Justia Native American Law Opinion Summaries

Articles Posted in Personal Injury
by
L.B. lived within the Northern Cheyenne Reservation. L.B. and her mother went to a bar and had alcoholic drinks. After they returned home, L.B.’s mother went for a drive. L.B. called the police and reported that her mother was driving while intoxicated. Bureau of Indian Affairs (BIA) Officer Bullcoming determined that L.B.’s mother was safe and then went to L.B.’s residence, where her children were asleep in the other room. L.B. admitted to consuming alcoholic drinks. Bullcoming threatened to arrest L.B. for child endangerment because she was intoxicated while in the presence of her children. L.B. pleaded with Bullcoming not to arrest her because she would lose her job as a school bus driver. Bullcoming took L.B. outside for a breathalyzer test. L.B. believed that her choices were to go to jail or have sex with Bullcoming. L.B. and Bullcoming had unprotected sexual intercourse. L.B. became pregnant as a result of the encounter and gave birth.L.B. brought a Federal Tort Claims Act suit, seeking to hold the government liable for Bullcoming’s misconduct. The government asserted that Bullcoming was not acting within the scope of his employment when he sexually assaulted L.B so his actions fell outside the scope of the FTCA’s limited waiver of sovereign immunity. The Ninth Circuit certified the question to the Montana Supreme Court: whether, under Montana law, OBullcoming’s sexual assault of L.B. was within the scope of his employment as a law enforcement officer. View "L. B. v. United States" on Justia Law

by
The Ninth Circuit affirmed the district court's dismissal of a Federal Tort Claims Act (FTCA) case brought by plaintiffs, alleging negligence by an emergency room physician. The physician treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever. Plaintiffs claimed that the physician was an "employee of the United States" under the FTCA and the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et seq., and that he negligently failed to diagnose the disease that led to Sisto's death.The panel agreed with the district court that the FTCA and section 5321(d) do not waive the United States' sovereign immunity with respect to claims based on the negligence of employees of independent contractors providing health care pursuant to a self-determination contract under the ISDEAA. Therefore, the panel concluded that the physician was an employee of T-EM rather than the hospital, and that the FTCA and section 5321(d) do not authorize a suit against the United States based on his alleged negligence. In this case, the physician had only a contract with T-EM and he was not an individual who provided health care services pursuant to a personal services contract with a tribal organization and was therefore not an employee of the Public Health Service under section 5321(d); because hospital privileges were not issued to the physician on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 1680c(e)(1) nor 25 C.F.R. 900.199 confers FTCA coverage; and the hospital did not control the physician's actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto. View "Sisto v. United States" on Justia Law

by
Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems.The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990. View "Nanouk v. United States" on Justia Law

by
Lawrence Lavallie brought this personal injury action against Lorne Jay and Michael Charette after the parties were involved in a motor vehicle accident. The accident occurred on the night of December 26, 2016, on County Road 43 in Rolette County, North Dakota. Lavallie was driving a snowmobile on the roadway followed by Charette who was driving a GMC Yukon automobile. It was dark with blowing snow and poor visibility. Jay was operating a tractor, and in the process of blowing snow from his driveway. When Lavallie came upon Jay operating the tractor, the tractor was located in the middle of the roadway and did not have any lights or reflectors. Concerned that Charette would not be able to see the tractor in the roadway because it was dark and snowing and because the tractor did not have any lights or reflectors, Lavallie stopped the snowmobile alongside the tractor and tried to get Jay’s attention for him to move the tractor off of the road. While Lavallie was on the parked snowmobile trying to get Jay’s attention, Charette struck the snowmobile. First responders transported Lavallie to the Rolla hospital. Lavallie was transferred to Grand Forks where part of his leg was amputated. Jay appealed when the district court judgment ordered him to pay Lavallie $946,421.76, arguing the district court erred in denying his motion to dismiss for lack of subject matter jurisdiction. Jay conceded the district court was correct in finding the accident involving the parties in this case occurred outside the external boundaries of the Turtle Mountain Reservation. The North Dakota Supreme Court found the evidence in the record indicated the accident occurred on a county road located on land held in trust for the Tribe. "The question becomes whether district courts maintain subject matter jurisdiction over claims involving conduct between enrolled members of a tribe occurring on county roads located on Indian trust land." The Supreme Court found the district court did not determine whether the accident occurred on land held in trust for the Tribe. The district court also did not determine whether the parties to this action were enrolled members of the Tribe. Without such findings, the Supreme Court was unable to adequately consider whether the district court had subject matter jurisdiction to adjudicate Lavallie’s claims. Therefore, judgment was reversed and the matter remanded for further proceedings. View "Lavallie v. Jay, et al." on Justia Law

