sovereign immunity

Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law

Matthew L.M. Fletcher

Ann Tweedy has posted the abstract of her fine paper “Conceptions of Sex-Based Equal Protection under Tribal Law: Broad-Based Prohibitions Against Discrimination, Context-Specific Protections, and Sex-Based Distinctions” on SSRN. Here is the abstract:

This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington’s 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

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Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”

Matthew L.M. Fletcher2 Comments

SCOTUSBlog lists Coushatta Tribe v. Meyer & Assoc. as a petition to watch for the April 3, 2009 conference. A cursory review of the cert petition shows that there may be a conflict in the state courts about whether the tribal court exhaustion doctrine enunciated by National Farmers Union and Iowa Mutual applies to state courts. The conflict seems to be with the Connecticut courts, and perhaps the New York and Wisconsin courts (though there are good reasons to doubt whether those courts have really embraced the doctrine), which have held that the tribal court exhaustion doctrine applies to its courts. Other courts — Louisiana, Arizona, and others — have rejected the application of the doctrine to their courts.

My sense is that the Court will deny this petition, though it is definitely worth watching. Three key reasons: (1) Louisiana’s course of action was to treat this common law doctrine as applying only to federal courts, preserving its own choice whether or not to adopt this federal court doctrine (a choice it made in the negative, just as Connecticut chose to adopt it, presumably of its own free will), making this dispute more a state law question than a federal law question; (2) the tribe is the petitioner; and (3) this is a common law case, rather than a federal statutory interpretation case or a federal constitutional case.

If a state court followed National Farmers Union, complaining loudly that it had no choice because of federal bullying or something, then there probably would be more Supreme Court interest. There doesn’t seem to be a federal government interest in the tribal court exhaustion doctrine that would be apparent to the Court, a serious problem I suspect is behind much of the Court’s recent 25-year retreat from its earlier federal Indian law jurisprudence.

A potential wildcard is that the state court’s opinion seems to run a little roughshod over the tribe’s immunity, but this seems to be limited to the tribe’s own laws, something that wouldn’t be likely to interest the Court.

From SCOTUSblog:

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Arizona Court of Appeals Affirms Hualapai Immunity in Personal Injury Suit

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Rosenberg v. Hualapai Indian Nation.

And the briefs:

rosenberg-brief

hualapai-brief

Graham v. Applied Geo Techs — Failure to Exhaust Tribal Court Remedies

Matthew L.M. Fletcher

Here are the materials in this case, out of the Southern District of Mississippi, where a plaintiff brought a race discrimination suit against a tribally owned enterprise (Mississippi Band Choctaw).

defendant-motion-to-dismiss

defendant-rebuttal-memorandum

graham-dct-order-dismissing-claim

District Court Refuses to Dismiss ERISA Claim against Tribal Business

Matthew L.M. Fletcher

Here are the materials in Vandever v. Osage Nation Enterprises, out of the Northern District of Oklahoma. The court rejected a magistrate report and recommendation to dismiss an ERISA claim against ONE and the Osage Nation, and also rejected a request by the Nation to require the plaintiff to exhaust tribal court remedies.

dct-order-rejecting-magistrate-report

vandever-magistrate-report

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City of New York v. Golden Feather — Update

Matthew L.M. Fletcher3 Comments

As Indianz reported, the Eastern District of New York delayed ruling on the City’s motion for a preliminary injunction and rejected a sovereign immunity from the smokeshops. Here is the order — march-16-dct-order

Here is our earlier post that includes the complaint.

Allen v. Mayhew — Complaint against Tribal Officials and Individuals

Matthew L.M. Fletcher

Once again, the Eastern District of California has refused to dismiss a Section 1981 complaint against tribal gaming employees of the Gold Country Casino, owned by the Berry Creek Rancheria of Tyme Maidu Indians. Here is the opinion — feb-20-2009-dct-order

Here is our earlier post, with the earlier order.

