1 james acres nd encinitas, ca 92024 · 2016. 8. 12. · case no.: 3:16-cv-02622-who memo opposing...

Memo Opposing Second Tribal Motion to Dismiss 1

3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

James Acres 1106 2nd #123 Encinitas, CA 92024 [email protected] [email protected] 541 760 7503 (mobile) In Pro Per

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMES ACRES, Plaintiff,

v.

BLUE LAKE RANCHERIA TRIBAL COURT, et al.,

Defendants.

Case No.: 3:16-CV-02622-WHO MEMO OPPOSING SECOND TRIBAL MOTION TO DISMISS Date: July 20th, 2016 Time: 2pm Courtroom: 2 – 17th Floor Judge: Hon. William H. Orrick

Case 3:16-cv-02622-WHO Document 40 Filed 06/16/16 of 22


3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TableofContents

(paginatedtomatchECFgeneratedpagenumbers)

TABLEOFAUTHORITIES………………………………………………p3

ISSUEPRESENTED………………………………………………………..p4

FACTUALINTRODUCTION……………………………………………p5 Introduction…………………………………………………………………p5 FactstoConsider.…………..………………………………………………p5 StatementofFacts……...…………………………………………………p6

ANALYTICALFRAMEWORKS………………………………………..p10

MontanaandTribalJurisdiction……………………………………p10 TribalExhaustionDoctrine.………..…………………………………p11

StandardofReview.……………………………..………………………p11

ARGUMENTAGAINSTDISMISSAL…………………………………p13

TribalImmunityDoesNotBarAction……………………….……p13 BlueLake’sPlainLackofJurisdiction……..………………………p13 BlueLakeMisquotesWaterWheel……………………...…………p15 BadFaithinTribalCourtBlatant……...……….……………...……p16 ChallengesinTribalCourtFutile……...………….…………...……p17

CONCLUSION……………………………….….……………………………p18

EXHIBIT1–DECLARATIONOFJAMESACRES………………p19



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TableofAuthorities

(lastretrievedfromcasetext.comonJune14th,2016)

Atkinson v Shirley 532 U.S. 645 (2001) ………………....…..… p 10 Duro v Reina 495 U.S. 676 (1990) ……………………………..p 10 Evans v Shoshone-Bannock Land Use Policy Comm’n 736 F.3d 1298 (9th Cir. 2013) ………………………………… p 11, 12 Montana v United States 450 U.S. 544 (1981) ………….……. p 10, 11 Philip Morris USA v King Mountain Tobacco 569 F.3d 932 (9th Cir. 2009) ………………………………..... p 10 Plains Commerce Bank v Long Family 554 U.S. 316 (2008) ……………………………..........……… p 10, 12, 16 Safe Air for Everyone v Meyer 373 F.3d 1035 (9th Cir. 2004) ………………………………... p 11, 12 Water Wheel Camp Recreational Area v LaRance 642 F.3d 802 (9th Cir. 2011) ……………………………….… p 15



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ISSUEPRESENTED

Blue Lake claims, via a tribal executive’s declaration, that I defrauded them during a meeting in their diner, and that their tribal court has jurisdiction. I

deny the fraud and reject their jurisdiction.

I request federal relief from a tribal prosecution presided over by a tribal judge who is also an attorney litigating against me on the tribe’s behalf.

Should my request for federal relief be summarily dismissed?



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FACTUAL INTRODUCTION

Introduction Blue Lake Rancheria is prosecuting me in their tribal court. I ask this Court for

relief from tribal jurisdiction. Blue Lake today renews the motion to dismiss denied by

Judge Huff just last month in the Southern District.

Blue Lake raises two distinct arguments to support dismissal. First, that tribal

immunity bars my action, and second, that I must exhaust all tribal remedies before

seeking federal relief.

Judge Huff disposed of the tribal immunity argument in her order transferring the

case here. I briefly review that issue below.

As part of their tribal exhaustion argument, Blue Lake introduces evidence

attacking the merits of my claims.

When a 12(b)(1) factual attack is entwined with the merits of the claims it must be

transformed into a motion for summary judgment.

Under a summary judgment framework there is sufficient evidence of tribal bad-

faith and a plain lack of tribal jurisdiction for me to plausibly argue that I should be

excused from exhausting tribal remedies.

The tribal motion should be denied.

