Suit for Injunctive Relief against Blackfeet Elected Officials over Utility MOA Dispute May Proceed

Here are the materials in Town of Browning v. Sharp (D. Mont.):

71 12b1 Motion to Dismiss

73 12b6 Motion to Dismiss

75 12b7 Motion to Dismiss

95 Response to 12b1 Motion

96 response to 12b6 Motion

97 Response to 12b7 Motion

115 Reply in Support of 12b7 Motion

123 DCT Order

140 Magistrate Report

144 Objection to Magistrate Report

148 DCT Order

An excerpt:

Defendants and Plaintiff have not objected to Judge Johnston’s Findings and Recommendations on any other grounds. The Court finds no clear error in Judge Johnston’s Findings and Recommendations, and adopts them in full. A plaitiff may seek only prospective, injunctive relief under the doctrine of Ex Parte Young. Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1092 (9th Cir.2007). Plaintiff seeks compensatory damages, exemplary damages, treble damages, and costs and attorney fees for counts 2–5. Plaintiff has failed to state a claim for which relief can be granted. Dismissal of counts 2–5 is appropriate pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff seeks prospective, injunctive relief in count 1. Defendants have failed to demonstrate that Plaintiff has not stated a claim for which relief can be granted in count 1.

Ninth Circuit Affirms Dismissal of Challenge to Pala Disenrollments

Here is the unpublished opinion in Allen v. Smith:

031.1 – Memorandum Disposition(83952089_1)

Excerpt:

This relief sought by the Appellants clearly operates against the Tribe. The
requested relief would prevent the Tribe from disenrolling the Appellants and
compel it to reinstate their membership and tribal benefits. Even the request for
compensatory and punitive damages (to be paid by the Appellees, not the Tribe)
would interfere with the Tribe’s public administration, because the monetary
damages are predicated on this court’s determination that the disenrollment of the Appellants was improper. Thus, we conclude that Appellants’ suit should be
construed as a suit against the Tribe itself.

Briefs and lower court materials here.

Wrongful Death Action against Pawnee Law Enforcement Allowed to Proceed

Here are the materials in Estate of Gonzales ex rel. Gonzales v. Brown (N.D. Okla.):

32 Waters Motion to Dismiss

38 Opposition to Waters

40 Waters Reply

45 Miller Motion to Dismiss

54 Kanuho Motion to Dismiss

55 Leading Fox Motion to Dismiss

60 Opposition to Miller

64 Miller Reply

74 Opposition to Leading Fox

75 Opposition to Kanuho

76 Opposition to Kanuho

77 Leading Fox Reply

78 Kanuho Reply 1

79 Kanuho Reply 2

81 DCT Order

Federal Court Rules Tribal Officers Not Immune; Tort Claims May Proceed against Tribal Police (Black v. US)

This is the third ruling in Black v. United States (W.D. Wash.):

53 Joint Tribal Motion to Dismiss

69 Black Response

77 Joint Tribal Reply

83 DCT Order

Claims against the tribes are dismissed. The court dismissed Kitsap County here. And the US here.

Contract Breach Claim against Delaware Tribal Officials Survives in Pennsylvania Federal Court

Here are the materials in Magyar v. Kennedy (E.D. Pa.):

11 Motion to Dismiss

12 Response

18 Reply

23 Motion to Dismiss Count 1

24 Response

31 DCT Order Denying Motion to Dismiss Count 1

An excerpt:

Thus, based upon an examination of the Second Amended Complaint and its Exhibits, we determine that Plaintiff has met his burden to convince us that Defendants acted beyond their official capacity and outside the scope of their authority when they terminated Plaintiff’s Agreements and failed to compensate Plaintiff for the services he rendered in June 2012. Accordingly, we conclude that the Second Amended Complaint alleges facts sufficient to persuade us that Defendants are not protected by sovereign immunity in connection with Count One of the Second Amended Complaint.

Ninth Circuit Briefs in Pala Disenrollment Appeal — Allen v. Smith

Here:

(August 9 2013) Appellants_ Opening Brief

Answering Brief 11-8-13

Lower court materials here.

