New Mexico Supreme Court Upholds Tribal Sovereignty

In Mendoza v. Isleta Resort and Casino, the New Mexico Supreme Court heard the case of a party who wished to circumvent tribal procedures for a worker’s compensation claim. Ultimately, the New Mexico Supreme Court’s holding is a big win for tribal sovereignty, as it requires an express waiver of sovereignty before permitting a state action to commence over a dispute arising on tribal property. Read more here and listen to the oral arguments here.


Mendoza Opening Brief

Tribe Brief

Mendoza Answer Brief

Tribe Reply

Mendoza Sur-Reply

Tribe Sur-Sur-Reply

U.S. Supreme Court Reverses and Remands Lewis v. Clarke

Opinion here.

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immunity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal employee in state court under state law. We granted certiorari to resolve whether an Indian tribe’s sovereign immunity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe.

We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and remand.

Previous posts, briefs, and other documents here.

Quick and Dirty Early Commentary on Lewis v. Clarke Oral Argument

In short, the tribal interests are more likely to prevail than some commentators might want. Overall, the Supreme Court is definitely concerned about the apparent extension of tribal immunity to off-reservation acts by tribal employees but doesn’t seem likely to assert itself into this issue so long as it is characterized as a policy question, perhaps one left for Congress.

The Westfall Act as an analogy. The first question at argument, from Justice Ginsburg, implicated the Westfall Act:

They say it’s the same as if it were federal employee, then you would have the Westfall Act. If it was a state employee, you would have the same regime, and the tribe says, “And we do the same thing.” You can sue in our court just as you could sue in federal court under the Westfall Act — Connecticut court under the Connecticut Act, and you can sue in our court.

Tr. at 4. And Justice Ginsburg asked the same question of the Respondent’s counsel:

wouldn’t that have been the Connecticut law but for its Westfall Act-type — I mean, the Westfall Act changed it. Before that, it was my understanding that the employee, the driver, you could bring an individual suit against the driver. That’s what the law was under the Westfall v. Erwin decision, and then Congress changed it. But before that, you could bring an individual suit.

Id. at 31. The Act addresses suits against the tortious actions of federal employees, providing that the exclusive remedy of plaintiffs is a suit against the US. Federal employees, such as rescue personnel, are protected by this statute in order to ensure they zealously pursue their duties. If Mr. Clarke had been a police officer instead of a casino limo driver, the analogy would have been perfect for tribal interests. If the analogy held fast, then tribal immunity likely would extend easily to a tribal employee like Mr. Clarke as a matter of federal common law. But the analogy isn’t perfect, putting the Court in the position of policy maker, deciding in the shoes of tribal governments (and Congress) whether a limo driver should be protected.

Mr. Katyal’s response:

Certainly before 1959, I think that’s right. But as our brief explains, after Barr v. Mateo, lower court after lower court said the — said that official immunity extends to nondiscretionary functions. And in the Westfall decision, to be sure, Justice Ginsburg, this Court said that it was limited to discretionary functions, but Congress quickly repudiated that and said that the Court got it actually wrong and —

Id. If that’s the case, then tribal interests should breathe a sigh of relief.

Congress’s power and wisdom. In Kiowa and Bay Mills, the Supreme Court deferred to Congress’s wisdom and power under the Indian Commerce Clause and the trust relationship to address the metes and bounds of tribal immunity. Respondent’s counsel argued persuasively that Congress’s power over state immunity is constrained by the Eleventh Amendment, but no such constraint exists for tribal immunity (at least under the Constitution — don’t forget the Treaty Power or the trust relationship). 