Facts to Consider The complaint at Docket 1, the tribal court record, all of Blue Lake’s submissions

at Docket 32 and Docket 33, and my own declaration submitted as Exhibit 1 below

comprise the universe of facts for considering this second motion to dismiss.

I previously requested judicial notice of the tribal court record at Docket 11-1,

Docket 18, and Docket 20. Today it seems simplest to incorporate the tribal court record

via declaration so that we can refer to it by ECF page number. Exhibit 1 below at ¶ 4 – 5.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Statement of Facts In July of 2010 Acres Bonusing, Inc. (ABI) and Blue Lake entered the iSlot Lease

Agreement. iSlot was a novel gaming platform and ABI was its California distributor.

Docket 1, p 6 ¶ 10 – 12. 1

The language of the agreement also specified that the act bringing the contract into

force was ABI’s acceptance of payment from Blue Lake. Id., p 7 ¶ 13. ABI specified that

it was executing the agreement at its address in San Diego County. Id., ¶ 15.

While I did sign the agreement as ABI’s President, nothing in the agreement spoke

of a personal relationship between Blue Lake and me. Id., p 8 ¶ 18. Nothing in the

agreement established tribal court jurisdiction over myself or ABI. Id., ¶ 19.

The agreement called for Blue Lake to pay ABI a percentage of iSlot revenues (Id.,

p 69 - “Monthly Lease Fee”), and to make a $250,000 advance against these royalties

(Id., p 70 – “Advanced Deposit”). This advance was refundable “if and only if” ABI

failed to deliver iSlot before October 1st, 2010. Id.

In early September of 2010, Blue Lake employees drove to Las Vegas and took

possession of an iSlot Server. Id., p 8 ¶ 20. Later that month they brought it online at

their casino. Id., ¶ 21. ABI’s obligations were fulfilled and the deposit became non-

refundable. Id., p 9 ¶ 24.

Over the following two years ABI provided Blue Lake with about a dozen software

updates for iSlot. All were shipped from off-reservation locations. Id., 23. During that

period ABI visited Blue Lake several times to observe iSlot in use. Exhibit 1 below, ¶ 6.

In January of 2016, Blue Lake served summonses to appear in tribal court against

both ABI and me personally. Id., p 10 ¶ 25. Both summonses required an answer within

five-days under pain of default. Id., ¶ 26. The tribal claims against the company were for

breach of contract. Id., pp 53 - 55. The tribal claim against me was for fraudulent

inducement and contained none of the particulars required by FRCP 9(b). Id., p 55.

1 For material from docketed files, I always use the ECF generated page numbers atop each page.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Five days after being served I made a hurried pro se special appearance in tribal

court demanding dismissal. Id., p 10 ¶ 28. I argued the tribe lacked both jurisdiction and

the ability to provide due process. Id., p 127. Defendant Marston, in his role as tribal

court judge, rejected this appearance, castigated me for flouting tribal rules, and issued an

incomprehensible order that I make a responsive pleading within thirty days pursuant to a

tribal rule about plaintiff dismissals. Id., p 13 ¶ 33 – 34.

Marston followed up about a week later and mandated participation in a joint tribal

case management conference statement, due the same day as the responsive pleading,

with the conference itself to take place in early April. Id., p 14 ¶ 36.

In early March, I filed my complaint in the Southern District seeking federal relief,

and served it on all defendants.

In mid-March, I asked Marston to clarify his incomprehensible order. I asked

how, as the tribal court defendant, I could make a responsive pleading pursuant to a tribal

rule about plaintiff dismissals. Docket 11-1, p 28 ¶ 3 – 5. I also asked if a motion to

dismiss would be considered a responsive pleading. Id., p 29 ¶ 6.

Marston answered with his March 25th order, in which he stated that he would not

accept a motion to dismiss as the demanded responsive pleading. Id., p 58 lines 16 - 17.2

Marston also clarified that his reference to a single tribal court rule about plaintiff

dismissals should actually have referred to two separate rules regarding motion practice

and answers. Id., ¶ 3 (changing “Rule 30” for “Rules 15 and 18”). The rule about

answers provides that any plaintiff allegations not disputed within thirty days of service

shall be assumed true. See Docket 32-4, p 10 (for the text of Tribal Court Rule 15).

