Maybe another one to watch involving the state law question of whether tribal businesses are immune from Dram Shop actions. The case is Vanstaen-Holland v. Lavigne.
sovereign immunity
Oglala Sioux Tribe Wins TRO in Sovereign Immunity Case
The case is Oglala Sioux Tribe v. C&W Enters., on remand to the District of South Dakota from the Eighth Circuit. Here is the order on the TRO — ost-v-cw-dct-order-on-tro
The case involves a contract waiver of immunity through an arbitration clause. Here are the Eighth Circuit materials.
Lawyer Threatened with Rule 11 Sanctions If Brings Another Claim against Oneida Indian Nation
Here is the opinion in Smith v. Oneida Employment Services (smith-v-oneida-dct-order), out of the Northern District of New York. Indianz and others have reported on this case, which was an employment claim dismissed on grounds of sovereign immunity. Here is the footnote regarding Rule 11 (and for more discussion on Rule 11 see my paper here):
Although the Court could sanction Plaintiff’s counsel for violating Rule 11 based on several of the factual allegations and legal arguments that he has submitted to the Court in this litigation, it will not do so at this time. However, the Court advises Plaintiff’s counsel that the Court will not tolerate such conduct in the future and will not hesitate to impose sanctions on him for any future violations.
Eleventh Circuit Reaffirms Tribal Sovereign Immunity
The case is Freemanville Water System, Inc. v. Poarch Band of Creek Indians (opinion). Our post on the district court case is here. An excerpt:
After a hard look at the statute the only thing that is unmistakably clear to us is that the statutory language does not make it unmistakably clear that Congress intended to abrogate tribal sovereign immunity from lawsuits claiming a violation of the anti-curtailment provision [of the Consolidated Farm and Rural Development Act]. See Kimel, 528 U.S. at 73, 120 S. Ct. at 640.
And here are the appellate briefs:
Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law
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.
Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”
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:
Arizona Court of Appeals Affirms Hualapai Immunity in Personal Injury Suit
Here is the unpublished opinion in Rosenberg v. Hualapai Indian Nation.
And the briefs:
Graham v. Applied Geo Techs — Failure to Exhaust Tribal Court Remedies
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).
District Court Refuses to Dismiss ERISA Claim against Tribal Business
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.
City of New York v. Golden Feather — Update
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.
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