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Indian Nations Law Update – July 2022 – Sovereign Immunity: Public Sector Government

In Oklahoma v. Castro-Huerta, 2022 WL 2334307 (US
2022), the Supreme Court addressed the General Crimes Act, 18
U.S.C. 1152, which, “[e]xcept as otherwise expressly provided
by law,” extends the “general laws of the United
States” to “the Indian country.” The State of
Oklahoma prosecuted and convicted Castro-Huerta, a non-Indian
residing in Tulsa, for criminal neglect of his step-daughter, a
Cherokee Indian. Castro-Huerta challenged his conviction on the
ground that, pursuant to the Supreme Court’s 2020 holding in
McGirt v. Oklahoma, the site of the offense was Indian
country, and the state lacked jurisdiction under the General Crimes
Act. The Supreme Court disagreed, holding that the state and
federal governments had concurrent jurisdiction over offenses
committed in Indian country by non-Indians against Indians:
“Indian country is part of the State, not separate from the
State. To be sure, under this Court’s precedents, federal law
may preempt that state jurisdiction in certain circumstances. But
otherwise, as a matter of state sovereignty, a State has
jurisdiction over all of its territory, including Indian country.
… Under the Court’s precedents, as we will explain, a
State’s jurisdiction in Indian country may be preempted (i) by
federal law under ordinary principles of federal preemption, or
(ii) when the exercise of state jurisdiction would unlawfully
infringe on tribal self-government. … [T]he General Crimes Act
does not say that Indian country is equivalent to a federal enclave
for jurisdictional purposes. Nor does the Act say that federal
jurisdiction is exclusive in Indian country, or that state
jurisdiction is preempted in Indian country. … Under the General
Crimes Act, therefore, both the Federal Government and the State
have concurrent jurisdiction to prosecute crimes committed in
Indian country. The General Crimes Act does not preempt state
authority to prosecute Castro-Huerta’s crime. … Moreover, if
Castro-Huerta’s interpretation of the General Crimes Act were
correct, then the Act would preclude States from prosecuting any
crimes in Indian country—presumably even those crimes
committed by non-Indians against non-Indians—just as States
ordinarily cannot prosecute crimes committed in federal enclaves.
But this Court has long held that States may prosecute crimes
committed by non-Indians against non-Indians in Indian
country.” The four dissenting justices, in an opinion by
Justice Gorsuch, pointed out that the majority ignored over two
hundred years of jurisdictional congressional enactments that were
based on the principle that states lacked jurisdiction in Indian
country unless expressly granted by Congress.

In Ysleta Del Sur Pueblo v. Texas, 142 S.Ct. 1929 (US
2022), the Ysleta del Sur Pueblo and Alabama and Coushatta Indian
Tribes of Texas Restoration Act of 1987 (Restoration Act) had the
effect of restoring those tribes to recognition. At the same time,
the Restoration Act prohibited as a matter of federal law “all
gaming activities which are prohibited by the laws of the State of
Texas,” while cautioning that the Act should not be
“construed as a grant of civil or criminal regulatory
jurisdiction to the State of Texas.” After Congress enacted
the Indian Gaming Regulatory Act of 1988 (IGRA),
the Ysleta del Sur Pueblo commenced efforts to develop and conduct
a gaming enterprise on its reservation, triggering years of
litigation with the State of Texas. In 2021, the Fifth Circuit
Court of Appeals rejected the Tribe’s argument that the IGRA,
not the Restoration Act, controlled, but the U.S. Supreme Court, in
a 5-4 decision authored by Justice Gorsuch, reversed: “[A]
full look at the [Restoration Act’s] structure suggests a set
of simple and coherent commands. In subsection (a), Congress
effectively federalized and applied to tribal lands those state
laws that prohibit or absolutely ban a particular gaming activity.
In subsection (b), Congress explained that it was not authorizing
the application of Texas’s gaming regulations on tribal lands.
In subsection (c), Congress granted federal courts jurisdiction to
entertain claims by Texas that the Tribe has violated subsection
(a). Texas’s competing interpretation of the law renders
individual statutory terms duplicative and whole provisions without
work to perform. … Even if fair questions remain after a look at
the ordinary meaning of the statutory terms before us, important
contextual clues resolve them. Recall that Congress passed the Act
just six months after this Court handed down Cabazon. See Part
I–B, supra. In that decision, the Court interpreted Public
Law 280 to mean that only ‘prohibitory’ state gaming laws
could be applied on the Indian lands in question, not state
‘regulatory’ gaming laws. The Court then proceeded to hold
that California bingo laws—laws materially identical to the
Texas bingo laws before us today—fell on the regulatory side
of the ledger. Just like Texas today, California heavily regulated
bingo, allowing it only in certain circumstances (usually for
charity). Just like Texas, California criminalized violations of
its rules. Compare Cabazon, 480 U.S. at 205, 107 S.Ct. 1083, with
Tex. Occ. Code Ann. § 2001.551. Still, because California
permitted some forms of bingo, the Court concluded that meant
California did not prohibit, but only regulated, the game. Cabazon,
480 U.S. at 211, 107 S.Ct. 1083. … For us, that clinches the
case. This Court generally assumes that, when Congress enacts
statutes, it is aware of this Court’s relevant precedents. …
And at the time Congress adopted the Restoration Act, Cabazon was
not only a relevant precedent concerning Indian gaming; it was the

