sovereign immunity – Page 129

This Article considers recent disputes over membership decisions made by American Indian tribal governments. Since Congress passed the Indian Gaming Regulatory Act in 1988, Indian casinos have flourished on some tribal reservations. Some argue that the new wealth brought by casinos has increased fights over membership as tribes seek to expel current members or refuse to admit new members. It is difficult to discern whether there are more disputes over tribal enrollment as a consequence of gaming or whether such disputes are now more public because gaming has brought tribes to the forefront of U.S. culture. What is clear is that enrollment disputes are receiving increased attention, resulting in calls for some change to address what many perceive as a fundamental unfairness in tribal decision making.

Aggrieved members’ attempts to resort to federal or state court are blocked due to a lack of federal subject matter jurisdiction, standing, and because of the tribes’ sovereign immunity. Activists and courts have sought to change this, seeking to curtail the tribes’ sovereign immunity, expand federal court jurisdiction to permit oversight, or otherwise impose U.S. law on tribal membership decisions. Scholars are divided, with some arguing for the abrogation of immunity or sovereignty, while others argue that the tribes’ decisions are sacrosanct. Still others argue over how the tribes should define membership–contending that it should be based on cultural identity, political participation, blood quantity, or even DNA.

This Article argues that the focus should instead be on solutions that come from within the tribes. For too long the tribes have suffered from the imposition of legal and cultural norms that do not reflect their identity or culture. Because a tribe’s right to define its membership lies at the heart of its sovereignty, the solution is more, not less, sovereignty for the tribes. To remedy the impasse, I propose that tribes create separate independent judicial bodies, or an intertribal appellate court that would provide independent review of tribal membership decisions.

Sisseton Tribal Council Passes Resolution Attempting to Reverse Tribal Appellate Court on 11-Part Tribal Business Entity Immunity

March 17, 2010Matthew L.M. Fletcher

Here’s an interesting development that may have some impact on the Colorado v. Cash Advance case.

The Sisseton tribal council enacted the following resolution designed to “fix” the Northern Plains Intertribal Court of Appeals decision raised by the Colorado AG in the supplemental pleading referred to here.

Sisseton Resolution

Supplemental Briefing in Colorado v. Cash Advance

March 17, 2010March 17, 2010Matthew L.M. Fletcher1 Comment

Interesting development, in that the State found a tribal court case adopting the infamous 11-part test cobbled together by the Colorado Court of Appeals (earlier briefs are here):

Resp. Cross-Petitioners Notice of Supp. Authority

Tribal Response to Supplemental Authority

In our experience, tribal courts rarely apply a common law test in determining whether or not a tribal business entity is immune from suit. They don’t need to, given that tribal business entities are created via a document (e.g., articles of incorporation) or statute (e.g., tribal corporations code) that spells out in exacting detail the contours of immunity.

Strangely, state courts adopting these 11- or 3- or 5-part tests (or whatever) don’t spend enough time looking at the tribal statutory law, and are prone to creating common law for their own purposes.

Colorado seems to be trying to play a weird game of “gotcha!” here. Not sure how this material is relevant. Now if they had found a case from Miami Tribe or Santee Sioux tribal court, hmmm….

Stewart v. Coffey — Tribal Gaming Employment Claims Dismissed

March 11, 2010March 11, 2010Matthew L.M. Fletcher

Here is the unpublished opinion by the Tenth Circuit, rejecting wrongful discharge claims under federal statutes and under Bivens, and affirming tribal immunity.

Here is the tribal brief: Comanche Brief.

Wilton Miwok Settlement Threatened by Possible Statute of Limitations Problem

March 4, 2010Matthew L.M. Fletcher

The case is Wilton Miwok Rancheria v. Salazar, and involves an agreement to take land into trust for the tribe (both the Me-Wuks and the Miwoks) for gaming purposes. After the settlement was entered and approved by the court, intervenors (Sacramento County and City of Elk Grove) argued that the suit came too late under 28 U.S.C. 2401(a).

A few years back in John R. Sand and Gravel, the Supreme Court said that the statute of limitations under section 2402 (allowing claims against the US in the court of federal claims) was jurisdictional and could not be waived. Two circuits have held that section 2401 is also jurisdictional. Perhaps the Quiet Title Act also is jurisdictional (section 2409).

In this case, the court followed Ninth Circuit precedent decided before John R. and held that section 2401 is not jurisdictional, but specially allowed for an interlocutory appeal to the Ninth Circuit for review, and stayed the judgment.

Here are the materials:

Wilton Miwok DCT Order on Motion to Vacate

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