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Great Mysteries of Oklahoma. Since we’re in “Tornado Alley……..” And since their mascot IS a tornado………. Why are TU sports teams called “The Golden HURRICANES?”. Great Mysteries of Oklahoma. Is a “Sooner” the opposite of a “Later?”. Great Mysteries of Oklahoma. Who is this guy?

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Great Mysteries of Oklahoma

  • Since we’re in “Tornado Alley……..”

  • And since their mascot IS a tornado………

Why are TU sports teams called “The Golden HURRICANES?”


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Great Mysteries of Oklahoma

  • Is a “Sooner” the opposite of a “Later?”


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Great Mysteries of Oklahoma

  • Who is this guy?

  • What is he so pissed off about?

  • And why is one eye so much bigger than the other?


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Great Mysteries of Oklahoma

  • Since, according to the 10th Circuit, there are no Indian reservations in Oklahoma, why is this sign on the Interstate?


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Great Mysteries of Oklahoma

  • The next great MYSTERY…….

  • Why should you care about Crowe Dunlevyv. Stidham?


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CROWE DUNLEVY, P.C.,V.GREGORY R. STIDHAM

AKA

HOW A TRIBE SHOOTS ITSELF IN THE FOOT, COSTS ITSELF A TON OF MONEY, ENDS UP WITH OUTSIDERS DECIDING ITS DISPUTES AND GETS SCREWED BY UNETHICAL BEHAVIOR OF A BIG NON-INDIAN LAW FIRM, PUTTING THE SOVEREIGNTY OF ALL TRIBES IN DOUBT

OR

THE THLOPTHLOCCO DISASTER


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DISCLAIMER

  • The opinions stated in this presentation are my own, and are not necessarily those of Concord Law School, Kaplan University, Kaplan Higher Education, Judge Moore, Judge Stidham, Chief Ellis, The Muscogee (Creek) Nation, my University of Tulsa professors, colleagues and fellow students of Indian law or anyone else.

  • (But they happen to be 100% correct).


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Sequence of Events

  • 2007 – Internal dispute arises in Thlopthlocco Tribal Town Business Committee

    • Dispute is taken to Muscogee (Creek) Nation District Court for resolution

    • Thlopthlocco waives own sovereign immunity for purposes of adjudicating the dispute

    • Tribal Town is represented by Michael McBride, of Crowe Dunlevy, P.C.

  • 2008 – Judge Gregory Stidham of Muscogee Nation District Court hears the case

    • Grants motion by Defendants that their attorney’s fees be paid by the Tribal Town

    • Tribal Town appeals the order to the Muscogee Nation Supreme Court

    • Supreme Court finds it has jurisdiction over Tribal Town and orders that NO party will have their fees paid during the pendency of the suit – AND orders that Crowe Dunlevy return fees paid from Tribal Town treasury until the conclusion of the suit (2009)


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STUPIDITY METER

Tribal Sovereignty Scale


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Sequence of Events

  • 2009 – Crowe Dunlevyrefuses to comply with order of the Muscogee Nation Supreme Court (won’t pay back about $375,000)

    • Muscogee District Court (Stidham) schedules a show cause hearing on possible contempt of court finding against Crowe Dunlevy

    • Thlopthlocco purports to withdraw its waiver of tribal immunity in Muscogee (Creek) Nation courts

    • Crowe Dunlevy initiates a lawsuit in US District Court for Northern District of Oklahoma against Judge Stidham, claiming that Muscogee (Creek) Nation courts do not have jurisdiction over them (or Thlopthlocco Tribal Town)

    • Crowe Dunlevy withdraws as counsel for Thlopthlocco in Muscogee (Creek) Nation courts, and 5 attorneys resign from tribal bar, leaving that action pending

  • 2008 – Judge Gregory Stidham of Muscogee Nation District Court hears the case

    • Grants motion by Defendants that their attorney’s fees be paid by the Tribal Town

    • Tribal Town appeals the order to the Muscogee Nation Supreme Court

    • Supreme Court orders that NO party will have their fees paid during the pendency of the suit – AND orders that Crowe Dunlevy return fees paid from Tribal Town treasury until the conclusion of the suit (2009)


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STUPIDITY METER

Tribal Sovereignty Scale


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Who is Crowe Dunlevy, P.C.?