Respondent’s counsel made the case for this question to be a policy question reserved for Congress:

MR. KATYAL: Well, I — I think the — the first point is that their argument is so sweeping it extends not just to drivers, it extends to tribal judges, it extends to tribal prosecutors, and, yes, it extends even to drivers of emergency vehicles. The Ninth Circuit and Tenth Circuit amicus brief talks about police and fire and all sorts of tribal things in which you actually would, Justice Alito, for sure, I think, want them to be fearless in saving peoples’ lives and things like that. And, yes, there are times there are rough edges to any immunity doctrine in which you can say, well, in this case how is that policy being served. I mean take this Court’s decision in Imbul v. Packman, which had the, you know, grossest facts imaginable. A — you know, a state prosecutor who’s fabricating evidence, which this Court said unanimously that that person was absolutely immune. *** And here, as long as the person is a tribal employee and as long as — is — and because the State of Connecticut does have a remedy against any sort of concerns, so if they were concerned about your situation about fearless driving, they can do — and negotiate in the compact, as New Mexico has done, for something else and say, look, we want this channeled into State court, we insist that you waive immunity, there are a host of remedies that are available to States in this circumstance and, indeed, Connecticut availed themselves of them in this compact.

Tr. at 48-49. And here:

It does matter absolutely, Justice Sotomayor, in the State context what label you put on it, because if it’s sovereign immunity, Congress can’t abrogate it, they have Eleventh Amendment protections. But that’s not true with respect to tribes; that is, Congress’s power is plenary, whether you call it official immunity or sovereign immunity. And so for that reason, we think the Court should get into it here and — and affirm what the courts have said.

Id. at 45.

Real party in interest. Tribal interests in these and related cases have been saying that the tribe is the real party in interest that will pay the actual damages in the event a tribal employee is sued in their individual capacity, thereby invoking sovereign immunity law and policy interests. Again and again, the Justices seemed nominally supportive of this proposition. Justice Alito: Continue reading

Ninth Circuit Briefs in Bodi v. Shingle Springs Band of Miwok Indians — Whether Removal To Federal Court Waives Immunity


Shingle Springs Opening Brief

Puyallup and Arctic Slope Amicus Brief

Bodi Answering Brief

Shingle Springs Reply

Lower court materials here.


Ninth Circuit Opening Brief In Appeal Of Ruling That Removal To Federal Court Waives Immunity

Here is the opening brief in Bodi v. Shingle Springs Band of Miwok Indians:

Shingle Springs Opening Brief

Here are some excerpts:

Because Indian tribes are sovereigns preexisting the United States and its Constitution, they may be sued only where the tribe or Congress unequivocally expresses consent to suit.  Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 58-59 (1978).  Recently, the U.S. Supreme Court has admonished that the federal courts may not “carv[e] out exceptions” to the broad protections sovereign immunity provides federally recognized tribal governments.  Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2031 (2014).  In this case, the district court did precisely that.  . . .  [T]he court reasoned that, because the Tribe could have chosen to raise its tribal sovereign immunity defense in state court, the Tribe’s choice to raise the defense in federal court waived it.  Specifically, the court concluded the Tribe had “no principled reason” to remove the federal claims filed against it to federal court, and that, by virtue of the removal, the Tribe lost its right to assert its sovereign immunity to the lawsuit, at all.  . . . No law authorized the district court to imply a waiver on this basis, and in fact, the very notion that a Tribe can waive its immunity by implication contradicts well established principles of federal Indian law governing sovereign immunity.  It also contradicts the only federal appellate court decision to address the issue of whether an Indian tribe’s removal of a case to federal court waives the Tribe’s immunity to suit.  In that case, the Eleventh Circuit Court of Appeal specifically held it does not.  Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1208 (11th Cir. 2012). 


Apart from the dissonance between a rule that finds waiver of immunity from a tribe’s removal of a suit in which it is an involuntary participant, while preserving immunity where the tribe itself voluntarily files suit, the district court’s rule would incentivize litigation, unduly burdening both Indian tribes and federal courts alike.  Under the district court’s rule, an Indian tribe with any reason (even remotely) to anticipate suit on a federal claim would be incentivized to file preemptive suit in federal court, hoping to beat the prospective state court plaintiff to the courthouse.  This would result in a groundswell of preemptive federal court litigation by Indian tribes, requiring federal courts, in many instances, to expend their limited judicial resources issuing declarations on matters that would not have otherwise coalesced into litigation.  There is certainly no “principled reason” to impose this burden on Indian tribes and federal courts by manufacturing an arbitrary distinction between cases Indian tribes file in federal court seeking a declaration as to their sovereign rights, on one hand, and cases Indian tribes remove to federal court to assert a sovereign immunity defense, on the other.

