sovereign immunity

Federal Court Dismisses Effort by Wells Fargo to Take Over LDF’s Lake of the Torches EDC

Matthew L.M. Fletcher3 Comments

Pretty incredible case. Wells Fargo, alleging financial improprieties by the EDC relating to an indentured trust, sought an order from the court appointing a receiver for the EDC. The EDC defended on grounds of sovereign immunity and that the trust had not been approved by the NIGC, apparently prevailing on the latter theory.

Here are the materials (the court has promised a written opinion “in due course”):

Wells Fargo Motion to Appoint Receiver

LDF Opposition to Motion to Appoint Receiver

Wells Fargo Reply re Motion to Appoint Receiver

Wells Fargo Supplemental Brief re Motion to Appoint Receiver

LDF Supplemental Response

Washburn Affidavit

Order of Dismissal LDF

Rosenberg v. Hualapai Indian Nation Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the cert petition in Rosenberg v. Hualapai Indian Nation (No. 09-742): Rosenberg Cert Petition.

No chance for a grant here. No circuit split. Nothing important for the SCT to decide, especially since they denied cert in the dram shop cases earlier this year. And the petition merely asks the Court to reverse itself, without really stating why. Oh, and the plaintiff had recourse to tribal court, so there isn’t a “no forum” problem.

Lower court materials are here.

The questions presented:

1. Does the sovereign immunity of an Indian tribe extend to off-Indian County (extra-territorial), tortuous conduct?

a. Does Congress, and Congress alone, have the authority to establish the boundaries of tribal sovereign immunity, a judicially-created doctrine, or may this Court define its outer boundaries, as this Court has suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700 (1998)?

b. Is tribal sovereign immunity broader than the immunity provided to foreign sovereign nations?

2. Does a tribe waive its sovereign immunity by engaging in conduct that would lead a reasonable person to believe that he or she might have recourse in a court of competent jurisdiction for the negligence acts of the tribe?

Federal Court Holds that Tribal Sovereign Immunity Survives Removal to Federal Court

Matthew L.M. Fletcher

But suggests that the law is unsettled. Here is the opinion in Ingrassia v. Chicken Ranch Bingo and Casino (E.D. Cal.): Ingrassia v Chicken Ranch Bingo and Casino DCT Order

An excerpt:

At this point, the case law is not absolutely clear whether tribal sovereign immunity is more like the immunity enjoyed by the states or by foreign sovereigns in the circumstance of removal. There are a number of cases in which courts have applied tribal sovereign immunity after removal without addressing the issue. See New York v. Shinnecock Indian Nation, 280 F.Supp.2d 1, 8 (E.D.N.Y.2003);Maynard v. Narrangansett Indian Tribe, 798 F.Supp. 94 (D.R.I.1992); Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 1997 U.S. Dist. LEXIS 21776 (W.D.Mo. Nov. 19, 1997). In other cases where tribes removed, courts have pierced immunity but not based on waiver from removal. See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980). These cases, in conjunction withSonoma Falls, leads to the conclusion that removal to federal court does not waive tribal sovereign immunity. However, the issue is not settled and appeal may be fruitful for Plaintiffs.

Colorado v. Cash Advance Briefing Complete

Matthew L.M. Fletcher2 Comments

The first round of briefs (state, anti-payday loan amici, etc.) is here. The responses (mostly tribal) are here. And the final brief (state’s reply brief — State Reply Brief).

Dicara v. Cahuilla Band — Immunity Waiver in Gaming Contract Dispute

Matthew L.M. Fletcher

Here is the opinion from the California Court of Appeals (4th Dist., Div. 2).

An excerpt:

The trial court issued a postjudgment assignment order (Code of Civ. Proc., § 708.510) against the Cahuilla Band of Indians (Cahuilla), in favor of Mary DiCara dba Scott Leasing (Scott). Cahuilla contends the assignment order should be reversed because (1) the superior court did not have jurisdiction to issue the order; (2) the lease agreement, upon which the underlying damage award was based, was void since inception; and (3) federal law and Cahuilla’s revenue allocation plan preempt the superior court’s order. Scott contends that it should be awarded attorney’s fees on appeal. We affirm the judgment and award attorney’s fees to Scott.

