Las Vegas Tribe of Paiute Indians v. Phebus

• Decision Date: 24 March 2014
• Docket Number: No. 2:13–CV–02000–RCJ–CWH.,2:13–CV–02000–RCJ–CWH.
• Citation: 5 F.Supp.3d 1221
• Parties: LAS VEGAS TRIBE OF PAIUTE INDIANS, Plaintiff, v. Christopher W. PHEBUS, Defendant.
• Court: U.S. District Court — District of Nevada

5 F.Supp.3d 1221

LAS VEGAS TRIBE OF PAIUTE INDIANS, Plaintiff,

v.Christopher W. PHEBUS, Defendant.

No. 2:13–CV–02000–RCJ–CWH.

United States District Court,

D. Nevada.

Signed March 24, 2014.

Patrick Murch, McDonald Carano Wilson LLP, David A. Colvin, Marquis Aurbach Coffing, Las Vegas, NV, for Plaintiff.

ORDER

ROBERT C. JONES, District Judge.

This case arises out of an Indian tribe's criminal prosecution of one of its former members. Pending before the Court is a Motion for Declaratory Judgment (ECF No. 8). Defendant has not timely responded. For the reasons given herein, the Court grants the motion in part and denies it in part.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Las Vegas Tribe of Paiute Indians (the “Tribe”) is a federally recognized Indian tribe with a tribal constitution approved by the Secretary of the Interior pursuant to the Indian Reorganization Act of 1934. ( See Compl. ¶ 1, Oct. 30, 2013, ECF No. 1). Defendant Christopher Phebus is a resident of the State of Nevada and a former member of the Tribe. ( See id. ¶ 2).¹ He resides on the Las Vegas Paiute Colony, which is located near downtown Las Vegas, Nevada. ( Id.). Phebus was an enrolled member of the Tribe from 1983 until July 1999, when the Tribal Council disenrolled approximately one-fourth of the Tribe's members, including Phebus. ( Id. ¶¶ 4–5).

Since his disenrollment, Phebus has been cited, arrested, convicted, and sentenced by the Tribal Court several times for offenses such as contempt, trespass, and disorderly conduct. ( See id. ¶ 6). Phebus has objected that his disenrollment from the Tribe destroyed the criminal jurisdiction of the Tribal Court over him, but the Tribal Court has nevertheless asserted criminal jurisdiction over him under United States v. Bruce, 394 F.3d 1215 (9th Cir.2005), because although he is not a member of the Tribe, he is still an Indian. ( Id. ¶ 7).

In November 2012, the Tribe charged Phebus with Improper Influence in Official Matters under Tribal Code section 5–60–020 for threatening to throw a rock through the window of the Tribal Chief of Police's office. ( Id. ¶ 9). In December 2012, the Tribal Court held a bench trial, pronounced Phebus guilty, sentenced him to six months imprisonment, and remanded him to the custody of the Bureau of Indian Affairs. ( Id.). In January 2013, Phebus filed a motion in the Tribal Court, asking the tribal judge to recuse himself from all future matters involving Phebus. ( Id. ¶ 10). The Tribal Court treated the motion as a notice of appeal, and the Tribe convened a three judge Tribal Court of Appeals pursuant to the Tribal Code. ( Id. ¶¶ 10–11). The Tribal Court of Appeals ruled that the Tribal Court did not have criminal jurisdiction over Phebus. ( Id. ¶ 12; Phebus v. Las Vegas Tribe of Paiute Indians, No. CA13–001 (Las Vegas Paiute Ct.App.2013), ECF No. 1–1). The Tribal Court of Appeals noted that the term “Indian” had different legal definitions in different contexts and concluded that because Phebus had been disenrolled, the Tribe could maintain no criminal jurisdiction over him unless he were enrolled in some tribe, even if he might be an Indian for the purposes of receiving certain governmental services. See Phebus, No. CA13–001, at 2 (citing Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); 25 U.S.C. § 1301(2)). The Tribal Court of Appeals noted that the State of Nevada could prosecute Phebus for the offenses, however. See id. at 3.² The Tribal Court of Appeals is the Tribe's court of last resort, so all tribal remedies have been exhausted. ( Id. ¶¶ 13–14).

The Tribe sued Phebus in this Court for a declaratory judgment that it may assert criminal jurisdiction over any person satisfying the definition of “Indian” under the Indian Civil Rights Act (“ICRA”), including Phebus. Phebus has not appeared. He was personally served on October 31, 2013, ( see Proof of Service, Nov. 1, 2013, ECF No. 6, at 2), and his answer, which was due on November 21, 2013, is delinquent. The Tribe has now moved for offensive summary judgment.

II. LEGAL STANDARDS

A court must grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining summary judgment, a court uses a burden-shifting scheme:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. SeeFed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505.

III. ANALYSISA. Federal Jurisdiction

1. Article III

Congress has plenary power over the Indian tribes, see, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed. 299 (1903), which exist as “domestic dependent nations,” Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831). As a starting point in American history, Indian tribes existed as sovereign nations. Id. at 59–60. However, the tribes' sovereignty has been “necessarily diminished” via conquest by other sovereigns, such as England, France, Holland, Spain, and Portugal, all of whom recognized the principal that a conquered people retained the right to occupy the land, but that certain aspects of sovereignty were necessarily lost. Johnson v. M'Intosh, 21 U.S. 543, 574–76, 8 Wheat. 543, 5 L.Ed. 681 (1823). Congressionally recognized tribes retain all aspects of sovereignty they enjoyed as independent nations before they were conquered, with three exceptions: (1) they may not engage in foreign commerce or foreign relations, see Worcester v. Georgia, 31 U.S. 515, 559, 6 Pet. 515, 8 L.Ed. 483 (1832); (2) they may not alienate fee simple title to tribal land without the permission of Congress, see M'Intosh, 21 U.S. at 574; and (3) Congress may strip a tribe of any other aspect of sovereignty at its pleasure, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), superseded on other grounds by25 U.S.C. § 1301(2), (4) (1990). In summary, all aspects of sovereignty consistent with the tribes' dependent status, and which have not been taken away by Congress, remain with the tribes.

Because the tribes retain their sovereignty generally, and because this sovereignty predates the Constitution and does not depend upon it, the Constitution does not bind tribal governments with respect to their members. Talton v. Mayes, 163 U.S. 376, 382–84, 16 S.Ct. 986, 41 L.Ed. 196 (1896). In 1968, however, Congress passed the ICRA to provide certain protections for Indians as against their tribal governments. These protections roughly parallel the protections afforded by the Bill of Rights, but the only remedy available is habeas corpus, not injunctive or declaratory relief. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–62, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (holding that the ICRA...