Here are additional appellate materials in Colorado ex rel. Suthers v. Cash Advance (Colo. SCT) (opening brief here):
Some heavy anti-tribal/anti-payday loan amici here….
sovereign immunity
ICT’s Bankruptcy Primer
From ICT (thanks to Jason):
By Jack Duran, Guest Columnist
I am likely breaking some sort of gaming taboo discussing the topic of bankruptcy, however, with the current state of the economy, struggling to recover from the collapse of the financial markets, the bankruptcy filings of the Trump, Tropicana, Fontainebleau casinos, and the recent bankruptcy filing of gaming powerhouse Station Casinos, a discussion of bankruptcy law seems timely.
The gaming industry, once thought of as “recession proof,” is showing cracks in its armor, as gaming revenues have fallen in local hubs, like Las Vegas and New Jersey, and in distant places like Macau. Indian gaming has not been unscathed; gaming revenues for Indian casinos, while presently stable, have experienced a reduction over the past couple of years, causing significant belt tightening in Indian country.
Causes of Casino Bankruptcies
The causes are as abundant as bad business decisions. Typically, a bankruptcy filing occurs when business expenses and other liabilities exceed cash flow or assets, and creditors come banging at the doors to demand collateral. In the gaming industry, it’s easy to exceed available cash flow. This can occur prior to a casino’s opening if construction or development costs unexpectedly escalate.
Similarly, it may arise after opening if an expansion project suddenly goes sideways. As most casinos are heavily leveraged at the outset, for obvious reasons, a number of causes, whether it be an economic downturn or poor marketing and management, can result in lower revenues and a redlined EBITDA.
Additionally, missing a single debt payment can trigger a loan agreement’s immediate repayment clause or, in certain cases, gaming license suitability issues. Either of these can result in a parade of financial repercussions. Finally, casino operators and management groups may also over-extend themselves by purchasing competitors or expanding gaming holdings in untapped domestic or foreign markets.
Materials in the New York City Smokeshop Case
Here are the materials in the New York City v. Golden Feather Smoke Shop case (E.D. N.Y.), reported here. Earlier materials are here.
NYC Motion for Preliminary Injunction
Golden Feather Opposition to Motion
Peace Pipe Smoke Shop Opposition
NYC Reply Brief in Support of Motion (Attachment: IMO Gutlove & Shirvant)
Indian Preference in Employment Case in Kansas
The Kickapoo Tribe of Kansas has filed a motion to dismiss a claim by a former tribal employee that he was entitled to Indian preference before being fired as a casino manager (news article via Pechanga here). The case is Namomantube v. Kickapoo Tribe of Kansas.
Wampanoag Sovereign Immunity Lawsuit in Florida
Given the interest in our sovereign immunity posting (here), this case is also worth watching to some extent. We don’t have the pleadings, but this news article has much of the relevant info. The case, filed in a trial court in Florida, involves an employment contract and an alleged waiver of immunity by the chairman. The tribe’s defense:
In a motion to dismiss the suit, tribe leaders say Hendricks acted alone and did not have the authority to waive tribal immunity, according to court documents.
“The contract does not contain or attach a vote or resolution of the council,” the tribe’s motion states. Under the tribe’s constitution, the full council must vote to waive its sovereignty, lawyers for the tribe argue.
Here is the tribal constitution (see article XV).
What’s Going on With Tribal Sovereign Immunity?
Since we started this blog in fall 2007, there have been a plethora of tribal sovereign immunity federal and state court decisions. Most of them are routine — slips and falls, internal tribal disputes — but a handful of these cases are worth watching because of the subject matter and the general uniqueness of the problem.
Oklahoma gaming compacts — the Oklahoma Supreme Court has been interpreting the Class III Oklahoma gaming compacts as virtual waivers of immunity, in almost comically formalistic ways. These compacts, passed by the state’s voters, are a take-it-or-leave-it prospect for tribes. They allow for suits against the tribes in a court of “competent jurisdiction,” which the Oklahoma court has interpreted to mean state courts. Opinions here and here.
Dram Shop Actions — Again, these would not be unusual except the Oklahoma Supreme Court has found a waiver of immunity in state courts for dram shop actions. That case, Bittle v. Bahe, conflicts with the decisions of several other courts (discussion here).
Bivens Actions against tribal cops — A federal common law cause of action against tribal officers gained ground in federal district court, but didn’t get so far in the circuits (here and here).
Section 1983 claims against tribal cops — Did gain ground (here).
Payday loan operations — Currently up for review in the Colorado Supreme Court are franchises owned by two tribes doing business as payday loan operators and attempting to avoid state process and investigation (here). A related California case is here.
Tribal fee lands — A Washington court held that it continues to have in rem jurisdiction over tribally-owned fee lands (here).
Cherokee Freedmen case — the D.C. Circuit allowed the Vann lawsuit to proceed against tribal officials under the Ex parte Young theory, but more or less vacated the district court’s theory that the 13th Amendment somehow abrogated tribal sovereign immunity.
Opening Brief Filed in Cash Advance Case before Colorado Supreme Court
Here is Cash Advance’s brief in Colorado ex rel. Suthers v. Cash Advance — Cash Advance Opening Brief
This case involves an effort by Cash Advance and other payday loan companies to avoid state investigation/process by licensing themselves with Indian tribes (the Miami Tribe and Santee Sioux Nation), and asserting tribal sovereign immunity. Our previous posting with links to related materials is here.
Petition for Review of Stroud v. Armenta
The plaintiff in this employment case against tribal officials has petitioned for review with the California Supreme Court — Stroud Petition for Review
Lower court materials are here.
Federal Court Dismisses “Habeas” Claim against Pechanga Band
Here is the opinion in Liska v. Macarro, where a non-enrolled Pechanga man tried to enter the reservation, was turned away, and sued in federal court (S.D. Cal.) on a habeas theory — Liska v Macarro DCT Order
The materials:
Federal Court Denies Injunction in Muscogee Cigarette Seizure Case
Thanks to Mike for this. Here’s a news article on this case.
A federal court dismissed a request for an injunction against the Oklahoma Tax Commission for seizing tobacco products owned by the Muscogee (Creek) Nation. State law enforcement had seized the smokes on some pretty spurious grounds, pulling the trucks over for “weaving” and “following too close” (not texting!?!). The court rejected most of the Commission’s defenses, including standing and sovereign immunity, but dismissed the claim on the basis that Indian tribes are not “persons” that can sue under Section 1983, per Inyo County.
Sounds to us like a Section 1983 legislative “fix” is in order, too, like all the other problems created by the Supreme Court in the last decade.
More later.
Turtle Talk 
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