sovereign immunity

Goldsmith on the Agua Caliente State Election Case

Matthew L.M. Fletcher

Gary Goldsmith has published “Big Spenders in State Elections–Has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity From Suit” in the William Mitchell Law Review.

From the introduction:

In every election cycle, Indian tribes vigorously attempt to influence such critical matters of state governance as to who will be the state’s governor, who will be elected to the state’s legislative bodies, and what will be the provisions of the state’s constitution. These incursions into the realm of state governance have renewed questions about the sovereignty of Indian tribes in relation to the states’ sovereignty.
In order to understand those conflicting rights, this article will review the historical roots of legal doctrine regarding the position of Indian tribes with respect to the United States government and each state’s government. It will then trace significant doctrinal changes that arose as the result of changing political and cultural attitudes toward Indians. Finally, it will address new theories raised in Agua Caliente v. California FPPC and will comment on the California Supreme Court’s resolution of the constitutional issues and the parties’ eventual Stipulation for Judgment in that matter.

Wildenthal on Donovan v. Coeur d’Alene Tribal Farm — MSU Law Review

Matthew L.M. Fletcher

Bryan Wildenthal has posted “How a Ninth Circuit Panel Opinion Overruled a Century of Supreme Court Indian Law Jurisprudence — And Has So Far Gotten Away With It” on SSRN. This paper is part of the Michigan State Law Review’s symposium on federal labor law and tribal sovereignty.

Here’s the abstract:

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New Cert Petition — Carls v. Blue Lake Housing Authority

Matthew L.M. Fletcher1 Comment

This case involves the tribal sovereign immunity of the Blue Lake Housing Authority. It is being appealed out of the California state court system. Here are the materials so far:

Cert Petition in Carls v. Blue Lake Housing Authority

Unpublished Cal COA (3rd) Opinion

Carls Appellant Brief (Cal COA)

Blue Lake Appellee Brief (Cal COA)

Serrano v. US (S.D. Fla.) — Dismissal of FTCA Claim Against US/Tribal Employee

Matthew L.M. Fletcher

This case appears to be about a fundamental misunderstanding of how the Federal Tort Claims Act applies to tribal employees, or not. Serrano argued that any tribal employee working for a tribe with a self-determination contract was covered. Not so.

Complaint

US Motion to Dismiss

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Split in State Court Authority on Whether Casino Dram Shop Actions are Barred by Tribal Sovereign Immunity

Matthew L.M. Fletcher4 Comments

As Trent noted, the Oklahoma Supreme Court held 7-2 that dram shop actions filed against tribal casino operations are not barred by tribal sovereign immunity in Bittle v. Bahe. This decision conflicts with decisions of other state courts, including those of Arizona (Filer v. Tohono O’odham Nation), Texas (Holguin v. Ysleta del Sur Pueblo), and Washington (Foxworthy v. Puyallup). And, as we know by reading Rule 10 of the United States Supreme Court rules, the Supreme Court is predisposed toward hearing cases in which there is a split of lower court authority involving an important federal question.

This may be a troubling development, though perhaps not as a result of this case. If the tribe refuses to petition the Supreme Court for certiorari, then this case will be over. Moreover, even if the tribe petitions, the Court might let this one go because of lower court outcome isn’t troublesome to the Court.

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Okla Supreme Ct Holds that 18 USC 1161 Waives Tribal Immunity from Suit

trentcrable2 Comments

The question is whether Congress abrogated tribal immunity from suits for “dram shop” liability when it enacted 18 USC 1161. Plaintiffs in several states have argued that it did, relying on the statute and the Supreme Court’s opinion in Rice v. Rehner. Until yesterday, no appellate court had agreed with that argument. The appeals courts of Arizona, Texas, and Washington have all found that 1161 does not amount to Congressional abrogation of tribal immunity, and that a tribe does not waive its immunity by getting a state issued liquor license. The plaintiff in the Washington case has petitioned the State Supreme Court for review–that petition is still pending.

I think the argument fails regardless of what the state’s laws say, but what makes this even more disturbing is that Oklahoma’s “dram shop” laws don’t even provide for a 3rd party suit as a method of regulation. In some states the liquor laws specifically provide for 3rd party suits as a means of enforcement, others, including Oklahoma, do not. What the Oklahoma court found was that 1161 abrogated tribal immunity from private tort suits based on a negligence theory simply because a violation of a liquor regulation was alleged.

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Hinsley v. Standing Rock C.P.S. (CA8) — Federal Tort Claims Act

Matthew L.M. Fletcher

Apparently, persons covered by the Federal Tort Claims Act retain immunity from suit by exercising their “discretion” to place children with alleged child molesters without warning the parents. Hinsely v. Standing Rock Child Protective Services (CA8)

Here are the briefs:

Hinsley Appellant Brief

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Kansas v. Kempthorne & Wyandotte Nation — Revised CA10 Opinion

Matthew L.M. Fletcher

The Tenth Circuit granted the government’s motion for rehearing and issued a revised opinion.

CA10 Panel Decision (pre-rehearing)

Kempthorne Petition for Rehearing

State and Tribal Response to Petition

Santa Ynez Band of Mission Indians v. Torres — Bankruptcy Code and Tribal Sovereign Immunity

Matthew L.M. Fletcher

This is a case out of the Second District of the California Court of Appeals. The question was whether Congress intended to waive the sovereign immunity of Indian tribes in the US Bankruptcy Code. There appears to be a split of authority on the subject, with the Ninth Circuit [Krystal Energy Co. v. Navajo Nation] saying yes, and the Tenth Circuit [In re Mayes] and an Iowa district court [In re National Cattle Congress] saying no. The Cal. App. followed the Ninth Circuit case. It is unpublished.

Here are the materials:

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Navajo Gaming Loan Threatened

Matthew L.M. Fletcher1 Comment

We blogged previously about the lawsuit filed in Navajo tribal court over the proposed Navajo gaming loan. It turns out the lawsuit was successful in apparently causing the lender to change the terms of the deal (H/T Indianz). This is an interesting development and probably not a welcome one from the perspective of gaming tribes. If tribal court lawsuits challenging the terms of a gaming-related loan, or in this case the authority of the Navajo legislature to approve the loan, are successful in any area, my guess is the price for loans will go up everywhere.

Update: No suit has been filed in the Navajo Nation courts.  The 30 day waiting period required by the Navajo Sovereign Immunity Act (the title doesn’t use “Nation”) just expired and we were preparing to file suit.  There has been no public announcement, but there are rumors to the effect that the notice of suit stopped the loan.  They are now looking at other sources of funding for the casino, such as a trust fund set aside for acquiring land.

From Indianz:

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