sovereign immunity – Page 58

The panel reversed the district court’s denial of a motion to dismiss claims under the Family and Medical Leave Act and California law on the ground of tribal sovereign immunity.

Following the Eleventh Circuit, the panel held that a federally recognized Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. The panel concluded that the act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity.

The panel remanded the case, leaving it to the district court to address on remand any remaining immunity issues.

Briefs here.

California Appellate Court Finds Waiver of Tribal Immunity in Dispute over Authority of Council to Waive Immunity

August 1, 2016Matthew L.M. Fletcher1 Comment

Here is the opinion in Findleton v. Coyote Valley Band of Pomo Indians (Cal. Ct. App.).

An excerpt:

This appeal requires us to determine whether a Native American tribe known as the Coyote Valley Band of Pomo Indians (the Tribe) validly waived its sovereign immunity for purposes of the enforcement by construction contractor Robert Findleton (Findleton) of arbitration provisions in contracts between them. Findleton claims the Tribe waived its sovereign immunity when its Tribal Council entered into, and then amended, contracts with Findleton containing arbitration clauses and also adopted a resolution expressly waiving sovereign immunity to allow arbitration of disputes under the contracts. The Tribe disagrees, arguing the Tribal Council lacked authority to waive the Tribe’s immunity and therefore any such waivers were invalid, because the power to waive the Tribe’s immunity had not been properly delegated to the Tribal Council in accordance with the procedures specified by the Tribe’s constitution. The superior court agreed with the Tribe and held that it lacked jurisdiction over Findleton’s claims because there had been no valid waiver of the Tribe’s sovereign immunity. Findleton appealed.

Seminole Tribes Prevails in Sovereign Immunity Dispute with Slip and Fall Plaintiffs

July 29, 2016Matthew L.M. Fletcher

Here is the opinion in Seminole Tribe of Florida v. Schinnler (Fla. Ct. App.).

An excerpt:

Here, the tribe established that no resolution, ordinance or compact including a waiver of immunity was enforceable in 2009 when the plaintiff’s claim arose. The resolution (No. C–195–06) passed by the Tribal Council authorized the tribe to enter into the 2007 compact. While the 2007 compact provided a limited waiver of immunity, our supreme court held the compact invalid. Crist, 999 So.2d at 616. The tribe also provided an affidavit attesting that no waiver of sovereign immunity was in effect when the claim arose. The plaintiff did not rebut this affidavit, nor could she have done so.

There is no factual dispute. The trial court departed from the essential requirements of law when it denied the tribe’s motion to dismiss. This harm is irreparable if immunity is not given its intended effect.

Cross Motions for Summary Judgment in Seminole IGRA Good Faith Suit against Florida

July 25, 2016Matthew L.M. Fletcher

Here are the pleadings in Seminole Tribe of Florida v. State of Florida (N.D. Fla.):

37 Seminole Motion for Summary J

38 Florida Motion for Summary J

Motion to dismiss stage pleadings here.

SCOTUS Opposition to Cert in Lewis v. Clarke

July 19, 2016Sarah M Donnelly

Download brief in opposition here.

Link to previous coverage here.

Lewis v. Clarke is SCOTUSBlog Petition of the Day

July 7, 2016Matthew L.M. Fletcher

Here.

The petition is here.

Cert Petition in Trust Accounting Claim for Sand Creek Descendants

June 27, 2016Sarah M Donnelly1 Comment

Download petition for a Writ of Certiorari here.

Questions presented:

Whether a treaty promise to pay reparations to a group of Native Americans in the form and amount that is “best adapted to the respected wants and conditions of” said group of Native Americans, and subsequent appropriation of funds by Congress to pay such reparations, create a fiduciary relationship between the United States and said group of Native Americans.

Whether the Administrative Procedures Act waives the United States’ immunity from suit for accounting claims regarding trust mismanagement that begun before the enactment of the Act.

Whether a set of Appropriations Acts by Congress that defer the accrual of trust mismanagement claims against the United States operates as a waiver of the United States’ immunity from suit.

Previous posts in re Flute v. U.S. here.

Tunica-Biloxi Gaming Authority v. Zaunbrecher Cert Stage Briefs

June 22, 2016August 22, 2016Matthew L.M. Fletcher2 Comments

Here:

Tunica Cert Petn

Question presented:

It is well established that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Michigan v. Bay Mills Indian Community,_ U.S._, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). “Among the core aspects of sovereignty that tribes possess – subject, again, to congressional action – is the common-law immunity from suit traditionally enjoyed by sovereign powers …. That immunity, we have explained, is a necessary corollary to Indian sovereignty and selfgovernance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986).

In Michigan v. Bay Mills Indian Cmty., supra, this Court explained that the “baseline position … is tribal immunity; and [t]o abrogate [such] immunity, Congress must unequivocally express that purpose …. That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian selfgovernment.” (Citations omitted; internal quotation marks omitted.) Id., 134 S.Ct. at 2031-32.

Cert Opp

Lower court materials here.