sovereign immunity

UPDATE (11/10/17) Briefs:

Appellant’s Brief

Appellant’s Reply Brief

Appellee’s Brief-LaRose

Appellee’s Brief-Newfield

Appellee’s Brief-Ute Indian Tribe

Joinder in Brief

Response to Supplemental Authority-Appellee 1

Response to Supplemental Authority-Appellee 2

Supplemental Authority-Appellant

An excerpt:

The oil and gas industry is a major economic force in the Uintah Basin. This industry relies, to some extent, on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs allege that, through its ability to restrict the industry’s access to tribal lands, the tribe has held hostage the economy of the non-Indian population.

Ryan Harvey, a plaintiff and part owner of the two corporations that are the other plaintiffs in this case, alleges that tribal officials from the Ute Tribe attempted to extort him by threatening to shut down his businesses if he did not acquiesce to their demands, despite the fact that his businesses do not operate directly on tribal land. After his refusal to make certain payments, the tribal officials sent a letter to the oil and gas companies operating on tribal land informing them that they would be subject to sanctions if they used any of Harvey’s businesses. The tribal official’s letter dried up a large portion of Harvey’s business, and Harvey brought claims against the tribe, the tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies he alleges are complicit in this extortionate behavior. Most of the defendants filed motions to dismiss on various grounds and the district court dismissed Harvey’s claims against all of the defendants. On direct appeal, Harvey seeks to set aside the dismissals. We affirm the dismissal of the Ute Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted. But we vacate the dismissal of the remaining defendants and remand for further proceedings consistent with the tribal exhaustion doctrine.

~~If anyone has the briefs in this fascinating case, please send them along.~~

Patent Trial and Appeal Board OK Amicus Briefs on Tribal Immunity Issue

November 7, 2017November 7, 2017Matthew L.M. Fletcher

Here is the order in Mylan Pharmaceuticals v. St. Regis Mohawk Tribe:

IPR2016-01127 – Order on Amicus Briefs and Schedule (1)

California COA Affirms Tribal Official Immunity in Disenrollment Challenge at Elem Colony

November 3, 2017November 3, 2017Matthew L.M. Fletcher

Here is the opinion in Brown v. Garcia. PDF

An excerpt:

This case is different. As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.”