Significantly, while Marston used his March 25th order to reset the date for the

mandatory conference (Docket 11-1, p 58 lines 9 – 13), he left the March 18th date for

the required responsive pleading in place (Id., lines 5 to 25 fail to extend the March 18th

2 This is Exhibit 7 of Docket 11-1. I mistitled the coversheet for Exhibit 7 at Docket 11-1, page 55. It should read “March 25 Order” instead of the erroneous “March 28 Summons Notice.”



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

responsive pleading deadline). Since the order commanding the responsive pleading was

incomprehensible without the clarifications contained in the March 25th Order, this

means I lost the right to challenge the tribal allegations about a week before it was

possible to understand how to do so.

Marston then made his appearance in this federal action as an attorney for the tribal

court, explicitly acting as my adversary in an action intimately related to the tribal court

action where he remained the presiding judge. Docket 10, p 1 lines 1 – 9. In the federal

action, Marston joined the tribe’s motion to dismiss and its supporting memo,

incorporating them and their supporting documents “in full.” Id., p 2 lines 8 – 17. The

tribal memo declared the essential unity of all tribal actors (Docket 9-1, p 11 lines 5 - 10),

concluded that I did in fact commit the underlying fraudulent inducement tort (Id., p 19

lines 19 – 21, note the lack of words like “alleged” or “may have”), and found tribal

jurisdiction over the tort to be “probable” (Id., p 20 lines 1 – 2).

In my opposition memo, I pointed out that concluding my guilt from the ex-parte

testimony of a fellow tribal employee is not something an impartial judge would do, and

that Marston’s joining such a conclusion was damning evidence of bad-faith by the tribal

court and its judge. Docket 11, from p 16 line 20.

In its reply brief, the tribe argued that when Marston said he was joining the tribe’s

memo and motion in full, he really only meant that he concurred with certain parts of it.

Docket 15, p 9 lines 1 – 9. Marston joined the tribe’s reply “in full,” using substantially

the same language he used in joining the motion and memo. Docket 16, p 2 lines 6 – 14.

The tribe has not clarified whether this was actually a joinder in full, or merely another

concurrence in part.

On the evening of May 13th, after Judge Huff issued her order in the Southern

District, I was served with a new thirty-day summons in the underlying tribal action

(Exhibit 1 below, ¶ 7), purportedly to “start the [tribal court] process over” (Docket 15, p

8 lines 4 – 9).

This tribal court restart was less than total.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The tribal case management conference, repeatedly rescheduled since April, finally

landed by ambiguous computation on either May 27th or June 3rd. Docket 20, p 21. The

tribal court refuses to answer questions about whether the conference took place. Exhibit

1 below, ¶ 8. Thus, based on the tribal court record, the tribe appears to have held a case

management conference about my case a couple weeks before my answer was due under

the “renewed” May 13th summons.

The tribe’s present motion before this Court is nearly identical to the one that was

dismissed by Judge Huff just last month. Significantly it still contains language

concluding without reservation that I am guilty of fraudulent inducement and that tribal

jurisdiction over me “is probable.” Docket 32, from p 23 line 26 to p 24 line 9.

Marston again joined in full, taking particular care to twice over reiterate that he

was fully incorporating any and all documents filed by the tribe in support of its motion

to dismiss. Docket 33. The tribe has yet to opine on the true extent of Marston’s current

joinder.

The only proffered basis for the tribe’s conclusion of my guilt remains the

declaration of Thomas Frank, in which he relates his memory that six years ago in the

tribe’s diner I promised the tribe would get their money back. Docket 32-3, p 2 ¶ 5.

From this, the tribe is convinced of my unqualified guilt of the fraudulent inducement

tort. Thomas Frank’s declaration is self-interested parol evidence, is not part of the tribal

court record, and is flatly contradicted by the language of the iSlot Agreement itself (Id.,

p 8 “Advanced Deposit”). I have no memory of this meeting and don’t believe I said the

things Thomas Frank claims. Exhibit 1 below, ¶ 9.

// // // // // // // //



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ANALYTICAL FRAMEWORKS

Montana and Tribal Jurisdiction The limit of tribal jurisdiction over non-members is a federal question. Plains

Commerce Bank v Long Family 554 U.S. 316, 324 (2008). The framework for evaluating

that jurisdiction is set out in a line of cases beginning with Montana v United States 450

U.S. 544 (1981).

