sovereign immunity

An excerpt:

The ruling, Fletcher said, was not really a surprise.

“This is a court that is pretty reluctant to rule in favor of Indian tribes and I think they are very skeptical of things like Indian gaming.”

Fletcher said the Sotomayor dissent highlights the destabilizing consequences of Monday’s decision. Wrote Sotomayor:

“… the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.”

Fletcher said that whereas parties seeking to challenge land-in-title decisions previously only had 30 days to file action, after Monday, tribes will likely have to wait six years to develop any property the government takes into trust while they wait out potential lawsuits against the use of the property.

“It’s very difficult to borrow money or do anything with land under those circumstances.’

The vast majority of Indian land-in-trust decisions by the government are for reasons like housing, treat rights, environmental protection and public safety. Very little are done for gaming reasons, Fletcher said.

Update in Federal Trade Commission Suit against Tribal Payday Lenders et al.

June 8, 2012June 8, 2012Matthew L.M. Fletcher3 Comments

Here are additional pleadings in Federal Trade Commission v. AMG Services, Inc. (D. Nev.):

Scott Tucker & AMG Response

Robert Campbell Response

Part 269 Response

Muir Law Firm Response

Little Axe Response

Don Brady Response

Scott Tucker & AMG Motion to Dismiss

Little Axe Motion to Dismiss

Joint Motion to Dismiss

The “responses” are responses to the FTC’s motion for a preliminary injunction. That motion and the complaint are here and here.

News coverage via Pechanga here.

Business Week Article on Tribal Payday Lenders

June 5, 2012June 5, 2012Matthew L.M. Fletcher

Important article. Here.

H/t to Pechanga.

California Court of Appeals Decides Tribal Corporate Immunity Case

May 30, 2012Matthew L.M. Fletcher1 Comment

Here is the opinion in American Property Management Corp. v. Superior Court (with concurrence):

Cal. App. Opinion

An excerpt:

In 2003, Sycuan Tribal Development Corporation (STDC), a corporation chartered under Sycuan’s tribal laws, invested in the purchase of the U.S. Grant Hotel in downtown San Diego (the hotel) but created several layers of California limited liability companies to stand between it and the entity that took ownership of the hotel.

Specifically, U.S. Grant, LLC — a California limited liability company — purchased the hotel in 2003. U.S. Grant, LLC is wholly owned by its sole member Sycuan Investors – U.S. Grant, LLC (Sycuan Investors, LLC), a California limited liability company. Sycuan Investors, LLC, in turn, is wholly owned by its sole member American Property Investors – U.S. Grant, LLC (American Property Investors, LLC), a California limited liability company. American Property Investors, LLC is wholly owned by its sole member STDC. All three limited liability companies were organized in late 2003 in connection with the transaction to purchase the hotel.

Complete Tenth Circuit Briefing in Somerlott v. Cherokee Nation Distributors (Including Supplemental Briefs)

May 29, 2012Matthew L.M. Fletcher1 Comment

Here:

Somerlott Brief

Cherokee Nation Distr Brief

Somerlott Reply Brief

CA10 Order to File Supplemental Briefs

Somerlott Supplemental Brief

CND Supplemental Brief

The Tenth Circuit panel requested supplemental briefing after oral argument to address this issue:

This court has previously acknowledged that “[t]ribal sovereign immunity is deemed to be coextensive with the sovereign immunity of the United States.” Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011 (10th Cir.
2007) (citation omitted). Regarding the sovereign immunity of the United States, other circuits have held that where the United States is the sole shareholder of an entity incorporated under state law, the United States’ sovereign immunity does not extend to the entity. See Panama R. Co. v. Curran, 256 F. 768, 771-72 (5th Cir. 1919) (quoting Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. 904, 907–08 (1824)); Salas v. United States, 234 F. 842, 844–45 (2d Cir. 1916). The parties are therefore directed to submit supplemental briefs regarding the following issues:

a) Does CND’s organization as a separate legal entity under Oklahoma’s Limited Liability Company Act preclude it from sharing in the Cherokee Nation’s sovereign immunity?

Lower court materials here.

New Student Scholarship on Tribal Waivers of Immunity by Unauthorized Tribal Officials

May 25, 2012Matthew L.M. Fletcher

Adam Keith, a Penn Law student, has published “Who Should Pay for the Errors of the Tribal Agent?: Why Courts Should Enforce Contractual Waivers of Tribal Immunity When an Agent Exceeds Her Authority under Tribal Law.” The article appears in the Penn Journal of Business Law. The article criticizes a recent Sixth Circuit decision on the immunity of Section 17 corporations.

Here is a snippet:

When tribal commercial organizations engage in commercial dealings, their non-tribal counterparties almost universally insist that a waiver of tribal immunity be included within any contractual agreement so as to retain their access to state and federal courts should they decide to litigate any commercial disputes against the tribal entity. In a recent case, the Sixth Circuit weakened the reliability of these waivers by ruling that the court will not enforce such a waiver when a tribal agent assents to one while possessing only apparent authority in the eyes of the tribal counterparty but not actual authority under tribal law. This comment will argue that there are three reasons that courts should enforce such waivers: because doing so is consistent with the principles associated with waivers of tribal immunity; because it will not have deleterious effects on tribal sovereignty; and because it will improve the efficiency of tribal commercial dealings with non-tribal entities.

Gambling Addict’s State Law Claims against Foxwoods Dismissed

May 25, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in Tassone v. Foxwoods Resort Casino (D. Conn.):

DCT Order Dismissing Tassone Complaint

Foxwoods Motion to Dismiss

Tassone Response

Foxwoods Reply

Florida COA Holds Miccosukee Counsel Not Entitled to Immunity in Third Party Discovery Dispute

May 24, 2012Matthew L.M. Fletcher1 Comment

Here is the opinion in Miccosukee Tribe of Indians of Fla. v. Bermudez (Fla. App. 3rd):

Miccosukee v Bermudez COA opinion

An excerpt:

The Miccosukee Tribe of Indians of Florida, a federally recognized Indian Tribe, petitions this Court for certiorari relief from an order denying the Tribe’s Motion for Protective Order and to Quash Subpoena for Deposition issued to Tribal Officer and General Counsel Bernardo Roman III, Esquire. We deny the petition.
The petition in this case emanates from a contentious series of postjudgment proceedings in execution on a $3.177 million dollar judgment rendered on August 5, 2009, against Miccosukee Tribe members, Tammy Gwen Billie and Jimmie Bert, arising out of a tragic automobile accident, which occurred on the Tamiami Trail in western Miami-Dade County ten years earlier. Gloria Liliana Bermudez died in the crash, and her husband, Carlos Bermudez, and their minor
son, Matthew Bermudez, were injured. There have been no fewer than twenty post-judgment motions for sanctions since the judgment was rendered, including criminal contempt, slung by the parties’ counsel against each other under the guise of the parties themselves. The plaintiffs have yet to realize any recovery on the judgment. The Tribal defendants assert penury.