trust and “Indian country.”

The panelists are:

Hosts: Richard Heidel, President of the Village of Hobart Board of Trustees;

Donna Severson, Village Trustee

Panelists: Elaine Willman, Director of Community Development & Tribal Affairs for Village of Hobart; author of Going To Pieces - a narrative journey across 17 Indian reservations.

Frank Kowalkowski, (Davis & Kuelthau, Green Bay). Mr. Kowalkowski has a national Federal Indian law practice. He provides Indian law legal consultation to the Village of Hobart and other municipalities and businesses in Wisconsin, as well as clients in several other states. His representation includes matters in federal court, state court, Tribal court and the Interior Board of Indian Appeals located in Washington, D.C.

Lana Marcussen, legal counsel to the Citizen's Equal Rights Alliance and Foundation since 1994. She has participated in briefing to the Supreme Court in Coeur D'Alene Tribe v. Idaho (1996), Strate v. A-1 Contractors (1997), Native Village of Venetie (1998), Nevada v Hicks (2001), Atkinson v. Shirley (2001) and continuing through City of Sherrill (2005) and Carcieri v. Salazar (2009). She has used federalism to effectively confront what were once considered benign extensions of federal authority in restoring and extending tribal sovereignty.

RSVP for Seating Availability: Elaine Willman, (elaine@hobart-wi.org) (920.615.2882)

CERA is a well know racist, anti-Indian organization founded on hate and fear. This organization seeks the destruction of Indian tribes. Please show up and let your voice be heard against hate and intolerance. The Village of Hobart has dedicated itself to trying to destroy the Oneida Indian Tribe. CERA is dedicated to destroying Indian County.

In the Matter of T. Dawson (unpublished) MIchigan Court of Appeals ICWA case

The Michigan Court of Appeals decided an ICWA "active efforts" case in an unpublished decision on September 22, 2011. The Father appeals an order terminating his parental rights to his daughter. The Father has two arguments: (1) termination was not in the child's best interest (here the father had sexually molested the child) and that a guardianship was in the best interest, and (2) the State had failed to provide "active efforts" and remedial services under 25 USC 1901 et. seq. Under ICWA, Any party seeking to effect a foster care placement of, or termination of partental rights to and Indian child shall satisfy the active efforts and rehabilitative effort to prevent breakup of family.

Here the Choctaw Nation intervened and agreed that active efforts have been met. This is a good outcome for this case, but there are many cases where parents are struggling to reunite with their children and the state abosolutely fails to provide active efforts.

Typically, courts will go a long way to avoid "active efforts" and in most the state government is more interested in getting the children adopted so they do not have to fund foster care.

Here is a link to the case:

http://turtletalk.files.wordpress.com/2011/10/dawson.pdf

Vann v. Salazar (Cherokee Nation Freedman Case)

The Cherokee Nation filed a motion to dismiss the lawsuit by the Freedmen against the Cherokee Nation for failing to name a necessary and  indispensable party. The indispensable party is the Cherokee Nation because they are a sovereign Indian Nation they cannot be forced to become a party to this lawsuit. The principle here under Rule 19 is that you must have parties necessary in the case to decide the case.

 

 

Conviction Overturned for 5-Minute Voir Dire

Yesterday, the NY Court of Appeals decided People v. Owen Steward. In Steward, the NY high court overturned the defendant's robbery conviction because the trial court failed to identify prospective jurors by name, initials or panel number and only allowed defense counsel 5 minutes to conduct voir dire on each venire panel which generally consisted of 16 prospective jurors. For those practitioners who believe they don't get enough time during voir dire, this is a good case to keep in your briefcase.

via juries.typepad.com