Here is the opinion in Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc. — Memphis Biofuels v Chickasaw Nation Industries CA6 Opinion
Lower court materials and appellate briefs are here.
The court first concluded that Section 17 corporations do not automatically waive immunity: Continue reading
Here is the opinion in Guzman v. Laguna Development Corp., decided in June. An excerpt:
David and Maria Guzman (the Guzmans) appeal the dismissal of their wrongful death and loss of consortium claims for the death of their son, Anthony M. Guzman. The district court both dismissed (pursuant to Rule 1-012(C) NMRA) and granted summary judgment in favor of the Defendants Laguna Development Corporation, d/b/a Route 66 Casino, George Russell Kainoa Ayze, and St. Paul Fire and Marine Insurance Company (Defendants). We reverse and remand holding that: (1) summary judgment was not proper because Defendants are estopped from taking a position before the district court inconsistent with their successful position before the Workers’ Compensation Administration, and (2) dismissal was not proper because the Guzmans’ complaint sufficiently pleads claims that fall within the Laguna Pueblo’s waiver of sovereign immunity for injuries to visitors at the casino, pursuant to its gaming compact with the State of New Mexico. NMSA 1978, § 11-13-1 (1997) (the Compact).
Here is the court order in Sober v. Soaring Eagle Casino (E.D. Mich.), dismissed on grounds that the plaintiff failed to exhaust tribal court remedies (she did not appeal tribal court’s dismissal of her claim to the tribal court of appeals) — Sober v Soaring Eagle DCT Order
Here are the materials:
Here is the opinion in this long-running dispute involving the Unkechauge Poospatuck smoke shop–Gristede Foods v. Unkechauge Poospatuck Smokeshop (E.D. N.Y.). Here, the court holds that the tribe is immune from suit, having demonstrated that it meets the Montoya test for tribal sovereignty — Gristede’s Foods DCT Order
An excerpt:
In light of the foregoing analysis of the evidence, the court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a “tribe” and is entitled to immunity from suit in the present action. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Turner v. United States, 248 U.S. 354, 358 (1919). Supreme Court cases “recognize that the Indian tribes have not given up their full sovereignty” which is “of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete deference. But until Congress acts, the tribes retained their existing sovereign powers.” United States v. Wheeler, 435 U.S. 313, 322-323 (1978). There is no evidence that the Unkechauge waived or abandoned their tribal immunity or that Congress has abrogated the immunity of the Unkechauge. Because the Unkechauge is a tribe pursuant to federal common law, they enjoy sovereign immunity. Thus, in the absence of a waiver or congressional abrogation of immunity, the court lacks subject matter jurisdiction to determine plaintiff’s claims against the Tribe.
However, the smokeshop itself is not immune, the court applying a common law test to determine whether the smokeshop is an arm of tribal government:
The Poospatuck Smoke Shop has not satisfied these criteria. The only evidence that the Smoke Shop submitted in support of its status as an entity of the Unkechauge is Chief Wallace’s testimony that businesses on the Unkechauge tribal grounds must be licensed by the tribal council. (Wallace Tr. at 85, 157; 12/22/08 Oral Arg. Tr. at 41.) This testimony does not satisfy the above factors by a preponderance of the evidence for establishing that the Smoke Shop is an arm of the tribe. Therefore, the Poospatuck Smoke Shop’s motion to dismiss is denied.
Here is the opinion in Frazier v. Brophy — Frazier v Brophy CA2 Order
An excerpt:
An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Frazier, 254 F. Supp. 2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation’s presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute’s provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.
And, importantly:
The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www.oneidaindiannation.com/pressroom/factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino’s employees, he could attempt to bring them there.
The case is Mesa Grande Band of Mission Indians v. Salazar (S.D. Cal.). Here are the materials:
Mesa Grande v Salazar DCT Order
An excerpt:
This case arises from a dispute between two neighboring Indian tribes over beneficial title to several thousand acres of land in this district. Its origins stretch back over a century. According to the FAC, President Grant issued an executive order setting aside approximately 15,000 acres for Mission Indians in California known as “Santa Ysabel — including Mesa Grande.” In a second order in 1883, President Arthur set aside 120 acres for the “Mesa Grande Indian Reservation.”
