Interesting decision, in that the court found the private plaintiff could avoid California’s Eleventh Amendment immunity, but dismissed anyway for a lack of a cause of action in IGRA to sue over gaming compacts.
Here are the materials in Friends of Amador County v. Salazar (E.D. Cal.):
Here is the opinion in Muscogee (Creek) Nation v. Oklahoma Tax Commission.
Briefs are here.
Lower court materials here.
Just read portions of the Supreme Court’s decision in Alabama v. North Carolina, issued Tuesday.
The case involved a challenge to North Carolina’s alleged failure to comply with a compact between states in the southeast over low-level radioactive waste. One issue was whether the states challenging North Carolina could sue through a Commission they had created to enforce, monitor, and administer the compact. The Court held that it was no 11th Amendment sovereign immunity problem for the Commission, technically a nonsovereign, to bootstrap onto the claims of the other states so long as they were the same claims, relying on Arizona v. California (1983).
Justice Scalia for the majority noted that Arizona had not been overruled, and that it was no problem for the Commission to sue on the backs of other states. North Carolina had noted that Oneida County v. Oneida Indian Nation (1985) may have undermined Arizona. In rejecting that argument, Scalia dropped a footnote, noting that “in Oneida, there was no sovereign plaintiff.” That would be the Oneida Indian Nation he was referring to as a “nonsovereign.”
In dissent, Chief Justice Roberts (joined by Justice Thomas) went further, arguing that Arizona‘s holding allowing Indian tribes to piggyback onto the U.S. in claims against states was simply wrong:
Understandably, the Court’s opinion leans heavily on Arizona, which has never been squarely overruled. Ante, at —- – —-. But Arizona itself is built on sand. The relevant portion of that opinion is almost wholly unreasoned. It cites only a footnote in a prior case, the pertinent paragraph of which failed even to discuss the State’s immunity from private suit. See 460 U.S., at 614, 103 S.Ct. 1382(citing Maryland v. Louisiana, 451 U.S. 725, 745, n. 21, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). That paragraph addressed only intervention, not sovereign immunity, and the two issues are distinct. See South Carolina v. North Carolina, 558 U.S. —-, —-, n. 5, 130 S.Ct. 854, 864 N. 5, — L.Ed.2d —- (2010).
Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona‘s already weak foundations. We recognized in Alden v. Maine, 527 U.S. 706, 718, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the States did not “ ‘surrender … this immunity in the plan of the convention.’ ” Id., at 717, 119 S.Ct. 2240 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A.Hamilton)); see also Alden, supra, at 718-722, 755-756, 119 S.Ct. 2240. There is no reason to suppose that the States, at the founding, made an exception for private suits that happen to mimic other plaintiffs’ claims-and neither Arizona nor the Court today suggests otherwise.
Here are the materials in Big Lagoon Rancheria v. California (N.D. Cal.):
DCT Order on Motion for Protective Order
Cali Motion for Protective Order
Prior materials on this case (holding that Cal. has waived its 11th Amendment immunity under IGRA) are here.
Here is the opinion in Kaltag Tribal Council v. Jackson, unpublished. This is one the cases highlighted by NARF lawyers in their opposition to Sarah Palin (here). An excerpt:
Plaintiffs-Appellees Kaltag Tribal Council (“Kaltag”), Selina Sam and Hudson Sam (collectively, “Kaltag plaintiffs”) filed this case in district court against Karleen Jackson, Bill Hogan, and Phillip Mitchell, employees of the State of Alaska, Department of Health and Human Services. The Kaltag plaintiffs alleged that an adoption judgment issued by the Kaltag court is entitled to full faith and credit under § 1911(d) of the Indian Child Welfare Act (“ICWA”), and that the Alaska employees were required to grant the request for a new birth certificate. The district court granted the Kaltag plaintiffs’ motion for summary judgment and denied the Alaska employees’ summary judgment motion. The Alaska employees appeal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Here is the opinion in Lil’ Brown Smoke Shop v. Wasden (D. Idaho) in which the court rejected a motion to dismiss on Eleventh Amendment and Young absention grounds. An excerpt:
Based on the aforementioned cases and standards, and the arguments of the parties with respect to whether the Act regulates on or off reservation activity, the Court disagrees with Defendants and finds that the issue of the state’s jurisdiction is not conclusive. Here, like in Fort Belnap, Sycuan, and Seneca-Cayuga, the question of whether the state law is enforceable against Plaintiff is a federal question in an area, tribal law, where federal interests predominate. Thus, the Court finds that the State of Idaho’s interest in this litigation is not sufficiently important to warrant Younger abstention in light of the predominant federal question regarding the State of Idaho’s jurisdiction to enforce the Act. Thus, as Defendants have failed to prove all requirements for Younger abstention, the Court will deny Defendants Motion to Dismiss (Docket No. 8 ) with respect to Defendants Wasden and Armstrong.
Here is the opinion in Big Lagoon Rancheria v. California — DCT Order Denying Cal Motion to Dismiss
The materials:
California Motion for Judgment on Pleadings
Big Lagoon Rancheria Opposition Brief
An excerpt:
Here are the materials in Flandreau Sioux v. South Dakota, out of the District of South Dakota.
flandreau-v-south-dakota-dct-order
south-dakota-motion-to-dismiss
Here is the tribe’s claim:
Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.
Here are the questions presented (from the petition):
1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?
2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?
3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?
The petition is here. This case concerns the validity of25 CFR Part 291, the procedures established by the Secretary of the Interior to act as a “Seminole fix.”
There is no serious chance the Court will grant cert in this case, unless the United States also files a petition. Even then, this is a likely case of first impression, a death knell for cert petitions.
Really, I should get out of the certiorari prediction business….
Turtle Talk 
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