The oral argument is scheduled for May 6, 2008, before Circuit Judges Tatel, Garland, and Griffith.
Here is the order.
sovereign immunity
Marceau v. Blackfeet Housing Authority — Rehearing
As reported on Indianz, the CA9 issued a revised opinion in this matter. Here are the briefs:
Allen v. Mayhew – Section 1981 Claims Against Tribal Individuals
The E.D. Cal. refused to dismiss the Section 1981 claims against tribal casino employees on the grounds of sovereign immunity in Allen v. Mayhew. The underlying claim involves the plaintiff’s termination from employment with the tribal casino.
Here are the materials:
Kalispel v. Moe — Tribal Sovereign Immunity
The Eastern District of Washington dismissed a permissive counterclaim against the Kalispel Tribe on sovereign immunity grounds. Here are the materials:
DCT Order – Kalispel Tribe v. Moe
Kalispel Motion for Summary Judgment
Goldsmith on the Agua Caliente State Election Case
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
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:
New Cert Petition — Carls v. Blue Lake Housing Authority
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
Serrano v. US (S.D. Fla.) — Dismissal of FTCA Claim Against US/Tribal Employee
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.
Split in State Court Authority on Whether Casino Dram Shop Actions are Barred by Tribal Sovereign Immunity
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.
Okla Supreme Ct Holds that 18 USC 1161 Waives Tribal Immunity from Suit
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.
Turtle Talk 
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