Tribes have the right to live on their own lands by their own laws. Any tribal

authority over non-members must be connected to this right. Plains at 335.

This firmly roots tribal jurisdiction in geography. Tribes have no authority outside

their reservations. Philip Morris USA v King Mountain Tobacco, 569 F.3d 932, 938 (9th

Cir. 2009). Within the reservation, on lands controlled by the tribe itself, the tribe has

authority to control access to the land. Plains at 328. On land controlled by the tribe, the

tribe can always declare any non-member present to be a trespasser, and compel the

trespasser to depart. Duro v Reina 495 U.S. 676, 696-697 (1990).

Beyond this right to prevent trespass, the general rule is that tribes have no

authority over non-members unless one of two exceptions apply. These are the so-called

Montana exceptions. Plains at 329 – 330.

Montana’s first exception says that some forms of tribal authority over a non-

member are permissible if that non-member has consented to the tribe’s authority

(Montana at 565), and if the exercise of the authority can be related back to the essential

sovereign tribal interest to live on tribal land and by tribal law (Plains at 332). Non-

member consent must be specific. Consent in one area does not grant consent in another.

Atkinson v Shirley 532 U.S. 645, 656 (2001).

Montana’s second exception says that the tribe may exercise authority over non-

members, even without consent, when non-member conduct mortally threatens the tribe’s

ability to live on their own lands by their own laws. Plains at 341.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Tribes are “diminished sovereigns” and have lost “the right of governing every

person within their reservations except for themselves.” Montana at 565. On reservation

lands they own, where there are no competing government interests, tribes may eject non-

members whenever they want. But this does not translate into plenary authority over

those non-members. Beyond ejecting a non-member for trespassing on lands the tribe

controls, a tribe may only exercise authority over non-members through one of

Montana’s two exceptions.

Tribal Exhaustion Doctrine “Non-Indians may bring a federal common law cause of action under 28 U.S.C.

§ 1331 to challenge tribal court jurisdiction.” Evans v Shoshone-Bannock Land Use

Policy Comm’n, 736 F.3d 1298, 1302 (9th Cir. 2013). Usually, a prudential tradition of

comity requires that the non-member must first exhaust all tribal remedies before seeking

federal relief from assertions of tribal jurisdiction. Id.

Tribal exhaustion is not required if the tribal court itself is acting in bad-faith, if

challenging jurisdiction within the tribal court would be futile, if there is an express

jurisdictional prohibition against the tribe exercising jurisdiction, or if the lack of tribal

jurisdiction is so obvious that requiring the non-member to exhaust tribal remedies could

only cause needless delay. Id.

Standard of Review To support their 12(b)(1) motion, Blue Lake introduces evidence in the form of

declarations. Usually, this would mean a 12(b)(1) factual attack standard of review

should be used, where no particular deference is given to plaintiffs in weighing evidence.

Safe Air for Everyone v Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

But when the jurisdictional elements being attacked are entwined with the merits

of the claim, a summary judgment standard is called for, and plaintiffs are given all



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

reasonable deference when weighing evidence. Id.

Federal courts have jurisdiction over the limits of tribal authority. Plains at 324.

Blue Lake argues this case is not ripe for review until I exhaust my tribal remedies, or,

unless I show an exception to the tribal exhaustion doctrine applies. Docket 32, p 2 lines

12 – 21. So whether or not this Court has jurisdiction at this moment turns on the bad-

faith, futility, and obvious lack of jurisdiction exceptions to the exhaustion doctrine.

Evans at 1302.

My complaint’s very first claim is that the tribe obviously lacks jurisdiction.

Docket 1, p 24. The Thomas Frank and Robert Pollard declarations were submitted by

Blue Lake to support the tribal claim for jurisdiction over me. Docket 32, p 23 from line

8.

My complaint’s second claim is that the tribal court is structurally incapable of

providing due process. Docket 1, p 25. The body of the complaint makes clear this

includes the futility of challenging tribal jurisdiction in tribal court. Id., p 23 ¶ 67 – 69.

The Yasmin Frank and Anita Huff declarations are submitted to support Blue Lake’s

claim that there is a full and fair opportunity to challenge tribal jurisdiction within the

tribal court. Docket 32, p 19 lines 6 – 22.

