sovereign immunity – Page 63

The case at bar is fraught with such risk. There is no doubt that the action of the Tribal Council in removing President Scott from office is of historical significance. As such, it ought not be too readily set aside, especially when no practical remedy is available. As noted above, a new Tribal president, William Kindle, has recently been elected and taken office. Mr. Scott, even if he could prevail on his substantive arguments, cannot be placed back in office.3 Under these circumstances, it’s best to avoid any unnecessary constitutional conflict.

Cheyenne River Sioux Tribal Court of Appeals Decision in Tribal Redistricting Dispute

November 30, 2015November 30, 2015Matthew L.M. Fletcher

Here is the opinion in Woods v. Cheyenne River Sioux Tribal Council:

woods

An excerpt:

Despite the long and convoluted history of this case, much has been accomplished and both parties are to be commended for the positive results to date. As noted by Attorney Gunn in his letter of September 21, 2015, which is now part of the record in this case:

… the Tribal Council does not seek to undermine the rights and values enshrined in the Tribal Constitution or the Indian Civil Rights Act. To the contrary, the Tribal Council has honored and protected those rights by enacting redistricting legislation that ensures, and will continue to ensure, proportionate representation in the Tribal Council for all Tribal citizens.

There may still be differences of opinion in the details, but not on the overarching Tribal constitutional principle that mandates Tribal Council reapportionment. This, indeed, is worthy and noteworthy advance.

To be clear, while this case is over, the process of reapportionment and redistricting is not. Both sides realize that there is more to come, especially in regards to the Tribal Council’s commitment to taking a new tribal census in 2017 to guide redistricting for 2018 elections. See, e.g., Tribal Council Resolution 10-2015-CR. The implementation of this Tribal Council resolution may or may not lead to new litigation. If there is such litigation, the issue of Tribal Council sovereign immunity may be raised as a defense at that time. If it is, both the trial court and this Court shall rule upon it.

Eleventh Circuit Briefs in Poarch Band of Creek Indians v. Hildreth

November 30, 2015Matthew L.M. Fletcher1 Comment

Here:

Hildreth Opening Brief

Poarch Band Brief

US Amicus Brief

Hildreth Reply

Lower court materials here.

Connecticut Court Recognizes Tribal Immunity, Remands to Allow Conn. Regulatory to Determine Whether Immunity Extends to Tribal Lender

November 24, 2015Matthew L.M. Fletcher

Here are the materials in Great Plains Lending LLC v. State of Connecticut Dept. of Banking (Conn. Super.):

Opinion

Briefs here.

Tenth Circuit Affirms Dismissal of Title VII Complaint against Chickasaw Housing

November 23, 2015November 23, 2015Matthew L.M. Fletcher1 Comment

Here are the materials from Sanders v. Anoatubby:

CA10 Unpublished Opinion

Appellant Brief

Appellee Brief

Lower court materials here.

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

November 23, 2015January 4, 2016Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:

1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”

2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.

Lower court materials here.

UPDATE (1/4/16): Anthropologists Amicus Brief