The Supreme Court today reversed the Ninth Circuit and pulled the plug on what would have been the largest-ever employment discrimination class action. The Court rejected certification of a class of up to 1 million current and former female employees of Wal-Mart. According to Justice Scalia, writing for the Court, Wal-Mart's decentralized employment practices make it impossible for the class to meet the "commonality" standard of FRCP 23, and claims for back pay are generally not available under FRCP 23(b)(2), which allows for injunctive or declaratory relief.
Today, the Ninth Circuit Court of Appeals provided a sweeping victory for Indian tribes over non-Indian interests, concluding that Indian tribes have inherent power to regulate the activities of a non-Indian trespasser on tribal lands, and to maintain an eviction action in Tribal Court against the non-Indian and his business. The opinion is Water Wheel Recreation Area, Inc. v. LaRance.
Ater Wynne attorney Rob Roy Smith represented a number of Indian tribes and the National Congress of American Indians before the Ninth Circuit.
The Ninth Circuit affirmed that Indian tribes can regulate and haul into tribal court non-Indian businesses operating on tribal land by virtue of the tribe's inherent power to regulate activities taking place on its own land. The Court rejected the non-Indian business owner's argument that his subjective intent to consent to tribal jurisdiction is required in order for the tribe to be able regulate his activities. The Ninth Circuit also confirmed that the tribe could regulate the business because it involved the use of tribal land and the business venture "constituted a significant economic interest for the tribe."
The Water Wheel decision is an important reminder for non-Indian businesses operating within tribal lands that they are subject to tribal regulation and tribal court process. The decision also provides new opportunities for tribes and the non-Indian business community to work together to strengthen and diversify reservation economies.