Briefing in StoreVisions v. Omaha Tribe — Petition for Rehearing Pending in Nebraska Supreme Court — UPDATED

Here is the Nebraska Supreme Court’s opinion.

And the materials we have so far:

Omaha Tribe Appellant Brief

Storevisions Appellee Brief

Omaha Tribe Reply Brief

2011-04-04 Omaha Tribe Motion for Rehearing

Storevisions Response to Motion for Rehearing.

2011-04-25 Amici Curiae Brief inSupport of Def-appellant Omaha

2 thoughts on “Briefing in StoreVisions v. Omaha Tribe — Petition for Rehearing Pending in Nebraska Supreme Court — UPDATED

  1. Brent Leonhard May 27, 2011 / 3:32 pm

    I hope someone takes the time to explain to the court that their decision is not consistent or supported by Rush Creek Solutions.

    In Rush Creek Solutions you had a situation where it was (apparently) uncontested that the CFO had actual authority to enter into binding contracts on behalf of a tribe. It was also (apparently) uncontested that there was no other law of the tribe that limited exercise of that authority. As such the law governing actual authority applies, which is as stated in the Third Restatement of Foreign Relations Law s.456 (comment b): “The party relying on the waiver has the burden of establishing that the person giving the waiver had authority to bind the state. When a person has authority to sign an agreement on behalf of a state, it is assumed that the authority extends to a waiver of immunity contained in the agreement.” In short, if you are asserting a waiver occurred you have to prove the person executing the agreement had authority to bind the tribe. In addition, other things being equal, a grant of authority to bind includes the authority to waive immunity. Rush Creek Solutions isn’t really an apparent authority case (despite some unfortunate language). It is an actual authority case explaining the scope of the powers that come along with a grant of actual authority (unless there is express statutory or regulatory limitation on that authority).

    This case is very different. The tribe here argues that none of the tribal council’s officers have authority to bind the tribe without authorization from the tribal council. There are no laws in place that grant such contracting authority to individual officers of the council. As such, contractual authority remains with the council itself. Here the council didn’t grant that authority by resolution or otherwise to individual officers. Consequently, the chairman and vice chairman had no actual authority to bind the tribe in the first instance. If actual authority had been granted, and no other laws limited that grant of authority, Rush Creek Solutions and the Third Restatement of Foreign Relations Law would apply such that the grant of authority implies the power to waive immunity. But, that isn’t this case. And, that aspect of the law of actual authority is absolutely not the same as saying the apparent authority doctrine applies against a foreign or tribal government.

    This court completely misreads Rush Creek Solutions as applying the apparent authority doctrine to tribes.

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