In Denezpi v. United States, 2022 WL 2111348 (U.S.
2022), a Bureau of Indian Affairs (BIA) officer against Denezpi, a
member of the Navajo Nation, charging Denezpi with three crimes
alleged to have occurred at a house located within the Ute Mountain
Ute Reservation: assault and battery, in violation of 6 Ute
Mountain Ute Code § 2; terroristic threats, in violation of 25
C.F.R. § 11.402; and false imprisonment, in violation of 25
C.F.R. § 11.404. The complaint was filed in one of the Courts
of Indian Offenses established under the Code of Federal
Regulations (C.F.R. court) a court which for Indian tribes in
certain parts of Indian country “where tribal courts have not
been established.” § 11.102. Denezpi pleaded guilty to
the assault and battery charge and was sentenced to time
served—140 days’ imprisonment. Six months later, a
federal grand jury in the District of Colorado indicted Denezpi on
one count of aggravated sexual abuse in Indian country, an offense
covered by the federal Major Crimes Act. Denezpi moved to dismiss
the indictment, arguing that the Double Jeopardy
Clause barred the consecutive prosecution. The District Court
denied Denezpi’s motion. Denezpi was convicted and sentenced to
360 months’ imprisonment. The Tenth Circuit affirmed and, in
the instant case, the United States Supreme Court affirmed the
Tenth Circuit’s decision: “The Double Jeopardy Clause
protects a person from being prosecuted twice ‘for the same
offense.’ An offense defined by one sovereign is necessarily
different from an offense defined by another, even when the
offenses have identical elements. Thus, a person can be
successively prosecuted for the two offenses without offending the
Clause. We have dubbed this the ‘dual-sovereignty’
doctrine. … This case presents a twist on the usual
dual-sovereignty scenario. The mine run of these cases involves two
sovereigns, each enforcing its own law. This case, by contrast,
arguably involves a single sovereign (the United States) that
enforced its own law (the Major Crimes Act) after having separately
enforced the law of another sovereign (the Code of the Ute Mountain
Ute Tribe). Petitioner contends that the second prosecution
violated the Double Jeopardy Clause because the dual-sovereignty
doctrine requires that the offenses be both enacted and enforced by
separate sovereigns. … We disagree. By its terms, the Clause
prohibits separate prosecutions for the same offense; it does not
bar successive prosecutions by the same sovereign. So even assuming
that petitioner’s first prosecutor exercised federal rather
than tribal power, the second prosecution did not violate the
Constitution’s guarantee against double jeopardy.”
“Federal prosecutors tried Merle Denezpi twice for the same
crime. First, they charged him with violating a federal regulation.
Then, they charged him with violating an overlapping federal
statute. Same defendant, same crime, same prosecuting authority.
Yet according to the Court, the Double Jeopardy Clause has nothing
to say about this case. How can that be? To justify its conclusion,
the Court invokes the dual-sovereignty doctrine. For reasons I have
offered previously, I believe that doctrine is at odds with the
text and original meaning of the Constitution. … But even taking
it at face value, the doctrine cannot sustain the Court’s

