California COA Decides Acres v. Marston

Here is the opinion:

Briefs:

Keep in mind as to this case and the related Ninth Circuit case we posted a while ago here, this is about a nonmember sued by a tribe in tribal court for breach of contract, a nonmember who won before the tribal court, and now is suing the tribal judges, tribal employees, and the lawyers for the tribe for racketeering because the nonmember believes there was a conspiracy against him. The only reason this case exists is because of the Lewis v. Clarke decision (preceded by Ninth Circuit cases) that holds individuals who work for tribes sued in their individual capacities are not immune. Even if the nonmember’s claim here has validity (seems very unlikely but who knows?), this case is definitive proof that the Lewis v. Clarke precedent will allow absolutely frivolous contract and other claims to proceed against tribes on the Lewis v. Clarke fiction that tribal employees sued in their individual capacity are somehow not engaged in tribal governmental activity and that the tribes that indemnify their employees are doing so for reasons unrelated to tribal governmental prerogatives. Here, we’re talking tribal judges (including an associate judge who was not assigned the case), a court clerk, and lawyers retained by the tribe to merely serve as counsel for the tribe, among others. They might all win below, as the court here suggests, but they have to make the correct arguments in what appears to be a game of whack-a-mole.