A snippet:

The first legal casebook dedicated entirely to tribal law is the fruit of seven years of work by Dr. Matthew L.M. Fletcher, an associate professor of law and director of the Indigenous Law and Policy Center at Michigan State University College of Law. American Indian Tribal Law, recently published by Aspen, is an 864-page volume that traces the development of tribal justice systems from the pre-contact era, through colonization, and into the modern age of self-government. It describes modern tribal government activities, explores how American Indian nations resolve disputes, and surveys more than 300 tribal courts nationwide.

2011 was a busy year, both personally and professionally, and 2012 looks to be just as challenging and rewarding.

Last year, my law school career came to a close upon my graduation from the San Joaquin College of Law.  As my time in academia came to a close, I have been blessed to have gotten to know many good people, including those who have gone on to become my best friends.  I am also thankful to say that I never want to go back to school again.  Gone are the stressful nights spent studying for midterms and finals.  However, I can’t be too proud since I am still dealing with the Bar Exam, a beast which requires much studying and mental refinery.

Second, I would also like to thank everyone who has read or subscribed to my blog or read my articles.  This year saw a big increase in traffic, especially as I turned Strict Liability towards the nuanced, bizarro world of Native American law.  I foresee this trend increasing as I give more attention to Indian law matters, rather than just a generalized “research blog” concept that I initially started with. I’ve gotten more attention and comments from Indians who focus on tribal disenrollments and those who have been disenrolled themselves.  And, as always, anything about tribal sovereignty seems to give me a boost in traffic.

In the meantime, I just have to keep doing what I’m doing.  Hope 2012 is the year you want it to be!

The plaintiff in this case sued his former employer, the casino, and Andrew Jack, the chairman of the Big Valley Pomo Pand of the Pomo Indians, who was also the CEO of the casino.  Specifically, Mr. Jack was sued in his official capacity as a member of the tribe.

Essentially, during the year or so that plaintiff was employed by the casino, he worked more than 40 hours per week but never got paid overtime.  So, he sued.

Tribal Sovereign Immunity

First, the court addressed whether the casino itself was entitled to claim the protection of sovereign immunity.  The casino is wholly owned and operated by the Big Valley Pomo Band via one of its committees.  Although not cited by court, but cited by the parties in their papers, casinos are considered arms of their respective tribes, pursuant to Cook v. Avi Casino, which I wrote about earlier.  As such, the casino derives its immunity from the tribe.

Abrogation

Next, the court had to determine whether the casino’s immunity had been abrogated.  The FLSA contains no provisions expressly dealing with Native Americans, their sovereignty, or whether it was abrogated, so the court could not conclude that the federal statute removed that sovereignty as a bar to the plaintiff’s claim.

Immunity of Andrew Jack

Lastly, the court addressed whether Mr. Jack, sued in his official capacity as a tribal member and employee of the casino, could derive sovereign immunity from the tribe.  Here, Jack is both the tribal chairman and CEO of the casino.  In his complaint, the plaintiff stated that Jack was in “economic and operational control” over the casino at the time the plaintiff was working without being paid overtime.

However, suing an employee of a tribally owned business in his or her official capacity will be barred by tribal sovereign immunity unless a party can show that person was not acting within the course and scope of their employment.  As plaintiff stated in their own complaint, Jack was in “economic and operational control” of the casino, which precludes plaintiff’s claim against him.

Conclusion

So, the lesson here is that employees of an Indian casino are out of luck when they decide to work over 40 hours a week.  One thing to note is that the plaintiff’s employment contract with the casino contained no provision that waived the tribe’s sovereign immunity, which helped.  Waivers of sovereign immunity must be expressly stated and without any express provision otherwise in a contract, then sovereign immunity will triumph.  One must be careful when entering into contractual relationships with any tribe.

