sovereign immunity – Page 87

CMS has not come forward with any evidence of how CMS was formed, who owns CMS, how CMS is managed, and where profits from the business go. Therefore, CMS has not established that it is an arm of the Cherokee Nation entitled to tribal sovereign immunity from suit, and the Court denies CMS’s motion to dismiss for lack of subject matter jurisdiction. CMS may reassert tribal sovereign immunity in a motion for summary judgment. However, any such motion should not be filed until Plaintiff has had the opportunity to conduct adequate discovery on the issue.

Lower Brule Community Tribal Business Entity Not Immune from Suit; Some Claims Dismissed on Merits

October 30, 2013October 29, 2013Matthew L.M. Fletcher

Here is an update in Seaport Loan Products LLC v. Lower Brule Community (N.Y. Supreme Ct.):

63 Lower Brule Motion to Dismiss

77 Adlwych Capital Partners Opposition

78 Seaport Loan Opposition

82 Lower Brule Reply

86 Transcript

89 Decision on Motion for Protective Order

92 Opinion

Prior and parallel proceedings posted here, here, and here.

Bay Mills Indian Community Merits Brief

October 25, 2013Matthew L.M. Fletcher

Here:

BMIC Brief

Gregory Sisk on Strict Construction of Federal Waivers of Sovereign Immunity

October 23, 2013Matthew L.M. Fletcher

Gregory C. Sisk has posted “Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity,” forthcoming in the North Carolina Law Review, on SSRN. An important read for tribal advocates.

Here is the abstract:

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).