My complaint’s third claim is that the tribal court clerk exceeded her authority in

issuing a five-day summons. Docket 1, p 26. The body of the complaint makes clear that

this claim is concerned with the tribal court’s bad-faith. Id., p 22 ¶ 65. Anita Huff’s

declaration is submitted to support Blue Lake’s claim that my accusations of bad-faith are

unfounded, or, at the very least, have been resolved. Docket 32, p 17 from line 24.

The evidence submitted in support of Blue Lake’s jurisdictional challenge is

entwined with the merits of the claims, and so a summary judgment standard of review

seems proper.

//

//



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ARGUMENT AGAINST DISMISSAL

Tribal Immunity Does Not Bar Action As Judge Huff pointed out, federal courts have subject matter jurisdiction over

improper assertions of tribal jurisdiction over non-members (Docket 21, p 3 lines 26 -28),

and ex Parte Young colorably allows the veil of sovereign immunity to be pierced (Id., p

4 lines 2 – 6).

Defendants try to argue that since no formal finding of tribal jurisdiction has yet

been made, no law has yet been broken, and ex Parte Young doesn’t apply. But if the

lack of a tribal jurisdictional finding prevented federal relief, there would be zero

exceptions to the tribal exhaustion doctrine, instead of the four we actually have.

Defendants also renew their 12(b)(2) motion. But Judge Huff pointed out that

defendants have declared themselves into the Northern District. Id., lines 7 – 10.

Judge Huff enunciated reasonable arguments that tribal immunity does not bar this

action, and that this Court has personal jurisdiction over defendants.

Blue Lake’s Plain Lack of Jurisdiction Direct Personal Jurisdiction Obviously Lacking

Blue Lake makes no allegations of trespass against me. The inherent right to

prevent trespass cannot be a source of tribal jurisdiction over me.

Blue Lake does not allege that I mortally imperil the tribe’s continued existence.

Montana’s second exception can’t be a source of tribal jurisdiction over me.

I’ve never explicitly consented to tribal jurisdiction. Therefore, Montana’s first

exception can only be a source of tribal jurisdiction if the nature of my relationship with

the tribe obviously invoked tribal jurisdiction.

Blue Lake argues for this obviously implicit jurisdiction through Thomas Frank’s

memories of an alleged conversation from July of 2010. Docket 32-3, p2 at ¶ 5.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The general proposition that Blue Lake obviously gains civil tort jurisdiction over

non-Indians “talking in diners” seems dubious on its face. Even if the rule is adopted

however, its particular application to me remains problematic. First, unless it be by some

secret ex-Parte route, Thomas Frank’s declaration is not before the tribal court. Second, I

do not remember the meeting, the promise, or even Thomas Frank. Exhibit 1 below, ¶ 9.

Finally, Frank’s declaration is self-interested parol evidence that makes its first

appearance nearly six-years after the meeting in question, and the thrust of his declaration

is flatly contradicted by the actual language of the contract. Compare Docket 32-3, p 2 at

¶ 5 and Docket 32-3, p 8 “Advanced Deposit” – Thomas Frank’s testimony is

contradicted by his own exhibit.

Jurisdiction Through ABI Obviously Lacking

Blue Lake might also argue that its jurisdiction over me flows through its

jurisdiction over ABI. This argument fails because tribal jurisdiction over ABI is

obviously lacking, and even if it weren’t, there’s no reason that jurisdiction should flow

through ABI to employees in their capacity as natural persons.

There are no allegations that ABI trespassed against, or posed a mortal threat to,

Blue Lake. Nor is there any explicit grant of consent to tribal jurisdiction over ABI’s

conduct. So again Blue Lake argues that the nature of the relationship was such that

tribal jurisdiction was obvious.

In support of this, Blue Lake argues that the contract was signed on the reservation

and that the reservation was the place of the agreement’s performance. Docket 32, p 23

line 8 – p 24 line 9.

But I have shown that ABI indicated its place of execution was in San Diego

County (Docket 1, p 7 ¶ 15) and that the contract explicitly states that execution was not

complete at signing (Id., ¶ 13). I have also shown that ABI’s place of performance was

off reservation. Id., p 8 ¶ 20 and p 9 ¶ 23.

Blue Lake’s remaining evidence for tribal jurisdiction is that ABI employees



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

sometimes stayed overnight in their hotel. Docket 32-2, p 2 ¶ 2 – 3. But generally, when

you stay in a hotel the only authority you grant the innkeeper is to charge your credit card

for your room, or to eject you from the hotel if you become unruly or overstay. Civil tort

liability over conversation in diners is not generally presumed to be a power granted to

innkeepers.