In Hill v. Nunn, 2022 WL 2154997, Not reported in
Federal Reporter (10th Cir. 2022), the Tenth Circuit Court of
Appeals rejected a state prisoner’s argument that the statute
of limitations for his filing of a habeas corpus petition
challenging the state court’s jurisdiction should begin running
as of the date that the United States Supreme Court ruled in
McGirt v. Oklahoma, … that the Muskogee
Creek reservation continued to exist: “A state prisoner must
file a § 2254 petition within one year of the state
court’s judgment becoming final. See 28 U.S.C. §
2244(d)(1). … Hill’s latest convictions became final on June
12, 1991—when the 90-day period for seeking review in the
United States Supreme Court expired. … [A]bsent tolling,
Hill’s deadline for filing his habeas petition was April 24,
1997. Hill did not file his petition until December 30, 2021. …
On appeal, Hill seems to argue that he is entitled to statutory
tolling under 28 U.S.C. § 2244(d)(1)(C) until the date of the
Supreme Court’s decision in McGirt v. Oklahoma, 140 S.
Ct. 2452 (2020) (holding that the territory in Oklahoma reserved
for the Creek Nation since the 19th century remains ‘Indian
country’ for purposes of exclusive federal jurisdiction over
‘certain enumerated offenses’ committed ‘within the
Indian country’ by an ‘Indian’) (internal quotations
omitted). He also contends that, as applied here, AEDPA is
unconstitutional because the state court lacked jurisdiction when
he was prosecuted. … Hill’s first argument is unpersuasive.
As both the magistrate judge and district court correctly
explained, McGirt did not recognize a new constitutional
right. See In re White, No. 21-7062 (10th Cir. Dec. 13, 2021). Hill
thus cannot rely on the date of McGirt’s publication as the
triggering date for the limitations period. … Hill’s second
argument is also meritless. This is because, as the district court
noted, … a claim predicated on a convicting-court’s lack of
subject matter jurisdiction ‘is subject to dismissal for

In Grondal v. United States, 2022 WL 2112793 (9th Cir.
2021), Evans, the owner of a 5.4% interest in a trust allotment
known as MA-8 near the Confederated Tribes of Colville Reservation,
obtained the consent of a majority of the other allottee interest
holders to a lease of MA-8 for 25 years, with an option to renew
for an additional 25 years (Master Lease), for purposes of
operating a campground. Campground residents organized as the Mill
Bay Members Association (Mill Bay). BIA approved the lease in 1984.
Upon Evans’ death in 2003, Wapato Heritage LLC (Wapato)
acquired Evans’ interest. Evans, Wapato and Mill Bay all
believed that Evans had renewed the lease for an additional 25
years by sending a renewal notice to BIA but BIA informed Wapato in
2009, before the expiration of the initial lease term that the
notice of renewal to BIA was ineffective because the lease required
that individual allottees (IA) also be given notice. Mill Bay and
Wapato contested the BIA’s interpretation in court but lost.
Grondal (Wapato’s sublessee under the Master Lease) and Mill
Bay filed a new suit seeking a declaratory judgment that would
recognize their right to remain on MA-8, naming as defendants the
fractionated owners of MA-8 (IAs, Wapato Heritage, and the Tribe)
as well as the BIA. BIA counterclaimed with a suit in trespass. In
defense, Wapato and Mill Bay asserted, for the first time, that BIA
had no standing to pursue trespass because M-8 had lost its trust
status in the early 20th century. In separate decisions, lower
courts dismissed the defendants’ arguments and granted summary
judgment in favor of BIA. The Ninth Circuit affirmed. On remand,
the district court dismissed Wapato’s cross-claims against the
Colville Tribes on grounds of sovereign immunity: “[T]he
Tribes did not waive their sovereign immunity to Wapato
Heritage’s cross-claims as to the 2009 and 2014 Replacement
Leases. Wapato Heritage went on the offensive by asserting these
cross-claims against the Tribes in answering the complaint filed by
Grondal and Mill Bay. And the Tribes invoked their immunity from
suit in two Rule 12(b)(1) motions to dismiss Wapato Heritage’s
cross-claims for lack of jurisdiction, which were granted.
Considering this participation of the Tribes in the case, they
retained their sovereign immunity to Wapato Heritage’s
cross-claims and the district court did not need to rule on the
merits of these cross-claims. See Quinault Indian Nation, 868 F.3d
at 1097–98 (explaining that the scope of a tribal sovereign
immunity waiver is restricted by ‘the nature and bounds of the
dispute that the tribe put before the court’); Bodi, 832 F.3d
at 1016–18 (holding that a tribe did not waive its tribal
sovereign immunity to certain claims by removing a lawsuit to
federal court then moving to dismiss those claims for lack of
subject-matter jurisdiction).”

