Santa Ynez Band of Mission Indians v. Torres — Bankruptcy Code and Tribal Sovereign Immunity

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 It is unpublished.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:

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Freemanville Water System v. Poarch Band of Creek Indians (S.D. Ala.)

This is tribal sovereign immunity case. The district court granted the tribe’s motion to dismiss. Here are the materials:

Complaint

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Foxworthy Case in WA COA — Dram Shop Actions and Tribal Immunity — Wash SCt Petition

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.

EEOC v. Peabody Coal & Navajo Nation — CA9 Materials

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:

DCT Order

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Burlington Northern v. Vaughn (CA9) 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:

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Bressi v. Ford — Civil Rights Complaint Against Tohono O’odham Law Enforcement

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):

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Oklahoma Sovereign Immunity Case

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).

Kickapoo Motion to Dismiss

Opposition to Kickapoo Motion

Reply Brief

District Court Opinion

Tribal Court Case Studies: Grand Ronde Case

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

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

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