by
The Supreme Court affirmed the order of the superior court denying a tribal entity's motion to dismiss a tort action against it, holding that the tribal entity did not prove it was a subordinate economic organization entitled to share the Indian tribe's sovereign immunity.Sara Fox was seriously injured while rafting on the Colorado River through the Grand Canyon. Fox suffered her injuries on Arizona state land. The rafting boat was operated by Grand Canyon Resort Corporation (GCRC), a tribal corporation whose sole shareholder was a federal recognized Indian tribe, the Hualapai Indian Tribe. Fox and her husband filed suit against GCRC and the Tribe. Defendants moved to dismiss the complaint, arguing that the trial court lacked personal jurisdiction because Defendants possessed sovereign immunity from suit. The trial court dismissed the complaint against the Tribe but declined to dismiss the complaint against GCRC, finding it was not protected by sovereign immunity. The Supreme Court affirmed, holding that GCRC failed to carry its burden to show it was a subordinate economic organization of the Tribe so that a denial of immunity would "appreciably impair" the Tribe's "economic development, cultural autonomy, or self-governance." View "Hwal'Bay Ba: J Enterprises, Inc. v. Honorable Jantzen" on Justia Law

by
Plaintiff's petition for panel rehearing was granted an this superseding opinion was filed.This case related to tort claims brought by the tribe against a nonmember employed by the tribe. At issue was whether the tribal court has jurisdiction to adjudicate tribal claims against its nonmember employee, where the tribe's personnel policies and procedures manual regulated the nonmember's conduct at issue and provided that the tribal council would address violations by the nonmember during the course of her employment, and the tribal court and tribal judicial code were established and enacted after the nonmember left her employment with the tribe.The Ninth Circuit held that, under the circumstances presented here, the tribe has authority to regulate the nonmember employee's conduct at issue pursuant to its inherent power to exclude nonmembers from tribal lands. The panel also held that, in the alternative, the tribe has regulatory authority over the nonmember employee's conduct under both exceptions under Montana v. United States, 450 U.S. 544 (1981). Therefore, given the existence of regulatory authority, the sovereign interests at stake, and the congressional interest in promoting tribal self-government, the panel held that the tribal court had jurisdiction over the tribe's claims. View "Knighton v. Cedarville Rancheria of Northern Paiute Indians" on Justia Law

by
The Supreme Court affirmed the trial court’s judgment in favor of Arizona Snowbowl Resort Limited Partnership (Snowbowl) and the City of Flagstaff on the public nuisance claim brought by the Hopi Tribe, holding that environmental damage to public land with religious, cultural or emotional significance to the plaintiff is not special injury for purposes of the public nuisance doctrine.The Tribe brought a claim of public nuisance based on Snowbowl's use of reclaimed wastewater for snowmaking on Northern Arizona’s San Francisco Peaks. At issue was whether the Hopi sufficiently alleged a “special injury” for an actionable public nuisance claim. The Tribe alleged that it would suffer special injury by the interference with the Tribe’s cultural use of the public wilderness for religious and ceremonial purposes. The trial court ruled that the Tribe failed to satisfy the special injury requirement on the basis of religious or cultural practices. The Supreme Court agreed, holding that while the Tribe sufficiently alleged that the use of reclaimed wastewater on the San Francisco Peaks constituted a public nuisance the Tribe failed to articulate any harm beyond that suffered by the general public. View "Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership" on Justia Law