In Cayuga Nation v. Parker, 2022 WL 1813882 (N.D.N.Y.
2022), the Cayuga Nation of New York manufactured and sold
cigarettes, without New York state tax stamps, at locations on the
Tribe reservation in New York. The Seneca-Cayuga Nation of Oklahoma
owned real property on the Cayuga reservation, which it leased to
Meyer who, in turn, subleased to Parker, a Cayuga tribal member.
Parker began selling Native-manufactured tobacco products from the
site that did not display New York tax stamps. Cayuga Nation
officials sought to terminate Parker’s business because it had
not received authorizations required under tribal law. After
purchasing the property from the Seneca-Cayuga Nation, the Cayuga
Nation shut down Parker’s shop, confiscated his inventory and
opened its own smoke shop. After Parker sought to open a new smoke
shop at another location on the Cayuga reservation, the Tribe sued
him and related entities in federal court, alleging violations of
the Racketeer Influenced and Corrupt Organizations Act (RICO),
specifically asserting that the defendants were engaged in an
unlawful scheme to co-opt the Nation’s sovereign rights, erode
its business and customer base, and steal its revenues through the
sale of “untaxed and unstamped cigarettes and marijuana, and
various other merchandise” on the reservation. The Tribe had
previously filed an action in its tribal court. The Tribe moved for
a preliminary injunction in federal court. The defendants moved to
dismiss for lack of jurisdiction. The court denied the motion to
dismiss and stayed the action pending the parties’ notification
of the exhaustion of proceedings in Cayuga Nation Civil Court:
“The Court … concludes that these circumstances—the
presence of a proceeding in Cayuga Nation Civil Court, the concern
about the Nation Court’s authority to enforce the injunction,
and the scope of that injunction, the presence of a dispute between
Cayuga Nation and Parker, a member of the Cayuga Nation and owner
and operator of Pipekeepers, regarding the operation of a
commercial business governed by the Ordinance on reservation
land—militate in favor of the application of the
tribal exhaustion rule.”

In the case of In re Juul Labs Product Liability
, 2022 WL 1955678 (N.D.Cal. 2022), the Saint Regis
Mohawk Tribe (SRMT) and Grand Traverse Band of Ottawa and Chippewa
Indians (Grand Traverse Band) sued entities involved in the
distribution of JUUL vaping products, contending
that the defendants knowingly or negligently and deceptively
marketed and promoted addictive and harmful JUUL products to the
Tribe and its members within the Tribe’s territory geographic
areas controlled and occupied by the Tribe and its members and that
SRMT suffered damages through lost productivity of the Tribe’s
members, increased administrative costs, lost opportunities for the
Tribe’s community growth and self-determination, and
substantial damages relating to its ability to govern itself, the
Tribe’s members, and territory as a direct result of
Defendants’ wrongful acts and omissions and that the defendants
created a growing hazardous waste problem on SRMT’s property
because of improperly disposed JUUL devices and other vaping
products in its parks and on other tribal property. Various
defendants moved to dismiss on various grounds, included the
exemption from liability available to regulated businesses, failure
to state a claim, lack of jurisdiction and deficiencies in the
plaintiffs’ pleadings. The Court dismissed Grand Traverse
Band’s claim based on the Michigan Consumer Protection act,
permitted Grand Traverse Band to amend its negligence claim and
otherwise denied the defendants’ motions to dismiss: “For
present purposes, the allegations of injury to property made by
SRMT and injury to business made by both Tribes are sufficient. How
closely or directly connected those injuries are to the conduct of
defendants is better determined on a complete record. Similarly,
whether the expenditures the Tribal plaintiffs claim they incurred
are sufficiently “extraordinary” and directly connected
to defendants’ conduct to convince me to follow Judge
Polster’s reasoning and distinguish Judge Breyer’s is
better determined on a full evidentiary record.”

In Kiowa and Comanche Tribe v. United States, 2022 WL
1913436 (W.D. Okla. 2022), 160 acres within the Kiowa and Comanche
Reservation in Oklahoma was allotted to Tsalote, a Kiowa member in
1901. In 2001, the allotment, as deeded by a member of the Fort
Sill Apache Tribe (FSAT) to the FSAT. When FSAT sought to open a
casino on the allotment, the Kiowa and Comanche tribes sued
officials of the FSAT under the doctrine of Ex Parte Young,
contending that their permission was required for the acquisition
of land in trust for another tribe within their former reservation
and that the proposed casino would violate the Indian
Gaming Regulatory Act
and the Racketeering Influenced and
Corrupt Organizations (RICO) Act. The court denied the
plaintiff’s motion for a temporary restraining order:
“Plaintiffs’ theory of liability under RICO rests upon the
premise that if FSAT, an ‘enterprise,’ runs the Casino, it
will be knowingly operating ‘an illegal gambling business’
and engaging in money laundering because the Casino is not
authorized under IGRA (and therefore also not authorized under
Oklahoma law). … Plaintiffs have not shown a substantial
likelihood of success on their claim that FSAT’s acquisition of
the Tsalote Allotment was invalid or on their claim that operation
of the Casino will violate IGRA. Plaintiffs therefore cannot show a
substantial likelihood that they could successfully show that the
FSA Defendants’ intent to open and operate the Casino amounts
to a RICO conspiracy and agreement to conduct FSAT’s affairs
‘through a pattern of racketeering activity.'”

