United Tribes ) Michigan - Little Traverse Bay Bands of Odawa Indians

the Southern Ute Indian Tribe (Tribe).
The plaintiff alleged that Three BP had
wrongfully distributed the proceeds from
the well. The court dismissed on the
ground that the Department of the Interior
and the Tribe were indispensable parties
who, due to their immunity, could not be
joined: "[A]ny judgment rendered in the
absence of the Tribe or the DOI would be
inadequate in that it would address neither
the issue of communitization nor the
Tribe's purported interest in the 80 mineral
acres."
In re Krystal Energy Co. Inc., 2012 WL
32636 (Bkrtcy.D.Ariz.) involves the
bankruptcy of Krystal Energy Co. Inc.
(Krystal), which had obtained assignments
of oil leases on the Navajo Nation
(Nation), with the Nation's approval
but without the approval of BIA. The
Nation ejected Krystal and also refused to
permit Krystal to retrieve its equipment
from the premises. Amer Krystal filed for
bankruptcy protection, the trustee in the
bankruptcy sued the Nation for damages
in order to recover the value of Krystal's
assets for the benefit of creditors. The
Ninth Circuit Court of Appeals ruled in
2004 that Congress had abrogated the
Nation's sovereign immunity. In the
instant decision, the bankruptcy judge
recommended that judgment be entered
against the Nation in the amount of
$4 million.
In U.S. v. Gracie, 2011 WL 6945710
(D.Me.), PIN Rx, LLC (PIN), a Mainechartered
LLC owned by the Penobscot
Indian Nation (Nation), hired Mr. Gracie,
a registered pharmacist in the state of
Maine, as Director of Operations. PIN was
initially established to provide pharmacy
services to tribal members and to provide
mail order prescription pharmacy services
to publicly funded pharmacy benefit
programs. Federal prosecutors charged
Gracie with personally soliciting and
accepting money from certain interne
drug companies to fill orders from their
customers, in violation of federal antibribery
and anti-kickback laws
18 U.S.C. § 666. Gracie moved to dismiss,
arguing that federal funds received by the
Nation could not be imputed to PIN and
that, in the absence of any involvement
of federal funds, there could be no federal
offense. The court denied the motion,
holding that the involvement of federal
funds was a factual issue for trial.
In Dupris v. McDonald, 2012 WL 37366,
2012 WL 210722 (D.Ariz.), two plaintiffs
sued White Mountain Apache (Tribe)
Tribal law enforcement officers under
the Federal Tort Claims Act (FTCA),
alleging that the defendants violated their
civil rights when they were arrested and
falsely charged with crimes. The district
court dismissed, holding that the officers
were not federal officers for purposes of
28 U.S.C. § 2680(h), which establishes
immunity for claims based on intentional
torts such as false arrest and malicious
prosecution but contains a proviso waiving
immunity for intentional torts committed
by any "investigative or law enforcement
officer," defined as "any officer of the
United States who is empowered by law
to execute searches, to seize evidence, or
to make arrests for violations of Federal
law." While the Tribe did have an Indian
Self-Determination Act (ISDA) contract
with the federal government to fund
law enforcement, this did not make the
defendants, who were not given Special
Law Enforcement Commissions from the
BIA, deputized by the BIA, or otherwise
authorized to make arrests under federal
law, "federal" officers.
In Fritcher v. Zucco, (E.D. Cal. 2012),
Fritcher sued various officials of the
Owens Valley Indian Housing Authority
(OVIHA) in federal court alleging that
they failed to respond to the plaintiff's
demand for documents pertaining to
the OVIHA's Housing Improvement
Program. The court held that the plaintiff
had failed to allege any facts showing
that the defendants acted outside of the
scope of their official authority and
that, consequently, they were entitled to
sovereign immunity: "Though Plaintiff
concludes that Defendants Zucco's and
Puckett's actions exceeded the scope of
their authority, it nevertheless appears
that all three defendants are entitled to
sovereign immunity. This is true because
Plaintiff does not offer any factual support
for her conclusion that Zucco and Puckett
exceeded the scope of their authority
or offer any theory explaining why
Defendants' denial of documents would
result in actions which exceeded the scope
of their authority."
In South Fork Band Council of Western
Shoshone of Nevada v. U.S. Dept. of
Interior, 2012 WL 13780 (D.Nev.), the
Bureau of Land Management (BLM) of
the U.S. Department of Interior approved
Barrick Gold Corporation's (Barrick)
proposal to construct and operate the
Cortez Hills Expansion Project (Project),
a gold mining and processing operation
in Lander County, Nev., including new
facilities, as well as an expansion of
an existing open-pit gold mining and
processing operation. The South Fork
Band Council (Tribe), one of four
colonies that comprise the Te-Moak Tribe
of Western Shoshone Indians, sued for
judicial review under the Administrative
Procedures Act (APA) in 2008, alleging
violations of the National Environmental
Policy Act (NEPA), Federal Land Policy
and Management Act (FLPMA) and
the Religious Freedom Restoration Act
(RFRA), citing potential impacts on
Mt. Tenabo, a site sacred to the Tribe, in
support of the latter claim (see February
and March 2009 Updates). The district
court dismissed all three claims, but in
2009, the Ninth Circuit Court of Appeals,
while affirming the dismissal of the RFRA
and FLPMA claims, held that the Tribe
Indian Nations Law Focus February 2012 I Page 5
46