  • Crowe & Dunlevy is one of the largest law firms in Oklahoma with offices in Oklahoma City, Tulsa and Norman. We have been advising clients for over 100 years. The depth of our experience allows us to assemble dynamic legal teams to provide advice that is both focused and valuable to our clients. Our law firm’s clients range from individuals to Fortune 100 companies and our attorneys can expansive knowledge in our areas of practice.

  • Chambers USA has designated us as one of the top-ranked law firms in Oklahoma. The Firm is highly ranked in energy and natural resources, labor and employment, litigation, real estate and corporate/commercial law. Crowe & Dunlevy currently has 62 attorneys listed in Best Lawyers, and Best Lawyers named three Crowe & Dunlevy attorneys Best Lawyers of the Year for 2010 in Oklahoma City in the areas of Labor & Employment, Bankruptcy and Creditor-Debtor Rights and Trusts and Estates. Our prominent position has led to our selection as the sole Oklahoma member of several attorney networks that help us serve clients with needs throughout the United States and the world.


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Who is Michael McBride?

  • Mr. McBride is chairman of the Firm’s Indian Law and Gaming Practice Group. McBride has dedicated his fourteen year legal career to Indian law, and has practiced primarily in the areas of federal Indian law and gaming, as well as complex federal, civil and criminal litigation. He is one of two Oklahoma General Members of the International Masters of Gaming Law.

  • * Former Attorney General for the Seminole Nation of Oklahoma and the Sac and Fox Nation

  • * Justice for the Supreme Court of the Pawnee Nation

  • * Tenth Circuit Vice President, as well as Chair of the Federal Bar Association's Indian Law Section, the largest Indian law organization in the country

  • * Past chair of the Oklahoma Bar Association's Indian Law Section

  • * Federal Bar Association Director, past General Counsel and ex-officio member of the national Board of Directors (2008-09)

  • * Associate editor of The Gaming Law Review


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Sequence of Events

  • 2009 – Federal District Court (Hon. Terence Kern) rules on Crowe Dunlevy’s Motion for Preliminary Injunction

    • Federal Court has subject matter jurisdiction

    • Judge Stidham NOT entitled to sovereign immunity, either as judge or as tribal official, per ex parte Young doctrine

    • Venue is proper in Northern District, vice Eastern District, despite physical locations of both Thlopthlocco and Muscogee (Creek) Nation Tribal Courts as legal services were provided and fees were paid in Tulsa

    • Crowe Dunlevy likely to show that Muscogee (Creek) Nation Tribal Courts have no jurisdiction over the firm

    • Grants Crowe Dunlevy’s Motion for Preliminary Injunction

  • Appealed to 10th Circuit (where it still sits, awaiting ruling, after briefs and oral arguments)

  • Underlying case continues in Tribal Courts (with other counsel)

  • 2008 – Judge Gregory Stidham of Muscogee Nation District Court hears the case

    • Grants motion by Defendants that their attorney’s fees be paid by the Tribal Town

    • Tribal Town appeals the order to the Muscogee Nation Supreme Court

    • Supreme Court orders that NO party will have their fees paid during the pendency of the suit – AND orders that Crowe Dunlevy return fees paid from Tribal Town treasury until the conclusion of the suit (2009)


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STUPIDITY METER

Tribal Sovereignty Scale


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HENCE: The Thlopthlocco Disaster

  • Tribal town is out in excess of $400,000 (give or take)

  • Tribal sovereignty, of both the Town and Nation, are in question in federal courts

  • The underlying internal conflict is STILL not resolved…..and won’t be for more months and more legal fees on all sides.


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ETHICAL ISSUES PRESENTEDFocusing in on the attorneys……

  • WITHDRAWAL OF CROWE DUNLEVY FROM PENDING CASE

  • DISOBEDIENCE OF COURT ORDER BY CROWE DUNLEVY

  • RESIGNATION FROM TRIBAL BAR…AN ESCAPE FROM DISCIPLINARY PROCEEDINGS?

  • FAILURE TO EXHAUST TRIBAL REMEDIES?

  • FALSE STATEMENT TO TRIBUNAL?


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Oath of Admission for Attorneys

I, _____________, do solemnly swear that I will support and defend the Constitution, Laws, Treaties and Ordinances of the Muscogee (Creek) Nation.