by
In this case brought against the Ute Indian Tribe, tribal officials, various companies owned by the tribal officials, oil and gas companies, and other companies, Plaintiff alleged that, through its ability to restrict the oil and gas industry’s access to the Uintah and Ouray Reservation, the tribe has held hostage the economy of the non-Indian population in the Uintah Basin. The district court dismissed Plaintiff's claims against all Defendants. The Supreme Court affirmed the dismissal of the Ute Indian Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted but vacated the dismissal of the remaining defendants and remanded for further proceedings consistent with the tribal exhaustion doctrine, holding (1) the Ute Tribe is immune from suit, but the tribal officials were not protected by sovereign immunity in their individual capacities; (2) the district court erred in dismissing the case for failure to join and indispensable party; (3) the tribal exhaustion doctrine prevents Utah courts from reviewing the case at this time; and (4) certain defendants were entitled to dismissal for failure to state a claim, but the remaining defendants were not. View "Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation" on Justia Law

by
Casey Wilkes and Alexander Russell appealed the grant of summary judgment favor of PCI Gaming Authority d/b/a Wind Creek Casino and Hotel Wetumpka ("Wind Creek-Wetumpka"), and the Poarch Band of Creek Indians (collectively as "the tribal defendants"), on negligence and wantonness claims asserted by Wilkes and Russell seeking compensation for injuries they received when an automobile driven by Wilkes was involved in a collision with a pickup truck belonging to Wind Creek Wetumpka and being driven by Barbie Spraggins, an employee at Wind Creek-Wetumpka. In the interest of justice, the Alabama Supreme Court declined to extend the doctrine of tribal sovereign immunity beyond the circumstances in which the Supreme Court of the United States itself has applied it. The judgment of the trial court holding that it lacked jurisdiction to consider the claims asserted by Wilkes and Russell based on the doctrine of tribal sovereign immunity was accordingly reversed and the case remanded for further proceedings. View "Wilkes v. PCI Gaming Authority" on Justia Law

by
Benjamin Harrison was injured during the early morning hours of March 1, 2013, when, as a passenger, he was involved in an automobile accident following a high-speed police chase on a portion of a county roadway that traverses land held by the Poarch Band of Creek Indians ("the Tribe") in Escambia County. The driver of the vehicle in which Benjamin was a passenger, Roil Hadley, had consumed alcohol while he was a patron at Wind Creek Casino during the evening of February 28, 2013, and the early morning hours of March 1, 2013. Amanda Harrison, as mother and next friend of Benjamin, sued the tribal defendants and two individuals, alleging the tribal defendants were responsible for negligently or wantonly serving alcohol to Hadley despite his being visibly intoxicated and asserted, among other claims, claims against the tribal defendants under Alabama’s Dram Shop Act. Defendants moved to dismiss on grounds they were immune under the doctrine of tribal sovereign immunity, and that the circuit court lacked subject matter jurisdiction because Tribal Court held exclusive jurisdiction over the claims. The Alabama Supreme Court declined to extend the doctrine of tribal immunity to actions in tort, in which the plaintiff had no opportunity to bargain for a waiver and no other avenue for relief. The Court similarly concluded the judgment entered by the trial court was reversed. The case was remanded for the circuit court to consider a related issue pertaining to an asserted lack of adjudicative, or "direct" subject-matter jurisdiction by the circuit court thus addressing the tribal defendants’ position that the claim in this case arose on Indian land, but Benjamin's fatal injuries occurred on an Escambia County Road. Also, the Court directed the circuit court to consider whether subject-matter jurisdiction is affected by the fact that the alleged tortious conduct of the tribal defendants entails a violation of Alabama's statutory and regulatory scheme for the sale of alcohol in Alabama, a scheme to which Congress has expressly declared the Tribe to be subject. View "Harrison v. PCI Gaming Authority" on Justia Law