tribal sovereign immunity

Tribal Court Case Studies: Grand Ronde Case

Matthew L.M. Fletcher1 Comment

An interesting case (to me anyway) that has been winding its way through state, tribal, and now federal courts — a case involving an investment contract between the Grand Ronde Confederated Tribes and Strategic Wealth Management (and now its insurance company). In short, the deal between the two went bad and the parties ended up in state court, then before an arbitrator. The arbitrator ruled against the tribe, and awarded millions in attorney fees to SWM (but nothing else). The tribe refused to pay, arguing that it had not waived its immunity in relation to attorney fees, and SWM went to tribal court to enforce the arbitration award of attorney fees. The tribal court affirmed the tribe’s claim of immunity and now the case is in federal district court on a Montana 1 theory (huh?). Anyway, I wrote about this case as it went through the tribal court recently (here). And I personally know the two principals of SWM from my work at Pascua Yaqui a thousand years ago.

This may look like a tribe hiding behind sovereign immunity, but keep in mind that the Sizemore brothers (the SWM principals) prided themselves on being “experts” on federal Indian law (despite not being lawyers) and wrote the contract at issue. Moreover, the amount of atty fees awarded by the arbitrator was extraordinary (in the millions).

Contract with Strategic Wealth Management

State Court Order

AAA Decision

Tribal Court Order

Tribal Court of Appeals Opinion

Federal District Court Materials:

Federal Court Complaint

Plaintiff Motion for Summary Judgment

Defendant Motion for Summary Judgment

Plaintiff Response Brief

Defendant Response Brief

Plaintiff Reply Brief

Defendant Reply Brief

District Court Opinion

Indian Frauds in Court

Matthew L.M. Fletcher

A few years ago, I saw a presentation by an FBI agent based out of Bismarck, North Dakota in which he described how many of the survivalist, tax protester-type of virulent anti-government “citizens” had gone way underground after 9/11 and the USA Patriot Act. A couple years later, some of them reappeared as Indians and Indian tribes — the worst kind of Indian fraud imaginable. There have always been, I suspect, people trying to be pretend Indians in an attempt to garner something (money, rights, etc.) they otherwise would not be entitled to. Here, it appears, are whites trying to hide behind tribal sovereign immunity and tribal sovereignty in general.

I wrote about these guys first in 2006 at the For the Seventh Generation blog. And every few months since, another (usually unreported) state or federal court case comes up in which these people are trying to avoid taxes or conviction because of their “Indianness.” I think it’s worthwhile to keep track of these cases.

Here’s the most recent one (I think) — Mortgage Electronic Registration Systems v. Powell, a New Jersey court of appeals case. Here’s the unreported opinion: Opinion

Here’s the relevant language in the opinion (this one tried to avoid paying a debt):

Defendant nevertheless argues that she enjoys “sovereign immunity” both as a member of an Indian tribe because she is “Wanda Lee: Ben El Powell ™©, a Pre-Columbian Indigenous Sovereign Yamassee Muur/Moor,” and as “the secured Private Party, Holder in due Course, by the Commercial Remedy in Law, Filing the UCC1 … [and has] Regained [her] Divine Sovereign Human Rights.” 

Aleman v. Chugash Materials

Matthew L.M. Fletcher

Earlier this year, the 4th Circuit held, per Wilkinson, J., that Section 1981 may be used to prosecute race discrimination claims against Alaskan Native Corporations. In short, the Court concluded that ANC’s are not sovereigns. A troubling conclusion unmoored from even Alaskan Supreme Court precedents like John v. Baker. Here are the materials:

Aleman v. Chugash Support Services, Inc. Opinion

Appellant Brief

Appellee Brief

Appellant Reply Brief

Appellant’s Amicus

Foxworthy Case in WA COA — Dram Shop Actions and Tribal Immunity — Updated

Matthew L.M. Fletcher

The Washington Court of Appeals recently decided Foxworthy v. Puyallup Tribe of Indians, a dram shop tort claim against a tribal business enterprise. The Court held that the Puyallup tribe hadn’t waived its immunity in state court.

The opinion is here.

The plaintiff’s brief is here: Foxworthy Opening Brief

The tribe’s response is here: Puyallup Response Brief

The plaintiff’s reply is here: Foxworthy Reply Brief

Vann v. Kempthorne Materials

Matthew L.M. Fletcher

Last December, the federal court denied the Cherokee Nation’s motion to dismiss Vann v. Kempthorne. The Nation had argued that it was a necessary and indispensable party under FRCP 19. And, because it hadn’t waived its immunity, the Nation argued that the federal case must be dismissed. The United States argued that the case should be dismissed under the tribal court exhaustion doctrine. The court disagreed.

Vann 2nd Amended Complaint

Cherokee Motion to Dismiss

Opposition to Cherokee Motion

Cherokee Reply Brief

US Brief

Order Denying Motion

My own article on Rule 19 and tribal interests is here.

Cash Advance Rent-A-Tribes?

Matthew L.M. Fletcher2 Comments

The Denver City and County Court thought so. In a case where the Colorado AG asked a Colorado trial court to issue subpoenas to internet money lenders owned by the Miami Nation of Oklahoma and the Santee Sioux Tribe of Nebraska. The tribal enterprises appeared for the purpose of contesting jurisdiction, raising tribal sovereign immunity as a bar to the subpoenas. The trial court denied the order. The case is now pending before the Colorado Court of Appeals.

If the characterization of this case on page 13 of this prepared statement before the House Subcommittee on Domestic Policy of the Committee on Oversight and Domestic Reform is even half accurate (the whole “rent-a-tribe” thing), then this is an ugly case. It is an ugly case regardless.

The Colorado Court of Appeals briefs are here:

Appellant Brief

Appellee Brief

Reply Brief