Murgia v. Reed — CA9 Materials in Bivens Claim against Tribal Officers

Matthew L.M. Fletcher2 Comments

Here are the materials in this case, in which the district court refused to dismiss a Bivens claim against tribal police. It was apparently argued on the same day last November as Bressi v. Ford (materials here):

D. Ariz. Order

appellants-opening-brief

appellees-response-brief

reply-brief

There seems to be a rash of federal civil rights cases against tribal police (see also Jeanlouis v. Vidallia) under a wide variety of theories — FTCA, Sections 1981, 1982, 1985, and now Bivens. The Bivens claim is most unpredictable, of course, given that it is unprecedented as against tribal police. I’m sure insurers should be aware of this kind of claim and may be watching carefully.

Cert Petition in California v. Cachil Dehe Band of Wintun Indians

Matthew L.M. Fletcher1 Comment

Ah, Rule 19! Here is California’s cert petition — california-petition-for-cert

Just so everyone knows, I called this YEARS ago! See my “The Comparative Rights of Indispensable Sovereigns.” 🙂

And here are the lower court materials (Rincon Band; Cachil Dehe; and San Pascqual).  And here is our post on Pimentel.

Questions Presented (from the cert petition):

In 1999, the State of California and sixty-one federally recognized tribes entered into virtually identical tribal-state class III gaming compacts (Compacts) under the authority of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (IGRA). The Compacts allow those tribes to operate slot machines if they have been issued licenses for those devices from a prioritized and limited license pool established by the Compacts, or if they have obtained a compact amendment allowing them to operate slot machines without reference to that license pool. The questions presented are:

1. In applying Federal Rule of Civil Procedure 19 (Rule 19), may a federal court, consistent with the rule of decision in Republic of the Philippines v. Pimentel, 128 S. Ct. 2180 (2008), utilize the authority it has under Rule 19(b) to safeguard (through the shaping of relief) the legally protected interest of an absent sovereign as a basis for finding that the absent sovereign is not a required party within the meaning of Rule 19(a)?

2. May the asserted ability of a court of appeals to resolve inconsistent district court decisions on the same claim for relief be relied upon to conclude that an absent person need not be joined under Rule 19(a)?

Cook v. Avi Casino Enters. — Trouble?

Matthew L.M. Fletcher5 Comments

The Cook v. Avi Casino Enterprises cert petition has a reasonable chance of being granted. There are a bunch of factors that support the petitioners, and a bunch that don’t.

The case involves dram shop actions against tribal casinos. I’d bet the wide majority of tribal casinos waive sovereign immunity in tribal court for these kinds of actions, but the Cook case and others usually involve a claim brought in state courts, where tribes have not waived their immunity. Interestingly, other than one Oklahoma case, all of the state (and now federal) courts have found that tribal sovereign immunity precludes these actions. Our discussion of the Oklahoma case, and at least three other state cases is here.

So there is a split of authority, but it’s not between federal circuits, which decreases the chance for review somewhat. And there is a Supreme Court case, Rice v. Rehner, a preemption case that held that there is little or no tradition of tribal sovereignty in the context of alchoholic beverage transactions. The petitioners are asking the Court to expand that holding to strike down sovereign immunity in state courts.

On the other hand, the petitioners are asking for a second chance at the pot, likely because they refused to bring a claim in tribal court. In short, these petitioners, who came onto the reservation on their own accord and conducted business with an Indian tribe, want the right to make a state court claim, and want that right to trump the available tribal court venue. Moreover, the Supreme Court might not be terribly interested in another tribal sovereign immunity case, especially since the state court cases are all decided based on state law, interestingly enough. Yes, it’s true, state courts also recognize tribal sovereign immunity.

This is an important question for gaming tribes, many of which have priced and acquired insurance to cover dram shop actions on the basis that these cases would be decided in tribal courts.

Finally, there is a decent argument that the tribal-state gaming compact relationship would be undermined by a decision eliminating or reducing tribal immunity in this context. Increasing the cost for tribes of doing business hurts state revenue sharing. One hopes the states recognize that.