Background: The California Rancheria Act of 1958

Congress passed the California Rancheria Act (“CRA”) in 1958 (Pub. Law 85-671, http://digital.library.okstate.edu/kappler/vol6/html_files/v6p0831.html#mn1), terminating forty-one (41) California Indian tribes or “Rancherias.”  Those Rancherias are: Alexander Valley, Auburn, Big Sandy, Big Valley, Blue Lake, Buena Vista, Cache Creek, Chicken Ranch, Chico, Cloverdale, Cold Springs, Elk Valley, Guidiville, Graton, Greenville, Hopland, Indian Ranch, Lytton, Mark West, Middletown, Montgomery Creek, Mooretown, Nevada City, North Fork, Paskenta, Picayune, Pinoleville, Potter Valley, Quartz Valley, Redding, Redwood Valley, Robinson, Rohnerville, Ruffeys, Scotts Valley, Smith River, Strawberry Valley, Table Bluff, Table Mountain, Upper Lake, and Wilton.

For those unfamiliar with the term “termination,” what it means is that once upon a time, in the 50′s, the United States government ended its fiduciary relationship with Native Americans.  Via legislation, the government wanted to integrate Native Americans into the taxpaying citizenry by removing their tribal sovereignty against state and local ordinances, such as taxes and federally subsidized healthcare.  With almost no prep whatsoever, the government effectively told the Indians they were on their own, dissolved federal Indian reservations and transferring parcels of those lands into Indians hands, making them private property owners.  The problem was that Indians often had no jobs and little income, leaving them at the mercy of state and local taxes and regulations they were unfamiliar with.  In California, the specific legislation introduced was the California Rancheria Act.  I talked generally about the Termination Era in one of my tribal disenrollment articles.

Moving on, the CRA contained provisions on how the United States would dissolve its relationship with each of the Rancherias listed.  Each Rancheria was to draw up distribution plans for each Indian living there and the United States would undertake surveys and infrastructure improvements.  Once the distribution plans were approved and finalized, federal supervision of the Rancherias and the status of tribal members as Indians would terminate.  After termination, title was to be conveyed to those distributees identified in the distribution plan, dissolving both the federal government’s fiduciary duty to the distributees and the distributed land’s exemption from state and local laws, ordinances, and regulations.

Tillie Hardwick, et al. v. United States, et al.

On July 10, 1979, distributees from thirty-four (34) Rancherias terminated under the CRA brought a class action lawsuit in the Northern District of California against the United States and various government officials.  The Hardwick plaintiffs asserted that the United States violated the Rancheria Act in its effort to terminate federal supervision of the tribes.

Specifically, they claimed that the United States failed to inform the distributees properly of the legal consequences of termination, including the fact that the distributees’ lands would be subject to state and local taxation and regulation, and the fact that the distributees no longer would have access to federal progras and protections.   The class was certified to proceed to trial; however, it settled before that could happen.  The settlement was finalized on December 22, 1983.

The settlement divided the terminated Rancherias into three (3) sub-classes.  The first sub-class contain seventeen (17) Rancherias that were restored to federally recognized status: (1) Big Valley; (2) Blue Lake; (3) Buena Vista; (4) Chicken Ranch; (5) Cloverdale; (6) Elk Valley; (7) Greenville; (8) Mooretown; (9) North Fork; (10) Picayune; (11) Pinoleville; (12) Potter Valley; (13) Quartz Valley; (14) Redding; (15) Redwood Valley; (16) Rohnerville; (17) Smith River.

The second sub-class included twelve (12) Rancherias whose claims were dismissed without prejudice: (1) Graton; (2) Scotts Valley; (3) Guideville; (4) Strawberry Valley; (5) Cache Creek; (6) Paskenta; (7) Ruffeys; (8) Mark West; (9) Wilton; (10) El Dorado; (11) Chico; (12) Mission Creek.  They were dismissed because no class member from these Rancherias owned any property within the original Rancheria boundaries.  The property was either sold to non-Indians when the Rancheria was terminated and the proceeds of these sales distributed to Rancheria members in lieu of deeds to individual parcels of property or all of the property originally distributed was subsequently sold to non-Indians. In either case the federal defendants are unwilling to re-assume responsibility for any of these Rancherias without a final judicial determination of their obligation to do so.

