tribal sovereign immunity

An excerpt:

Michael Antonio (Worker) appeals from an order of dismissal entered by the Workers’ Compensation Administration (WCA) for lack of subject matter jurisdiction. On appeal, Worker alleges that (1) the WCA erred in determining that Worker’s injury occurred on the Mescalero Apache Tribe reservation (Tribe) and that the Tribe was not conducting business within the State of New Mexico; and (2) the WCA had jurisdiction by default because the Tribe did not have a workers’ compensation program in effect at the time of Worker’s injury, and the compensation that was provided to Worker was not as good as the compensation required by the New Mexico Workers’ Compensation Act. We conclude that the WCA did not have jurisdiction over the Tribe because the Tribe did not expressly waive sovereign immunity and, therefore, the WCA’s order reached the right result for the wrong reasons. See Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256,208 P.3d 901 (noting that we may affirm on grounds not relied upon if those grounds do not require us to look beyond the factual allegations that were raised and considered below). Weaffirm.

Tribal Brief in Hollywood Mobile Estates v. Cypress 11th Circuit Appeal

December 16, 2010Matthew L.M. Fletcher1 Comment

Here: Appellee Brief.

The remainder of the briefs and lower court materials are here.

Salt River Project Federal Challenge to Navajo Labor Relations Board Dismissed

December 8, 2010Matthew L.M. Fletcher1 Comment

Here are the materials in Salt River Project Agricultural Improvement and Power District v. Lee (D. Ariz.):

DCT Order Dismissing Claim

Navajo Exhaustion Motion to Dismiss

Navajo Rule 19 Motion to Dismiss

Salt River Motion for Summary Judgment

This case is on remand from the Ninth Circuit — and that order is here.

Oneida Waives Immunity in Madison County v. OIN Suit Pending before the Supreme Court

December 3, 2010Matthew L.M. Fletcher2 Comments

To say the least, an interesting development.

Here is the letter referencing the OIN ordinance waiving immunity irrevocably: 2010_11_30 Letter to Clerk re Declaration and Ordinance.

Madison County’s opening merits brief is due today.

Colorado Supreme Court Largely Affirms Tribal Immunity in Cash Advance Decision

November 30, 2010Matthew L.M. Fletcher1 Comment

Here is the opinion. Briefs are here and here.

And here is the Court’s syllabus:

In this tribal sovereign immunity case, the Colorado Supreme Court affirms the court of appeals’ decision to remand the case to the trial court to determine whether Cash Advance and Preferred Cash Loans act as arms of the Miami Nation of Oklahoma and the Santee Sioux Nation, respectively, such that their activities are properly deemed to be those of the tribes. As an initial matter, the court holds that tribal sovereign immunity applies to judicial enforcement of state investigatory actions, including this state investigative subpoena enforcement action. Because the trial court arrived at a contrary conclusion, a remand is necessary to determine whether Cash Advance and Preferred Cash Loans are arms of their respective tribes such that their activities are properly deemed to be those of the tribes.

In determining whether Cash Advance and Preferred Cash Loans are arms of their respective tribes, the trial court shall consider the following three factors: (1) whether the tribes created the entities pursuant to tribal law; (2) whether the tribes own and operate the entities; and (3) whether the entities’ immunity protects the tribes’ sovereignty. The state bears the burden of proving, by a preponderance of the evidence, that Cash Advance and Preferred Cash Loans are not entitled to tribal sovereign immunity.

Additionally, the supreme court disagrees with the court of appeals’ determination that tribal sovereign immunity does not extend to tribal officers engaged in conduct allegedly violating state law. Instead, the appropriate determination with respect to individual tribal officers is whether they acted within the scope of their lawful authority, as defined by the tribe and limited only by federal law.The supreme court further disagrees with the court of appeals’ to the extent it would recognize a waiver of sovereign immunity that is not explicit and unequivocal. The court of appeals directed the trial court to look for a waiver of tribal sovereign immunity in a broad range of sources, including a contractual arbitration clause between Cash Advance or Preferred Cash Loans and Colorado customers. The court, however, finds it unlikely that an explicit and unequivocal waiver of tribal sovereign immunity would be found in such an arbitration clause.

Continue reading →

Federal Court Effectively Orders California Gaming Tribe into Arbitration over Negligence Claim

November 29, 2010Matthew L.M. Fletcher

Here are the materials in Saroli v. Agua Caliente Band of Cahuilla Indians (S.D. Cal.):

Agua Caliente Motion to Dismiss

Saroli Opposition to Motion to Dismiss

Agua Caliente Reply

DCT Order on Agua Caliente Motion to Dismiss

An excerpt:

Section 10.2(d) of the Amended Compact provides that Defendant consents to arbitrate personal injury claims and that Defendant agrees to waive sovereign immunity “in any action brought in federal court … to (1) enforce the parties’ obligation to arbitrate, (2) confirm, correct, modify, or vacate the arbitral award rendered in the arbitration, or (3) enforce or execute a judgment based upon the award.” (Compl., Ex. A at § 10.2(d)(ii).) The parties submit no other documents showing a waiver of sovereign immunity. Based on the plain and express language of Section 10.2(d) above, the Court finds that, at most, Defendant has agreed to a limited waiver of sovereign immunity for claims relating to arbitration. The issue is now whether Plaintiff’s claims fall under this waiver.

Russell v. Pyle — IFP Claim against Choctaw Nation Dismissed Sua Sponte

November 22, 2010Matthew L.M. Fletcher

Here is the opinion: Russell v Pyle.

N.M. Appellate Court Affirms Immunity of Tribal Official Acting Off-Reservation

November 16, 2010Matthew L.M. Fletcher2 Comments

Here is the unpublished opinion in Reed v. Gutierrez.

An excerpt:

In this case, we determine whether the doctrine of tribal sovereign immunity shields Defendant Pueblo of Santa Clara, New Mexico (the Pueblo) and its employee, Defendant Robert Gutierrez, from liability for an off-reservation tort. We hold pursuant to Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S.7 751 (1998), that they are immune from the claims of Plaintiffs Peggy and Timothy Reed and affirm the district court.

One Fire Dept. Challenges Another Fire Dept.’s Tribal Agreement in Cal. Appellate Court

November 14, 2010November 13, 2010Matthew L.M. Fletcher

Interesting case, with Rule 19 a major player.

Here is the opening brief in El Dorado/Diamond Springs Fire Protection District v. El Dorado Fire Protection District (Cal. App. 3rd Dist.): Diamond Springs Opening Brief.

The agreement involves the Shingle Springs Band of Miwok Indians.