Here is the opinion in Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc. — Memphis Biofuels v Chickasaw Nation Industries CA6 Opinion
Lower court materials and appellate briefs are here.
The court first concluded that Section 17 corporations do not automatically waive immunity: Continue reading
Here is the opinion in Guzman v. Laguna Development Corp., decided in June. An excerpt:
David and Maria Guzman (the Guzmans) appeal the dismissal of their wrongful death and loss of consortium claims for the death of their son, Anthony M. Guzman. The district court both dismissed (pursuant to Rule 1-012(C) NMRA) and granted summary judgment in favor of the Defendants Laguna Development Corporation, d/b/a Route 66 Casino, George Russell Kainoa Ayze, and St. Paul Fire and Marine Insurance Company (Defendants). We reverse and remand holding that: (1) summary judgment was not proper because Defendants are estopped from taking a position before the district court inconsistent with their successful position before the Workers’ Compensation Administration, and (2) dismissal was not proper because the Guzmans’ complaint sufficiently pleads claims that fall within the Laguna Pueblo’s waiver of sovereign immunity for injuries to visitors at the casino, pursuant to its gaming compact with the State of New Mexico. NMSA 1978, § 11-13-1 (1997) (the Compact).
Here is the opinion in this long-running dispute involving the Unkechauge Poospatuck smoke shop–Gristede Foods v. Unkechauge Poospatuck Smokeshop (E.D. N.Y.). Here, the court holds that the tribe is immune from suit, having demonstrated that it meets the Montoya test for tribal sovereignty — Gristede’s Foods DCT Order
An excerpt:
In light of the foregoing analysis of the evidence, the court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a “tribe” and is entitled to immunity from suit in the present action. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Turner v. United States, 248 U.S. 354, 358 (1919). Supreme Court cases “recognize that the Indian tribes have not given up their full sovereignty” which is “of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete deference. But until Congress acts, the tribes retained their existing sovereign powers.” United States v. Wheeler, 435 U.S. 313, 322-323 (1978). There is no evidence that the Unkechauge waived or abandoned their tribal immunity or that Congress has abrogated the immunity of the Unkechauge. Because the Unkechauge is a tribe pursuant to federal common law, they enjoy sovereign immunity. Thus, in the absence of a waiver or congressional abrogation of immunity, the court lacks subject matter jurisdiction to determine plaintiff’s claims against the Tribe.
However, the smokeshop itself is not immune, the court applying a common law test to determine whether the smokeshop is an arm of tribal government:
The Poospatuck Smoke Shop has not satisfied these criteria. The only evidence that the Smoke Shop submitted in support of its status as an entity of the Unkechauge is Chief Wallace’s testimony that businesses on the Unkechauge tribal grounds must be licensed by the tribal council. (Wallace Tr. at 85, 157; 12/22/08 Oral Arg. Tr. at 41.) This testimony does not satisfy the above factors by a preponderance of the evidence for establishing that the Smoke Shop is an arm of the tribe. Therefore, the Poospatuck Smoke Shop’s motion to dismiss is denied.
Despite what this article states, this case is far from “novel” — there are numerous opinions all holding that tribes retain immunity, except a lone outlier — Oklahoma — which can be (perhaps) distinguished on the basis that that state’s gaming compacts purportedly waive immunity.
Another thing not emphasized by this opinion — the plaintiff has remedies in tribal court (!).
From Law.com:
In what could become a first-in-the-nation test, a young Waterford, Conn., woman injured by a drunk driver is challenging the sovereignty of Connecticut’s Mohegan American Indian tribe. She is arguing the tribe should be liable in state courts if it lets patrons get so dangerously drunk that they then injure or kill other people.
Currently, the Mohegan and Mashantucket Pequot tribes are immune from being sued in state court for ordinary negligence matters, including so-called “dram shop act” violations. Those violations can cost a bar up to $250,000 if patrons are permitted to get too intoxicated and harm others.
Special tribal courts handle basic civil matters arising on lands controlled by the Mohegan and the Mashantucket Pequot tribes, both of which operate large casinos in southeastern Connecticut. The tribes claim immunity from negligence suits in state courts as a feature of their status as federally recognized sovereign Indian nations. Continue reading
Here is the New Mexico Court of Appeal’s opinion in Martinez v. City of Gold Casino, owned by the Pojoaque Pueblo. The New Mexico Supreme Court recently declined to review this case. It’s a bit confusing. It seems to hold that the Pueblo, and the Buffalo Thunder Development Authority have not waived immunity from suit, but that the Pojoaque Gaming, Inc. (PGI) entity has. And that the petitioner, Martinez, was fired only after he brought a worker’s comp claim in the state system. The court orders PGI to rehire Martinez to a job similar to his old one, while acknowledging that the Pojoaque gaming regulators probably won’t give him his gaming license back.