The third subclass consists of a number of individuals, some of whom were members of Rancherias included in the second subclass, whose claims were dismissed with prejudice because of the res judicata effect of prior lawsuits.  (Res judicata is a legal term, also known as claim preclusion, which refers to a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties).

Nisenan Maidu Tribe of the Nevada City Rancheria v. Salazar (2011)

Most recently, a listed Rancheria in the CRA is just now attempting to use the Hardwick case to unterminate themselves.

The plaintiff was a former Rancheria that was listed among the 41 Rancherias terminated by the CRA.  They were not amongst the original Hardwick plaintiffs and were attempting to use the Hardwick settlement as a means to “unterminate” themselves.   However, pre-trial discovery had not yet shown whether the plaintiffs were members of the Hardwick class since the only two Indians living within Nevada City Rancheria’s original borders were deceased when the Hardwick lawsuit originally went to court and therefore, could not be served notice to appear.  Presumably, this litigation is still ongoing.

The court also held that the Plaintiff could successfully open the Hardwick settlement to benefit from its ruling if: 1) they could show that it was a member of the Hardwick class; and 2) it would have been in the sub-class of Rancherias actually entitled to relief under Hardwick and not in the one sub-classes of Rancherias whose claims long since have been dismissed, i.e., by demonstrating that at the time of the Hardwick settlement, at least one class member from the Rancheria owned real property within the original Rancheria boundaries.  (To my friends familiar with the law, you would essentially do this under a Rule 60(b) motion.)

Conclusion

The Tillie Hardwick case is a very narrow way allowing California Indians to restore themselves to federally recognized status.  Very few can make use of it, but for those who can, it is possible to use this method to achieve federally recognized status rather than going through the onerous route of 28 C.F.R. section 83.7 et. seq.  (Which could be a few blog articles in themselves.  Hmm…)

A lot of good stuff to be found in the Internet today, which is I’m what I’m going to be throwing at you now, for lack of a clear subject to blab about.  Enjoy.

Law School – Subsidized Graduate Student loans will be kaput starting July 1, 2012.  Everyone else that has one (or several, as the case may be for law students) will not be affected.  Everyone I know is drowning alive in student loan debt, myself included.  Sorry to anyone affected by this.

Federal Courts – For those curious to see just how long it actually takes litigation to wind its way through federal court, the Federal Judicial Center stated the median time from filing the case to receiving the first scheduling order is 3.5 months.  Receiving a scheduling order just means you now have a list of deadlines that you and the opposing party have to file things motions to dismiss or summary judgment, disclose expert witnesses, complete discovery, etc.  The time from the first scheduling order to the discovery cut-off is 6.5 months.

Elections & Voting – An interesting Pew study about the voting habits of Americans.  People my age (Millenial) are increasingly Democratic, but are becoming disenchanted with Obama.  The current bulk of the Silent Generation (born between 1929-45, coming of age during the Korean War, the Truman, Eisenhower and Kennedy presidencies), are highly conservative, are mostly Republican but are unhappy with both parties.  The Millenials like Obama, but they don’t vote.  The Silents are angry and are behind Romney.  My people, on the other hand, grew up watching Presidents Clinton and Bush II.  We’re liberal and want an activist government.  The Silents want less government.  We love racial diversity.  Silents and Baby Boomers, not so much.  Both Millenials and Silents think the economy will eventually return while Boomers and Gen-X’ers think their retirement is belly-up and will have to be deferred.  Depending on who you ask, the greatest president of their lifetimes were either Clinton or Reagan.  None of us trust the government to do what’s right.

Native Americans – President Obama signed a proclamation proclaiming November 2011 as Native American Heritage Month, and that November 25th as Native American Heritage Day.

Read this: Judges’ deaths add to the 9th Circuit backlog by the L.A. Times.

