sovereign immunity – Page 74

Federal Court Orders Exhaustion of Tribal Remedies in Suit against Penobscot Corporation

December 1, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Rassi v. Federal Program Intergrators LLC (D. Me.):

An excerpt:

I conclude that the sovereign immunity of the Penobscot Indian Nation does extend to FPI, but that FPI waived its immunity by adopting the “sue and be sued clause” in § 12.07 of its Operating Agreement, as required by 13 C.F.R. § 124.109(c)(1) in order for FPI to participate I the § 8(a) program. Nevertheless, I conclude that the tribal exhaustion doctrine applies to this case. The case is ORDERED STAYED with regard to FPI pending a determination by the tribal court as to its jurisdiction, and if necessary, an adjudication of the case on its merits. After the tribal court has ruled on the issue of its jurisdiction, and, if necessary, adjudicated the case on the merits, either party may return to this court and request that the stay be lifted. It is further ORDERED that all claims against PINE are DISMISSED, without prejudice.

Cert Stage Briefs in Seminole Tribe v. Florida Dept. of Revenue

December 1, 2014December 9, 2014Matthew L.M. Fletcher1 Comment

Here:

Seminole Cert Petition

Florida Cert Opp

Seminole Reply Brief

Question presented:

The question presented is whether sovereign immunity bars an American Indian tribe from seeking Ex parte Young relief from the unconstitutional enforcement of a state tax scheme merely because that relief might require refunds for taxes unlawfully collected in the future.

Lower court materials and my commentary here.

New York Court of Appeals Finds Seneca-Owned Company Not Cloaked with Tribal Immunity

November 26, 2014November 26, 2014Matthew L.M. Fletcher1 Comment

Here is the opinion in Sue/Perior Concrete and Paving v. Lewiston Golf Course Corp.

An excerpt:

Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation’s sovereign immunity. Applying the factors set out in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 NY2d 553 [1995]), we hold that it is not.

Briefs and other materials here:

A102214-196-Oral-Argument-Transcript

ASuePeriorConcretevLewiston-amic-SenecaNation-amicbrf

ASuePeriorvLewiston-app-Lewiston-brf

ASuePeriorvLewiston-app-Lewiston-Rec

ASuePeriorvLewiston-app-Lewiston-replybrf

ASuePeriorvLewiston-res-SuePerior-brf

ASuePeriorvLewiston-res-SuePerior-BrfRspAmic

Lower court materials here. My commentary on the appellate division’s reasoning applies here as well.

Friends of Amador County v. Jewell a Petition to Watch for This Week’s SCT Conference

November 20, 2014November 20, 2014Matthew L.M. Fletcher

Here:

Friends of Amador County v. Jewell
14-340
Issue: Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

We posted on this matter here.

Also, the petition was yesterday’s petition of the day.

Second Circuit Brief in IFP, Pro Se Employment Discrimination Complaint against Mohegan Sun Casino

November 17, 2014Matthew L.M. Fletcher

Here is the tribe’s brief in Tremblay v. Mohegan Sun Casino:

Mohegan Brief

From the brief:

On May 20, 2014, the Court granted the Defendant’s Motion to Dismiss based on sovereign immunity. The full text of the decision is as follows:

ORDER granting [27] Motion to Dismiss; denying [28] Motion Not to Dismiss. Plaintiff brings this action against her former employer, the Mohegan Sun Casino, alleging employment discrimination in violation of Title VII and the Age Discrimination in Employment Act (“ADEA”). The defendant has filed a motion to dismiss based on sovereign immunity. The motion is granted. The Mohegan Tribe of Indians of Connecticut, which operates the defendant Casino through the Mohegan Tribal Gaming Authority (“MTGA”), is a federally recognized Indian tribe. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe *4 has waived its immunity.” Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998). Neither has occurred here. The Mohegan Tribe has not waived its immunity from suit in this Court, and the statutes under which plaintiff brings this action do not abrogate the Tribe’s immunity. Title VII is expressly inapplicable to Indian tribes, 42 U.S.C. § 2000e(b)(1), and nothing in the ADEA revokes tribal sovereign immunity from private lawsuits. Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2d Cir. 2001). Thus, plaintiff cannot bring claims of employment discrimination against an Indian tribe under Title VII or the ADEA. The Mohegan Tribe has enacted legislation establishing a tribal court system as well as legislation waiving the sovereign immunity of the Tribe and the Gaming Authority for discrimination claims by employees against the MTGA, but only in the Mohegan Gaming Disputes Court. Thus, plaintiff’s only remedy is to proceed in that Court. Accordingly, because this Court lacks subject matter jurisdiction over plaintiff’s claims, defendant’s motion to dismiss [ECF No. 27] is granted and plaintiff’s motion not to dismiss [ECF No. 28] is denied. The Clerk is directed to close the case. So ordered. Signed by Judge Robert N. Chatigny on 05/20/2014. (Bialek, T.)

Friends of Amador County v. Jewell Cert Stage Briefs

November 17, 2014Matthew L.M. Fletcher2 Comments

Here:

FAC Cert Petition

Buena Vista Rancheria Opposition

FAC Reply

Question presented:

Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

Lower court materials here.

FTCA Claim Arising from Tule River Reservation Employee-Caused Accident Dismissed

November 17, 2014Matthew L.M. Fletcher

Here are the materials in Manuel v. United States (E.D. Cal.):

11-1 US Motion to Dismiss

16 Manuel Opposition

21 US Reply

23 DCT Order

An excerpt:

In sum, Plaintiff fails to establish that the Tribe’s self-determination contracts authorized Hammond’s acts or omissions underlying Plaintiff’s negligence claim. Allender, 379 F. Supp. 2d at 1211. Defendant, however, has demonstrated that the Tribe’s self-determination contracts did not establish, fund, or contemplate Hammond’s position as Tribal community liaison. Plaintiff has also failed to allege facts showing that Hammond was carrying out any of the Tribe’s self-determination contracts. The Court therefore finds that Hammond is not an employee of the federal government under Section 314. Consequently, Defendant is not subject to liability under the FTCA for Hammond’s alleged negligence. Accordingly, the Court must dismiss Plaintiff’s complaint for lack of subject matter jurisdiction.

Harvard Law Review Comment on Michigan v. Bay Mills

November 13, 2014November 13, 2014Matthew L.M. Fletcher

Here is Leading Case: Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014).

An excerpt:

While the Court’s decision is a victory for those who feared the abrogation of tribal immunity, its suggestion that states seek remedies in state law signals approval of leaving the resolution of legal questions central to state-tribe disputes to the states, even when the question concerns the extent of Indian land. Such a view would be inconsistent with recent trends generally favoring greater federal control and congressional support for tribal self-determination, and could result in actions that are detrimental to tribes.