In U.S. v. Nowlin, 555 Fed.Appx. 820 (10th Cir. 2014), Nowlin was convicted pursuant to the Major Crimes Act, 18 U.S.C. § 1153 (MCA) of one count of assault resulting in serious bodily injury in Indian Country and four counts of assault with a dangerous weapon with intent to do bodily harm in Indian Country. On appeal, he argued that there was insufficient evidence of his Indian status, an essential element of a MCA offense. The 10th Circuit disagreed. Citing the two-part standard that the defendant have “some Indian blood” and be “recognized as an Indian by a tribe or by the federal government,” the court noted that Nowlin was a Shoshone tribal descendent with 31/128 Indian blood and that Nowlin “enjoyed access to free health care from the Indian Health Service, … obtained three fishing permits that were available only to Indians and … was socially recognized as an Indian through participation in powwows, bearing children with an enrolled tribe member and holding himself out as an Indian.”

In Stockbridge-Munsee Community v. New York, 2014 WL 2782191 (2d Cir. 2014), the Stockbridge Munsee Community (Tribe), sued the State of New York, state officials, state agencies and several municipalities in 1986, contending that a series of land conveyances during the period 1818-1842 resulting in the loss of its 36-square mile New York reservation violated the Indian Non-Intercourse Act, 25 U.S.C. § 177 and were, therefore, invalid. Citing the U.S. Supreme Court’s 2005 decision in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the district court dismissed, holding that the Tribe’s land claims were barred by equitable considerations. The Second Circuit affirmed: “It is well-settled that claims by an Indian tribe alleging that it was unlawfully dispossessed of land early in America’s history are barred by the equitable principles of laches, acquiescence, and impossibility.”

In Cherokee Nation Technologies, LLC v. United States, 2014 WL 2809119 (Fed. Cl. 2014), the BIA had awarded an information technology services contract to Cherokee Nation Technologies, LLC (Cherokee), in the amount of $4,459,331.00, for a six-month base period and four one-year option periods, pursuant to a Buy Indian Set–Aside under the Buy Indian Act, 25 U.S.C. § 47. Chenega Federal Systems, LLC (Chenega), which had held the predecessor contract, filed a timely protest of the award to Cherokee with the General Accountability Office (GAO) one week before the expiration of its contract. BIA then informed GAO that it intended to take corrective action in response to Chenega’s protest consisting of: (i) termination of Cherokee’s contract for convenience; (ii) cancellation of the solicitation; (iii) reevaluation of the agency’s procurement approach; and (iv) issuance of one or more new solicitations to fulfill the agency’s needs. In the interim BIA approved a “Justification For Other Than Full And Open Competition” and entered into a “bridge” sole source contract with Chenega, whereupon Cherokee sued. The Court of Federal Claims granted Cherokee’s motion for preliminary injunction: “While the court understands that the planning in this regard cannot be perfect or even error- free,… it is obvious here that the agency failed to perform any real advanced planning, beyond having the prior contract awardee perform the work and invoking the sole-source procurement rules in Chenega’s favor….Waiting until the last minute does not absolve the BIA of its obligations in this regard—a different view would turn the sole-source rules on their head.”

In Cascadia Wildlands v. U.S. Bureau of Indian Affairs, 2014 WL 2872008 (D. Ore. 2014), the Coquille Restoration Act of 1989 (CRA) had restored the Coquille Tribe to federally- acknowledged status and transferred 5,410 acres of forest land to the United States in trust for the Tribe. As part of an economic development plan, the Tribe proposed to harvest timber on 268 acres of the forest (Kokwei Project). Pursuant to a joint Tribe-BIA environmental assessment (EA), the BIA issued a Finding of No Significant Impact (FONSI). Groups opposed to the project sued. Focusing and alleged adverse impacts on the Northern Spotted Owl, plaintiffs alleged violations of the National Environmental Protection Act (NEPA), National Indian Forest Resources Management Act (NIFRMA), Coos Bay District Resource Management Plan (CBRMP) for the management of the Coquille Forest and the CRA. The court dismissed, holding that the EA was not arbitrary and capricious and that the CRA should not be interpreted to subject the Tribe to the Northern Spotted Owl recovery plan in the CBRMP: “To the extent there is ambiguity in Congress’s use of the term ‘standards and guidelines,’ and to the extent plaintiffs’ interpretation that the CBRMP’s inclusion of objectives mandates inclusion of the recovery actions, then the court must apply a liberal construction of the term in favor of the Tribe. … Thus, even assuming plaintiffs’ construction of the CRA to be reasonable, it is also reasonable to conclude that the term ‘standards and guidelines’ refers to the standards and guidelines in the NFP and the management actions/direction in the CBRMP and the court is bound to accept that latter interpretation. This is especially true given that the CRA’s primary purpose is to benefit the Coquille Tribe through promotion of its economic development and the NIFRMA directs the BIA to manage tribal lands in support of written tribal objectives.”