In McKinsey & Co. v. Boyd, 2022 WL 1978735 (W.D.
Wis. 2022), the Red Cliff Band of Lake Superior Chippewa (Band)
sued McKinsey & Co (McKinsey) in Tribal Court, seeking to hold
it accountable for consulting work with opioid companies and the
ensuing, resultant opioid epidemic on the Red Cliff Reservation.
McKinsey sued in federal district court to enjoin the tribal court
litigation and the district court granted McKinsey’s motion for
injunctive relief on the ground that McKinsey’s actions were
outside the tribe’s jurisdiction for purposes of the rule of
Montana v. United States and its second
exception to the general rule: “McKinsey has no offices on the
Red Cliff Reservation nor anywhere else in Wisconsin; none of its
opioid-related engagements originated within the Reservation or
this state; and none of its consultants could have been based in an
office there. … Here, there is no suggestion that any activity
took place on tribal land. While defendants broadly argue that
McKinsey’s aid to the opioid industry contributed to addiction
on the reservation, threatening the health of the tribe, that is
too attenuated to be considered ‘conduct of non-Indians on fee
lands within its reservation.’ Opioid addiction certainly
plagues tribal lands, along with the majority of the rest of the
country, but McKinsey is being sued for advising pharmaceutical
companies selling opioids, who in turn manufacture, distribute and
prescribe the use of these drugs to physicians, dentists and
patients throughout the country, arguably creating demand and
addiction that would not be there otherwise. However, defendants do
not point to any action by plaintiff taking place on tribal land,
and the court is skeptical that any such evidence exists given
McKinsey’s lack of ties to state of Wisconsin, much less the
Red Cliff Tribe. Accordingly, the strong general rule against the
exercise of tribal jurisdiction over non-tribe members plainly
applies here.”

In Pueblo of Pojoaque v. Biedscheid, 2022 WL 174920 4
(D. N.M. 2022), Pena sued the Pueblo of Pojoaque (Tribe) in state
court after he allegedly suffered injuries at the Tribe’s
Buffalo Thunder’s casino. The Tribe sued in federal court to
enjoin the state court judge, Biedscheid, from hearing the case,
arguing that the Indian Gaming Regulatory Act
preempted state court jurisdiction. The federal
court denied the Tribe’s motion for summary judgment, holding
that the Anti-Injunction Act, 28 U.S.C. § 2283, and the
abstention doctrine of Younger v. Harris barred the Court
from issuing the requested injunction and rejecting the Tribe’s
underlying argument that fall within the scope of IGRA:
“Simply because an accident occurs at a casino on Tribal land
does not necessarily mean that the accident’s victim is engaged
in Class III gaming activity under IGRA. … Because Pena was not
participating in a Class III gaming activity when he fell,
therefore, the tort claims arising from Pojoaque Pueblo and Buffalo
Thunder’s conduct are not ‘directly related to, and
necessary for, the licensing and regulation’ of Class III
gaming activities. 25 U.S.C. § 2710(d)(3)(C)(I. … Judge
Biedscheid concluded correctly that, because Pena’s accident
was ‘proximately caused by the conduct of the Gaming
Enterprise,’ he has jurisdiction over Pena’s State tort

In Mohegan Tribal Gaming Authority v. Factory Mutual
Insurance Company
, 2022 WL 2303841 Not Reported (Sup. Ct. CT
2022), a Connecticut Superior Court dismissed the Mohegan Tribal
Gaming Authority’s claims that its insurer, Factory Mutual
Insurance Company, breached its contract by denying claims
for compensation for losses the Authority sustained as a result of
: “Because the Authority’s complaint does
not allege ‘physical loss or damage’ as required for
coverage under the ‘Protection and Preservation of Property
Time Element’ coverage and its assertion that the placement of
the Communicable Disease coverage in section 6, ‘Additional
Coverages,’ compels the conclusion that the Policy defines
communicable disease as ‘physical loss or damage’ is
erroneous, no coverage is provided by the Policy under the
‘Protection and Preservation of Property Time Element’
coverage. Further, because the Authority has failed to sufficiently
allege that the cessation of its operations was due to the
‘actual not suspected presence” of COVID-19 at the Resort,
FM’s motion to strike is granted in its entirety.”

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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