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.
tribal sovereign immunity
US v. Menominee Tribal Enterprises — Discovery Abuses and Tribal Sovereign Immunity
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]
Shepherd v. Slade — Mystic Lake Casino Employee Dispute
Here, the Minnesota Court of Appeals in an unpublished decision declined to dismiss a claim for tortious interference with contract and other claims, denying a Rule 19 (state law) motion.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.
Lobo v. Miccosukee — CA11 Rejects FLSA Claim
Mullally v. Havasu Landing Casino — FLMA Claim Against Tribal Casino
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
Gaming Per Cap Bankruptcy Proceeding
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:
Carls v. Blue Lake Housing Authority Cert Petition Briefs Filed
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.
Missouri Courts Interpret Tribal Sovereign Immunity for First Time
The case is Ogden v. Iowa Tribe of Kansas and Nebraska. From the opinion:
In March of 2006, Larry Ogden, after communication with the tribal chairman of the “Iowa Tribe Executive Committee,” moved to Missouri to accept employment as manager of a truck stop near I-29 in Holt County, Missouri, known as the “Squaw Creek Eagles Nest Plaza.” Several months later, Ogden was terminated from employment. Ogden sued the “Iowa Tribe of Kansas and Nebraska” (“Iowa Tribe”) for breach of an employment agreement and for wrongful discharge. The Iowa Tribe filed a motion to dismiss the petition based upon tribal sovereign immunity. The trial court granted the motion to dismiss. Ogden appeals. We affirm.
Carls v. Blue Lake Housing Authority Cert Opp
The rest of the materials are here.
Colorado ex rel. Suthers v. Cash Advance — Rent a Tribe Case
We have written about this case before — the question of whether Cash Advance and others who are part-owned by Indian tribes can avoid suit from the Colorado AG for unfair consumer practices (yecch).
The Colorado Court of Appeals reversed the trial court’s decision not to quash the subpoena directed against the tribe-owned Cash Advance defendant in this opinion — cash-advance-colorado-coa-opinion
The appellate briefs are here, and an additional amicus brief is here — amicus-brief-supporting-cash-advance (strangely, the brief doesn’t actually say who the amicus is…).
Turtle Talk 
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