Indigenous Peoples Civil Procedure

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Supreme Court to Review Tribal Jurisdiction Case that Could Impact Doing Business in Indian Country

In its next term, the United States Supreme Court will hear its first case addressing the limits of tribal jurisdiction in seven years, having granted a petition for a writ of certiorari to Dolgencorp and its parent company,...more

Supreme Court Update: Glossip V. Gross (15-7955) And Order List

We're back with our final Update of OT14, covering Glossip v. Gross (15-7955), a doubly divisive death-penalty case, and providing a roundup of the Court's orders over the last few weeks. (Did you think we'd forgotten about...more

Fourth Circuit Rejects Characterization Of Motions “For Reconsideration,” Remands To Determine Whether Dispute Is Arbitrable

The Court of Appeals for the Fourth Circuit recently remanded a case to the district court for full consideration of a request to compel arbitration, finding the lower court’s order “inconsistent with the emphatic federal...more

Gaming Legal News: Volume 8, Number 14: The Intersection Of Federal Labor Law, Tribal Gaming And A Deep Division Within Two Sixth...

Two separate three-judge panels of the United States Court of Appeals for the Sixth Circuit have rendered labor law decisions concerning Indian casinos in Michigan only 22 days apart. While each of the panels ruled that the...more

Intellectual Property Alert: Federal District Court Affirms Cancellation of “REDSKINS” Marks on Summary Judgment and Holds that...

On July 8, 2015, the Federal District Court of the Eastern District of Virginia affirmed the Trademark Trial and Appeal Board’s cancellation of the REDSKINS federal trademark registrations owned by Pro-Football, Inc....more

Redskins Trademarks – Answers to Key Questions Regarding Recent Ruling

Last week, the U.S. District Court sitting in Alexandria, Virginia granted what would appear to be a sweeping victory to a group of five Native Americans who have renewed attempts to cancel the federal registrations of...more

Washington’s NFL Team and U.S. Customs

Last week the NFL franchise that plays football near — but not in — our Nation’s Capital, was dealt another significant legal and public relations blow that would have any rational brand owner working overtime on its...more

The Sixth Circuit Extends the NLRA's Reach to Tribal-Owned Casinos

The extent of the National Labor Relations Act's application to tribal-owned and operated enterprises on reservations is an open question in many circuits. Recently, two Sixth Circuit decisions resolved the question in favor...more

Sixth Circuit Holds National Labor Relations Act Applicable to Indian Tribe's Casino

Weighing in on a hotly contested issue, a panel of the Sixth Circuit has found that federal labor law applies to Indian tribes’ casinos, notwithstanding the tribes’ inherent sovereignty. However, the panel only did so because...more

Declaration Requirement Removed from First Nation Consultation Procedures

On June 10, 2015, the Alberta Energy Regulator (AER) released a revised version of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures) and Bulletin 2015-20. While the...more

Despite Changing Economic Reality, Federal Court Holds Indian Tribes Have Sovereign Immunity in Bankruptcy, Absent Waiver

As the Indian gaming industry continues to thrive, Indian tribes are increasingly engaging in other commercial endeavors including banking, construction, energy, telecommunications, manufacturing, retail and more. Based on a...more

Update on Battle Over the Navajo Mark

In a surprising move last week, Urban Outfitters and its subsidiaries (collectively “Urban Outfitters”) moved to withdraw their motion for partial summary judgment on the secondary liability claims being brought against them...more

En Banc Ninth Circuit Ruling Restores Certainty to Federal Recognition of "Indian Lands"

On June 4, 2015, the Ninth Circuit Court of Appeals issued its en banc decision in Big Lagoon Rancheria v. California, a case in which Big Lagoon Rancheria, a federally recognized Indian tribe, sought to compel the State of...more

Lawyer Who Started Fight Over "R-Word" Mascot Awaits Decision

About a quarter century ago, Steve Baird — at the time, a freshly minted graduate of the University of Iowa law school clerking for a federal judge in Washington, D.C. — was spending most of his free weekends working on an...more

Does Rule 23(e) Require that Settlement Class Members Receive Notice of Modification to Cy Pres Remedy?

The United States District Court for the District of Columbia recently held that a modification to a settlement agreement was not subject to the procedural protections of Federal Rule of Civil Procedure 23(e) because it would...more

Use of NAVAJO – Is Urban Outfitters Infringing or Not?

Battles continue to wage over use of the “Navajo” and “Navaho” marks in New Mexico federal court. The Navajo Nation (“the Nation”) sued Urban Outfitters and its subsidiaries, including one of my favorite retailers,...more

Preliminary Injunction Motion Filed To Stop BLM’s Final Fracking Rule

Last Friday, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) opened their arguments on a preliminary injunction motion to halt the federal Bureau of Land Management’s (BLM) final...more

No Aboriginal Title Required: BC Court of Appeal Allows First Nations’ Civil Claim Against Alcan to Proceed

On Wednesday April 15, 2015, the BC Court of Appeal released its decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc. In its decision, the court allowed the claims of the plaintiffs Saik’uz...more

Bills Propose to Reverse National Labor Relations Board Jurisdictions over Indian Tribal Governments

The National Labor Relations Act (“NLRA”) was enacted by Congress in 1935. The Act, also known as the Wagner Act after its champion, New York Senator Robert F. Wagner, passed the Senate in May 1935, the House in June 1935,...more

Wisconsin Indian Tribe Prevails – State Cannot Ban Electronic Poker on Reservation

The U.S. Court of Appeals for the Seventh Circuit has overturned a federal district court ruling that had permitted the State of Wisconsin to prohibit the Ho Chunk tribe from offering electronic poker on its reservation...more

Saskatchewan Court of Appeal: No Surface Activity Means No Duty to Consult First Nations

In its recent decision in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), the Court of Appeal for Saskatchewan held that the government was not required to consult the Buffalo River Dene Nation (BRDN) before...more

Court Upholds First Nations’ Right to Bring Claims Based on Interference with Unproven Aboriginal Rights and Title

In its recent decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., the Court of Appeal for British Columbia (BCCA) confirmed that First Nations may bring actions against private parties in...more

Duty to Consult Not Triggered for Exploration Dispositions: Saskatchewan Court of Appeal

The grant of exploration dispositions for oil sands located beneath treaty lands did not trigger the Crown’s duty to consult, the Saskatchewan Court of Appeal held recently in Buffalo River Dene Nation v Ministry of Energy...more

5th Circuit Vacates Arbitration Award Conducted By Wrong Arbitrator Under Wrong Rules

Let’s say your arbitration agreement calls for arbitration administered by JAMS under JAMS rules, but the arbitrator is independent and applies AAA rules, over one party’s objection.  A new decision from the Fifth Circuit...more

Aboriginal Heritage Update: Supreme Court Clarifies Meaning Of 'Sacred Site' In Western Australia

In Robinson v Fielding [2015] WASC 108 the Supreme Court of Western Australia determined that the Aboriginal Cultural Material Committee, the body charged with evaluating the importance of places and objects for the purposes...more

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