Here.
Briefs are here.
Title VII
Eleventh Circuit Briefs in Mastro v. Seminole Tribe (Title VII Matter)
Title VII Claim against Cherokee Nation-Owned Company Proceeds
Here are the materials so far in Nepomuceno v. Cherokee Medical Services (S.D. Cal.):
An excerpt:
CMS has not come forward with any evidence of how CMS was formed, who owns CMS, how CMS is managed, and where profits from the business go. Therefore, CMS has not established that it is an arm of the Cherokee Nation entitled to tribal sovereign immunity from suit, and the Court denies CMS’s motion to dismiss for lack of subject matter jurisdiction. CMS may reassert tribal sovereign immunity in a motion for summary judgment. However, any such motion should not be filed until Plaintiff has had the opportunity to conduct adequate discovery on the issue.
Ninth Circuit Briefs in EEOC v. Peabody Western Coal
Update in EEOC v. Peabody Western Coal — Tribal Preference Employment Valid if Enacted under Lease Approved under IMLA
The court has dismissed Peabody Coal’s third-party claims against the federal government:
DCT Order Dismissing Peabody Coal Claims
It’s weird (or is it in the case of the EEOC?) to see two federal agencies in opposition to each other. Regardless, the court here buys the Department of Interior’s argument that the tribal preference in employment rules applicable to Peabody Coal are okay under Title VII because Interior approved the leases from which the preference originated under the Indian Mineral Leasing Act, which predated Title VII. The court was not so persuaded that all tribal preference in employment rules are acceptable but was persuaded that Interior’s approval muted any invalid discrimination. Here is what I consider to be the crux of the opinion:
While it is likely that Congress intended to only exempt Indian employment preferences in general and not tribe-specific preferences from Title VII in situations where an employer discriminates against members of a particular tribe without oversight or approval by the federal government, that is not the situation presented in this case.
EEOC argued that Congress, in enacting the Indian preference statute, here (look for section 703(i)), implicitly intended to make tribe-based discrimination invalid. The court rejected that claim, relying in part on Morton v. Mancari‘s other less-famous holding:
Implied repeals are disfavored . [Mancari] The DOI’s practice of including tribe-specific employment preferences in mining leases dates back to before the passage of Title VII, and, as discussed above, such preferences are a part of the federal government’s attempt to meet its various obligations towards the Nation and to foster tribal self-sufficiency, self-governance, and economic development. In addition, the Nation has located and identified at least 326 DOI-approved business leases on tribal lands within the last decade that include a tribespecific employment preference. Elimination of this longstanding and ubiquitous DOI practice would require a far more explicit showing of Congress’s intention to do so than is reflected in § 703(I).
I guess we’ll see what the Ninth Circuit says next in this long-running case.
Dept. of Ag Farm Services Agency Tribal Liaison Wins EEOC Action
Here is the order in Morgan v. Vilsack:
Ninth Circuit Affirms Dismissal of Title VII Complaint against Quinault
Here are the materials in Gilbertson v. Quinault Indian Nation:
Tenth Circuit Affirms Dismissal of Title VII Claims against Tribal Corporation
Here is today’s opinion in Somerlott v. Cherokee Nation Distributors. Judge Gorsuch’s concurring opinion (starting at page 21) is a worthy read for tribal leaders and tribal counsel thinking about doing business outside of Indian country.
Briefs are here.
Excerpt here:
Tina Marie Somerlott appeals from the district court’s dismissal of her claims against CND, LLC (“CND”) for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Somerlott brought federal employment discrimination claims against CND, alleging violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. After allowing discovery by both parties, the district court concluded CND was immune from suit under the doctrine of tribal sovereign immunity and, therefore, dismissed Somerlott’s complaint in its entirety. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
this court affirms.
Complete Tenth Circuit Briefing in Somerlott v. Cherokee Nation Distributors (Including Supplemental Briefs)
Here:
CA10 Order to File Supplemental Briefs
The Tenth Circuit panel requested supplemental briefing after oral argument to address this issue:
This court has previously acknowledged that “[t]ribal sovereign immunity is deemed to be coextensive with the sovereign immunity of the United States.” Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011 (10th Cir.
2007) (citation omitted). Regarding the sovereign immunity of the United States, other circuits have held that where the United States is the sole shareholder of an entity incorporated under state law, the United States’ sovereign immunity does not extend to the entity. See Panama R. Co. v. Curran, 256 F. 768, 771-72 (5th Cir. 1919) (quoting Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. 904, 907–08 (1824)); Salas v. United States, 234 F. 842, 844–45 (2d Cir. 1916). The parties are therefore directed to submit supplemental briefs regarding the following issues:a) Does CND’s organization as a separate legal entity under Oklahoma’s Limited Liability Company Act preclude it from sharing in the Cherokee Nation’s sovereign immunity?
Lower court materials here.
Title VII Claim against MHA Nation & BIA Dismissed
Here are the materials in Fontanez v. MHA Nation (D. Mont.):
Turtle Talk 
You must be logged in to post a comment.