…

The deaths of four semi-retired senior jurists and full-time Circuit Judge Pamela Ann Rymer have intensified concerns on the aging bench and among judicial scholars that the 9th Circuit will fall farther behind in what is already the slowest pace of dispensing justice in the federal courts.

Judges of the 9th Circuit currently sit on twice the number of cases each year as those of the other 12 federal appeals courts . . . . And it takes an average of 16.3 months for the court’s panels to issue opinions after an appeal is filed, compared with 11.7 months on average for all circuits. The 9th Circuit has jurisdiction over California and eight other Western states and is authorized to have 29 full-time jurists.

…

Some judicial analysts also lament that the administration hasn’t pushed Congress to expand the federal judiciary, as recommended for more than a decade by the Judicial Conference of the United States. That policymaking body of the federal courts has said the 9th Circuit needs at least five more judges added to its authorized 29 to alleviate its annual caseload of 12,000-plus filings.

Could someone help, please?

By the time you read this, Oliver Wanger is now a lawyer again.  For the last 20 or so years he was the Honorable Oliver Wanger, District Judge for the Eastern District of California, Fresno office.  He is also one of the founders of my law school, the San Joaquin College of Law.  He occasionally teaches there and is currently teaching a class.  But now, he will assume partnership status at Wanger, Jones & Helsley, PC.  I wonder who will take up his seat in his old courtroom.  It was the best I’d seen at the federal courthouse.  Maybe no one.  In fact, there’s probably not going to be anyone filling Judge Wanger’s position for a while.

The Eastern District of California is the largest federal court district in California.  It spans several counties and is served by several offices from as far north as Redding, and as far south as Bakersfield.  Sacramento is the main office of the Eastern District (hereinafter referred to as “ED Cal,” which is how we cite it in our legal papers), where the majority of our magistrate and district judges can be found.

Back in 2009, District Judge Lawrence O’Neill testified before the US Senate that federal judges in Sacramento and Fresno juggled some of the country’s highest caseloads.  [Source]  He stated that while some judges handle an average of 471 cases, ED Cal judges handle over a thousand.  That was when Wanger was still working there, and even then, he was already “semi-retired.”  [See Source]  Back when I externed for Judge Austin (a magistrate judge, or “MJ”), I already knew how hard Wanger and his staff worked.  The man was double-tracking trials and there were rumors that he was going to start triple-tracking them.  (Which is court lingo for hearing two trials a day, at different times, in separate courtrooms.  One trial in one courtroom is exhausting enough as it is.) When the whole Delta Smelt / Salmonid cases were going full-force, motion hearings would begin in the morning and stretch into the early evening hours.  As someone who has sat in on trials, seen what attorneys go through just to prep for the trial, doing last minute trial research, being in “trial mode” in a courtroom all day is mentally and physically taxing.

Now Wanger is gone.  This leaves behind District Judges Lawrence O’Neill and Chief Judge Anthony Ishii.  [Source]  Wanger’s workload will be split amongst them, leaving O’Neill and Ishii to split up to 1,800 cases.  In response, judges from Sacramento may be needed, but it’s hard to get people to come to Fresno.  I mean, it’s Fresno, after all.  Another measure of damage control is to farm out their cases to the magistrate judges that also reside in Fresno’s federal courthouse.  The difference between MJ’s and district judges (DJ’s) is that MJ’s handle most non-dispositive motion decisions (i.e., discovery matters, simple civil and criminal matters; nothing dispositive like a summary judgment or a full-blown trial).  Those cases that were pending before Wanger will mean that the parties behind those lawsuits will have to consent to MJ adjudication.  While such consent is voluntary, it’s strongly suggested.  Some MJ decisions are reviewed by the DJ’s, and if they feel that the MJ made the right decision, then the MJ’s decision (usually called a “Findings and Recommendations” opinion) is adopted as the DJ’s opinion.  According to OSCAR (a website for law students and grads like myself to find jobs working as judicial interns and clerks), ED Cal is now hiring clerks for one year terms, which is no big surprise.  But still: 1800 cases.  And we’re not getting any new judges.  (Probably a bad time to mention that MJ Sandra Snyder has also retired the same time Wanger has, to much less fanfare in the press.  And I hear MJ Beck is retiring next year.  Gulp.)  And according to a Fresno Bee article, our judges’ current workload is three times the national average.  [Source]  Also, like I said, we still have Ishii and O’Neill, but that’s two DJ’s in Fresno and ED Cal as a whole has six DJ’s.  Let me say that again: six judges.  Six judges are now tackling the biggest combined case load in the United States.

