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.
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):
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.
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)?
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.
Here is the petition — cook-v-avi-casino-enterprises-cert-petition
Here are the lower court materials (previously posted).
Here is the unpublished opinion. An excerpt:
Terry Murphy and Roger Lackey brought breach of contract, retaliatory discharge, and fraud claims against the Kickapoo Tribe of Oklahoma (“the Tribe”) in the United States District Court for the Western District of Oklahoma. Their claims were dismissed by the district court for lack of jurisdiction based on tribal sovereign immunity. We affirm the dismissal because the district court lacked subject matter jurisdiction to consider the plaintiffs’ claims, which arise solely under state law.
Here is the opinion in Cossey v. Cherokee Nation Enterprises from the Oklahoma Supreme Court, with several concurrences and dissents. And here are the briefs:
Here is an unpublished decision in the California Court of Appeals, 4th District, affirming the quashing of a subpoena against the Barona Band.
alhameed-v-grand-traverse-resort
The ALJ held that a tribally owned business enterprise is immune from a private suit under 8 U.S.C. sec. 1324b.
Here are the briefs in Bressi v. Ford, a claim pending in the Ninth Circuit against Tohono O’odham Nation police officers.
The lower court opinion and the opening brief were posted earlier here.
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