Lower court materials here.

Fed. District Court Finds Tribal Sovereign Immunity Waived by Removal in FMLA Claim


The 11th Circuit found the opposite on this issue, leaving open the possibility of an eventual circuit split.

Defendants invoked the jurisdiction of the federal courts to
raise a jurisdictional defense that could equally have been
raised in the state court. As the court recognized in its January
9, 2014 Order, “there appears no principled reason for defendants to have removed the action before asserting immunity.” (ECF No. 40.) Defendants have advanced none in their briefing or at oral argument. The court therefore finds that the Tribe has unequivocally waived any claim of sovereign immunity through removal. And, as defendants Health Program, Health Board, and Brenda Adams’s assertions of sovereign immunity derive from the Tribe’s sovereign immunity, subject matter jurisdiction over plaintiff’s claims against these defendants is also proper.

Briefs will be posted this afternoon.

44 Shingle Springs Brief in Support of Motion to Dismiss
45 Bodi Memorandum
46 Shingle Springs Reply

47 Bodi Reply

Previous materials here.

Federal Court Orders Individual Defendant to Pay $475K Civil Penalty in City of New York v. Golden Feather

Here is the order:

DCT Order on Civil Penalty

Prior materials here, here, and here.


Corrected Opinion in City of New York v. Golden Feather


Corrected DCT Order

Prior post here.

Federal Court Finds Unkechauge Reservation Smoke Shops Liable for Violations of Federal Law in City of New York v. Golden Feather Smoke Shop

Here are the materials:

DCT Memorandum & Order

NYC Motion

Remaining Defendants’ Cross-Motion

An excerpt:

For the reasons below, the Court grants the City summary judgment as to defendants’ liability under the CCTA and the CMSA. With respect to relief, the Court (1) grants the requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use”; (2) awards damages as against the Peace Pipe and TDM defendants; (3) awards civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (4) awards the City attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Vera Scanlon by report and recommendation.

And the bad news (liability):

For the reasons stated, the Court concludes the following: As to defendant Phillips, the City is directed to clarify whether it is still seeking monetary relief against him, and if so, to submit further damages briefing that identifies the amounts the City is seeking against Phillips only. As to the Peace Pipe, TDM, and Red Dot defendants, the Court finds that the City is entitled to summary judgment on (1) defendants’ liability under the CCTA and the CMSA, and (2) its requested permanent injunction against defendants’ “purchase, receipt, possession, sale, distribution, offer and advertisement of unstamped cigarettes-even to tribe members for personal use.” In addition, the Court awards to the City (1) damages in the amount of $10,041,075 as against the Peace Pipe defendants and $450,000 as against the TDM defendants; (2) civil penalties as against the Red Dot defendants, the amount of which will be determined at a later hearing; and (3) attorney’s fees, the amount of which will be determined in the first instance by Magistrate Judge Scanlon by report and recommendation.

Prior posts here and here.


New Scholarship on Allowing Tribes to Declare Bankruptcy

Here is a new student article, “Shooting Craps: How Denying Tribal Casinos Bankruptcy Relief Ensures that Everyone Loses and a New Rule to Provide Potential Chapter 11 Relief,” available on SSRN. It will be published in the Temple Law Review.

Here is the abstract:

In August 2012, the Bankruptcy Court for the Southern District of California dismissed a Chapter 11 petition filed by the Santa Ysabel Resort and Casino finding that the casino was an ineligible debtor under the Bankruptcy Code. This Essay critiques the decision of the Bankruptcy Court and suggests that tribal casinos should not be summarily excluded from filing for bankruptcy. This is because the federal Indian Gaming and Regulatory Act dictates the corporate form of Indian casinos but potentially excludes them as eligible debtors.

Instead, this Essay proposes a new rule that courts should use when evaluating Tribal Casinos as semi-sovereign entities in Chapter 11 proceedings. Ultimately, this rule would allow certain tribal casinos to avail themselves of bankruptcy protection while still complying with federal law.