So, in short, we need help.  I don’t know if the other offices are having as much trouble as we are, but the Fresno courthouse needs more judges.  Back in ’09, Judge O’Neill said ED Cal needed at least four permanent DJ’s and one temp.  [Source]  I tell people that I think we need six more permanents.  So, what’s the hold up?  And why does this matter?

Congress’ Responsibility

The hold up is Congress’ fault.  Judicial appointments can be highly political.  If you recall the partisan bickering over whether to boost the federal deficit limit, you can imagine what it’s going to be like to appoint a judge.  One article says the Obama administration lacks the political will to force enough votes through but the President has too many things to worry about.  [Source]  So, what was the hold up under the Bush administration?  Who knows.  A Fresno Bee article points to bickering between US Representatives and US Senators (in particular, Rep. Nunes blames Sen. Feinstein).  [Source]  Senator Feinstein sponsored a bill called the Judicial Emergency Relief Act of 2011 (S. 1014) [Source].  According to the THOMAS website, the bill has been “referred to the Committee on the Judiciary.”  The text of S. 1014 calls for four permanent DJ’s for ED Cal.  [Source]  In the end; however, the Senate Judiciary Committee has come to a consensus on several nominees – it’s their vote by the Senate as a whole that is holding everything up.  Bruce Moyer, The Judicial Vacancy Crisis Continues, The Federal Lawyer (Sept. 2011).  So long as politics hold judicial nominees and nominations at bay, ED Cal’s problem isn’t going away anytime soon.

Right now, the US Courts website tells me that as of today (10/2/11), there are 76 vacancies in District Courts throughout the United States.  [Source]  Of those 76, there are 44 nominations.  But that doesn’t mean that any of those 44 have been voted on by the Senate or what stage of their nomination proceedings they’re in.  In an op-ed piece in The Federal Lawyer, written by Bruce Moyer: “Over 10 percent of the federal bench is empty.  There is no justification for the crisis to exist, and partisan one-upsmanship is the sole cause.  The Senate is clearly failing to perform one of its constitutional responsibilities.  It is one more reason why 88 percent of Americans currently disapprove of Congress and its performance.”  Bruce Moyer, The Judicial Vacancy Crisis Continues, The Federal Lawyer (Sept. 2011).

Efficient Courts

The biggest factor is why we need judges.  Senator Patrick Leahy (D-Vt) testified to the following:

The unnecessary delays we have seen for the last two years in the consideration of judicial nominations mean that Federal judges are overburdened and the persistent vacancies threaten the ability of Americans to get a fair hearing in court. This is unacceptable.

Unnecessary delays mean a lot of things to a lot of people.  For those of you that have ever dealt with the court system, especially in protracted litigation, the time it took to conduct a lawsuit and finally get a decision from a court seemed long enough already.

Ashley Belleau, President of the Federal Bar Association, put the crisis in perspective:

Sadly, few Americans understand the impact these judicial vacancies have on their lives. Those of us who try federal cases know its impact in the continuance of cases for months, even years, without decision. Vacancies and delay add greater costs to already high litigation expenses. For business clients, these costs get passed on to customers. And when the United States is a party to the case, it means that the public is paying that higher tab.

For criminal defendants awaiting trial, it can mean more detention time, adding even more costs to the taxpayer. Just last year, the federal cost of pretrial detention alone was $1.4 billion, according to the Department of Justice.