Blue Lake Misquotes Water Wheel Camp v LaRance In Water Wheel Camp Recreational Area v LaRance, 642 F.3d 802 (9th Cir. 2011)

a non-Indian spent years squatting on some of the most desirable riverfront property on

the Colorado River Indian Tribe’s reservation. In an opinion that used variants of the

word “trespass” at least a dozen times, and some variation on “power to exclude” dozens

more, the Water Wheel court held that the tribe gained regulatory jurisdiction over the

squatter from the tribe’s power to prevent trespass, and that in that instance the tribe’s

regulatory jurisdiction conferred adjudicatorial jurisdiction.

Blue Lake argues that Water Wheel establishes a general principal within the Ninth

Circuit that Montana’s exceptions needn’t be considered when non-Indians are on tribally

owned land. This is not a supportable reading of Water Wheel, and defendants derive it

only through misquotation. Look:

Actual Quote Blue Lake’s Misquote “Montana limited the tribe’s ability to exercise its power to exclude only as applied to the regulation of non-Indians on non-Indian land, not on tribal land.” -9th Cir. in Water Wheel Camp at 810.

“Montana, therefore, ‘limited the tribe’s ability to exercise its power to exclude [or regulate] only as applied to the regulation of non-Indians on non-Indian land, not on tribal land.’ Water Wheel Camp at 810 (emphasis added)” -Blue Lake in Docket 32, p 21 lines 7 – 9.

The sleight-of-hand is deft. By directing our attention to the admittedly added

emphasis, we are encouraged to overlook the stealthily added brackets. These brackets

completely alter the meaning of the passage, elevating the tribal power to regulate



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

trespass by non-Indians on tribal land into a broad regulatory authority over all conduct

by non-Indians on tribal land.

If the Water Wheel court meant what Blue Lake claims, it could’ve just said

something like “Montana doesn’t apply to tribal land. On tribal land, tribes have plenary

civil authority over non-Indians.” But that would be unsupportable by the federal

common law, because “efforts by a tribe to regulate nonmembers, especially on non-

Indian fee land, are presumptively invalid.” Plains at 330, emphasis is mine, and added

to highlight that all such efforts by tribes are presumptively invalid, albeit some more so

than others.

Absent allegations of trespass, tribes may only assert jurisdiction over non-Indians

through one of Montana’s two exceptions. Water Wheel has no relevance for my case.

Bad Faith in Tribal Court Blatant Lester Marston simultaneously serves as the presiding judge over me in the

underlying tribal action, and as an attorney advocating against me in this Court.

This is beyond bad-faith. This is just plain wrong.

In this federal Court, Marston, in his role as tribal advocate, has twice joined in

tribal conclusions that my guilt of the underlying tort is certain, and that tribal jurisdiction

is probable. Dockets 10 and 33, incorporating the Thomas Frank declarations.

The underlying tribal action has proceeded about as you would expect under a bad-

faith judge who is also the plaintiff’s employee.

It began with an abusive five-day summons against me. When I moved to dismiss

within the allotted five-days, Marston rejected my motion out of hand and castigated me

for failing to number my paragraphs. Marston issued an order that said if I didn’t make a

responsive pleading by March 18th, all tribal allegations would be presumed true. But

that order was utterly incomprehensible until Marston’s clarifying order of March 25th,



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

so tribal allegations are considered true in tribal court by default. See above, “Statement

of Facts,” citing the tribal court record.

It’s true that on May 13th I was served with a new thirty-day summons in the tribal

court. But far from “starting the process anew” Marston left in place a mandatory case

management conference, ambiguously scheduled for either May 27th or June 3rd.

Marston refused to clarify when, or even if, this conference took place. So on the most

literal reading of the tribal court record, Marston held a tribal case management

conference at least ten days before my answer was even due. See above, “Statement of

Facts,” citing the tribal court record.

Everything in the preceding paragraphs describes a tribal court acting in bad-faith

under the direction of a tribal partisan.

Blue Lake argues that they’ve taken steps to fix their bad-faith actions. They

haven’t, and at best they could only ameliorate the wrongs already done. The tribal

court’s bad-faith itself is incurable, and will continue to wrong me.

