This case involved an administrative subpoena issued by the EEOC against the Standing Rock Housing Authority over claims of sex discrimination. The District of North Dakota declined to quash the subpoena on the grounds that the case was not ripe.
sovereign immunity
Tyson Foods Asserts Rights of Cherokee Nation as Defense to Environmental Suit
Here’s an interesting Rule 19 motion — the State of Oklahoma has sued Tyson Foods and other poultry producers over the pollution of the Illinois River (news article here). The defendants now claim that the Cherokee Nation owns the riverbed and are therefore indispensable parties to the suit, mandating the dismissal of the suit if the Nation refuses to be joined as a party. (H/T Todd)
Tribal Judicial Immunity in Federal Criminal Cases
In U.S. v. Wahtony, the District of Idaho held that a federal criminal defendant’s subpoena of a tribal judge’s background must be quashed on sovereign immunity grounds.
Chao v. Spokane Tribe Materials
See our earlier post on the W.D. Wash. decision not to quash an administrative subpoena in a FLSA investigation against the Spokane Tribe’s gaming operations. Here are the rest of the materials:
dol-motion-to-enforce-subpoena
Kendall v. Chief Leschi School — Sovereign Immunity & False Claims Act
The False Claims Act does not operate to waive tribal sovereign immunity.
Eighth Circuit: Oglala Sioux Tribe Waiver of Immunity
The Eighth Circuit held in Oglala Sioux Tribe v. C&W Enterprises that the tribe waived its immunity from suit in an enforcement action in state court despite the fact that the tribe had not expressly waived its immunity via the contract. Here are the materials:
2008 Term Preview: The Long Conference — September 29, 2008
On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.
1. Hawaii v. Office of Indian Affairs (07-1372)
This petition has a fairly good chance to be granted.
The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).
2. Ho-Chunk Nation v. Wisconsin (07-1402)
I don’t think this one has much chance to be granted.
It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)
3. Kemp v. Osage Nation (07-1484)
This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.
Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.
4. Kickapoo v. Texas (07-1109)
This one has a slight chance for a grant.
I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.
Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.
5. Klamath Tribes v. PacificCorp (07-1492)
This one has no chance.
First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦
6. Matheson v. Gregoire (08-23)
Again, no chance.
First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.
7. South Fork Band v. United States (08-100, 08-231)
No chance.
This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.
8. United States v. Navajo Nation (07-1410)
Very, very good chance for a grant.
First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).
Either way you have a grant.
Snoqualmie Tribal Leadership Dispute in Federal Court
Here is the news article. An excerpt:
A federal judge might be the last hope for banished members of the Snoqualmie Tribe who appeared in court Tuesday in their effort to regain tribal membership.
U.S. District Court Judge James L. Robart said he would issue a written ruling later as to whether the case is even properly before him or should be dismissed.
Only then — if he rules in favor of the banished members — would he get to the merits of the case.
And here are the materials:
petition-for-writ-of-habeas-corpus
snoqualmie-rule-19-motion-to-dismiss [!!!]
Yet Another Opinion from CA9 in the Blackfeet Housing Authority Case
Here is the relevant change:
In our earlier opinions, we declined to require Plaintiffs to exhaust their tribal court remedies. Instead, we held that the Blackfeet Tribe had waived tribal immunity through the enabling ordinance that established the Housing Authority. Marceau II, 519 F.3d at 842-44; Marceau I, 455 F.3d at 978-83; see also Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (noting that “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”). Our doing so was in error, and we now vacate that holding and decline to reach the issue. Whether or not the Tribe waived tribal immunity, the tribal court must have the first opportunity to address all issues within its jurisdiction, including that one.
Hollywood Mobile Estates v. Seminole Tribe — Sovereign Immunity
In Hollywood Mobile Estates v. Seminole Tribe, the Florida Southern District Court refused to grant an emergency motion for a preliminary injunction against the tribe. The court reasoned it is unlikely that the plaintiff will succeed in its claims against the tribe because the tribe has raised sovereign immunity as a defense. The underlying dispute is over a lease.
dct-order-denying-motion-for-prelim-injunction
hollywood-motion-for-prelim-injunction
And here is the still pending motion to dismiss — seminole-motion-to-dismiss
Turtle Talk 
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