tribal official immunity – Page 4

The oil and gas industry is a major economic force in the Uintah Basin. This industry relies, to some extent, on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs allege that, through its ability to restrict the industry’s access to tribal lands, the tribe has held hostage the economy of the non-Indian population.

Ryan Harvey, a plaintiff and part owner of the two corporations that are the other plaintiffs in this case, alleges that tribal officials from the Ute Tribe attempted to extort him by threatening to shut down his businesses if he did not acquiesce to their demands, despite the fact that his businesses do not operate directly on tribal land. After his refusal to make certain payments, the tribal officials sent a letter to the oil and gas companies operating on tribal land informing them that they would be subject to sanctions if they used any of Harvey’s businesses. The tribal official’s letter dried up a large portion of Harvey’s business, and Harvey brought claims against the tribe, the tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies he alleges are complicit in this extortionate behavior. Most of the defendants filed motions to dismiss on various grounds and the district court dismissed Harvey’s claims against all of the defendants. On direct appeal, Harvey seeks to set aside the dismissals. We affirm the dismissal of the Ute Tribe under sovereign immunity and the dismissal of Newfield, LaRose Construction, and D. Ray C. Enterprises for failure to state a claim upon which relief can be granted. But we vacate the dismissal of the remaining defendants and remand for further proceedings consistent with the tribal exhaustion doctrine.

~~If anyone has the briefs in this fascinating case, please send them along.~~

California COA Affirms Tribal Official Immunity in Disenrollment Challenge at Elem Colony

November 3, 2017November 3, 2017Matthew L.M. Fletcher

Here is the opinion in Brown v. Garcia. PDF

An excerpt:

This case is different. As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.”

Federal Court Dismisses Construction Contractor’s Section 1983 Action against Reno-Sparks Indian Colony

September 1, 2017September 1, 2017Matthew L.M. Fletcher

Here are the materials in Forsythe v. Reno-Sparks Indian Colony (D. Nev.):

17 Tribe Motion to Dismiss

19 Wood Rodgers Inc Motion to Dismiss

24 Response to Tribe Motion

25 Response to Wood Rodgers Inc

27 Tribe Reply

28 Wood Rodgers Reply

38 DCT Order

Jenn Weddle Guest Commentary on Lewis v. Clarke

April 25, 2017April 25, 2017Matthew L.M. Fletcher

This was the best possible result in this case (a narrow remand). Justice Sotomayor’s opinion keeps tribal employees on equal footing with federal and state employees and decides the import of indemnification provisions – really have nothing to do with Indian law and instead having everything to do with government employee indemnification law. The result seems to be a reasonable limiting principle for the Court.

The Court also left open the official immunity arguments (upon which amici focused) because those were not raised by Clarke in his motion to dismiss. The record didn’t have findings on that, but the NCAI/States/Tribes amici brief laid out the arguments as an ‘alternative theory’ as to why the Connecticut Supreme Court had been right in the result.

It is reasonable to anticipate that Clarke will now argue those matters on remand. And this case will go back to Connecticut District Court, with the Lewises now divorced and vastly undercutting their loss of consortium claims, such that the remand may well go away quickly in settlement before it even begins.

I don’t see that tribes or tribal employees lose any ground as a result of this opinion. Importantly, the official immunity arguments were not touched by the Court (per footnote 2), and I don’t see the majority opinion as saying anything negative for tribes’ role in our federalism.

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Opinion and materials here.

Initial Observations about Lewis v. Clarke

April 25, 2017Matthew L.M. Fletcher

Opinion and materials here.

The initial impact could be very big. The holding is pretty broad, bringing in the doctrine of official immunity to the tribal context without the same grounding or context as state and federal official immunity doctrines. Moreover, there is no on, off reservation distinction. So on-rez torts might be an issue.

I anticipate dozens of plaintiffs’ lawyers packaging complaints against tribal employees on a wide variety of issues to test how wide the lower courts will interpret this decisions. Civil rights, contract breaches, trespass to property, and of course tort claims. I suppose the real question is whether any tort claims against tribal officials anywhere involve a tribe’s sovereign interest. I imagine insurance companies will be calling their tribal insured right quick, and vice versa.

Another open question is whether nonmember employees sued for tort in Indian country can be sued in state courts. I think not under precedents governing Indian country suits where a tribal defendant is present, but I’m not so sure about nonmember employees. Could be a lot of litigation about questions like these.

Long term, things probably will settle down. Tribes already insure themselves from the actions of their employees. Maybe the cost of business will go up some, but I don’t anticipate terrific impacts there. Just a lot of uncertainty for a few years until everyone’s used to the new regime.

As should be unsurprising to TT readers, this case involved a confluence of Justices that disapprove of governmental immunity (Ginsburg), the conservative wing of the Court that almost never rules in favor of tribal interests, and bad optics for tribal interests. Moreover, anyone who cares about government and commercial accountability for bad actions (as one should expect from Justices Sotomayor and Ginsburg) should be happy. It just smells off that SCOTUS as an institution seems to strive to protect private commercial actors from suits but does a 180 with tribal commercial activities.

I admit to being disappointed the Court cared not at all that the Tribe had set up a tribal court process to resolve these claims. This was just straight up gamesmanship by the plaintiffs’ counsel, who might have waited on purpose to bring this claim in state court where there was a two year statute of limitations as opposed to the Mohegan one year statute. There, I said it. Oh well. All the effort that tribes made to set up tort claims ordinances might have been a significant waste of time and effort. It remains to be seen.

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

April 25, 2017Kate Fort2 Comments

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.