Brian Pierson: Recent federal court decisions affecting Indian law

In White v. University of California, 2014 WL 4211421 (9th Cir. 2014), archaeologists employed by the University of California–Los Angeles (University) in 1976 had discovered two human skeletons (La Jolla remains), estimated to be between 8977 to 9603 years old, making them among the earliest known human remains from North or South America. The property on which the La Jolla remains were discovered was aboriginally occupied by members of the Kumeyaay Nation (Tribe), which consists of a number of federally recognized Indian tribes. A lengthy controversy over custody of the remains ensued between the Kumeyaay Cultural Repatriation Committee (Repatriation Committee), a tribal organization that was formed by the 12 constituent members of the Tribe and scholars wishing to study the remains. In 2011, the University, after determining that the Native American Graves Protection and Repatriation Act (NAGPRA) governed the issue, decided to transfer custody of the remains to the La Posta Band of Diegueno Mission Indians. NAGPRA applies to “Native American” cultural items, and it defines “Native American” to mean “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” 25 U.S.C. § 3001(9). The Ninth Circuit had held in the Bonnichsen case that “Native American” applied to a “presently existing” tribe, people, or culture. Scientists, asserting that the remains did not satisfy this definition, sued the University in state court, challenging the University’s determination. The University removed to federal court, which then dismissed, concluding that the Repatriation Committee was a necessary and indispensable party under Fed R. Civ P. 19 that could not be joined because it was immune from suit. The Ninth Circuit affirmed, holding (1) that the NAGPRA does not abrogate tribal sovereign immunity and (2) the Repatriation Committee was an arm of the Tribe entitled to immunity: “And, as the Supreme Court [in Bay Mills] observed, it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity. Moreover, as the University points out, the United States retains the right to bring an action against a tribe” (cites and internal quotations omitted). On the second point, the Court noted that the Committee was created by resolution of each of the Tribes, comprised solely of tribal members appointed by each tribe, funded exclusively by the Tribes, for a purpose, recovery of remains and education of the public, that is “core to the notion of sovereignty.”

In Jackson v. Payday Financial LLC, (7th Cir. 2014), Jackson and other plaintiffs had received payday loans from Payday Financial, LLC and other defendant entities owned by, or doing business with, Martin A. Webb, a member of the Cheyenne River Sioux Tribe and also a named defendant pursuant to loan agreements that required that all disputes be resolved through arbitration to be conducted on the Tribe’s reservation. The plaintiffs sued the defendants in Illinois state court for alleged violations of Illinois civil and criminal statutes related to loans. The defendants removed to federal court and moved to dismiss on the ground that the plaintiffs were required to arbitrate and that the Tribal court had exclusive jurisdiction. The district court granted that the motion by the Seventh Circuit Court of Appeals be reversed, holding that (1) the arbitration provisions in the loan agreements were procedurally and substantively unconscionable, a sham and unenforceable and (2) the tribal court had no jurisdiction: “It is procedurally unconscionable because the Plaintiffs could not have ascertained or understood the arbitration procedure to which they were agreeing because it did not exist. It is substantively unconscionable because it allowed the Loan Entities to manipulate what purported to be a fair arbitration process by selecting an arbitrator and proceeding according to nonexistent rules. Here, the Plaintiffs have not engaged in any activities inside the reservation. They did not enter the reservation to apply for the loans, negotiate the loans, or execute loan documents. They applied for loans in Illinois by accessing a website. They made payments on the loans and paid the financing charges from Illinois. Because the Plaintiffs’ activities do not implicate the sovereignty of the tribe over its land and its concomitant authority to regulate the activity of nonmembers on that land, the tribal courts do not have jurisdiction over the Plaintiffs’ claims. Moreover, a tribal court’s authority to adjudicate claims involving nonmembers concerns its subject matter jurisdiction, not personal jurisdiction. See id. n.8. Therefore, a nonmember’s consent to tribal authority is not sufficient to establish the jurisdiction of a tribal court.”