In Navajo Housing Authority v. United States Department of HUD, Not Reported in F.Supp.2d, 2014 WL 2936924 (D. Colo. 2014), HUD had determined that under a pre-2008 version of the Native American Housing Assistance and Self–Determination Act (NAHASDA), the Navajo Housing Authority (NHA) had misreported its formula current assisted stock (FCAS) by including rent to own mutual help units that, according to HUD, should have been conveyed to tenants. HUD had “recaptured” the alleged overpayments by reducing subsequent Indian Housing Block Grants (IHBG). In its prior rulings in Fort Peck Housing Authority v. HUD, the court had ruled that HUD was statutorily obligated to provide the NHA with notice and an opportunity for an administrative hearing before recapturing funds and that HUD’s recapture authority was limited by the applicable version of 24 C.F.R. § 1000.532, which provided that “grant amounts already expended on affordable housing activities may not be recaptured or deducted from future assistance provided on behalf of an Indian tribe.” Because HUD had not followed procedures required by the pre-amendment version of NAHASDA and had failed to observe the limitations on its recapture authority, its recapture was unlawful. They ordered the NHA and similarly situated tribal housing entities to submit proposed forms of judgment, specifying the amounts to be paid to each tribe or tribal housing entity and the asserted sources of payment. The NHA proposed that HUD restore $6,165,842 previously recaptured. HUD repeated its arguments that the NHA could show no prejudiced from the lack of administrative hearing and that it had an independent legal basis for recapturing the funds. The court granted the NHA’s motion and ordered the $6,165,842 restored.

Choctaw Nation of Oklahoma v. HUD, 2014 WL 2883456, Not Reported in F.Supp.2d (D.Colo. 2014) is another in the line of cases relating to the dispute between HUD and tribally designated housing entities (TDHEs) over the obligation of TDHEs to remove certain rent-to-own mutual help units from their current formula assisted stock (FCAS), thus reducing their Indian Housing Block Grants (IHBG) under the Native American Housing Assistance and Self-Determination Act (NAHASDA). The district court held that HUD had violated the TDHE’s due process rights when it recaptured alleged IHBG overpayments by reducing grant amounts in subsequent years. The court rejected HUD’s proposed final judgment because it relied on information that the TDHE had provided outside the formal hearing process that, according to HUD, supported HUD’s recapture: “ As this court has explained in prior rulings, the facts underlying adjustments to the Tribe’s FCAS should have been addressed at a hearing which HUD should have provided. HUD had no authority to recapture grant funds that it had already awarded to Choctaw without following the procedures required by the pre-amendment version of NAHASDA.”

Tlingit-Haida Regional Housing Authority v. United States Department of Housing and Urban Development, 2014 WL 2781728, Not Reported in F.Supp.2d (D. Colo. 2014), involved many of the same legal issues addressed by the district court’s decision in Fort Peck Housing Authority v. United States Department of Housing and Urban Development, 2014 WL 901399 (D. Colo. 2014). The Tlingit-Haida Regional Housing Authority (HA) owned and managed affordable housing funded by Indian Housing Block Grants (IHBG) administered by the U.S. Department of Housing and Urban Development (HUD) under the Native American Housing Assistance and Self- Determination Act (NAHASDA). HUD determined that the HA had improperly reported mutual help units that should have been conveyed as “formula current assisted stock” (FCAS) for several years. Concluding that the HA had received IHBG funds to which it was not entitled, HUD recaptured the alleged overpayments by deducted overpayments from subsequent block grants. The HA sued, contending that it had not over counted FCAS and that HUD’s recapture violated the HA’s procedural right under federal law to demonstrate the legitimacy of the reported FCAS. When the federal court agreed with the tribe, HUD sought to begin over by giving the HA its previously denied procedural rights. The Tribe objected that HUD had waived its right to litigate the FCAS and the district court agreed: “The Administrative Record does not contain enough information to resolve this factual dispute. That should have been done at the hearing, which HUD should have provided as this court has explained in prior rulings. It would be unjust to further delay the entry of a final judgment in this six-year-old case to remand for a hearing to determine whether HUD’s argument has merit.”