I will maintain the respect due Courts of Justice and Judicial Officers.

(Note: All five of the attorneys acting for Crowe Dunlevy swore this oath upon admittance to the Muscogee (Creek) Bar…..)


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From the ABA 2007 Model Rules of Professional Conduct:Rule 8.4  Misconduct:It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another ;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or mis-representation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.


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ABA Model Rules for Lawyer Disciplinary Enforcement.  Rule 6  JurisdictionA.  Lawyers Admitted to Practice.  Any lawyer admitted to practice law in this jurisdiction, including any formerly admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Rules of Professional Conduct (Code of Professional Responsibility) or any Rules or Code subsequently adopted by the court in lieu thereof, and any lawyer specially admitted by a court of this jurisdiction for a particular proceeding, and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction is subject to the disciplinary jurisdiction of this court and the board.



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WITHDRAWAL FROM CASE?

  • “Concerning Mr. McBride’s law firm’s attempt to withdraw from the case, again, it is – in my research it is my opinion and also my conclusion that no attorney is allowed to withdraw from a case but from the – but by the consent of the Court, hence, the judge who is presiding over the case. No motion was presented to this Court. No hearing was had, and Mr. McBride’s firm has in no way been excused from further conduct in this case.” – Tribal Judge Stidham, March 6, 2009


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DISOBEDIENCE OF COURT ORDER

  • CLEARLY a violation of the ABA Rules

  • What Crowe Dunlevy SHOULD have done…

    • Place the money in escrow, pending the conclusion of the case/decision on fees.


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RESIGNATION FROM TRIBAL BAR

  • Has NO effect on the jurisdiction of the court with respect to attorney discipline……IF…..

  • ……the 10th Circuit reverses Judge Kern with respect to the jurisdictional issue/preliminary injunction (as it should).


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BAD FAITH FAILURE TO EXHAUST TRIBAL REMEDIES

  • Michael McBride and Crowe Dunlevy KNEW that the Creek Nation Tribal Courts had jurisdiction, OR that they SHOULD have argued the issue in the Tribal Courts before turning to the federal courts (National Farmers Union and Montana).

    • Otherwise, why did they resign from the bar?

  • Knowing this, they convinced Judge Kern with a BAD FAITH argument, contrary to existing law, without so informing the court.


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FALSE STATEMENT TO TRIBUNAL

  • According to witnesses, at oral arguments before the 10th Circuit, Crowe Dunlevy’s representative stated that they were already being held in contempt by the Tribal District Court – a FALSE statement to the tribunal.


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Implications for Tribal Courts

  • If the tribal court can’t discipline misbehaving non-tribal member attorneys in practice before it, should you allow them to engage in that practice?

  • If the tribal court can’t discipline misbehaving non-tribal member attorneys in practice before it, what does that say about tribal sovereignty?


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RECOMMENDATIONS

  • If you’re want to be respected as a sovereign, you’ve got to act like a sovereign in all respects

  • If you’re going to be a court of a sovereign nation, you must act like a court of a sovereign nation


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RECOMMENDATIONS

  • Tribal court systems should be prepared to exercise attorney disciplinary powers.

    • Adopt local rules for professional conduct

    • Have standing, or be prepared to appoint, disciplinary counsel/investigators

    • ENFORCE THE RULES!!!!!!

  • Tribal courts should require non-tribal member attorneys to expressly consent to tribal court jurisdiction, and specifically over matters of professional conduct.


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Recommendations for tribal governments

  • Check out a law firm THOROUGHLY before you hire them. (Don’t just read their website).

  • If your attorney engages in unethical behavior, FIRE them and REPORT them to disciplinary authorities.

  • Ensure your tribal courts are properly constituted and funded to deal with both regular cases AND matters of professional responsibility/discipline.


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Recommendations for those doing business with the tribes

  • BEWARE of getting involved in intra-tribal disputes

  • Pick your own legal representation CAREFULLY

  • If your attorney engages in unethical behavior, first FIRE THEM, and second, REPORT THEM to appropriate disciplinary authorities


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Conclusion

  • Tim Pleasant

  • http://lawprofessors.typepad.com/nativeamerican/

  • 5555 Zuni Rd SE, Ste. 20-284, Albuquerque, NM 87108