* * *
The fact that Plaintiff wants to have the current patents — under which the United States is trustee and Santa Ysabel the beneficiary — canceled and reissued to name the United States as trustee and Plaintiff as beneficiary does not change the analysis. The QTA’s Indian lands exception was intended to allow the United States to carry out its commitments to Indian tribes. Block, 461 U.S. at 283; Mottaz, 476 U.S. at 842-43 and n.6. While issuing a land patent in favor of Plaintiff might promote this goal, it would have the effect of taking land from Santa Ysabel. Plaintiff may be tacitly viewing this action as essentially a dispute between it and Santa Ysabel, with the United States as a disinterested stakeholder. Because Plaintiff cannot proceed against Santa Ysabel, it is therefore left to proceed against the United States. Yet allowing Plaintiff or any other litigant to sue the United States to cancel a land patent issued in favor of an Indian tribe would interfere with the United States’ trust commitment to that tribe, which is the very reason the United States has retained its immunity in such matters.
Despite what this article states, this case is far from “novel” — there are numerous opinions all holding that tribes retain immunity, except a lone outlier — Oklahoma — which can be (perhaps) distinguished on the basis that that state’s gaming compacts purportedly waive immunity.
Another thing not emphasized by this opinion — the plaintiff has remedies in tribal court (!).
From Law.com:
In what could become a first-in-the-nation test, a young Waterford, Conn., woman injured by a drunk driver is challenging the sovereignty of Connecticut’s Mohegan American Indian tribe. She is arguing the tribe should be liable in state courts if it lets patrons get so dangerously drunk that they then injure or kill other people.
Currently, the Mohegan and Mashantucket Pequot tribes are immune from being sued in state court for ordinary negligence matters, including so-called “dram shop act” violations. Those violations can cost a bar up to $250,000 if patrons are permitted to get too intoxicated and harm others.
Special tribal courts handle basic civil matters arising on lands controlled by the Mohegan and the Mashantucket Pequot tribes, both of which operate large casinos in southeastern Connecticut. The tribes claim immunity from negligence suits in state courts as a feature of their status as federally recognized sovereign Indian nations. Continue reading
The opinion in this matter is here: Loza v Native American Air Ambulance An excerpt:
On January 29, 2009, Plaintiffs filed a complaint in the Maricopa County Superior Court alleging medical malpractice against certain named defendants, including Dr. Jesus Carpio. On February 2, 2009, Plaintiffs filed an administrative tort clam with allegations pertaining to Dr. Carpio similar to those contained in Plaintiffs’ January 29 complaint. At the time of the alleged acts of malpractice, Dr. Carpio was an employee of Parker Indian Hospital-a hospital operated by the Indian Health Service, an agency of the United States Department of Health and Human Services.
On May 11, 2009, the United States, on behalf of Dr. Carpio, removed Plaintiffs’ action to this Court and substituted the United States for Defendant Dr. Carpio under 28 U.S.C. § 2679(d)(2). Shortly thereafter, Defendant United States filed its Motion to Dismiss.
Here are the materials in Russell v. United States (D. Ariz.), a claim against the United States under the Federal Tort Claims Act for actions by tribal police. The court denied the government’s motion to dismiss.
Here is the New Mexico Court of Appeal’s opinion in Martinez v. City of Gold Casino, owned by the Pojoaque Pueblo. The New Mexico Supreme Court recently declined to review this case. It’s a bit confusing. It seems to hold that the Pueblo, and the Buffalo Thunder Development Authority have not waived immunity from suit, but that the Pojoaque Gaming, Inc. (PGI) entity has. And that the petitioner, Martinez, was fired only after he brought a worker’s comp claim in the state system. The court orders PGI to rehire Martinez to a job similar to his old one, while acknowledging that the Pojoaque gaming regulators probably won’t give him his gaming license back.
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