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Las Vegas Tribe of Paiute Indians v. Phebus

United States District Court, D. Nevada

March 24, 2014


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For Las Vegas Tribe of Paiute Indians, Plaintiff: Patrick Murch, LEAD ATTORNEY, McDonald Carano Wilson LLP, Las Vegas, NV; David A. Colvin, Marquis Aurbach Coffing, Las Vegas, NV.


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ROBERT C. JONES, United States 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.


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

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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. 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.


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).

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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 ...

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