sovereign immunity

Ninth Circuit Dismisses Bishop Community Land Claim against City of Los Angeles under Rule 19

Matthew L.M. Fletcher

Here is the opinion in Paiute-Shoshone Indians of the Bishop Community v. City of Los Angeles.

An excerpt:

Plaintiff Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California, an Indian tribe formallyrecognized by the United States, filed this action againstDefendant City of Los Angeles for an order restoring Plaintiffto possession of land that the City took long ago in a deal withthe United States. The district court dismissed the actionunder Federal Rule of Civil Procedure 12(b)(7) because itruled that, under Rule 19 of the Federal Rules of Civil Procedure, the United States was a required party that Plaintiffcould not join. The district court certified the appealability ofits order under 28 U.S.C. § 1292(b). Upon Plaintiff’s timelyrequest, we agreed to hear this interlocutory appeal, and we now affirm.

And the briefs:

Paiute-Shoshone Brief

Los Angeles Brief

Paiute-Shoshone Reply

Oklahoma Supreme Court Affirms Miami Tribe’s Immunity in Seneca Telephone Suit

Matthew L.M. Fletcher1 Comment

Here is the opinion in Seneca Telephone v. Miami Tribe.

An excerpt:

In the present matter the Tribe was not engaged in any telecommunication activity. The Tribe was engaged in excavation work for another tribe on land held in fee as well as in trust by the United States Government. The United States Congress has not unequivocally waived sovereign immunity for the activities involved in the instant matter. The Tribe has not waived its sovereign immunity at any level in the present case and all issues herein presented are fully satisfied by our finding of immunity and, therefore, the opinion of the Court of Civil Appeals is vacated and the trial court is reversed and remanded with instructions to dismiss.

Lower court materials here.

Katherine Florey on Rule 19 after Pimentel

Matthew L.M. Fletcher

Katherine Florey has published “Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19” in the UCLA Law Review.

Here is the abstract:

Though Federal Rule of Civil Procedure 19 might appear to be one of the more esoteric of the Federal Rules, it is actually an exceptionally powerful device: It permits defendants to obtain dismissal of cases over which the court has valid jurisdiction, even when no other forum exists in which the action can be brought.  This Article argues that, while Rule 19 was originally intended to facilitate the consolidation of litigation by requiring joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose.  That is, in many cases in which a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the entire case may be dismissed—even if that means that the plaintiff is permanently denied a remedy.  Further, the U.S. Supreme Court recently appeared to endorse this approach, holding that Philippine human rights victims’ claims to their former regime’s assets could not be litigated because two Philippine governmental entities could not be joined in the case.

In such situations, this Article argues, Rule 19 functions almost as an abstention doctrine, permitting courts to avoid decisions in cases that may raise sensitive intergovernmental or foreign-relations issues.  This use of the rule is problematic for several reasons.  It is not authorized by (or even discussed in) Rule 19’s text, and it appears at odds with the original purpose of Rule 19: to promote consolidated litigation of disputes, not to dispose of them entirely.  Further, it permits the interests of the plaintiff—and the public interest in resolution of disputes—to be systematically slighted.  Thus, although there may be situations in which an absent party’s sovereign immunity should be taken into account, courts have gone too far in their solicitude for absent sovereigns.  This Article explores how this phenomenon has evolved and suggests ways in which courts’ analysis of Rule 19 factors should be modified to take account of the rule’s fundamental purposes

Federal Court Dismisses Police Brutality Complaint against Walker River Tribal Police

Matthew L.M. Fletcher

Here are the materials in Lantry v. Walker River Tribal Police (D. Nev.):

Walker River Motion to Dismiss

Lantry Response

Walker River Reply

DCT Order Dismissing Lantry Complaint

State Law Claim to Recover Gaming Losses from Seminole Tribe and Other Dismissed

Matthew L.M. Fletcher

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:

Seminole Motion to Dismiss

The court deemed Seminole’s motion to dismiss moot, as it dismissed the claims on other grounds.

Wasson v. Pyramid Lake — ICRA Claims Dismissed

Matthew L.M. Fletcher

Here is the opinion: DCT Dismisses Wasson Complaint.

Our prior post on this case is here.

New Mexico Appellate Court Dismisses Worker’s Comp Claim against Inn of the Mountain Gods

Matthew L.M. Fletcher

Here is the unpublished opinion in Pena v. Inn of the Mountain Gods.

New Mexico Appellate Court Finds Tribal Waiver of Immunity in Gaming Compact

Matthew L.M. Fletcher

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.

Federal Court Dismisses Tort Claim against Chukchansi

Matthew L.M. Fletcher

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.

Federal Court Abrogates Tribal Immunity in Denying Motion to Quash Subpoena in a Third Party Contract Breach Claim

Matthew L.M. Fletcher2 Comments

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)).

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