Articles Posted in Native American Law

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Kelsey, a member of the Little River Band of Ottawa Indians, was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band’s Community Center. The Community Center is located on land owned by the Band but is not located within tribal reservation boundaries. Kelsey appealed his sentence in tribal court, arguing that the Band lacked criminal jurisdiction over his off-reservation conduct. After his sentence was affirmed, he filed a petition for federal habeas relief, arguing that the Band lacked jurisdiction over his off-reservation conduct and that his appeal in tribal court violated due process protections afforded by the Indian Civil Rights Act, 25 U.S.C. 1302(a)(8). The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish Kelsey’s off-reservation conduct but declined to rule on Kelsey’s due process challenge. The Sixth Circuit reversed, holding that the Band has jurisdiction because it has not been expressly or implicitly divested of its inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations. The court held that Kelsey’s due process challenge under the Indian Civil Rights Act failed. View "Kelsey v. Pope" on Justia Law

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The federally recognized Indian Tribe is a successor to an 1864 Treaty between the United States and the Chippewa Indians, including an agreement by the United States to set aside property in Isabella County, Michigan as a reservation. The Treaty did not mention application of federal regulations to members of the Tribe or to the Tribe itself. The property reserved for the “exclusive use, ownership, and occupancy” of the Tribe became the Isabella Reservation. The Tribe has over 3,000 members, and is governed by an elected council. In 1993, under the Indian Gaming Regulatory Act, the Tribe and the state entered a compact, approved by the United States, allowing the Tribe to conduct gaming on the Isabella reservation. The Tribe opened the Casino; enacted a gaming code with licensing criteria for employees; and created a regulatory body. The council hires all Casino management-level employees, approves contracts, and decides how to distribute revenue. Of the Casino’s 3,000 employees, 7% are Tribe members, as are 30% of management-level employees. The Casino generates $250 million in gross annual revenues and attracts 20,000 customers per year, many of whom are not Tribe members. The Tribe discharged Lewis for violating an employee handbook policy that prohibited solicitation by employees, including solicitation related to union activities, on Casino property. The NLRB found that the policy violated the National Labor Relations Act, 29 U.S.C. 151. The Sixth Circuit affirmed and enforced the order, finding that the NLRB has jurisdiction over the Casino’s employment practices. View "Soaring Eagle Casino & Resort v. Nat'l Labor Relations Bd." on Justia Law

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The Band, a federally recognized Indian tribe, has more than 4,000 enrolled members, most living within or near its aboriginal lands in Michigan. Under the Little Bands Act and the Indian Reorganization Act, 25 U.S.C. 476, the Band enacted a constitution that vests its legislative powers in the Tribal Council and grants the Council power to operate gaming under the Indian Gaming Regulatory Act, 25 U.S.C. 2701. The Band entered into a compact with the State of Michigan to conduct gaming activities on Manistee trust lands. The casino has 905 employees: 107 are enrolled Band members, 27 are members of other tribes, and 771 are not members of any Indian tribe. Most casino employees live outside the Band’s trust lands. Apart from the casino, 245 employees work for the Band: 108 are Band members. The Council enacted a Fair Employment Practices Code, which essentially prohibit or drastically restrict most concerted activities, collective bargaining, and organization efforts. Acting under the National Labor Relations Act, 29 U.S.C. 151–169, the National Labor Relations Board issued an order to the Band to cease and desist enforcing provisions that conflict with the NLRA. The Sixth Circuit entered an enforcement order, finding that the NLRA applies to the casino. View "Nat'l Labor Relations Bd. v. Little River Band of Ottawa Indians" on Justia Law

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The Tribe bought land from the City of Lansing to build a class III gaming facility, using funds appropriated by Congress for the benefit of certain Michigan tribes. The Michigan Indian Land Claims Settlement Act provides that land acquired with the income on these funds shall be held in trust by the federal government. Michigan obtained an injunction to prevent the Tribe from applying to have land taken into trust by the Secretary of the Interior, on the ground that the submission would violate a compact between the state and the Tribe. That compact requires that a tribe seeking to have land taken into trust for gaming purposes under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2703(4)(B), secure a revenue-sharing agreement with other tribes. The Sixth Circuit reversed. The state did not seek to enjoin a class III gaming activity, but instead a trust submission under MILCSA, so IGRA does not abrogate the Tribe’s sovereign immunity, and the district court lacked jurisdiction. The issue of whether class III gaming on the property at issue will violate IGRA if the Tribe’s MILCSA trust submission is successful is not ripe. View "Michigan v. Sault Ste. Marie Tribe" on Justia Law

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The Indian Gaming Regulatory Act allows “Class III gaming activities” (casino gaming) on Indian lands (25 U.S.C. 2710(d)) if the tribe adopts a gaming ordinance approved by the National Indian Gaming Commission and negotiates a “Tribal-State compact.” Bay Mills is a recognized tribe with a reservation in Michigan’s Upper Peninsula. In 1993, the tribe entered a compact with Michigan. The Gaming Commission approved its gaming ordinance. Bay Mills began operating a casino on its reservation in Chippewa County. In 1997, Congress passed the Michigan Indian Land Claims Settlement Act, which directed Bay Mills to deposit a portion of its settlement funds into a land trust, with earnings to be used for improvements on or acquisition of tribal land; land so acquired “shall be held as Indian lands.” In 2010, Bay Mills used trust earnings to purchase 40 acres in Vanderbilt, more than 100 miles from its reservation, then constructed a small casino on the property (38 electronic machines, expanded to 84). Michigan and another tribe sued, claiming violations of the compact and state law. The district court enjoined Bay Mills from operating the Vanderbilt casino. The Sixth Circuit vacated the injunction. The district court lacked jurisdiction over some claims and tribal sovereign immunity bars others. View "State of MI v. Bay Mills Indian Cmty" on Justia Law

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A member of the Keweenaw Bay Indian Community was convicted of destroying trees on the Ontonagon Reservation (18 U.S.C. 1853) and stealing tribal property for his own use (18 U.S.C. 1163). The Sixth Circuit affirmed, rejecting arguments that the defendant had a right to use the land as chief of the Ontonagon Band and that his sentence was improper because he did not receive an acceptance of responsibility reduction. Federal law does not recognize a separate Ontonagon Band; the land is held by the government in trust for the Keweenaw Bay Indian Community. Merely expressing regret for the consequences of criminal conduct, without admitting wrongful intent, does not constitute acceptance of responsibility within the meaning of the Guidelines. The court acted within its discretion in imposing a restitution requirement of $47,200.