tribal sovereign immunity – Page 47

New York Appellate Division Vacates Money Judgment against Unkechaug Indian Nation

June 8, 2017Matthew L.M. Fletcher

Here is the opinion in Aron Security Inc. v. Unkechaug Indian Nation (N.Y.A.D.):

An excerpt:

The plaintiff security company entered into a services contract with the defendant, the Unkechaug Indian Nation. Upon the defendant’s alleged failure to pay sums due under the contract, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. After obtaining a judgment in its favor and against the defendant, entered May 22, 2014, the plaintiff served an information subpoena on nonparty Michelle Jackson, a signatory to the contract on the defendant’s behalf, in an effort to collect on the judgment. Jackson did not respond and the plaintiff moved, inter alia, to hold Jackson in contempt. The defendant then moved to dismiss the action for lack of subject matter jurisdiction, asserting that as an Indian tribe, it possessed sovereign immunity from suit. The Supreme Court denied the defendant’s motion and denied the plaintiff’s motion with leave to renew.

Contract Breach Action against Pinoleville Pomo Nation

June 5, 2017June 5, 2017Matthew L.M. Fletcher

Here are the materials so far in Forster-Gill Inc. v. Pinoleville Pomo Nation

First Amended Complaint

Motion to Quash

Opposition to Motion to Quash

Reply to Motion to Quash

Tenth Circuit Remands Great Plains Lending Dispute for Jurisdictional Discovery on Immunity Defense

June 1, 2017Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Finn v. Great Plains Lending LLC.

Briefs and other materials here.

Tribal Appellate Court Affirms Immunity Defense in Comanche Gaming Dispute

May 9, 2017May 9, 2017Matthew L.M. Fletcher1 Comment

Here is the opinion in CDST-Gaming v. Comanche Nation (Ct. Indian Appeals):

CDST Gaming v. Comanche Nation

Lower court decision here.

Dakota Gaming Patron’s Privacy Act Complaint Dismissed

May 9, 2017Matthew L.M. Fletcher1 Comment

Here are the materials in Block v. Dakota Nation Gaming Commission (D.S.D.):

1 Complaint

5 Motion to Dismiss

9 DCT Order

Jenn Weddle Guest Commentary on Lewis v. Clarke

April 25, 2017April 25, 2017Matthew L.M. Fletcher

This was the best possible result in this case (a narrow remand). Justice Sotomayor’s opinion keeps tribal employees on equal footing with federal and state employees and decides the import of indemnification provisions – really have nothing to do with Indian law and instead having everything to do with government employee indemnification law. The result seems to be a reasonable limiting principle for the Court.

The Court also left open the official immunity arguments (upon which amici focused) because those were not raised by Clarke in his motion to dismiss. The record didn’t have findings on that, but the NCAI/States/Tribes amici brief laid out the arguments as an ‘alternative theory’ as to why the Connecticut Supreme Court had been right in the result.

It is reasonable to anticipate that Clarke will now argue those matters on remand. And this case will go back to Connecticut District Court, with the Lewises now divorced and vastly undercutting their loss of consortium claims, such that the remand may well go away quickly in settlement before it even begins.

I don’t see that tribes or tribal employees lose any ground as a result of this opinion. Importantly, the official immunity arguments were not touched by the Court (per footnote 2), and I don’t see the majority opinion as saying anything negative for tribes’ role in our federalism.

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Opinion and materials here.

Initial Observations about Lewis v. Clarke

April 25, 2017Matthew L.M. Fletcher

Opinion and materials here.

The initial impact could be very big. The holding is pretty broad, bringing in the doctrine of official immunity to the tribal context without the same grounding or context as state and federal official immunity doctrines. Moreover, there is no on, off reservation distinction. So on-rez torts might be an issue.

I anticipate dozens of plaintiffs’ lawyers packaging complaints against tribal employees on a wide variety of issues to test how wide the lower courts will interpret this decisions. Civil rights, contract breaches, trespass to property, and of course tort claims. I suppose the real question is whether any tort claims against tribal officials anywhere involve a tribe’s sovereign interest. I imagine insurance companies will be calling their tribal insured right quick, and vice versa.

Another open question is whether nonmember employees sued for tort in Indian country can be sued in state courts. I think not under precedents governing Indian country suits where a tribal defendant is present, but I’m not so sure about nonmember employees. Could be a lot of litigation about questions like these.

Long term, things probably will settle down. Tribes already insure themselves from the actions of their employees. Maybe the cost of business will go up some, but I don’t anticipate terrific impacts there. Just a lot of uncertainty for a few years until everyone’s used to the new regime.

As should be unsurprising to TT readers, this case involved a confluence of Justices that disapprove of governmental immunity (Ginsburg), the conservative wing of the Court that almost never rules in favor of tribal interests, and bad optics for tribal interests. Moreover, anyone who cares about government and commercial accountability for bad actions (as one should expect from Justices Sotomayor and Ginsburg) should be happy. It just smells off that SCOTUS as an institution seems to strive to protect private commercial actors from suits but does a 180 with tribal commercial activities.

I admit to being disappointed the Court cared not at all that the Tribe had set up a tribal court process to resolve these claims. This was just straight up gamesmanship by the plaintiffs’ counsel, who might have waited on purpose to bring this claim in state court where there was a two year statute of limitations as opposed to the Mohegan one year statute. There, I said it. Oh well. All the effort that tribes made to set up tort claims ordinances might have been a significant waste of time and effort. It remains to be seen.