This case involves the tribal sovereign immunity of the Blue Lake Housing Authority. It is being appealed out of the California state court system. Here are the materials so far:
Cert Petition in Carls v. Blue Lake Housing Authority
Unpublished Cal COA (3rd) Opinion
As Trent noted, the Oklahoma Supreme Court held 7-2 that dram shop actions filed against tribal casino operations are not barred by tribal sovereign immunity in Bittle v. Bahe. This decision conflicts with decisions of other state courts, including those of Arizona (Filer v. Tohono O’odham Nation), Texas (Holguin v. Ysleta del Sur Pueblo), and Washington (Foxworthy v. Puyallup). And, as we know by reading Rule 10 of the United States Supreme Court rules, the Supreme Court is predisposed toward hearing cases in which there is a split of lower court authority involving an important federal question.
This may be a troubling development, though perhaps not as a result of this case. If the tribe refuses to petition the Supreme Court for certiorari, then this case will be over. Moreover, even if the tribe petitions, the Court might let this one go because of lower court outcome isn’t troublesome to the Court.
The question is whether Congress abrogated tribal immunity from suits for “dram shop” liability when it enacted 18 USC 1161. Plaintiffs in several states have argued that it did, relying on the statute and the Supreme Court’s opinion in Rice v. Rehner. Until yesterday, no appellate court had agreed with that argument. The appeals courts of Arizona, Texas, and Washington have all found that 1161 does not amount to Congressional abrogation of tribal immunity, and that a tribe does not waive its immunity by getting a state issued liquor license. The plaintiff in the Washington case has petitioned the State Supreme Court for review–that petition is still pending.
I think the argument fails regardless of what the state’s laws say, but what makes this even more disturbing is that Oklahoma’s “dram shop” laws don’t even provide for a 3rd party suit as a method of regulation. In some states the liquor laws specifically provide for 3rd party suits as a means of enforcement, others, including Oklahoma, do not. What the Oklahoma court found was that 1161 abrogated tribal immunity from private tort suits based on a negligence theory simply because a violation of a liquor regulation was alleged.
This is a case out of the Second District of the California Court of Appeals. The question was whether Congress intended to waive the sovereign immunity of Indian tribes in the US Bankruptcy Code. There appears to be a split of authority on the subject, with the Ninth Circuit [Krystal Energy Co. v. Navajo Nation] saying yes, and the Tenth Circuit [In re Mayes] and an Iowa district court [In re National Cattle Congress] saying no. The Cal. App. followed the Ninth Circuit case. It is unpublished.
Here are the materials:
This is tribal sovereign immunity case. The district court granted the tribe’s motion to dismiss. Here are the materials:
The Plaintiff has petitioned the State Supreme Court for review.
I don’t have a copy of the Plaintiff’s new petition (assuming there is one), but the petition she filed in October of 2006 is posted in the first message in this thread. The Tribe’s Answer to the Petition for Review (filed in mid-December) is available here.
Our previous posts with lower court materials are here and here.
This long-running case involves the Navajo tribal preference statute. The district court dismissed the claim under Rule 19 (one of my faves!). Here are the Ninth Circuit materials:
BNSF v. Vaughn involves the Hualapai tribe’s attempt to impose taxes on BNSF railroad. BNSF brought an Ex parte Young action against two tribal officials: the chairman and the tax collector, seeking an injunction. The tribe argued that the railroad was required to exhaust its tribal remedies and that the tribe and its officials hadn’t waived tribal immunity. The district court disagreed. Here, the Ninth Circuit held that the tribe could bring an interlocutory appeal of the rejection of the immunity defense, but held that the tax collector was not immune from suit and remanded for further proceedings.
Here are the materials:
This case, now in the Ninth Circuit, presents an interesting question of whether tribal officers sued under Section 1983 are immune from suit under the tribal sovereign immunity doctrine. The district court held that the officers were immune because they acted under color of tribal law, not state law.
Here are the materials (so far):
This one is called Murphy v. Kickapoo and is out of the Western District of Oklahoma. It exemplifies the current problem of tribal sovereign immunity litigation — i.e., courts desperately trying to find a waiver or some reason why tribal immunity does not bar the suit, in plain opposition and conflict to clear Supreme Court precedent (Kiowa Tribe).
Turtle Talk 
You must be logged in to post a comment.