Additional Tribal Court Materials in Nooksack Tribal Disenrollment Case — Second Emergency Motion for TRO

Here are the new materials in Lomeli v. Kelly (Nooksack Tribal Ct.):

Second Emergency Motion for Temporary Restraining Order

Defendants’ Response in Opposition to Second Emer Motion for TRO

Reply in Support of Second Emergency Motion for TRO

Tribal Court Order Denying Second TRO Motion re Election

Tribal Court Order Denying Second TRO Re General Special Meetings

Prior posts here, here, here, and here.

Update in Nooksack Membership Dispute

News coverage here. Previous post on the recent tribal court litigation. And an update on tribal court filings:

Second Declaration of Gabriel S. Galanda

And a federal complaint alleging FOIA violations by the Bureau of Indian Affairs — St. Germain v. Dept. of Interior (W.D. Wash.):

St Germain v Interior Complaint

 

Tribal Court Denies Injunction in Nooksack Disenrollee Challenge

Here are the materials available in Lomeli v. Kelly (Nooksack Tribal Court):

Order Denying Motion for Preliminary Injunction

Defendants Response Brief in Opposition to Plaintiffs Emergency Motion for T

Reply in Support of Plaintiffs Emergency Motion for TRO

Federal Court Dismisses Pala Band Membership Claims On Sovereign Immunity Grounds

Here are the materials in Allen v. Smith (S.D. Cal.):

17.1 – Defendants’ Memorandum Supporting Motion to Dismiss

18 – Plaintiffs’ Opposition to Motion to Dismiss

23 – Defendants’ Reply Supporting Motion to Dismiss

26 – Plaintiffs’ Notice of Recent Authorities

28 – Defendants’ Response to Notice of Recent Authorities

31 – Plaintiffs’ Notice of Additional Recent Authorities

33 – Defendants’ Response toNotice of Additional Recent Authorities

36 – District Court Order Dismissing Action

Judge William Q. Hayes of the Southern District of California ruled that sovereign immunity barred claims against the Pala Band of Mission Indians seeking enrollment in the Tribe and money damages. Importantly, the court distinguished the Ninth Circuit’s recent decision in Maxwell v. San Diego County.

Here are some key excerpts:

The Maxwell court distinguished the facts of its case from Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985), a case where the plaintiff sued tribal council members for allegedly ordering tribal police to eject plaintiff from tribal land. Id. at 478. The Court of Appeals for the Ninth Circuit in Hardin concluded that the council members “had act[ed] in their representative capacity and within the scope of their authority.” Id. at 479. “Holding the defendants [in Hardin] liable for their legislative functions would … have attacked the very core of tribal sovereignty.” Maxwell, 2013 WL 542756 at *12.

. . .

Based upon the “essential nature and effect” of the injunctive and declaratory relief sought in the Complaint, the Court finds that the Pala Tribe is the “real, substantial party in interest” in this case. Maxwell, 2013 WL 542756 at *11. Only the Pala Tribe, whose sovereign immunity is unquestioned, could satisfy the relief sought in the Complaint, i.e. the reinstatement of Plaintiffs as members of the Tribe. Defendants, as members of the Executive and Enrollment Committees, “possess the power” to grant Plaintiffs that relief “on behalf of the tribe.” Id. Accordingly, the Court finds that this action, as alleged, is fundamentally one against the Pala Tribe and that Plaintiffs have sued the individual Defendants in their official capacities.

. . .

The Court finds that the relief sought in this Complaint would “require affirmative action by the sovereign,” i.e. the Pala Tribe’s re-enrollment of Plaintiffs. Larson, 337 U.S. at 691 n.11. Such a remedy would operate against the Pala Tribe, impermissibly infringing upon its sovereign immunity. See generally Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005) (“Courts have held that tribal immunity bars suits to force tribes to comply with their membership provisions, as well as suits to force tribes to change their membership provisions.”(citations omitted)); Santa Clara Pueblo, 436 U.S. at 72 n.32 (“A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community…. Given the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters.”); Imperial Granite Co., 940 F.2d at 1272 (“[A] tribe’s immunity is not defeated by an allegation that it acted beyond its powers.”). Based upon the factual allegations of the Complaint and the nature and effect of the relief sought, the Court concludes that Defendants acted in their official capacities and within the scope of their authority when they made the membership determinations at issue in this case.