In Akiachak Native Community v. Jewell, 2014 WL 2885910 (D.D.C. 2014), Alaska tribes challenged a provision of the federal regulations governing fee to trust (FTT) acquisitions of land in trust by the Secretary of the Interior, 25 CFR Part 151, that barred the Secretary for acquiring land in trust for Alaska natives under Section 5 of the Indian Reorganization Act. The court held that the exception for Alaska tribes was arbitrary and capricious and could not be enforced. While the case was on appeal, the Department of Interior (DOI) proposed an amendment to the FTT regulations that would formally permit acquisitions for Alaska tribes. The State of Alaska moved the court for an order enjoining the Secretary for proceeding with consideration of the new FTT rule pending disposition of the State’s appeal of the court’s judgment. The court declined to enjoin the DOI’s processing of the new FTT rule, but enjoined the Secretary from taking land into trust for Alaska Natives contrary to the existing rule pending disposition of the appeal.

In Idaho v. Coeur d’Alene Tribe, 2014 WL 2818682 (D. Idaho 2014), the State filed a federal court action to enjoin Texas Hold ‘em poker games that the State contended violated the Tribe’s Class III gaming compact with the State. The Tribe moved to dismiss, citing arbitration provisions of the compact that “[o]nce a party has given notice of intent to pursue binding arbitration and the notice has been sent to the non-complaining party, the matter in controversy may not be litigated in court proceedings… If the dispute is not resolved to the satisfaction of the parties within sixty (60) days after service of the notice set forth in Article 21.2.1, either party may pursue binding arbitration to enforce or resolve disputes concerning the provisions of this Compact.” The court agreed and dismissed: “The Court finds that Article 21 of the Compact unambiguously prohibits the State from filing a lawsuit within the 60–day period.”

In St. Germain v. U.S. Department of Interior, 2014 WL 2765219 (W.D. Wash. 2014), plaintiffs, two members of the Nooksack Tribe, sued the U.S. Department of Interior (DOI), asserting that a secretarial election on an proposed amendment to the Tribe’s constitution under Indian Reorganization Act Section 16 could result in the disenrollment of the plaintiffs and other tribal members in violation of their rights under the Indian Reorganization Act, Indian Civil Rights Act, Fifth and Fifteenth Amendments, Administrative Procedure Act and trust doctrine. The court denied a motion for a temporary restraining order and the amendment was approved, limiting membership to persons of Nooksack ancestry with at least ¼ Indian blood. The defendants then moved for “an order declaring the standards of review applicable to Plaintiffs’ claims.” The court instead “terminated” the motion, imposed documentary disclosure obligations and hinted that the defendants should file a summary judgment motion: “The court declines to make a blanket declaration of the standard of review applicable to claims brought under § 16 of that Act, particularly where it can only guess as to what claims Plaintiffs will ultimately pursue. It is possible that some § 16 claims must be resolved on review of an administrative record and that others require discovery.”

In Stifel, Nicolaus & Co., Inc. v. Lac Courte Oreilles Band, 2014 WL 2801236 (W.D. Wis. 2014), The Lac Courte Oreilles Band of Lake Superior Chippewa Indians (Tribe) had sued Stifel Nicolaus (Stifel) in the Tribal court alleging that Stifel, acting as placement agent, had made misrepresentations in connection with bonds issued by the Tribe. Stifel brought a declaratory judgment action in federal court, contending that the transaction agreements had provided for a waiver of the tribe’s sovereign immunity and dispute resolution in federal or state court, but not in tribal court. Stifel contended that the inclusion of a reference to tribal court in the bond purchase agreement (BPA) signed by the Tribe was a mistake because the signed version had, with the parties’ consent, been superseded by a later version of the BPA that did not mention tribal court. The district court granted Stifel’s motion for reformation of the BPA to reflect the parties’ intentions but held, nonetheless, that the tribal court action against Stifel would not be enjoined, pointing out that the version of the BPA that the parties intended to be executed omitted references to tribal court but did not expressly exclude tribal court as a potential forum and that the tribal court otherwise had jurisdiction over Stifel pursuant to the First Montana Exception. Citing the Tribe’s allegations that Stifel’s misrepresentations were made by Stifel agents physically present on the reservation, the court discounted the provision in the BPA that the situs of the transaction was elsewhere. The court nonetheless agreed to give Stifel another opportunity to persuade the court that the reformed BPA excluded tribal court jurisdiction.