. . . Federal District Judge Royal Furgeson commented on the enormous impact that vacancies on the federal bench have on the pace of litigation and ultimately the American economy: The business of America is business, and when businesses can’t figure out if their patents are good, their contracts are good, they can’t figure out what to do about their tax situation, things bog down. Businesses need a strong rule of law and prompt rulings by judges. Vacancies desperately need to be filled; new judges desperately need to be added. We owe that to our citizens. We owe that to our Constitution. We owe that to the rule of law. And we owe it to the cause of justice.

Conclusion

Mr. Wanger’s retirement is the tip of the iceberg.  Even at semi-retirement, he was working a full case load.  Without him, the Eastern District has truly suffered a loss.  That said, Mr. Wanger has certainly earned the right to retire and begin the next phase of career however he wants.  While the other judges are going to have to pick up his caseload, it is not enough.  The Eastern District needs judges and it needs them now.  It needed them years ago.

Judges are a good thing.  Without them, decisions take longer to come to fruition, and justice is delayed considerably more than it should.  This crisis effects peoples’ lives, their bottom-lines, and their business relationships.  Furthermore, people should have their decisions adjudicated evenly and objectively.  With the amount of cases that the remaining ED Cal judges have to handle, the hurried time schedule will force certain cases to languish and others to be rushed through without the judicial oversight they would have normally had under better condition.

If you want to do something about this, then please write your Congressperson and demand they vote on the judicial nominees for the positions they are already considered for and demand that the judicial crisis in the Eastern District (and everywhere else) come to an end.

For more information, see the Federal Bar Association’s page on the judicial crisis: http://fedbar.org/Advocacy/Judicial-Vacancies.aspx

Sources Cited:

Ashley Belleau, Business, defendants harmed in cost-cutting at federal courts, The Atlanta Journal-Constitution, http://www.ajc.com/opinion/business-defendants-harmed-in-927588.html (last visited Oct. 2, 2011)

John Ellis, Loss of judge will further clog Fresno court, The Fresno Bee, http://www.fresnobee.com/2011/09/16/2541815_p2/loss-of-judge-will-further-clog.html#ixzz1ZgjK19ZE (last visited Oct. 2, 2011)

Michael Doyle, Judge Wanger’s exit leaves hole in district, The Fresno Bee, http://www.fresnobee.com/2011/08/31/2520184/judge-wangers-exit-leaves-hole.html (last visited Oct. 2, 2011)

Fresno Judge Pleas to Senate Subcommittee for More EDCA Judges, Eastern District of California Blog, http://edca.typepad.com/eastern_district_of_calif/2009/10/fresno-judge-pleas-to-senate-subcommittee-for-more-edca-judges.html (last visited Oct. 2, 2011)

Obama Losing Judge Wars, Ex-Clinton Official Says, The Blog of Legal Times, http://legaltimes.typepad.com/blt/2011/02/obama-losing-judge-wars-former-doj-official-says.html (last visited Oct. 2, 2011)

Testimony of Sen. Patrick Leahy, http://judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da168cf65&wit_id=e655f9e2809e5476862f735da168cf65-0-0 (last visited Oct. 2, 2011)

Bruce Moyer, The Judicial Vacancy Crisis Continues, The Federal Lawyer (Sept. 2011).

The article is interesting. The book also touches on tribal disenrollment. I’ll see if I can grab a copy sometime and read it.

Here’s the link to The Collegian article: http://collegian.csufresno.edu/2011/09/28/fresno-state-political-science-professor-publishes-book-on-indian-gaming/

Start trolling Google News and blogs about our global economic forecast and the fate of the US currency/economy while listening to Scala & Kolacny Brothers’ rendition of Radiohead’s “Creep.” Every story will suddenly take on an ominous and horrifying tone.

Not that I had much hope for the state of our global economy anyway, but still, doing this kind of stuff doesn’t help.

And in case you were wondering, the song selection wasn’t deliberate, just started playing music on iTunes and it was in my library. D’oh.