Here are additional appellate materials in Colorado ex rel. Suthers v. Cash Advance (Colo. SCT) (opening brief here):
Some heavy anti-tribal/anti-payday loan amici here….
From ICT (thanks to Jason):
I am likely breaking some sort of gaming taboo discussing the topic of bankruptcy, however, with the current state of the economy, struggling to recover from the collapse of the financial markets, the bankruptcy filings of the Trump, Tropicana, Fontainebleau casinos, and the recent bankruptcy filing of gaming powerhouse Station Casinos, a discussion of bankruptcy law seems timely.
The gaming industry, once thought of as “recession proof,” is showing cracks in its armor, as gaming revenues have fallen in local hubs, like Las Vegas and New Jersey, and in distant places like Macau. Indian gaming has not been unscathed; gaming revenues for Indian casinos, while presently stable, have experienced a reduction over the past couple of years, causing significant belt tightening in Indian country.
Causes of Casino Bankruptcies
The causes are as abundant as bad business decisions. Typically, a bankruptcy filing occurs when business expenses and other liabilities exceed cash flow or assets, and creditors come banging at the doors to demand collateral. In the gaming industry, it’s easy to exceed available cash flow. This can occur prior to a casino’s opening if construction or development costs unexpectedly escalate.
Similarly, it may arise after opening if an expansion project suddenly goes sideways. As most casinos are heavily leveraged at the outset, for obvious reasons, a number of causes, whether it be an economic downturn or poor marketing and management, can result in lower revenues and a redlined EBITDA.
Additionally, missing a single debt payment can trigger a loan agreement’s immediate repayment clause or, in certain cases, gaming license suitability issues. Either of these can result in a parade of financial repercussions. Finally, casino operators and management groups may also over-extend themselves by purchasing competitors or expanding gaming holdings in untapped domestic or foreign markets.
The Kickapoo Tribe of Kansas has filed a motion to dismiss a claim by a former tribal employee that he was entitled to Indian preference before being fired as a casino manager (news article via Pechanga here). The case is Namomantube v. Kickapoo Tribe of Kansas.
Given the interest in our sovereign immunity posting (here), this case is also worth watching to some extent. We don’t have the pleadings, but this news article has much of the relevant info. The case, filed in a trial court in Florida, involves an employment contract and an alleged waiver of immunity by the chairman. The tribe’s defense:
In a motion to dismiss the suit, tribe leaders say Hendricks acted alone and did not have the authority to waive tribal immunity, according to court documents.
“The contract does not contain or attach a vote or resolution of the council,” the tribe’s motion states. Under the tribe’s constitution, the full council must vote to waive its sovereignty, lawyers for the tribe argue.
Here is the tribal constitution (see article XV).
Since we started this blog in fall 2007, there have been a plethora of tribal sovereign immunity federal and state court decisions. Most of them are routine — slips and falls, internal tribal disputes — but a handful of these cases are worth watching because of the subject matter and the general uniqueness of the problem.
Oklahoma gaming compacts — the Oklahoma Supreme Court has been interpreting the Class III Oklahoma gaming compacts as virtual waivers of immunity, in almost comically formalistic ways. These compacts, passed by the state’s voters, are a take-it-or-leave-it prospect for tribes. They allow for suits against the tribes in a court of “competent jurisdiction,” which the Oklahoma court has interpreted to mean state courts. Opinions here and here.
Dram Shop Actions — Again, these would not be unusual except the Oklahoma Supreme Court has found a waiver of immunity in state courts for dram shop actions. That case, Bittle v. Bahe, conflicts with the decisions of several other courts (discussion here).
Bivens Actions against tribal cops — A federal common law cause of action against tribal officers gained ground in federal district court, but didn’t get so far in the circuits (here and here).
Section 1983 claims against tribal cops — Did gain ground (here).
Payday loan operations — Currently up for review in the Colorado Supreme Court are franchises owned by two tribes doing business as payday loan operators and attempting to avoid state process and investigation (here). A related California case is here.
Tribal fee lands — A Washington court held that it continues to have in rem jurisdiction over tribally-owned fee lands (here).
Cherokee Freedmen case — the D.C. Circuit allowed the Vann lawsuit to proceed against tribal officials under the Ex parte Young theory, but more or less vacated the district court’s theory that the 13th Amendment somehow abrogated tribal sovereign immunity.
Turtle Talk 
You must be logged in to post a comment.