Middle District of Alabama – Page 2

Plaintiffs contend that, without the benefit of discovery, they cannot ascertain whether the Tribe “waived sovereign immunity by contract or other agreement” (Doc. # 96, at 3) because they are not in the possession of any contracts (Doc. # 96, at 6). The court takes no position on whether, as Plaintiffs assert, discovery “most likely” will prove a contractual waiver of sovereign immunity as to Plaintiffs’ claim against the Tribe. (Doc. # 96, at 6.) It is noted, though, that the existence of such a contract is neither admitted nor denied by the Tribe. All of this is why, without discovery, it would be inappropriate at this time to determine the issue of sovereign immunity on a factual Rule 12(b)(1) motion. Accordingly, the Tribe’s motion to dismiss based upon sovereign immunity is due to be denied at this time.

No Federal Court Jurisdiction over Property Dispute with Poarch Band Creek

September 21, 2009Matthew L.M. Fletcher

Here is the opinion in TP Johnson Holdings v. Poarch Band of Creek Indians. And the PCI motion to dismiss (apparently unopposed) — PCI Motion to Dismiss

An excerpt:

In this case, the amended complaint makes no reference to federal law; it is entirely premised on state-law claims to quiet title and for ejectment and trespass (Doc. # 5, PP 11-27). In the ordinary case, it would thus be clear that there was no basis for federal question jurisdiction. The Johnson Land Owners claim, however, that jurisdiction nonetheless exists. They point to a Supreme Court case adjudicating Indian land claims and stating that “[w]ith the adoption of the Constitution, Indian relations became the exclusive province of federal law.” Oneida County, N.Y. v. Oneida Nation of N.Y. State, 470 U.S. 226, 234 (1985) (Oneida County II). In citing these passages, the Johnson Land Owners urge the court to adopt a broad rule that any case that has an Indian tribe as a party and concerns a land dispute is subject to federal jurisdiction. (Doc. # 5, P 3). The Johnson Land Owners also argue that, if the Tribe’s asserted sovereign immunity defense is valid, Congress has “abrogated” the Fifth Amendment with respect to their rights, thus creating a federal question (Doc. # 5, P 4). Finally, they assert that Section 1362, combined with an 1866 treaty to which the Creek Indians were party, indicate that there is federal jurisdiction in this case (Doc. # 5, P 5).

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