sovereign immunity

Law.Com on Dram Shop Action against Mohegan Sun

Matthew L.M. Fletcher1 Comment

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 →

Federal Court Dismisses Tort Claim against US and Remands to State Court

Matthew L.M. Fletcher

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.

Court Denies Motion to Dismiss in FTCA Claim against Tribal Police

Matthew L.M. Fletcher

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.

Government Motion to Dismiss

Russell Opposition

Government Reply Brief

DCT Order Denying Motion to Dismiss Russell Complaint

Martinez v. City of Gold Casino — Immunity Waiver Via Worker’s Comp Dispute

Matthew L.M. Fletcher

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.

Colorado v. Cash Advance Update

Matthew L.M. Fletcher1 Comment

Here are additional appellate materials in Colorado ex rel. Suthers v. Cash Advance (Colo. SCT) (opening brief here):

Tribal Amicus Brief

Colorado Appellate Brief

AARP et al Amicus Brief

States Amicus Brief

Some heavy anti-tribal/anti-payday loan amici here….

ICT’s Bankruptcy Primer

Matthew L.M. Fletcher

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.

Continue reading →

Materials in the New York City Smokeshop Case

Matthew L.M. Fletcher

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)

Golden Feather DCT Order on Motion for PI

Indian Preference in Employment Case in Kansas

Matthew L.M. Fletcher

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.

Kickapoo Motion to Dismiss

Wampanoag Sovereign Immunity Lawsuit in Florida

Matthew L.M. Fletcher

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?

Matthew L.M. Fletcher5 Comments

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.