Here is the opinion in Crawley v. Clear Channel (M.D. Fla.):
DCT Order Dismissing Crawley Complaint
Technically, Seminole Tribe was not a defendant, but intervened for purposes of filing a motion to dismiss under Rule 19:
The court deemed Seminole’s motion to dismiss moot, as it dismissed the claims on other grounds.
Here is the opinion: DCT Dismisses Wasson Complaint.
Our prior post on this case is here.
Here is the unpublished decision in Bowen v. Mescalero Apache Tribe.
An excerpt:
Plaintiff has properly pled the conjunctive elements of waiver required by the Compact. Consequently, Defendant’s sovereign immunity from suit has been waived, and the district court improperly granted Defendant’s motion to dismiss for lack of subject matter jurisdiction.
Not sure if this means immunity is waived simply by pleading certain jurisdictional facts, or if the tribe’s immunity is reinstated assuming those jurisdictional facts are later disproven. Interesting conundrum.
Here is the opinion in Merrill v. Picayune Rancheria of Chukchansi Indians (E.D. Cal.):
DCT Order Dismissing Merrill Complaint
Chukchansi had waived its immunity in tribal court, but not in federal or state courts.
Here is the order denying the motion to quash in Alltel v. DeJordy (D.S.D.): DCT Order on Motion to Quash.
Occasionally, court opinions prove the power of the professor’s pen (and this is definitely intended not to be a criticism of the professor or the court, both of whom for which we have the greatest respect):
Joshua Kanassatega, an Assistant Professor of Law and Director of the Indian Law Program at Gonzaga University School of Law, concludes James and Catskill Development, are “misguided” because:
1. They fail to utilize the existing balancing tests used to excuse high ranking government officials from giving deposition testimony;
2. They fail to properly apply Fed. R. Civ. P. 45(c)(3)(A) and to consider the policies underlying the rule;
3. They wrongly analogized the sovereignty and immunity of the United States to Indian tribal sovereignty and tribal immunity; and
4. As a federal policy matter, the federal court’s application of the “discovery immunity exception” undermines Indian tribal sovereignty.
Joshua Jay Kanassattega, The Discovery Immunity Exception in Indian Country — Promoting American Indian Sovereignty By Fostering the Rule of Law, 31 Whittier L. Rev. 199 (2009) (summarized).
Professor Kanassattega’s analysis looks to the United States Supreme Court for some general guidance on this issue.
In the 1986 case Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, the Court articulated a concept of limitations on the federal common law immunity that the Indian Tribes possessed. While recognizing that common law immunity was a “necessary corollary to Indian sovereignty and self-governance,” the Court, in passing, noted that because Indian Tribes possessed only quasi-sovereignty, such immunity is not congruent with the immunity possessed by the United States or the several states. More ominously, the Court added, “this aspect of tribal sovereignty, like all others, is subject to plenary federal control and definition.”
Kanassattega, supra at 240-41 (citing Three Affiliated Tribes, 476 U.S. 877, 890-91, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978) and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 513, 60 S. Ct. 653, 84 L. Ed. 894 (1940)).
An excerpt from the ABQ Journal article:
A land dispute between Laguna Pueblo and a rancher prompted the New Mexico Court of Appeals to rule that tribal sovereignty shields tribes and pueblos from lawsuits involving lands they own outside their reservations.
The dispute centers on a 640-acre property in the Mount Taylor foothills. Cibola County rancher Robert Armijo contends he bought the property in 1994 from the Cebolleta Land Grant and has a warranty deed to prove it.
The Pueblo of Laguna claims the parcel is part of 8,300 acres the pueblo purchased in 2008 from Silver Dollar Ranch LLC.
In a Dec. 6 opinion, the Appeals Court found a district court judge lacked jurisdiction to decide who owns the property because the pueblo enjoys immunity from lawsuits, even if the land is outside its boundaries.
A legal concept called tribal sovereign immunity has long protected tribes and pueblos from lawsuits on tribal lands, which are held in trust by the U.S. Department of the Interior.
An attorney representing Armijo said the Court of Appeals ruling extends tribal sovereign immunity to “fee lands” purchased on the open market by tribes and pueblos but not held in trust.
“The decision is problematic,” Belen attorney Tibo Chavez said. “Sovereign immunity elevates the tribes above constitutionally protected property rights.”
The ruling may forestall any type of legal claim related to off-reservation properties owned by tribes and pueblos, he said.
“What if someone was injured on this land?” Chavez said. “Are there applications of negligence law that would apply?”
Albuquerque attorney Daniel Rey-Bear, who represents Pueblo of Laguna, declined to comment on the case.
Here are the materials in Klamath Claims Committee v. United States (Fed. Cl.):
DCT Order Granting Partial Dismissal for US
USA Motion to Dismiss KCC Complaint
Here is that order: Order Denying Petition for En Banc Rehearing.
Here are our earlier posts: en banc materials, and Tenth Circuit panel materials.
We’ve received several comments about the case worth reposting here.
From an Amerind rep:
Amerind’s policies require Amerind to pay all judgments rendered against its policyholders. For over 25 years, Amerind has consistently honored this commitment.
The United States Housing and Urban Development has also approved and recognized Amerind as the only authorized insurance entity for Indian country.
The Eighth Circuit’s decision applies in a very narrow set of circumstances—where suit is brought directly against Amerind rather than the policyholder.
From Richard Monette:
It seems that to the extent Amerind is in fact “self-insuring” it is indeed acting more as a government than a business and that such activity may be cloaked in the the charter Tribes’ immunity. However, it also seems that to the extent that Amerind is not self-insuring, it is indeed acting more as a business than a government and may not carry the charter Tribes’ immunity beyond the governing territories of those Tribes. Is a company not chartered by Turtle Mountain but doing business in Turtle Mountain really “self-insuring”? Note to Turtle Mountaineers: if you wish for these types of catastrophes to be covered by insurance, your tribe/housing authority must establish its own section 477 self-insurance entity, as each tribe should, the likely original intent of the law.
And from Richard Phelps (previously and erroneously noted as Richard Monette):
I am a firm believer in sovereign immonity but cases like this that push the limits, put that immunity in grave danger.
Also why would you purchase insurance from a company that can not be sued if it refuses to pay a claim. I guess State farm would like this deal.
And a link to a commentary by Gabe Galanda on his blog. His post is titled, “Amerind Should Clearly Waive Its Immunity in Insurance Contracts.”
Turtle Talk 
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