Latest 3 Cases This Week: Confederated Tribes and Bands of the Yakama Nation v. Yakima County (9th Cir.), Lavallie v. Jay, et al. (N.D.), ...

Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

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Confederated Tribes and Bands of the Yakama Nation v. Yakima County

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-35199

Opinion Date: June 29, 2020

Judge: R. Nelson

Areas of Law: Native American Law

The State of Washington may exercise criminal jurisdiction over members of the Confederated Tribes and Bands of the Yakama Nation who commit crimes on reservation land. The panel held that the Yakama Nation had Article III standing to seek a permanent injunction regarding the effect of a Washington State Proclamation retroceding, or giving back, criminal jurisdiction to the United States. Under 25 U.S.C. 1323(a), the Proclamation retroceded, "in part," civil and criminal jurisdiction over the Yakama Nation to the United States, but retained jurisdiction over matters "involving non-Indian defendants and non-Indian victims." Based on the entire context of the Proclamation, the panel concluded that "and" is disjunctive and must be read as "or." Therefore, the panel held that, under the Proclamation, the State retained criminal jurisdiction over cases in which any party is a non-Indian. Therefore, the panel found that the Yakama Nation has not shown actual success on the merits in order to justify a permanent injunction.

Lavallie v. Jay, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 147

Opinion Date: June 29, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Native American Law, Personal Injury

Lawrence Lavallie brought this personal injury action against Lorne Jay and Michael Charette after the parties were involved in a motor vehicle accident. The accident occurred on the night of December 26, 2016, on County Road 43 in Rolette County, North Dakota. Lavallie was driving a snowmobile on the roadway followed by Charette who was driving a GMC Yukon automobile. It was dark with blowing snow and poor visibility. Jay was operating a tractor, and in the process of blowing snow from his driveway. When Lavallie came upon Jay operating the tractor, the tractor was located in the middle of the roadway and did not have any lights or reflectors. Concerned that Charette would not be able to see the tractor in the roadway because it was dark and snowing and because the tractor did not have any lights or reflectors, Lavallie stopped the snowmobile alongside the tractor and tried to get Jay’s attention for him to move the tractor off of the road. While Lavallie was on the parked snowmobile trying to get Jay’s attention, Charette struck the snowmobile. First responders transported Lavallie to the Rolla hospital. Lavallie was transferred to Grand Forks where part of his leg was amputated. Jay appealed when the district court judgment ordered him to pay Lavallie $946,421.76, arguing the district court erred in denying his motion to dismiss for lack of subject matter jurisdiction. Jay conceded the district court was correct in finding the accident involving the parties in this case occurred outside the external boundaries of the Turtle Mountain Reservation. The North Dakota Supreme Court found the evidence in the record indicated the accident occurred on a county road located on land held in trust for the Tribe. "The question becomes whether district courts maintain subject matter jurisdiction over claims involving conduct between enrolled members of a tribe occurring on county roads located on Indian trust land." The Supreme Court found the district court did not determine whether the accident occurred on land held in trust for the Tribe. The district court also did not determine whether the parties to this action were enrolled members of the Tribe. Without such findings, the Supreme Court was unable to adequately consider whether the district court had subject matter jurisdiction to adjudicate Lavallie’s claims. Therefore, judgment was reversed and the matter remanded for further proceedings.

Confederated Tribes & Bands of the Yakama Nation v. Yakima County

Court: Washington Supreme Court

Docket: 97910-3

Opinion Date: July 2, 2020

Judge: Barbara Madsen

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Native American Law, Zoning, Planning & Land Use

Granite Northwest sought to expand its mining operations in Yakima County, Washington. The Confederated Tribes and Bands of the Yakama Nation (Yakama) opposed the expansion, arguing it would disturb ancient burial grounds and a dedicated historical cemetery. Despite these objections, Yakima County issued a conditional use permit and a State Environmental Policy Act (SEPA), ch. 43.21C RCW, mitigated determination of nonsignificance to Granite Northwest. Yakama challenged both in superior court. The court later stayed the SEPA challenge while Yakama exhausted its administrative appeal of the conditional use permit as required by the Yakima county code. In Yakama’s administrative appeal, the hearing officer modified the conditional use permit to require a separate permit from the Washington State Department of Archaeology and Historic Preservation but affirmed Yakima County’s issuance of the permit. Yakama appealed the hearing examiner’s decision to the county board of commissioners. On April 10, 2018, at a public meeting where Yakama representatives were present, the board passed a resolution affirming the hearing officer’s decision and denying Yakama’s appeal. Three days later, a county planner sent an e-mail and letter to Yakama with the resolution attached. The letter noted the county code required written notification of the decision and stated that the administrative appeal had been exhausted. On May 2, 2018, 22 days after the resolution was adopted and 19 days after the county planner’s letter, Yakama filed a new petition in superior court. Yakima County and Granite Northwest (collectively, Granite NW) moved to dismiss the second petition as untimely under RCW 36.70C.040(4)(b) because the 21-day filing period began on the date the board of commissioners passed its resolution and Yakama’s petition was 1 day late. Granite NW also moved to dismiss the previously stayed petition, arguing the stay was conditional on Yakama timely filing its administrative appeal. Yakama responded that RCW 36.70C.040(4)(b) was inapplicable and instead RCW 36.70C.040(4)(a) governed the filing period, which began when the county planner transmitted the written resolution to Yakama. The superior court agreed with Yakama, finding Yakama’s land use petition was timely filed, and accordingly, did not dismiss Yakama’s earlier petition. The Court of Appeals reversed in an unpublished decision, concluding the later petition was not timely and did not address the previously stayed petition. After review, the Washington Supreme Court concluded Yakama's petition was timely filed. The Court of Appeals was reversed.