The cert petition is here.
SCOTUS Denies Cert in MM&A Productions v. Yavapai-Apache Nation (sovereign immunity)
The cert petition is here.
sovereign immunity
Seminole Tribe v. Fla. Dept. of Revenue is SCOTUSBlog Petition of the Day
Here.
Eighth Circuit Affirms Dismissal of Lee v. Cleve Her Many Horses
California Valley Miwok Tribe Again Fails at Recovering Foreclosed Land
Here are the materials in Burley v. OneWest Band FSB (E.D. Cal.):
31 DCT Order granting Motion to dismiss
An excerpt:
Plaintiffs Silvia Burley and the California Valley Miwok Tribe (“Miwok Tribe”) brought this action against defendants OneWest Bank, FSB (“OneWest”), Deutsche Bank National Trust Company (“Deutsche Bank”), and Meridian Foreclosure Service (“Meridian”) to recover title over land and damages in connection with the alleged wrongful foreclosure and sale of the plaintiffs’ real property. On August 26, 2014, this court issued an order (“Aug. 26, 2014 Order”) dismissing plaintiffs’ case for lack of subject matter jurisdiction and giving plaintiffs’ twenty days to file an amended complaint. (Docket No. 17.) Plaintiffs filed their First Amended Complaint (“FAC”) asserting claims under the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. §§ 1691, et seq., the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601, et seq., and several state law claims essentially repeated from their original Complaint. (Docket No. 18.)
Prior proceedings are posted here.
Ninth Circuit Tosses Wrongful Death Action against Barona Valley Ranch Resort & Casino
Here are the materials in Nasella v. Barona Valley Ranch Resort & Casino:
SCOTUS Rejects Seneca County’s Effort to File Cert Petition Out of Time
Partially Split Ninth Circuit Panel Adopts New Two-Part Test to Determing Federal FTCA Liability for Tribal Employee Actions under Self-Determination Compacts
Here are the materials in Shirk v. United States:
From the court’s syllabus:
The panel vacated the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States after Jennifer Rose was injured in a traffic accident following a police pursuit involving two tribal police officers employed by the Gila River Indian Community.
Loren Shirk, along with his wife, Jennifer Rose, alleged negligence by the tribal officers and loss of consortium under the FTCA. Congress extended the FTCA’s waiver of the United States’ sovereign immunity to claims resulting from the performance of functions authorized by the Indian Self- Determination and Education Assistance Act of 1975, commonly referred to as § 314.
To decide whether the tribal officers’ conduct was covered by § 314, thereby subjecting the United States to potential tort liability, the panel held as an issue of first impression, that it was first necessary to set out the analysis that courts should undertake when confronted with a § 314 claim where the alleged tortfeasors are employees of a tribe, tribal organization, or Indian contractor. The panel held at the first step of the § 314 inquiry, courts must determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. At the second step, courts must decide whether the allegedly tortious action fell within the scope of the tortfeasor’s employment under state law. The panel held that if both of these prongs were met, the employee’s actions were covered by the FTCA; but a plaintiff’s failure at either step was sufficient to defeat subject matter jurisdiction. The panel remanded so that the parties could fully brief the issue and the district court could conduct a new analysis of its subject matter jurisdiction using this two-step framework.
Second Circuit Judge Sack concurred, and wrote only to register his doubts as to one of the district court’s conclusions which the panel’s opinion properly did not reach. If the panel were squarely presented with the issue, Judge Sack would conclude that the relevant agreements between the federal government and the tribe authorized the enforcement of Arizona state law by tribal police officers.
Judge Bea concurred in part, and dissented in part. Judge Bea agreed with the new two-part test articulated by the majority opinion, but he would not remand because there are no issues of fact that require remand.
Class Certification Denied in Challenge to Credit Reporting to Tribal Payday Lenders (among others)
Here are the materials in Aleksic v. Clarity Services (N.D. Ill.):
50 Motion for Class Certification
74 DCT Order on Motions to Dismiss
91 DCT Order on Amended Motions to Dismiss
114 Amended Motion for Class Certification
123 DCT Order Motion for Class Certification
An excerpt:
Moreover, even if the definition were narrowed, the class would still not be eligible for certification. To be certified, a class must satisfy all of the criteria of Federal Rule of Civil Procedure (“Rule”) 23(a), i.e., numerosity, commonality, typicality, and adequacy, and one of the criteria of Rule 23(b), here, “that the questions of law or fact common to class members predominate over any [individual] questions . . . , and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(a)(1)-(4), (b)(3). Assuming, arguendo, that the Rule 23(a) factors are met, plaintiff cannot satisfy Rule 23(b)(3) because individual issues predominate, including whether: (1) Clarity gave out any class member’s report “[i]n accordance with [his/her] written instructions,” as the FCRA permits, see 15 U.S.C. § 1681b(a)(2); (2) any or all of the lenders is a tribal entity, and thus, immune from state regulation, see Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. 433 U.S. 165, 172 (1977) (“Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”); see also Kiowa Tribe of Okla. Mfg. Tech., Inc., 523 U.S. 751, 756 (1998) (stating that “tribal immunity is a matter of federal law and is not subject to diminution by the States”); Cook v. AVI Casino Enters., Inc. 548 F.3d 718, 725 (9th Cir. 2008) (“[T]ribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.”); (3) Clarity was aware of any lender’s status as a tribal entity; and (4) the amount of damages, if any, suffered by each class member. Because these individual issues would dwarf any issues common to even the hypothetically-narrowed class, this is not an appropriate case for class certification.
And:
Contrary to plaintiff’s assertion, these principles survived Michigan v. Bay Mills Indian Cmty.,134 S. Ct. 2024 (2014) and Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014). Bay Mills held that individual Indian tribe members, but not “the Tribe itself,” can be sued for violations of state law committed “beyond reservation boundaries.” 134 S. Ct. at 2034-35. Jackson held that a tribal court did not have subject matter jurisdiction over state law claims asserted against a tribe member arising from conduct committed off reservation land. 764 F.3d at 772-82.
D.C. Circuit Rejects Bid by Buena Vista Rancheria to Intervene in Challenge to Trust Acquisition
Here is the opinion in Amador County v. Dept. of Interior.
An excerpt:
In 2005, Amador County, California brought suit against the Department of Interior challenging the Secretary’s approval of a gaming compact between the Buena Vista Rancheria of Me-Wuk Indians (the “Tribe”) and the State of California. After nearly six-and-a-half years of litigation, the Tribe sought to intervene for the limited purpose of moving to dismiss the amended complaint under Federal Rule of Civil Procedure 19. The district court denied the motion as untimely, and this appeal followed. Because we conclude that the district court did not abuse its discretion, we affirm.
Briefs and lower court materials here.
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