sovereign immunity – Page 104

Here is today’s opinion in Somerlott v. Cherokee Nation Distributors. Judge Gorsuch’s concurring opinion (starting at page 21) is a worthy read for tribal leaders and tribal counsel thinking about doing business outside of Indian country.

Briefs are here.

Excerpt here:

Tina Marie Somerlott appeals from the district court’s dismissal of her claims against CND, LLC (“CND”) for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Somerlott brought federal employment discrimination claims against CND, alleging violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. After allowing discovery by both parties, the district court concluded CND was immune from suit under the doctrine of tribal sovereign immunity and, therefore, dismissed Somerlott’s complaint in its entirety. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
this court affirms.

Response Briefs in Freedmen Appeal of Rule 19 Dismissal of Vann v. Interior

July 24, 2012Matthew L.M. Fletcher2 Comments

Here are those briefs:

Cherokee Nation Brief [defending the Rule 19 dismissal]

Interior Brief [arguing against Rule 19 dismissal]

The opening brief is here.

Briefs in In re Whitaker (Bucher v Dakota Finance Corp)

July 23, 2012Matthew L.M. Fletcher1 Comment

Here:

Trustee Brief

Tribal Brief

Trustee Reply

We posted the opinion here.

Klamath Claims Committee Trust Breach Suit Dismissed under Rule 19

July 17, 2012Matthew L.M. Fletcher3 Comments

Here are the materials in Klamath Claims Committee v. United States (Fed. Cl.):

CFC Order Dismissing Committee Complaint

KCC Complaint

KCC Rule 19 Brief

Klamath Tribes Amicus Brief

USA Rule 19 Brief

Ninth Circuit Briefs in ICWA Case Involving Washoe Tribe

July 3, 2012June 28, 2012Matthew L.M. Fletcher1 Comment

Here are the briefs so far in Fred v. Washoe Tribe of Nevada & California:

Washoe Opening Brief

Fred Answer Brief

Lower court materials are here.

Briefs in Furry v. Miccosukee Tribe

July 2, 2012Matthew L.M. Fletcher1 Comment

Here:

Furry Opening Brief

Miccosukee Brief

Furry Reply

Opinion here: CA11 Opinion

11th Circuit Affirms Tribal Immunity from State Law Dram Shop Actions

July 2, 2012July 2, 2012Matthew L.M. Fletcher

Here is the opinion. Briefs later, hopefully.

An excerpt:

Furry instead relies on the one state court decision that has gone the other way, Bittle v. Bahe, 192 P.3d 810 (Okla. 2008), where the Oklahoma Supreme Court, over strong dissent, held that § 1161, read together with Rehner, abrogated tribal immunity from any suit based on state laws related to alcohol, including private tort suits. See id. at 823. Notwithstanding the admonition of the United States Supreme Court in Kiowa Tribe that “[t]here is a difference between the right to demand compliance with state laws [26] and the means available to enforce them,” 523 U.S. at 755, the Oklahoma Supreme Court determined that private tort actions to enforce compliance with state liquor laws were permissible because the “state law remedy to recover money damages furthers the legitimate objectives of the state’s liquor laws,” Bittle, 192 P.3d at 823. Although the Oklahoma Supreme Court’s analysis does not bind this Court in any way, we also find it unpersuasive and inconsistent with precedents from this Court and the United States Supreme Court, which have established that congressional abrogation of tribal immunity must be express and unequivocal. Cf. Bittle, 192 P.3d at 829, 833 (Kauger, J., dissenting) (observing that the majority opinion “ignores controlling precedents” and that “[i]t takes a great leap of jurisprudence to determine that Rice v. Rehner is dispositive of the issue of sovereign immunity as it relates to private dram shop actions”).

Wisconsin SCT to Hear Nonmember Challenge to Tribal Immunity

June 28, 2012June 28, 2012Matthew L.M. Fletcher

Here. Lower court materials here. From the SCT’s website:

2011AP364 Koscielak v. Stockbridge-Munsee Community
This case examines whether tribal sovereign immunity bars a state law tort claim arising from a slip-and-fall incident and the proper legal standard involved in guiding that analysis.

Some background: On Feb. 22, 2008, Robert Koscielak sustained injuries when he slipped and fell on ice in the Pine Hills Golf and Supper Club parking lot in Gresham, Wis. He and his wife, Mary Koscielak, filed suit against the Stockbridge-Munsee Band of Mohicans under the tribe’s business name, Pine Hills, on June 1, 2010, alleging a variety of tort claims.

Pine Hills moved to dismiss the lawsuit and its motion was converted to a motion for summary judgment. The Tribe argued that Pine Hills was a subordinate economic entity of the Tribe such that Pine Hills was entitled to the sovereign immunity conferred upon the Tribe by federal law. The circuit court agreed. The court also ruled that because the Koscielaks’ claims against the tribe were barred, their claims against the tribe’s insurer, First Americans Insurance, were barred, too.

The Koscielaks appealed, arguing, among other things, the circuit court erred in applying the doctrine of tribal immunity under the specific facts presented. The Court of Appeals affirmed.

The Court of Appeals ultimately concluded that Wisconsin law has never before distinguished between tort and contract claims for tribal immunity purposes. The court thus declined to draw such a distinction here, stating that the “matter is best left to the Wisconsin Supreme Court or the federal courts.” The Koscielaks do not directly challenge tribal immunity, per se. Rather, they argue that Pine Hills is not entitled to tribal sovereign immunity because its business activities are too attenuated from the Tribe.

More specifically, they state the issues as follows:

Does a federally recognized Indian tribe enjoy sovereign immunity from suit on a state law tort claim not arising out of a contract with the tribe, of a Wisconsin citizen who is not a member of any Indian tribe, for personal injuries sustained at an off-reservation tribally owned for profit supper club open to the general public, to extend to a true “arm of the tribe” business?

Is the multi-factor “arm of the tribe” analysis set forth in McNally CPA’s & Consultants, S.C. v. DJ Hosts, Inc., 2004 WI App 221, ¶8, 277 Wis. 2d 801, 692 N.W.2d 247, which the Court of Appeals discredited and failed to apply to the business at issue, the controlling legal test for Wisconsin courts to apply to determine when any sovereign immunity enjoyed by a tribe may properly extend to a tribally-owned business entity?

Based on a de novo review with proper application of that test, or other “arm of the tribe” test that this court may establish, is Pine Hills Golf Course and Supper Club an “arm of the tribe”?

Under an “occurrence” type insurance policy, are the Koscielaks entitled to the benefit of mandated non-immune liability insurance coverage based on the tribe’s legal position at the time of the “occurrence” in an unrelated federal case that Pine Hills was a gaming entity under its Gaming Compact?

The tribe and First American frame the issues as follows:

Does this court have any reason or authority to create an exception to the established rule of tribal sovereign immunity?

Do the facts of this case, which involve a unit of the tribe itself, present any occasion for clarifying or modifying factors developed by other courts for determining whether a tribe’s immunity extends to a separately-incorporated organization?

May an ordinary commercial general liability carrier be held directly liable to an injured party if its insured is immune?

From Shawano County.