In Wisconsin v. Ho-Chunk Nation, 2014 WL 2615422 (W.D. Wis. 2014), the Nation’s gaming compact with the State under the Indian Gaming Regulatory Act (IGRA) authorized the Nation to offer Class III games at several sites. With respect to the Nation’s lands in Madison, however, the Compact authorized Class III games only if approved by county-wide referendum. In 2004, however, voters disapproved Class III gaming at the Madison site. In 2010, the Nation began offering video poker. The State sued, arguing that video poker did not fall within the IGRA definition of a Class II game, which includes certain kinds of bingo as well as “card games … explicitly authorized by the laws of the State” or “not explicitly prohibited by the laws of the State.” 25 U.S.C. § 2703(7). The Nation cited 25 U.S.C. § 2710(b) (1), which permits a tribe to engage in class II gaming if it “is located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law).” The Nation argued that video poker was not contrary to the policies of the State and was, in fact, knowingly tolerated in taverns and at other non-Indian country sites. The court disagreed and granted the State’s motion for summary judgment, holding that the dispositive considerations were that video poker was a Class III game under the IGRA definition and that it was prohibited under Wisconsin law: “The state constitution ‘explicitly prohibits’ all gambling unless it falls within a listed exception. Ho–Chunk Nation cites no authority for the view that a state must ‘itemize’ all the games it prohibits.”

In Abdow v. Attorney General, 2014 WL 2808596 (Mass. 2014), the Massachusetts Legislature had enacted the Expanded Gaming Act of 2011 (Act), authorizing a newly formed gaming commission to award three licenses to qualified applicants to operate gambling casinos with table games and slot machines (category 1 or casino license), and another license to operate a gaming establishment with only slot machines (category 2 or slots parlor license). The act also authorized the Governor to enter into a compact with a federally recognized Native American tribe in the Commonwealth to operate a casino within one of several regions designated and, pursuant to such authority, the gaming commission had issued a license to the Mashpee Wampanoag Tribe. Citizens opposed to gambling circulated an initiative petition that would allow voters to enact a law banning casino and slots gambling that had been made legal under the Act and abolish parimutuel wagering on simulcast greyhound races. The Massachusetts attorney general refused to certify the petition for the November 2014 ballot, concluding that since the law proposed by the petitioners would prohibit the commission from approving any application for a license, it would result in a “taking” without compensation of applicants’ implied contractual right to have the application process “play out in accordance with” the Act. and therefore could not be the subject of an initiative petition. The Massachusetts Supreme Court disagreed, holding that (1) the initiative would not result in an unconstitutional taking of gaming licenses without compensation, (2) the initiative would not violate any implied contractual right to a final decision by Gaming Commission regarding a license application, (3) the initiative petition satisfied the requirements of state law and (4) the Attorney General would be ordered to certify the initiative.

In State, ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, 1014 WL 2620019 (Okl. 2014), Native Wholesale Supply, an entity chartered by the Sac and Fox Tribe of Iowa and owned by a citizen of the Seneca Nation of New York, sold Seneca brand cigarettes manufactured by Grand River Enterprises Six Nations, Ltd., an Ontario-based company, over the internet and by phone. Oklahoma’s attorney general sued Native NWS for disgorgement of gross revenues on all cigarettes that NWS had allegedly sold within the state of Oklahoma in violation of Oklahoma’s Complementary Act, a law that required cigarette manufacturers who had not participated in the 1999 Master Settlement Agreement (MSA) among the states and the four major cigarette manufacturers to make payments to complement the payments that the major manufacturers were required to make under the MSA. NWS sought to remove the case to federal court on the ground that the state suit was preempted by federal law but the federal court found otherwise and remanded to the state court, which initially dismissed for lack of personal jurisdiction. Applying the standards established by the U.S. Supreme Court in Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Oklahoma Supreme Court reversed in 2010, finding that NWS was properly subject to jurisdiction because of NWS’ “purposeful availment of the Oklahoma cigarette marketplace.” Specifically, as part of an ongoing business relationship, NWS made high- volume sales to the Muskogee Creek Nation of Oklahoma, which resold cigarettes to tribal retailers in the State who, in turn, sold the cigarettes on and off reservations. NWS filed for relief under Chapter 11 of the federal Bankruptcy Act but the bankruptcy court lifted the automatic stay to permit lawsuits by California, New Mexico and Oklahoma to proceed. The Oklahoma state district court then granted the State summary judgment in the amount of $47,767,795. The Oklahoma Supreme Court affirmed, rejecting NWS’ Indian Commerce clause arguments, holding that the district court was bound by the Court’s 2010 decision on the issue of personal jurisdiction, that NWS was not entitled to a jury trial (“This is not a suit recognized at common law. This is a suit authorized by statute to disgorge the gross proceeds NWS gained from the flagrant violation of Oklahoma’s Complementary Act.12”) and that NWS did not have a right to contest the sales figures asserted by the Attorney General after it had failed to do so in its response to the motion for summary judgment.