The trial court issued a postjudgment assignment order (Code of Civ. Proc.,§ 708.510)1, 2 against the Cahuilla Band of Indians (Cahuilla), in favor of Mary DiCaradba Scott Leasing (Scott). Cahuilla contends the assignment order should be reversedbecause (1) the superior court did not have jurisdiction to issue the order; (2) the leaseagreement, upon which the underlying damage award was based, was void sinceinception; and (3) federal law and Cahuilla’s revenue allocation plan preempt thesuperior court’s order. Scott contends that it should be awarded attorney’s fees onappeal. We affirm the judgment and award attorney’s fees to Scott.

Ninth Circuit Affirms Dismissal of Counterclaims against Kalispel Tribe

Matthew L.M. Fletcher

Here is the opinion in Kalispel Tribe v. Spokane Raceway Park (unpublished opinion).

An excerpt:

We need not decide whether the Tribe waived its immunity to Orville Moe’s counterclaim for contract damages as a third-party beneficiary, because Moe failed to present a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Neither the Joint Venture Agreement nor any other document specified the amount of compensation board members were to receive or how that amount was to be determined. Given the lack of details in the agreement, Moe had to produce evidence of what compensation was due and that the Tribe was responsible for that compensation. He failed to do so.

We need not decide whether the Tribe waived its immunity to Orville Moe’scounterclaim for contract damages as a third-party beneficiary, because Moe failedto present a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324(1986). Neither the Joint Venture Agreement nor any other document specified theamount of compensation board members were to receive or how that amount wasto be determined. Given the lack of details in the agreement, Moe had to produceevidence of what compensation was due and that the Tribe was responsible for thatcompensation. He failed to do so.

Steiger v. Little River Casino — Title VII Complaint

Matthew L.M. Fletcher

Here are the early materials in Steiger v. Little River Casino Resort, a sex discrimination claim under Title VII of the 1964 Civil Rights Act:

Steiger Complaint

LRB Motion to Dismiss

Not sure how the plaintiff’s lawyer thinks the federal court has jurisdiction over this. The complaint just cites Title VII, without any argument as to why it could possibly apply to a tribe or its business. Other doing the same have been subject to Rule 11 sanctions (see our paper here).

Arizona Court of Appeals Dismisses Contract Claim Appeal against Yavapai

Matthew L.M. Fletcher2 Comments

Here is the opinion in MM&A Productions v. Yavapai-Apache Nation (opinion). An excerpt:

Appellant MM & A Productions appeals from the trial court’s dismissal of its action against the Yavapai-Apache Nation’s Cliff Castle Casino (“the Tribe”). MM & A maintains the Tribe waived its sovereign immunity and the court erred in concluding it lacked subject matter jurisdiction over the action. It also maintains the court wrongly “accelerate[d] the date by which [it] needed to appeal,” and erred in denying its motion for relief under Rule 60(c), Ariz. R. Civ. P. Because none of the orders from which MM & A appeals is appealable, we conclude we lack jurisdiction of this matter and dismiss the appeal.

Additional Briefing in Cash Advance Case @ Colorado Supreme Court

Matthew L.M. Fletcher1 Comment

Here is the next round of briefs (first round was here, an additional round is expected after the holidays):

Colorado Indian Bar Assn et al. Amicus Response Brief

Petitioners Combined Answer-Reply Brief

N.Y. Appellate Division Dismisses Contract Counterclaims against Oneida

Matthew L.M. Fletcher1 Comment

Here is the opinion in Oneida Indian Nation of N.Y. v. Hunt Construction Group, reversing a trial court order that accepted jurisdiction over four counterclaims against the Nation — Oneida Indian Nation v. Hunt Constr Group

An excerpt:

Plaintiff, the owner of the Turning Stone Casino & Resort, commenced this action seeking damages resulting from the alleged breach by defendant of its construction contract with plaintiff. Plaintiff moved to dismiss the second through fifth counterclaims on the ground that it had waived sovereign immunity only with respect to counterclaims seeking to enforce the terms of the contract and thus that Supreme Court lacked subject matter jurisdiction over the second through fifth counterclaims. We agree with plaintiff that the court erred in denying those parts of the motion seeking to dismiss the second counterclaim to the extent it alleges the breach of implied warranties; the fourth counterclaim, for quantum meruit and unjust enrichment; and the fifth counterclaim, for an account stated. We therefore modify the order accordingly.