sovereign immunity – Page 88

“No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Whitney Otto, How to Make an American Quilt (1991). Whitney Otto’s quote seems a particularly apt description of the emotionally and politically charged litigation, occurring in multiple judicial venues, between the named parties, whom include the following.

Motions to dismiss were here.

Miccosukee’s responses were here.

Second amended complaint here.

Federal Government’s Motion to Dismiss Claims re: Sand Creek Massacre

September 30, 2013Matthew L.M. Fletcher1 Comment

Here:

US Motion to Dismiss

The complaint is here.

Arizona Supreme Court Declines to Review Shirk v. Lancaster — ISDEAA Immunity Case Favoring Tribal Interests

September 27, 2013Matthew L.M. Fletcher

Here:

Arizona SCT Order

Petition for review briefs here.

Arizona COA materials here and here.

Trial court materials here:

(2008) 09.24.08 Order Granting MTD as to GRIC Dfndnts

2011 11.30.11 ME Under Advisement Ruling

Oklahoma SCT Overrules Bittle v. Bahe

September 26, 2013Matthew L.M. Fletcher2 Comments

Here is the opinion in Sheffer v. Buffalo Run Casino.

From the court’s syllabus:

Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when their 18-wheeler tractor trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Plaintiffs sued Carolina Forge on theories of respondeat superior and negligent entrustment. They also sued the Buffalo Run Casino, the Peoria Tribe of Indians of Oklahoma, and PTE, Inc. for dram-shop liability. The trial court granted summary judgment in favor of Carolina Forge, finding as a matter of law Carolina Forge was not liable for its employees’ actions under a theory of respondeat superior and did not negligently entrust the rental vehicle to its employees. The trial court also dismissed, sua sponte, the Buffalo Run Casino, PTE, Inc., and the Peoria Tribe of Indians of Oklahoma, determining that injunctions issued by the Honorable Lee R. West in the Western District of Oklahoma in Case No. 10-CV-00050-W and Case No. 10-CV-01339-W, prohibited suit for any tort claims against a tribe or a tribal entity. Plaintiffs appealed both orders, and we retained the appeals. In Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544, we reversed the trial court’s grant of summary judgment to Carolina Forge and found issues of material fact precluded summary judgment on both the respondeat superior and negligent entrustment claims. In the present case, we find the Peoria Tribe is immune from suit in state court for compact-based tort claims because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. We also hold that because Congress has not expressly abrogated tribal immunity from private, state court dram-shop claims and because the Peoria Tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from dram-shop liability in state court. The trial court’s dismissal of the Peoria Tribe and its entities is affirmed.

Updated Materials in Nooksack Disenrollment Appeal — Roberts v. Kelly

September 25, 2013September 25, 2013Matthew L.M. Fletcher

Here:

Roberts v Kelly – First Amended Complaint w Appendices

Roberts v Kelly Order Accepting First Amended Complaint

Roberts v. Kelly Declaration of Gabriel S. Galanda in Support of Motion for Contempt

Roberts v. Kelly Motion for Contempt Against Kelly Defendants

Roberts v. Kelly Motion for Reconsideration of Sua Sponte September 6, 2013 Order

Roberts v. Kelly Order Denying Motion for Contempt

Bellingham Herald: http://www.bellinghamherald.com/2013/09/19/3212992/both-nooksack-tribal-factions.html

Al Jazeera America!: http://america.aljazeera.com/watch/shows/live-news/2013/9/tribal-families-battleefforttorejectthem.html

American University Law Review Article on Tribal Sovereign Immunity

September 24, 2013Matthew L.M. Fletcher1 Comment

Here. By Bill Wood.

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court’s marginalization of tribal immunity to limit the doctrine’s scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa’s discrediting of tribal sovereign immunity’s legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity’s origins, development, and purposes.