Here is yesterday’s order list.
Petition stage materials here.
tribal sovereign immunity
Federal Court Enjoins Cherokee Nation Tribal Court Suit against Opioid Companies
Here is the order in McKesson Corp. v. Hembree (N.D. Okla.):
An excerpt:
Oklahoma is among the states with the highest number of opioid prescriptions per one hundred people and has a high overdose death rate. Tribal communities have been tragically affected, as have other communities in Oklahoma. Numerous cities, counties and states throughout the country, including the state of Oklahoma, have filed lawsuits against various opioid manufactures, pharmaceutical distributors, and other businesses allegedly responsible for the proliferation of opioid drugs. This proceeding concerns a lawsuit by the Cherokee Nation against a number of opioid distributors and pharmacies. However, the question before the Court is not the merits of the Cherokee Nation’s lawsuit but rather the boundaries of tribal court jurisdiction. The Attorney General of the Cherokee Nation has filed suit not in state court but in the tribal district court of the Cherokee Nation. Do the tribal courts of the Cherokee Nation have jurisdiction over this particular action? The Court finds they do not.
Briefs here.
Federal Court Dismisses Foreclosure Action against Tulalip Tribes & Tribal Member
Here are the materials in Wilmington Savings Fund Society v. Fryberg (W.D. Wash.):
SCOTUS Grants Cert in Upper Skagit In Rem Immunity Matter
Here is the order list from last Friday.
Here are the cert stage materials in Upper Skagit Indian Tribe v. Lundgren.
Lower court materials here.
Patent Trial and Appeal Board Amicus Briefs on Tribal Immunity Issue
Here are the amici curiae in the matter of Mylan Pharmaceuticals Inc. et al v. St. Regis Mohawk Tribe et al:
For Movants:
- Brief Amici Curiae of the National Congress of American Indians, National Indian Gaming Association, and the United South and Eastern Tribes in Support of Patent Holder the St. Regis Mohawk Tribe’s Motion to Dismiss
- Amicus Curiae Brief of the Oglala Sioux Tribe in Support of Corrected Patent Owner’s Motion to Dismiss Based on Tribal Sovereign Immunity
- Brief of Amici Scholars in Support of Patent Owner the St. Regis Mohawk Tribe
- Brief Amicus Curiae of the Seneca Nation in Support of the Patent Owner, Saint Regis Mohawk Tribe
- Brief of Amicus Curiae U.S. Inventor, LLC in Support of Patent Owner, the Saint Regis Mohawk Tribe
- Brief of Amicus Curiae Native American Intellectual Property Enterprise Council, Inc. Regarding Patent Owner’s Motion to Dismiss
- Brief of Amicus Curiae Luis Ortiz and Kermit Lopez in Support of Patent Owner’s Motion to Dismiss for Lack of Jurisdiction Based on Tribal Sovereign Immunity
In Opposition:
- Brief of the High Tech Inventors Alliance, Computer & Communications Industry Association, and Internet Association as Amici Curiae in Support of Petitioners
- Comments of Amici Curiae Deva Holding A.S. in Response to the Board’s Invitation for Amicus Briefs Regarding the Tribe’s Motion to Terminate
- Brief Of Askeladden LLC as Amicus Curiae in Opposition to St. Regis Mohawk Tribe’s Motion to Dismiss
- Brief of Public Knowledge and the Electronic Frontier Foundation as Amici Collegii in Opposition to the Motion to Terminate
- Brief Amicus Curiae of the Software and Information Industry Association in Support of Petitioners
- Amicus Curiae Brief of James R. Major, D.Phil. in Support of Petitioners’ Opposition to St. Regis Mohawk Tribe’s Motion to Dismiss
- Brief of the Association for Accessible Medicines as Amicus Curiae in Support of Petitioners
Link: Case archive
Law Scholars Brief in Support of St. Regis Mohawk Patent
Here is the brief from Lawrence Tribe, William Eskridge, Erwin Chemerinsky, Joe Singer, and David Orozco:
Oglala Sioux Tribe Amicus Brief in St. Regis Mohawk Patent Matter
Here is the amicus brief filed in Mylan Pharmaceuticals Inc. v. Allergan Inc.:
Public Service Co. of New Mexico v. Barboan Cert Petition
Here:
Questions presented:
1. Does 25 U.S.C. § 357 authorize a condemnation action against a parcel of allotted land in which an Indian tribe has a fractional beneficial interest, especially where (a) the the tribe holds less than a majority interest, (b) the purpose of condemnation is to maintain a long-standing right-of-way for a public utility, and (c) the statute was not “passed for the benefit of dependent Indian tribes.” Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918)?
2. If 25 U.S.C. § 357 authorizes such a condemnation action, may the action move forward if the Indian tribe invokes sovereign immunity and cannot be joined as a party to the action?
Lower court materials here.
Rick Collins on Tribal Immunity
Richard B. Collins posted “To Sue and Be Sued: Capacity and Immunity of American Indian Nations,” forthcoming in the Creighton Law Review.
Here is the abstract:
Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.
This paper reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today’s settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the paper explains and analyzes ongoing issues about tribal immunity from suit. Tribal immunity has been continuously recognized from the first reported decision, but tribes’ commercial activities, modern attacks on immunity generally, and states rights proclivities of some justices jeopardize its existence. Much active litigation involves suits against tribal officers and possible application of the Ex parte Young doctrine. For many reasons, tribes are adopting carefully defined consents to suit, particularly in relation to tribal casinos. This paper’s essential purpose is to give tribes and their lawyers a full account of the law on tribal immunity and current disputes about it.
Arizona COA Affirms Hualapai Official Immunity from Contract Damages Suit
Here is the unpublished opinion in WD at the Canyon v. Honga.
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