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.
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….
Here is the unpublished opinion by the Tenth Circuit, rejecting wrongful discharge claims under federal statutes and under Bivens, and affirming tribal immunity.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.
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:
This case is Lower Sioux Indian Community v. Kraus-Anderson Const. Co. (Minn. App.). Here is the unpublished opinion.
An exceprt:
Because Lower Sioux is not a necessary party to this litigation, we reverse the district court’s order joining Lower Sioux as a party and enjoining it from pursuing parallel tribal court litigation.The determination that Lower Sioux is not a necessary party is dispositive. Thus, we need not reach and do not reach the parties’ dispute over whether Lower Sioux waived its sovereign immunity, either contractually or by initiating the district court action. Nor do we take any position on the jurisdiction of the tribal court over the subcontractor respondents or whether the subcontractors may be joined as parties to the tribal court proceedings. Those determinations are for the tribal court. See Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379, 381 (Minn.App.1995) (explaining that comity requires allowing tribal court to determine its own jurisdiction); Rule 12(c) of the Lower Sioux Community in the State of Minnesota Judicial Code Rules of Civil Procedure, available at http://maiba.org/pdf/LowerSioux.pdf (addressing standard for joinder in tribal court). We also deny as moot Kraus-Anderson’s motions to modify the record and to strike portions of one respondent’s brief because the disputes raised by the motions are relevant only to the issues that we have declined to reach.
Here: Hualapai Cert Opp
Cert petition is here.
Here are the materials so far in NLRB v. Fortune Bay Resort Casino (D. Minn.):
NLRB Motion for Subpoena Duces Tecum
Bois Forte Band Response to Motion for Subpoena
NLRB Reply in Support of Motion
The court found that whether the tribe waived immunity was a factual dispute.
from ICT:
There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out – if the facts set up the wrong way, irreparable damage will be done to tribal self-government in this field. This is a problem (or opportunity) for tribal sovereignty in the way that the test case ofBrown v. Board of Education was for the civil rights movement.
There’s been plenty of “bad press” about tribes “getting away with” practices in the workplace that may look wrong to outsiders. The assertion of sovereign immunity against individual employees may exacerbate tensions. In dismissing an action for unpaid wages brought by tribal employees, the Crow Court of Appeals recently warned, “If the tribe does not take steps to enact appropriate waivers of sovereign immunity, we believe it is only a question of when Congress will do it for us.” The Crow Tribe later enacted law to protect its workforce.
| There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out. |
It’s probably more likely that the Supreme Court, not Congress, will decide whether tribes and their enterprises must succumb to federal authority over union rights, age and other discrimination laws, and a host of other federal laws governing employment relations. For now anyway, Congress is distracted by other issues. So what will a case look like that goes up to the high court?
With non-Indians taking up employment positions in Indian country in droves, federal agencies are looking for opportunities to enforce federal labor laws of general application against tribes. Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward. The question becomes whether Congress (when silent on the issue) intended such laws to apply to tribes.
Continue reading
Here is the report: Allen v Mayhew Magistrate Report
The most recent motion to dismiss: Mayhew Motion to Dismiss
Previous orders are here.
An excerpt:
As to the two remaining defendants, reading Plaintiff’s complaint liberally, he alleges that while he was an employee of the Gold Country Casino in 2003, he took the defendant Mayhews’ grandchildren into his home. He later petitioned the Tribe for tribal membership for these children, and was told he would be reimbursed for his expenses regarding the children but was warned “not to go to the white man’s court.” However, despite this warning, Plaintiff filed guardianship proceedings in the California state court in September 2003. As a result, he contends defendants Mattie and Ricky Mayhew conspired together to file false allegations against him, with the intent to have his employment with the Casino terminated in retaliation for availing himself of the state court system and because he is white. He was subsequently terminated from his employment, allegedly due to these false allegations.
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