Pending Ninth Circuit En Banc Petition Materials in Maxwell v. County of San Diego

You’ll recall the panel opinion here found that tribal employees have no official immunity for official actions.

Here are the en banc petition materials:

Viejas Band En Banc Petition

Gila River Amicus Brief

Suquamish Tribe Amicus Brief

Yocha Dehe Wintun Nation Amicus Brief

Maxwell Response to En Banc Petition

Maxwell Supplemental Authorities Letter

The petition is still pending, but perhaps the Miller v. Wright amendment is evidence that the Ninth Circuit could take this case for en banc review.

Ninth Circuit Holds Tribal Workers May Be Sued for Money Damages for Official Actions

You read that right. A troubling case for tribal governments. Here the tribal workers were operating under a public safety cooperative agreement authorized under California statute in which the tribal government expressly reserved immunity.The facts truly are tragic — and bad facts make bad law. I’d say the fact that there’s a dissent is helpful, except our dissenter doesn’t object to the immunity holding.

The opinion in Maxwell v. County of San Diego is here. An excerpt:

In short, our tribal sovereign immunity cases do not question the general rule that individual officers are liable when sued in their individual capacities. We see no reason to give tribal officers broader sovereign immunity protections than state or federal officers given that tribal sovereign immunity is coextensive with other common law immunity principles. See Santa Clara Pueblo, 436 U.S. at 58. We therefore hold that sovereign immunity does not bar the suit against the Viejas Fire paramedics as individuals. The Viejas Band is not the real party in interest. The Maxwells have sued the Viejas Fire paramedics in their individual capacities for money damages. Any damages will come from their own pockets, not the tribal treasury. See Alden, 527 U.S. at 757.

This is incredibly glib discarding of Ex parte Young should worry tribal governments everywhere.

Briefs are here:

Maxwell Opening Brief

Viejas Answer Brief

Maxwell Reply

Federal Judge Enjoins Seminole Tribe Eviction of Hollywood Mobile Estates

Here are the materials in this stage of a long saga — Hollywood Mobile Estates v. Cypress (S.D. Fla.):

DCT Order Granting Hollywood Mobile Estates Motion

Hollywood Mobile Estates Motion for PI

Seminole Opposition

Here is a news article via Pechanga.

Federal Court Denies Injunction in Muscogee Cigarette Seizure Case

Thanks to Mike for this. Here’s a news article on this case.

A federal court dismissed a request for an injunction against the Oklahoma Tax Commission for seizing tobacco products owned by the Muscogee (Creek) Nation. State law enforcement had seized the smokes on some pretty spurious grounds, pulling the trucks over for “weaving” and “following too close” (not texting!?!). The court rejected most of the Commission’s defenses, including standing and sovereign immunity, but dismissed the claim on the basis that Indian tribes are not “persons” that can sue under Section 1983, per Inyo County.

Sounds to us like a Section 1983 legislative “fix” is in order, too, like all the other problems created by the Supreme Court in the last decade.

Muscogee Injunction DCT Order

More later.

New Article about the Origins of Ex parte Young

From Legal History Blog:

Barry Friedman, New York University School of Law, has posted The Story of Ex Parte Young: Once Controversial, Now Canon,which is forthcoming in Federal Courts Stories, ed. Vicki Jackson & Judith Resnik. Here’s the abstract:

Ex parte Young is a central part of the federal courts canon, yet the underlying historical details are little known or understood. This is unfortunate. Many cases in the canon are contested by advocates of greater or lesser federal court intervention. Ex parte Young, however, is bedrock, almost universally admired across the ideological spectrum. At the time, though, this decision opening the doors to federal court was widely condemned by progressives who disdained judicial involvement in economic legislation. The Story of Ex Parte Young tells of the cases’ origins in Reconstruction and the Gilded Age, shedding light on how we should understand this now widely-accepted decision.

Tribal Court Order Regarding Attorney’s Fees Unenforceable

The Northern District of Oklahoma found that the Muscogee Tribal court did not have jurisdiction over the firm Crowe & Dunlevy who represented Thlopthlocco Tribal Town in an intratribal dispute.  The case began in Muscogee Nation tribal court, but the firm eventually filed suit in federal district court to prevent enforcement of a tribal court order.  Tribal sovereign immunity, Ex parte Young, judicial immunity, Rule 19 and Montana exceptions are all discussed in the decision.

Crowe & Dunlevy, P.C. v. Stidham, — F.Supp.2d —-, (N.D.Okla. Apr 24, 2009) (NO. 09-CV-095-TCK-PJC)

Tenth Circuit Affirms Immunity for Tribal Business Arms

In Native American Distributing v. Seneca-Cayuga Tobacco Co., the Tenth Circuit affirmed a district court order dismissing a claim against the company, a wholly owned business of the Seneca-Cayuga Indian Tribe. A closer question was whether the tribe’s officers might be individually liable under Ex parte Young, but the plaintiffs did not properly plead a claim against them in their individual capacities.

Here are the briefs.

And the opinion: native-american-distributing-ca10-opinion

D.C. Circuit Decides Freedmen Case

The D.C. Circuit reversed the lower court’s determination that the 13th Amendment abrogated tribal sovereign immunity, but held that the Ex parte Young doctrine allows a suit against Cherokee Nation tribal officials to proceed.

Here is the opinion.

Here are the D.C. Circuit briefs.

Kemp v. Osage Nation Cert Petition

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?

Osage Nation v. Oklahoma – CA10

The Osage Nation sued the State of Oklahoma and Oklahoma Tax Commission officials seeking an injunction against the collection of state income taxes against Osage members in Osage Indian Country. The district court denied the state’s Eleventh Amendment motion to dismiss. The CA10 reversed as to the State, but very grudgingly affirmed as to the officials, relying on Ex parte Young.

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