sovereign immunity

Update on Nooksack Disenrollments — Restart on Disenrollment Process

Matthew L.M. Fletcher1 Comment

News coverage on the impact of the disenrollments on school-age children here.

Materials in Roberts v. Kelly (Nooksack Tribal Court):

Roberts v. Kelly Motion for Temporary Restraining Order

Roberts v. Kelly Declaration of Gabriel S. Galanda In Support of TRO Motion wExhibits

Roberts v. Kelly Motion to Disqualify Chief Judge Raquel Montoya Lewis

Roberts v. Kelly Order Denying Emergency Temporary Order Hearing

Roberts v. Kelly Order Denying Motion To Disqualify Hon. Raquel Montoya-Lewis

Materials in Lomeli v. Kelly (Nooksack Ct. App.):

Lomeli Notice of Appeal

Motion for Clarification or Relief from Stay of Proceedings

Order on Motion for Clarification from Stay of Proceedings

Nooksack COA Stays Disenrollment Proceedings Pending Appeal

Matthew L.M. Fletcher

Here is the news coverage.

And the materials in Lomeli v. Kelly (Nooksack Tribal Ct. App.):

Emergency Motion for Stay of Tribal Court Judgment

Order Granting Appellate Review and Staying Proceedings

And a new suit in tribal court, with a sitting council member as lead plaintiff, Roberts v. Kelly (Nooksack Tribal Ct.):

Roberts v. Kelly Complaint w Appendices

Prior posts here, here, here, here, here, and here.

Update in Sharp Image Gaming v. Shingle Springs Miwok

Matthew L.M. Fletcher1 Comment

The United States has filed an amicus curiae brief confirming that the trial court erred in disregarding the NIGC’s action.  The United States confirmed that the state courts are required to defer to the agency’s views, as expressed in an NIGC opinion letter, the Chairman’s decision disapproving the agreement, and in the United States’ amicus brief, itself:

[T]he Superior Court was obliged to exercise its jurisdiction consistent with IGRA and IGRA’s bar on the enforcement of unapproved management contracts. Instead of acknowledging this bar and the need to resolve whether the ELA was an unapproved management contract (consistent with deference principles), the Superior Court simply denied the Tribe’s motion to dismiss on the grounds that the Chairman’s 2009 Disapproval was not “final agency action” binding on the state court. . . .

This is a non sequitur. A final disapproval decision by the NIGC is not necessary to render an unapproved management contract void. Such contract is and remains void unless and until the NIGC takes formal action to approve the contract. 25 C.F.R. §§ 533.1(a), 533.7. The NIGC’s disapproval of the ELA merely preserved the legal status quo. Thus, even if the 2009 Disapproval was invalid due to procedural errors – a question over which the Superior Court had no jurisdiction (see infra) – a ruling setting aside the NIGC’s decision would not resolve the preemption question.

. . .

[T]he present case involves the NIGC’s determination on a threshold legal issue involving an interpretation and application of the NIGC regulation defining “management contract.” The NIGC expressed its regulatory interpretation in the 2009 Disapproval and the 2007 OpinionLetter (as well as in the present amicus brief). The NIGC is entitled to deference in the interpretation of its own regulations, even when such interpretation is not rendered in a formal rulemaking or other final agency action.

Here is the United States’ brief and the parties’ briefs in response:

United States’ Amicus Brief

Sharp’s Response to United States’ Amicus Brief

Tribe’s Response to United States’ Amicus Brief

The merits briefs are here.

Materials in Douglas Luckerman v. Narrangansett Indian Tribe

Matthew L.M. Fletcher3 Comments

Here are the materials in this pending matter over an alleged $1.1 million in attorney fees:

Luckerman Complaint

Narrangansett Motion to Dismiss

Luckerman Opposition/Motion to Remand

Narrangansett Reply + Sachem Affidavit

News coverage here.

Ninth Circuit Briefs in EEOC v. Peabody Western Coal

Matthew L.M. Fletcher2 Comments

Here:

EEOC Opening Brief

Federal Appellee Brief

Navajo Answer Brief

Peabody Coal Answer Brief

Reply TK EEOC Reply

Lower court materials here.

Federal Court Dismisses Amended Complaint in Spokane Tribal Member Trust Breach Case re: Uranium Mining

Matthew L.M. Fletcher1 Comment

Here are the updated materials in Villegas v. United States (E.D. Wash.):

DCT Order Granting US Motion

US Motion

Villegas Response

US Reply

Prior materials are here and here.

Nooksack Petition for Review in Sovereign Immunity Appeal

Matthew L.M. Fletcher2 Comments

Here are the materials in the petition stage of Outsource Services Management LLC v. Nooksack Business Corp.:

Nooksack Petition for Review + Appendix

Answer to Petition for Review

Lower court materials here.

Federal Court Dismisses FLSA Complaint against Potawatomi Bingo Casino (Forest County)

Matthew L.M. Fletcher1 Comment

Here are materials from Smith v. Potawatomi Bingo Casino (E.D. Wis.):

DCT Order Dismissing Complaint

FCPC Motion to Dismiss

Tenth Circuit Rejects Tribal Membership Claim by Alleged Choctaw Freedman Descendant

Matthew L.M. Fletcher1 Comment

Here is the opinion in Greene v. Impson.

An excerpt:

The question in this appeal is whether officials from the Bureau of Indian Affairs (BIA) violated Charles Greene’s constitutional rights by failing to provide him an application form to allow descendants of Choctaw Indian Freedman to apply for federal recognition as an Indian.

Briefs:

Greene Appellant Brief

Federal Appellee Brief

Greene Reply Brief

Split New Mexico COA Panel Holds Pueblo of San Felipe Not Immune from Land Suit (Case to Watch)

Matthew L.M. Fletcher2 Comments

Here is the opinion in Hamaatsa, Inc. v. Pueblo of San Felipe. An excerpt from the majority:

Notwithstanding its purely facial attack and admission of the truth of the allegations of the complaint, including that the road is a state public road, the Pueblo argues that sovereign immunity bars the action for lack of subject matter jurisdiction. Yet, the Pueblo offered no evidence of any property or governance interests whatsoever in the road or that the road, concededly a state public road, would threaten or otherwise affect its sovereignty. The Pueblo has not attempted any proof, for example, that even though the road is a state public road, a district court’s declaration of that fact would in any way undermine the Pueblo’s sovereignty or sovereign authority, infringe on any right of the Pueblo to govern itself or control its internal relations, or otherwise adversely affect its governmental, property, or treasury interests.

And from the dissent:

Third, “sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation[, and,] it presents a pure  jurisdictional question.” Armijo, 2011-NMCA-006, ¶ 13 (internal quotation marks and  citation omitted). The Majority Opinion stresses that the effect of permitting the Pueblo to  exercise tribal sovereign immunity would be to deprive Hamaatsa and other members of  the public the opportunity for legal recourse. Majority Op. ¶ 16. The Majority Opinion even speculates that if tribal sovereign immunity were to apply, a pueblo or tribe could acquire  property “virtually anywhere in New Mexico” and deny access to the motoring public and neighboring property owners. Supra. This speculation assumes that a property owner has the ability to convey a dedicated public road and extends far beyond the facts of this case. But, more significantly, although I agree that Hamaatsa makes a strong equitable  argument, as this Court stated in Armijo, it is not relevant to the jurisdictional question  before us. Id.