Sequoia Capital Operations LLC v. Gingras Cert Petition [Chippewa-Cree Sovereign Lending]



Question presented:

Where an arbitration agreement contains a separate “delegation provision” that reserves for an arbitrator the authority to decide any disputes concerning arbitrability, does Section 2 of the Federal Arbitration Act require a court to decide any challenge to that provision’s validity before the court may proceed to address whether the parties’ underlying dispute is arbitrable?

Lower court materials here.


BIO: BriefInOpposition

Federal Court Declines Jurisdiction over Nisqually Officials under Ex parte Young

Here are the new materials in Bell v. City of Lacey (W.D. Wash.):



Prior pleadings, including the tribe’s motion on the pleadings (docket no. 36), are here.

Second Circuit Affirms in Gingras v. Think Finance Inc. [Chippewa Cree Lending]

Here is the opinion:

CA2 Opinion

From the court syllabus:

Plaintiffs Jessica Gingras and Angela C. Given borrowed money from Plain Green, LLC, an online lending operation owned by the Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation in Montana. The terms of their loan agreements provide for interest rates well in excess of caps imposed by Vermont law. Gingras and Given sued, alleging violations of Vermont and federal law. They seek an injunction against tribal officers in charge of Plain Green and an award of money damages against other Defendants. 

Some Defendants moved to dismiss, arguing that tribal sovereign immunity barred the suit. All Defendants moved to compel arbitration under the terms of the agreements. The district court (Geoffrey W. Crawford, Judge) denied both motions. We hold that tribal sovereign immunity does not bar this suit because Plaintiffs may sue tribal officers under a theory analogous to Ex parte Young for prospective, injunctive relief based on violations of state and substantive federal law occurring off of tribal lands. We further hold that the arbitration clauses of the loan agreements are unenforceable and unconscionable.

Briefs and link to lower court materials here.

Federal Court Dismisses Title VI Claim against Chickasaw Housing

Here are the materials in Sanders v. Anoatubby (W.D. Okla.):

11 Motion to Dismiss

14 Response

16 Reply

19 DCT Order

An excerpt:

Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual allegations are true and construing them in the light most favorable to plaintiff, the Court finds that this Court lacks subject matter jurisdiction to hear plaintiff’s claims alleged in her Complaint. The Court specifically finds that jurisdiction is not vested in this Court based on plaintiff’s claim that defendants violated Title VI by not complying with the NAHASDA since the NAHASDA specifically exempts federally recognized tribes, such as the Chickasaw Nation and the tribally designated housing entities of those tribes such as the Chickasaw Nation Housing Administration, from Title VI. Further, the Court finds jurisdiction is not vested in this Court based on the Ex parte Young doctrine. Plaintiff specifically included defendants’ official titles in the caption of this lawsuit and alleges that defendants violated tribal policies. Other than conclusory statements that defendants were acting outside the scope of their official tribal capacity, plaintiff has failed to allege facts to support her claim that defendants were acting outside the scope of their tribal capacity or violating federal law. Therefore, the Court finds plaintiff’s Complaint against defendants Governor Bill Anoatubby, Wayne Scribner, Renee Sweet, Jackie Williams, and Terry Davis should be dismissed.

Sault Tribe Motion to Dismiss Michigan Gaming Suit

Here are the new materials in the case captioned State of Michigan v. Payment (W.D. Mich.):

2015-03-20 Brief in Support of Defendant’s Motion to Dismiss Amended Complaint

2015-03-20 Defendant’s Motion to Dismiss Amended Complaint

71 Michigan Response to Motion to Dismiss

72 Sault Tribe Reply

The state’s amended complaint is here.

Updated Materials in Michigan v. Sault Tribe — State Seeks to Sue Tribal Officials

Here are the materials in State of Michigan v. Sault Ste. Marie Tribe of Chippewa Indians (W.D. Mich.):

49 Renewed Motion to Dismiss

53-1 State Motion for Relief

55 State Response to Motion to Dismiss

57 Soo Tribe Reply

58 Soo Tribe Response to Motion for Relief

60 State Reply

63 DCT Order to Adjourn and Reschedule Oral Argument

Sixth Circuit materials are here.


Bay Mills Opinion First Impressions — Dodging the Biggest Bullet Since Worcester

The Bay Mills Indian Community and the rest of Indian country dodged a very large bullet aimed by the State of Michigan at a core principle of inherent tribal sovereignty and tribal governance with today’s opinion by Justice Kagan. The stakes were incredibly high for tribal interests, and may remain so for the foreseeable future as more sovereign immunity cases work their way through the pipeline. In fact, Justice Kagan pointed out that several possible fact patterns that might justify serious reconsideration (“special justification”) are not before the Court:

We need not consider whether the situation would be different if no alternative remedies were available. We have never, for example, specifically addressed (nor, so far as we are aware, has Congress)whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. The argument that such cases would present a “special justification” for abandoning precedent is not before us. Arizona v. Rumsey, 467 U. S. 203, 212 (1984).

