tribal sovereign immunity – Page 113

Ninth Circuit Affirms Dismissal of Contract Breach Claim against Pyramid Lake Paiute

August 6, 2009Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in High Desert Recreation v. Pyramid Lake Pauite Tribe of Indians. An excerpt:

In addition, both Supreme Court precedent and that of this court hold that Indian tribes enjoy sovereign immunity from suits on commercial contracts, whether made on or off a reservation, so long as the subject business activity functions as an arm of the tribe. See Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); Allen, 464 F.3d at 1046-47. Since (a) the Tribe is a party to the lease alleged in this case, (b) the lease contemplates the use of marina property owned by the Tribe and is located on the tribal reservation, (c) economic advantages of both the lease and the operation of HDR’s business inure to the Tribe’s benefit, and (d) immunity under the lease protects the Tribe’s treasury from HDR’s suit for over one million dollars in compensatory and punitive damages, the business transacted via the lease is properly deemed an activity of the Tribe for sovereign-immunity purposes.

Federal Court Dismisses Civil Rights Claims against Seminole Tribe

August 4, 2009Matthew L.M. Fletcher

Here is the opinion in Perry v. Seminole Tribe of Florida (M.D. Fla.) — Perry DCT Order

And the Tribe’s motion to dismiss — Seminole Motion to Dismiss

One of the named defendants is a tribal cop with the coolest name we’ve ever seen for a law enforcement officer — Johnny Nuckles.

N.M. Court of Appeals Dismisses Tort & Privacy Claims against Tribe

June 26, 2009Matthew L.M. Fletcher

Here is the New Mexico Court of Appeals opinion in Holguin v. Tsay Corp. An excerpt:

We can see no basis on which the district court could have appropriately denied Tsay’s motion to dismiss as to the two counts of invasion of privacy. Holguin has presented no argument or authority that overcomes the controlling law requiring physical injury or damage. We are unpersuaded by Holguin’s argument that use of his name and likeness is no different than if he were robbed of his jewelry and money at gunpoint. We leave that hypothetical, which, unlike the present case, involves threat, risk, and potential of physical harm, for another day. Presently, we are dealing solely with an alleged emotional injury resulting from an alleged inchoate, incorporeal invasion of his privacy. We cannot characterize Holguin’s claim as one for damages for physical injury to himself or physical damage to property, and thus cannot characterize the claim as one for bodily injury or property damage.

Absentee Shawnee Attempt to Dismiss State Court Bittle v. Bahe Litigation Fails

June 25, 2009Matthew L.M. Fletcher

Here is the district court order in Absentee Shawnee v. Combs (W.D. Okla.) — Absentee Shawnee DCT Order.

The tribe had been the defendant in Bittle v. Bahe, in which the Oklahoma Supreme Court held 7-2 that dram shop actions filed against tribal casino operations are not barred by tribal sovereign immunity. The tribe brought this action in federal court to force the dismissal of the state court action, but failed. Here are the materials:

Combs Motion to Dismiss

Absentee Shawnee Response to Combs

Bittle Motion to Dismiss

Absentee Shawnee Response to Bittle

API v. Sac and Fox — Court Finds Tribal Court Jurisdiction over Nonmembers

June 24, 2009Matthew L.M. Fletcher

Here is the district court order granting the tribe’s motion to dismiss a challenge to the tribal court’s jurisdiction in this long-running intratribal dispute — DCT Order on Cross Motions

The pleadings are here.

An excerpt:

API’s conduct imperiled the Tribe’s political integrity. In essence, API invaded the Tribe’s land to quell an intra-tribal governmental dispute. API argues this intra-tribal dispute was merely incidental to the raid. API contends that, if the court finds the raid imperiled the Tribe’s political integrity, any action taken by a non-member on tribal land during an intra-tribal governmental dispute would justify a court’s invocation of the second Montana exception. The court disagrees. API’s actions were made and intended to be a direct challenge to the Bear Council. API raided the Casino on behalf of the Walker Council, which was not the Tribe’s true governing authority. API conducted the raid pursuant to the Agreement, and the Agreement’s terms indicate the services API was expected to provide related directly to the Tribe’s governmental affairs. See Agreement at P I.2.A (stating API “shall perform services directly relating to the investigation of a takeover by dissidents at the [Casino] located on the Tribe’s reservation lands” and “[i]nvestigat[e] [. . .] individuals involved in the unlawful acts against the Tribal Government”). In other words, API was hired to assist in the resolution of an intra-tribal governmental dispute, which strikes at the heart of the secondMontana exception. The fact API believed it was operating with the consent of the Tribe’s governing authority, that is, the ousted Walker Council, has no effect on the application of this exception. In truth and in fact, API raided the Casino specifically to weaken one side of an intra-tribal governmental dispute, which happened to be the Bear Council, the Tribe’s true governing body. This is an act with potentially catastrophic consequences to the Tribe’s government. The court concludes this merits the application of the protective prong of the Montana exception and that the Tribal Court’s exercise of civil jurisdiction over API was proper.

Sports Law and Indian Country

June 23, 2009Matthew L.M. Fletcher

Here is Gabe Galanda’s new article on doing sports business in Indian Country — Entertainment and Sports Lawyer

Seneca Allowed to File Amicus in Challenge to Seneca Gaming Laws

June 19, 2009Matthew L.M. Fletcher

Here is the district court order in Warren v. United States (W.D. N.Y.) — DCT Order re Seneca Amicus Motion

Seneca Motion for Leave & Amicus Brief

Washington Appellate Court Rejects Tribal Immunity in Land Case

June 3, 2009Matthew L.M. Fletcher1 Comment

Here is the opinion in Smale v. NORTEP, a Washington Court of Appeals (Div. 1) case involving the Stillaguamish Tribe. Here is an excerpt:

The Smales sought to quiet title to property they claimed they had acquired through adverse possession and named Noretep, the original non-Indian owners, as defendants. After the Smales sued, Noretep deeded the disputed property to the Stillaguamish Tribe of Indians (the Tribe), and the Smales named the Tribe as a defendant. In its unsuccessful motion to dismiss, the Tribe claimed that tribal sovereign immunity deprived the superior court of subject matter jurisdiction. Because courts exercise in rem jurisdiction over the property subject to quiet title actions, our Supreme Court has held that transferring the disputed property to a tribal sovereign does not bar the continued exercise of subject matter jurisdiction over the property. Accordingly, we hold that the superior court’s continuing jurisdiction over the land claimed by the Smales for the purposes of determining ownership does not offend the Tribe’s sovereignty.

Nahno-Lopez v. Houser — Land Claim against Fort Sill Tribal Council

May 30, 2009Matthew L.M. Fletcher1 Comment

Here are the materials in this claim against the Fort Sill Apache Tribal Council in their individual capacities. The claims are by Kiowa and Comanche tribal members. The Western District of Oklahoma concluded that the claims may proceed against the tribal council in their individual capacities.

Nahno-Lopez DCT Order

Houser Motion to Dismiss

Houser Motion to Strike

Nahno-Lopez Response Brief

Houser Reply Brief

Houser Motion to Strike