This can be what happens when you sue someone while represented by an attorney who is not licensed in the proper state bar. The court dismissed the tort claim against the tribe because the attorney wasn’t licensed in California, but noted it would have dismissed the claim for lack of subject matter jurisdiction, too.
In this short order, the Appellate Division of the New York State Supreme Court reads the tribal waiver of sovereign immunity closely, holding that while the portion of the contract that reads
defendant “hereby expressly, unequivocally, and irrevocably waives its sovereign immunity from suit solely for the limited purpose of enforcement of the terms of this Agreement”
does indeed waive the Nation’s sovereign immunity in this matter, the portion that reads
[defendant] hereby consents to submit to personal jurisdiction of those courts of the State of New York and of the United States with competent subject matter jurisdiction located in the City of Syracuse, New York and the parties agree that all actions related to this Agreement shall be brought or defended in such courts ” (emphasis added).
means that the suit can only be brought in the City of Syracuse, not in Oneida County. This order overturns the lower court ruling which denied dismissal.
This case, in the District Court for South Dakota, involves the question of whether the Standing Rock/Fort Totten Community School is entitled to tribal sovereign immunity or whether it has lost its tribal character. This is a discovery order opening up discovery on the question. The underlying question involves a tort claim against the school — sexual harassment.
This case is a wild one. In it, the U.S. is suing Menominee Tribal Enterprises under the False Claims Act for over a million in damages. Bad news. Paraphrasing the DCT here, MTE responded with a very aggressive defense, with massive discovery requests a major feature. Then MTE posts the papers it receives on its website (here). The Menominee Indian Tribe is involved because one of their council members has been subpoenaed by MTE.
From the DCT’s order:
the United States’ motion for a protective order barring MTE’s dissemination of discovery materials on its website and its motion to seal the deposition of Douglas Cox are denied. The Tribe’s motion to quash the subpoena compelling the deposition of Lisa Waukau is granted, and MTE’s motion to compel the production of BIA invoices, invoice review policies, and related documents is denied.
Complaint [there are answers and counterclaims, too, but I’ll leave those out]
Menominee Tribe Motion for Protective Order [council member subpoena]
Here, the Minnesota Court of Appeals in an unpublished decision declined to dismiss a claim for tortious interference with contract and other claims, denying a Rule 19 (state law) motion. From the opinion:
Appellant challenges the district court’s denial of her motion to dismiss respondent’s complaint on the ground that it is barred by the doctrine of sovereign immunity. Appellant asserts that the Shakopee Mdewakanton Sioux Community (the tribe) is an indispensable party to the suit and that, because the tribe cannot be joined, the suit must be dismissed. We conclude that the tribe is neither a necessary nor an indispensable party and therefore affirm the district court’s decision.
Slip op. at 2.
The underlying dispute arose when the nonmember tribal casino employee was barred from the casino by the tribal court (and therefore terminated). The state trial court made disturbing statements about the tribal court, but the COA, while troubled, did not find those statements sufficient to reverse:
We agree that the district court’s comments are troubling. “‘Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.'” St. Pierre v. Norton, 498 F. Supp. 2d 214, 221 (D.D.C. 2007) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66, 98 S. Ct. 1670, 1680-81 (1978)); see also Lewis v. Norton, 424 F.3d 959, 962 (9th Cir. 2005) (“The issue is not whether the plaintiffs’ claims would be successful in these tribal forums, but only whether tribal forums exist that could potentially resolve the plaintiffs’ claims.”). The district court’s suggestion that the tribal courts could not provide an adequate alternative forum for Shepherd’s claims lacks foundation. The fact that Shepherd is the subject of a no-trespass order by the tribe does not necessarily mean that she cannot receive a fair trial of her claims against Stade in tribal court.
Slip op. at 10.
The district court for the Central District of California dismissed the FMLA claim on grounds of sovereign immunity. Other claims, including defamation, were dismissed without prejudice on the tribal court exhaustion doctrine. And, under tribal law, the casino immunity was waived.
havasu-landing-motion-to-dismiss
The case is In Re DeCora. It involves a Ho-Chunk member declaring bankruptcy and whether the Ho-Chunk Nation Bank’s interest in the member’s per cap proceeds were secured. The opinion is a little entertaining, beginning with a reference to Frank Zappa:
Musician and satirist Frank Zappa once quipped that “Communism doesn’t work because people like to own stuff.” Whether this is an accurate take on geopolitical realities or not, the concept of personal property rights is certainly deeply ingrained into American culture and jurisprudence. In America, people may own all the stuff they can afford, and they can sell or give their stuff to someone else. Even when life doesn’t take Visa (or some other unsecured form of credit), people find ways to use their stuff as collateral for loans so that they can run out and buy more stuff. The present case involves competing interests in an intangible bit of stuff that this Court has encountered before-namely, a debtor’s right to receive tribal per capita distributions from tribal gaming revenues. The debtor used his right to future distributions as collateral for a loan so that he could afford, among other things, a new car. The question is whether the creditor took sufficient steps to protect its security interest from challenge.
The court also cites to numerous Ho-Chunk tribal court opinions. For example:
Third, the tribal courts of the Ho-Chunk Nation have themselves indicated that tribal members have a right to per capita distributions, if and when they are made, as long as that member is on the rolls of the Ho-Chunk Nation. See Kedrowski, 284 B.R. at 448-49; Hendrickson v. HCN Enrollment, CV 99-10 (Ho-Chunk Nation Trial Court 1999).
Here are the materials:
While the chances for this petition on tribal sovereign immunity to be granted seem pretty slim, who knows? The cert petition briefs are all in and available here. We’ll know after the conference on May 8, 2008.
Turtle Talk 
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