sovereign immunity

Ninth Circuit Rejects FTCA/Bivens Claims against Federal & Tribal Officers

Matthew L.M. Fletcher2 Comments

Here is the unpublished opinion in Dupris v. McDonald.

An excerpt:

In 2006, Jesse Dupris and Jeremy Reed (the “Plaintiffs”) were arrested on tribal charges for assaults they did not commit. In 2008, they commenced this action against the members of the federal Task Force that arrested them and the United States under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680. The district court granted summary judgment for the defendants and Plaintiffs have appealed. We affirm, concluding that: (1) the Plaintiffs’ claims against two members of the Task Force are barred by the applicable statute of limitations; (2) the remaining individual defendants were entitled to qualified immunity; and (3) the United States is immune from liability under the FTCA pursuant to the discretionary function exception.

Briefs and lower court materials here.

Federal Court Holds Tribal Courts May Adjudicate Claims against On-Rez Public Schools in North Dakota

Matthew L.M. Fletcher4 Comments

Here are the materials in Belcourt Public School District v. Davis (D. N.D.):

19 Belcourt Motion for Summary J

19-6 TMAC Appellate Decision

26 Defendants Response

27 Belcourt Reply

33 DCT Order

And here is the opinion in Fort Yates Public School District #4 v. Murphy (D. N.D.):

40 DCT Order

We posted materials in this matter here.

Ninth Circuit Affirms Rule 19 Dismissal in Friends of Amador County v. Jewell

Matthew L.M. Fletcher5 Comments

Here is the unpublished opinion. An excerpt:

The district court concluded next that joinder would not be feasible because the Tribe enjoys sovereign immunity as a federally recognized Indian tribe. Appellants challenge the validity of the Tribe’s federally recognized status but concede its existence. Indeed, the Tribe has been federally recognized since at least 1985, see Indian Tribal Entities Recognized and Eligible to Receive Services, 50 Fed. Reg. 6055-02 (Feb. 13, 1985), and it thus has “the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States,” Indian Entities Recognized and Eligible to Receive Services from the Board of Indian Affairs, 77 Fed. Reg. 47,868-01 (Aug. 10, 2012).

Briefs and link to oral argument audio here.

Lower court materials here.

Ute Tribe Prevails in Tenth Circuit Immunity Decision on Third Party Subpoenas/Collateral Order Doctrine

Matthew L.M. Fletcher2 Comments

Here are the materials in Bonnet v. Ute Indian Tribe:

CA10 Opinion

An excerpt:

The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. Exercising jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine, we hold the answer is yes. We therefore reverse the district court’s denial of the Tribe’s motion to quash based on tribal immunity.

And the briefs:

Ute Opening Brief

Bonnet Brief

Ute Reply

Lower court materials here.

Ninth Circuit Materials in Friends of Amador County v. Salazar (Jewell)

Matthew L.M. Fletcher1 Comment

Here:

Friends Opening Brief

Tribe Answer Brief

Friends Reply Brief

Oral argument audio here.

Lower court materials here.

En Banc Petition Materials in Michigan v. Sault Tribe

Matthew L.M. Fletcher

Here:

2014-01-16 Petition for Panel Rehearing with a Suggestion for Rehearing …

2014-01-22 NHBPI Motion for leave to file amicus brief -rehearing

2014-01-23 NHBPI Amicus Curiae Brief in Support of St of MI Pet

2014-01-23 Order Granting Motion for Leave to file Amicus Brief NHBPI

Panel materials are here.

California COA Affirms Immunity of Tribally-Owned Payday Lenders

Matthew L.M. Fletcher3 Comments

Here are the materials in People of the State of California v. MNE:

B242644_Opinion

California Opening Brief

MNE Brief

California Reply Brief

An excerpt from the opinion:

Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 (Ameriloan), the trial court dismissed for lack of subject matter jurisdiction this action by the Commissioner of the California Department of Corporations against five “payday loan” businesses owned by Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe. Because the two tribal entities and their cash-advance and short-term-loan businesses are sufficiently related to their respective Indian tribes to be protected from this state enforcement action under the doctrine of tribal sovereign immunity, we affirm.

