Eleventh Circuit Reaffirms Tribal Sovereign Immunity

The case is Freemanville Water System, Inc. v. Poarch Band of Creek Indians (opinion). Our post on the district court case is here. An excerpt:

After a hard look at the statute the only thing that is unmistakably clear to us is that the statutory language does not make it unmistakably clear that Congress intended to abrogate tribal sovereign immunity from lawsuits claiming a violation of the anti-curtailment provision [of the Consolidated Farm and Rural Development Act]. See Kimel, 528 U.S. at 73, 120 S. Ct. at 640.

And here are the appellate briefs:

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White Earth Band Wins Tax Case against Mahnomen County

The case is White Earth Band v. County of Mahnomen, in the District of Minnesota. It involves the interpretation of the White Earth Lands Claims Settlement Act. Here are the materials:

white-earth-motion-for-summary-judgment

mahnomen-county-response-and-cross-motion

white-earth-reply-brief

dct-order-granting-summ-j-to-white-earth

Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”

SCOTUSBlog lists Coushatta Tribe v. Meyer & Assoc. as a petition to watch for the April 3, 2009 conference. A cursory review of the cert petition shows that there may be a conflict in the state courts about whether the tribal court exhaustion doctrine enunciated by National Farmers Union and Iowa Mutual applies to state courts. The conflict seems to be with the Connecticut courts, and perhaps the New York and Wisconsin courts (though there are good reasons to doubt whether those courts have really embraced the doctrine), which have held that the tribal court exhaustion doctrine applies to its courts. Other courts — Louisiana, Arizona, and others — have rejected the application of the doctrine to their courts.

My sense is that the Court will deny this petition, though it is definitely worth watching. Three key reasons: (1) Louisiana’s course of action was to treat this common law doctrine as applying only to federal courts, preserving its own choice whether or not to adopt this federal court doctrine (a choice it made in the negative, just as Connecticut chose to adopt it, presumably of its own free will), making this dispute more a state law question than a federal law question; (2) the tribe is the petitioner; and (3) this is a common law case, rather than a federal statutory interpretation case or a federal constitutional case.

If a state court followed National Farmers Union, complaining loudly that it had no choice because of federal bullying or something, then there probably would be more Supreme Court interest. There doesn’t seem to be a federal government interest in the tribal court exhaustion doctrine that would be apparent to the Court, a serious problem I suspect is behind much of the Court’s recent 25-year retreat from its earlier federal Indian law jurisprudence.

A potential wildcard is that the state court’s opinion seems to run a little roughshod over the tribe’s immunity, but this seems to be limited to the tribe’s own laws, something that wouldn’t be likely to interest the Court.

From SCOTUSblog:

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GTB Revenue Sharing News Coverage

From the Traverse City Record-Eagle:

TRAVERSE CITY — For at least four years, Toni Ferris’ special education students built self-esteem and coordination through regular swimming lessons.

But this year’s lessons nearly didn’t happen: The grant-supported program, designed for students with mild cognitive impairments in Traverse City Area Public Schools, didn’t receive funding by the start of the school year.

So Ferris, their teacher at the former Glenn Loomis Elementary, applied again, and received about $9,500 from the Grand Traverse Band of Ottawa and Chippewa Indians shortly before Valentine’s Day.

The funds will help about 50 students with disabilities swim at the Grand Traverse County Civic Center pool from late April through mid-June.

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Michigan Legislators Debate Smoke Ban at Work

From the Detroit News:

Lawmakers reopened the debate over smoke-free workplaces Wednesday, launching hearings on an issue that has gridlocked the Legislature for years.

Owners of smaller bars and restaurants say a proposed statewide ban on workplace smoking could cost 7,500 hospitality jobs and drive them out of business.

Proponents say the ban is necessary to protect workers and customers from second-hand smoke, which they say claims 3,000 Michigan lives every year.

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Possible Side-Effect of Carcieri? More Non-Indian Gaming (in Ohio)?

From the Columbus Dispatch:

Ohio’s four largest cities each would get a casino and local governments and schools would share most of a projected $600 million a year in tax revenue, gambling proponents said today in introducing the third casino proposal aimed at the statewide ballot in four years.

***

“This proposal was carefully crafted to reflect what Ohioans want in a gaming proposal,” said Eric Schippers, spokesman for Penn National Gaming Inc., which switched sides to sponsor this year’s issue. “We’re going to build a broad-based coalition to support this proposal.”

***

Penn National has armed itself with a February U.S. Supreme Court decision that forbids Indian tribes from placing land in trust — often a prelude to building a casino — if the tribes received federal recognition after 1934. There currently are no federally recognized tribes in Ohio, but casino opponents last year said a commercial casino could open the floodgates to Indian casinos in the state.

Lloyd Miller: A New Deal for Native America

From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:

In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs.  After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments.  Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.

Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos.  Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California).  Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%.  The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.

Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.

Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
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Little River Band of Ottawa Indians Sues National Labor Relations Board

VERY interesting case.The Little River Band created its own labor relations code. At least one union agreed to forego the National Labor Relations Act in favor of the tribal law, but the Teamsters — perhaps the definition of a dying union that won’t go away without bringing down everyone around it — filed a charge with the NLRB.

Even more interesting, the Interior Solicitor opined that the NLRA does not apply to this tribe, and requested that the NLRB back down. Of course the Board refused. And so we have this case in the Western District of Michigan.

Here are the relevant materials:

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Cert Opposition in Catskills Litigation Trust v. Harrah’s

Here is the cert opp from Harrah’s — harrahs-cert-opp

Here is the cert petition.

Cert Opposition in Coushatta v. Meyer and Assoc.

Here is the cert opp — meyer-assoc-cert-opp

The cert petition is here.