Slip op. at 16 n. 8.

Turning away from the statutory and common law immunity analyses for a moment, it remains to be seen what Bay Mills has won here. Justice Kagan’s opening paragraph concludes with this phrase:

Michigan must therefore resort to other mechanisms, including legal actions against the responsible individuals, to resolve this dispute.

Slip op. at 1.

Later, she elaborates on the mechanisms Michigan might employ to defeat the underlying issue here — whether Bay Mills can open an off-reservation casino on lands acquired under the Michigan Indian Land Claims Settlement Act. Michigan has many advantages, it would appear, stemming from the tribe’s movement off the reservation:

And the resulting world, when considered functionally,is not nearly so “enigma[tic]” as  Michigan suggests. Reply Brief 1. True enough, a State lacks the ability to sue a tribe for illegal gaming when that activity occurs off the reservation. But a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. Unless federal law provides differently, “Indians going beyond reservation boundaries” are subject to any generally applicable state law. See Wagnon v. Prairie Band Potawatomi Nation, 546 U. S. 95, 113 (2005) (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973)). So, for example, Michigan could, in the first instance, deny a license to Bay Mills for an off-reservation casino. See Mich. Comp. Laws Ann. §§432.206–432.206a (West 2001). And if Bay Mills went ahead anyway, Michigan could bring suit against tribal officials or employees (rather than the Tribe itself) seeking an injunction for, say, gambling without a license. See §432.220; see also §600.3801(1)(a) (West 2013) (designating illegal gambling facilities as public nuisances). As this Court has stated before, analogizing to Ex parte Young, 209 U. S. 123 (1908), tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct. See Santa Clara Pueblo, 436 U. S., at 59. And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains—or even frequents—an unlawful gambling establishment.See Mich. Comp. Laws Ann. §§432.218 (West 2001),750.303, 750.309 (West 2004). In short (and contrary to the dissent’s unsupported assertion, see post, at 11), the panoply of tools Michigan can use to enforce its law on its own lands—no less than the suit it could bring on Indian lands under §2710(d)(7)(A)(ii)—can shutter, quickly and permanently, an illegal casino.

Slip op. at 12-13.

I count several state law mechanisms; however, all are untested. Michigan has teed up a suit against tribal officials for injunctive relief. I guess we move there next, unless BMIC pays up and settles for a large percentage of off-reservation gaming revenues.

Also, the majority highlights two mechanisms expressly endorsed by counsel for the tribe at oral argument that I imagine most tribal leaders, perhaps even Bay Mills’, are not happy about: suing tribal officials for injunctive relief and utilizing state criminal laws. In this respect, the opinion (from the perspective of tribal interests) is tainted.

In the end, perhaps the biggest winner will be the Sault Ste. Marie Tribe of Chippewa Indians, which is making similar arguments as Bay Mills in favor of a Lansing MI casino, but has a somewhat stronger argument under the terms of the Michigan Indian Land Claims Settlement Act. Expect to see a denial of Michigan’s cert petition in the fall.

Finally, an most importantly, this is a lesson to Indian country on what kinds of cases are winnable, if not all the time (see Adoptive Couple) — statutory interpretation cases. Cases with common law aspects that can be argued as statutory interpretation cases like Bay Mills should be argued that way if at all possible.



Tenth Circuit Decides Important Second Amendment/Official Immunity Appeal

Here is the opinion in Peterson v. Martinez.

Not an Indian law case, but the material on state official immunity is interesting, in my view, because of how much of the Tenth Circuit’s jurisprudence on the subject derives from Indian law cases.

Ninth Circuit Denies Rehearing/En Banc Review of Maxwell v. County of San Diego — Tribal Officials Not Immune under Section 1983

Here is the order:

Maxwell v. County of San Diego (9th 2013)

An excerpt:

The panel has voted to deny the petition for rehearing in case number 10-56671; Judges Clifton and Ikuta vote to deny the petition for rehearing en banc, and Judge Farris so recommends. Judges Farris and Clifton vote to deny the petition for rehearing in case number 10-56706; Judge Clifton votes to deny the petition for rehearing en banc, and Judge Farris so recommends. Judge Ikuta votes to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. Fed. R. App. P. 35. The petitions for panel rehearing and the petitions for  rehearing en banc are DENIED.

Earlier materials are here: panel opinion materials and en banc petition.