A second related opinion from the same court:

B236547_Opinion

An excerpt:

The Commissioner of the California Department of Corporations (Commissioner),1 on behalf of the People of the State of California, sued Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash for injunctive relief, restitution and civil penalties, alleging they were providing short-term, payday loans over the Internet to California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe, specially appeared and moved to quash service of summons and to dismiss the complaint on the ground the lending businesses named as defendants were simply trade names used by the two tribal entities and, as wholly owned and controlled entities of their respective tribes operating on behalf of the tribes, they were protected from this state enforcement action under the doctrine of tribal sovereign immunity.

During the course of this litigation on the issue of subject matter jurisdiction, the trial court imposed $34,437.50 in discovery sanctions against the Commissioner after the court denied in substantial part her motion to compel further responses to a second set of requests for production of documents from MNE and SFS. We affirm.

Arizona COA Affirms Tribal Immunity from Contract Claim in MM&A v. Yavapai-Apache

Matthew L.M. Fletcher2 Comments

Here is the opinion in MM&A PRODUCTIONS, LLC v. YAVAPAI-APACHE NATION. An excerpt:

MM&A Productions, LLC, appeals from the trial court’s judgment dismissing its contract action against the Yavapai-Apache Nation and related entities for lack of subject matter jurisdiction. It argues the court erred by concluding it had failed to show a valid waiver of the Nation’s sovereign immunity, and by not allowing further discovery and holding an evidentiary hearing before ruling. We affirm.

Here are the briefs:

MM&A Brief

Yavapai-Apache Answer Brief

MM&A Reply

“Advantage Gamblers” Civil Rights Suit against State and County Officials Continues

Matthew L.M. Fletcher1 Comment

Here are the materials in Pistor v. Garcia (D. Ariz.):

106 Plaintiff Motion for Partial Summary J

129 County Defendants Response

132 State Defendants Response

168 DCT Order

The suit against the tribal officials is before the Ninth Circuit now, materials here.

Nooksack COA Rules against Nooksack Disenrollees

Matthew L.M. Fletcher2 Comments

Here is the opinion in Lomeli v. Kelly (Nooksack App.):

Lomeli v Kelly COA Opinion

An excerpt:

This appeal is from the Tribal Com1’s order dismissing Appellants· second amended complaint. Appellants requested the Tribal Court enjoin members of the Nooksack Tribal Council from conducting disenrollment proceedings against them. Appellants are understandably gravely concemed at the prospect of disenrollment. We understand how serious the prospect of disenrollment is to Appellants. and how it impacts their cultural. social and political identity.

We also recognize that determining its own membership is a hallmark of a tribe’s sovereignty. It is one of the few aspects of tribal sovereignty that has withstood the  relentless attempts by outside forces to tear down tribal self-governance, and one of the  few aspects of tribal sovereignty that has not been eroded by the federal government.

Judges are not sages. We do not delude ourselves into believing we have the wisdom of a Solomon. It is not our role to insert ourselves into the Tribe’s political fray. or second guess  the political judgments made by the Tribe’s elected leaders or its voting members, even if  we believe those judgments unwise. We, like the trial court. are limited to resolving legal questions where authorized by the Tribe’s Constitution and laws.

The nature of this dispute requires us to find the delicate balance between Nooksack lawand politics keeping in mind the equal importance attached to both Tribal membership and Tribal sovereignty. The Tribe’s Constitution guides us in this difficult task. which we are duty bound to perform.

The Nooksack judiciary is not the only Nooksack governmental body whose decisions are tethered to the Tribe’s Constitution and laws. The decisions of its elected officials are as well. The trial judge expressed it well and it is worth repeating:

The Tribal Council members named in this Complaint hold an obligation to act in the best interests of the Nooksack Indian Tribe. Membership and enrollment decisions impact individual lives in the deepest possible ways and those decisions cannot be taken lightly. This Cotut recognizes the serious implications of this case and its decision on this motion and all the others that have preceded it. It is the solemn obligation of this Court to follow the law of the Nooksack Indian Tribe and it is the obligation of the Tribal Council to do the same.

Briefs are here and here.

Lower court materials are here.