Challenges in Tribal Court Futile I’ve made two attempts to challenge tribal jurisdiction in the tribal court. Both

attempts were rejected. Docket 1, p 11 ¶ 29 and p 13 ¶ 33.

Marston, in his role as tribal judge, has stated that he won’t accept challenges to his

jurisdiction in lieu of a responsive pleading. Docket 11-1, p 58 lines 16 – 17. This is the

same as saying that, in the court of Judge Marston, you can’t challenge his authority until

you submit to it.

Finally, Marston is perfectly aware that I am contesting tribal jurisdiction, and he’s

aware of the reasons why. Judges have an independent obligation to question their own

jurisdiction. Marston shows no sign of doing this. Instead, he continues on with the

underlying persecution.

//



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CONCLUSION To survive this motion to dismiss I must show that at least one of three things can

be plausibly argued. That the tribe plainly lacks jurisdiction, that the tribal court is

proceeding in bad faith against me, or that challenging jurisdiction in the tribal court is

futile.

The only evidence supporting tribal jurisdiction is the self-interested parol

declaration of a tribal employee that wouldn’t establish jurisdiction even if it were true,

and I argue it is not. The presiding judge of the tribal court is simultaneously litigating

against me as an attorney, in concert with my tribal opponent. That same tribal judge

refused to entertain my challenges to his jurisdiction, and he’s stated that pre-answer

challenges to tribal jurisdiction won’t be accepted.

In light of all this, it seems reasonable to argue that I should be excused from

needing to exhaust tribal remedies.

The tribal motion to dismiss should be denied.

Respectfully submitted, June 16th 2016:

_____________________

James Acres



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Exhibit 1

Declaration of James Acres

Opposing Second Tribal Motion to Dismiss



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Declaration of James Acres Opposing Second Tribal Motion to Dismiss

1. My name is James Acres. I’m an adult who is competent to testify in this matter. All the statements made in this declaration are true and of my own personal knowledge.

2. I am the plaintiff in the action 3:16-cv-02622-WHO “James Acres v Blue Lake Tribal Court et al.”

3. The purpose of this declaration is to provide evidence for consideration in resolving Blue Lake’s motion to dismiss at Docket 32 in the action named in paragraph two, above.

4. I am also the defendant in the Blue Lake Rancheria Tribal Court Action C-15-1215-LJM. I previously requested this Court (in the Southern District) take judicial notice of the tribal court record. Today I incorporate the tribal court record by declaration and reference.

5. As of today, the complete tribal court record is contained in 3:16-cv-02622-WHO at Docket 11-1, Docket 18, and Docket 20. Each docket entry contains its own declaration attesting to the accuracy of the record each entry reproduces.

6. At Docket 32-2 in this action, Robert Pollard alleges that I stayed at the Blue Lake hotel in order to oversee maintenance, repair, and limited upgrades to the iSlot system. While I agree that I did stay at the hotel multiple times, I do not stipulate as to any specific dates. I also state that these visits were made primarily to view iSlot in action, and not for the reasons claimed by Robert Pollard.



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7. At Docket 32-4 in this action, Anita Huff mentions a “corrected thirty day summons.” That summons was served me on the evening of May 13th, 2016.

8. In late May and early June I made repeated attempts to contact the tribe by phone and email to find out if the tribal case management conference ambiguously scheduled by Lester Marston for either May 27th or June 3rd would take place. No reply was made me by any tribal entity.

9. At Docket 32-3 in this action, Thomas Frank puts forward his declaration about his memory of a meeting we had in the tribe’s diner in 2010. I do not specifically remember Thomas Frank or the meeting. I do not believe I said the things Thomas Frank attributes to me.

I swear under penalty of perjury that the forgoing declaration is true.

Signed June 16th, 2016 in Encinitas, CA:

__________________

James Acres



3:16-CV-02622-WHO

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on June 16th, 2016, I filed this Memo Opposing Second Tribal

Motion to Dismiss and its Exhibit 1 via the Court’s ECF filing system. I also sent a copy

via first class US Mail to Anita Huff at 428 Chartin Road in Blue Lake, California,

95525.

_________________________

James Acres


1 james acres nd encinitas, ca 92024 · 2016. 8. 12. · case no.: 3:16-cv-02622-who memo opposing...

Documents