In First Citizens Bank & Trust v. Harrison, 2014 WL 2547601 (Wash. App. 2014), Tiffany and Robert Harrison defaulted on a promissory note they had given to the First Citizens Bank & Trust (Bank). The Bank obtained summary judgment and attempted to garnish the Harrisons’ accounts at Banner Bank (Banner) and Fife Commercial Bank (Fife). On appeal, the Harrisons argued that the Banner and Fife accounts were comprised entirely of income from leases of trust land that Tiffany, a member of the Puyallup Tribe, received and, therefore, exempt from garnishment under 25 U.S.C. § 410, which provides that “[n] o money accruing from any lease or sale of lands held in trust by the United States for any Indian shall become liable for the payment of any debt of, or claim against, such Indian contracted or arising during such trust period, or, in case of a minor, during his minority, except with the approval and consent of the Secretary of the Interior.” The court agreed: “25 U.S. C. § 410 does not limit the exemption to money accruing to an IIM account. It broadly refers to any money accruing from Indian trust land. Further, there is no legislative history or case law that supports this restrictive interpretation of the broad statutory language. Finally, the reference to the Secretary of the Interior also is consistent with extending the exemption to money distributed to a Native American. The Secretary also could consent to using that money for payment of a debt. Accordingly, we reject First Citizens’ interpretation…. The law requires that we liberally construe both exemption statutes and statutes enacted for the benefit of Native Americans. As a result, any ambiguity in 25 U. S. C. § 410 must be resolved in favor of Tiffany Harrison.”

In Miccosukee Tribe of Indians of South Florida v. Bermudez, 2014 WL 2965411 (Fla. App. 2014), Bermudez sued two members of the Miccosukee Tribe, Billie and Bert, in state court for damages resulting from a tragic automobile accident in which a car driven by Billie and owned by Bert crashed into Bermudez’s car, killing Bermudez’s wife and injuring Bermudez and his son. A jury rendered a verdict against Billie and Bert for $3.177 million in 2009. Bermudez could not collect the judgment as Billie and Bert asserted they had no assets. Several years later, Bermudez filed a motion to add the Tribe as a judgment debtor because the Tribe had funded and guided Billie and Bert’s defense in the lawsuit. The trial court granted the motion and entered judgment against the Tribe for over $4.1 million. Without addressing the Tribe’s immunity defense, the Florida court of appeals reversed: “And, when the Tribe could have simply paid the judgment for its tribal members and recouped the funds by a gradual and incremental assessment over time against tribal distributions made to Billie and Bert, we may wonder at the wisdom of the Tribe in squandering legal fees and community goodwill in amounts that exceed the money required simply to pay the judgment. No law, however, supports Bermudez’s claim. A nonparty cannot be added to a lawsuit after a jury trial has been conducted and a final judgment has been entered in order to hold the nonparty liable to pay the tort damages awarded against another merely because the nonparty funded or assisted in the defense of a lawsuit.”

In Wells Fargo Bank, N.A. v. Chukchansi Economic, 2014 WL 2721993.., --- N.Y.S.2d ---- (N.Y. App. 2014), Chukchansi Economic Development Authority (CEDA), an agency of the Picayune Rancheria of Chukchansi (Tribe), had issued $310 million in bonds to finance construction of a casino resort. The bond indenture Agreement required that CEDA deposit all revenues from the Casino’s operation into deposit accounts at Rabobank, and also required that CEDA, Wells Fargo, and Rabobank execute a Deposit Account Control Agreement (DACA). Competition between two factions, each purporting to be the Tribe’s official government, triggered litigation over control of casino revenues in multiple jurisdictions, including New York. The trial court had granted a preliminary injunction ordering the CEDA to maintain deposits at Rabobank and, later, had granted plaintiff’s motion to dismiss appellants’ counterclaim, granted defendants-respondents’motion to dismiss appellants’ cross claims, and denied appellants’ motions to modify the court’s July 2, 2013 preliminary injunction. Appellants subsequently appealed from the court’s refusal to modify the preliminary injunction. The appellate court held that the state court lacked jurisdiction over an intra-tribal dispute: “Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. … The jurisdiction conferred on the New York courts by 25 USC § 233 “does not extend beyond the borders of this State” … The tribe in the instant action is located in California, not New York. Furthermore, 25 USC § 233 “does not authorize courts of the State of New York to become embroiled in internal political disputes amongst officials of [an Indian tribe]’s government” (Bowen, 880 F Supp at 118; see also id. at 116, 120, 122–123). … However, to decide whether the Ayala faction’s actions were illegal, a court would have to determine whether the Ayala faction was the legitimate Tribal Council; this it may not do.”