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
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
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.
Here is the order:
Maxwell v. County of San Diego (9th 2013)
An excerpt:
The panel has voted to deny the petition for rehearing in case number 10-56671; Judges Clifton and Ikuta vote to deny the petition for rehearing en banc, and Judge Farris so recommends. Judges Farris and Clifton vote to deny the petition for rehearing in case number 10-56706; Judge Clifton votes to deny the petition for rehearing en banc, and Judge Farris so recommends. Judge Ikuta votes to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. Fed. R. App. P. 35. The petitions for panel rehearing and the petitions for rehearing en banc are DENIED.
Earlier materials are here: panel opinion materials and en banc petition.
You’ll recall the panel opinion here found that tribal employees have no official immunity for official actions.
Here are the en banc petition materials:
Yocha Dehe Wintun Nation Amicus Brief
Maxwell Response to En Banc Petition
Maxwell Supplemental Authorities Letter
The petition is still pending, but perhaps the Miller v. Wright amendment is evidence that the Ninth Circuit could take this case for en banc review.
You read that right. A troubling case for tribal governments. Here the tribal workers were operating under a public safety cooperative agreement authorized under California statute in which the tribal government expressly reserved immunity.The facts truly are tragic — and bad facts make bad law. I’d say the fact that there’s a dissent is helpful, except our dissenter doesn’t object to the immunity holding.
The opinion in Maxwell v. County of San Diego is here. An excerpt:
In short, our tribal sovereign immunity cases do not question the general rule that individual officers are liable when sued in their individual capacities. We see no reason to give tribal officers broader sovereign immunity protections than state or federal officers given that tribal sovereign immunity is coextensive with other common law immunity principles. See Santa Clara Pueblo, 436 U.S. at 58. We therefore hold that sovereign immunity does not bar the suit against the Viejas Fire paramedics as individuals. The Viejas Band is not the real party in interest. The Maxwells have sued the Viejas Fire paramedics in their individual capacities for money damages. Any damages will come from their own pockets, not the tribal treasury. See Alden, 527 U.S. at 757.
This is incredibly glib discarding of Ex parte Young should worry tribal governments everywhere.
Briefs are here:
Here:
Reed v Gutierrez Cert Petition
Lower court materials here.
Questions presented:
I. Should the doctrine of tribal sovereign immunity be abrogated?
II. Even if the doctrine of tribal sovereign immunity should not be abrogated, should it bar claims against Indian tribes or their employees for their off-reservation torts?
Here is the complaint in Ventura v. Snoqualmie Indian Tribe (W.D. Wash.): Ventura Complaint.
Here is the opinion in Murgia v. Reed — Murgia v. Reed (9th 2009)
Our earlier post on this case is here (including lower court materials and appellate briefs).
Thanks to T.M.!
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