tribal sovereign immunity – Page 54

The case at bar is fraught with such risk. There is no doubt that the action of the Tribal Council in removing President Scott from office is of historical significance. As such, it ought not be too readily set aside, especially when no practical remedy is available. As noted above, a new Tribal president, William Kindle, has recently been elected and taken office. Mr. Scott, even if he could prevail on his substantive arguments, cannot be placed back in office.3 Under these circumstances, it’s best to avoid any unnecessary constitutional conflict.

Connecticut Court Recognizes Tribal Immunity, Remands to Allow Conn. Regulatory to Determine Whether Immunity Extends to Tribal Lender

November 24, 2015Matthew L.M. Fletcher

Here are the materials in Great Plains Lending LLC v. State of Connecticut Dept. of Banking (Conn. Super.):

Opinion

Briefs here.

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

November 23, 2015January 4, 2016Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:

1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”

2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.

Lower court materials here.

UPDATE (1/4/16): Anthropologists Amicus Brief

Federal Court Dismisses Suit against Tribal Lending Entity Owned by Tunica-Biloxi Tribe

November 20, 2015November 20, 2015Matthew L.M. Fletcher

Here are the materials in Everette v. Mitchum (D. Md.):

21 MobiLoans Motion to Dismiss

22-1 Riverbend Finance Motion to Dismiss

30-1 Mitchem Motion to Dismiss

40 Response to MobiLoans

41 Response to 30 52 Mitchem Reply

53 Riverbend Finance Reply

57 MobiLoans Reply

59-1 Scott Tucker Motion to Dismiss

60 Response to 59

62 Everette v. Mitchem (D.MD) Memorandum Order

Federal Court Dismisses Access Fees Suit against Two Tribal Telecommunications Companies

November 19, 2015Matthew L.M. Fletcher

Here are the relevant materials in MCI Communications Services Inc. v. Arizona Telephone Co. (N.D. Tex.):

37 Tribal Telecommunications Companies Motion to Dismiss

41 Opposition

42 Reply

48 Surreply

49 Final Tribal Reply

50 DCT Order

An excerpt:

In this action by two interexchange carriers (“IXCs”) seeking relief related to access fees that local exchange carriers (“LECs”) charge the IXCs to provide access services for wireless intraMTA calls, three defendants move to dismiss under Fed. R. Civ. P. 12(b)(1) based on tribal immunity. For the reasons explained, the court grants the motion and also grants plaintiffs leave to replead.

Tenth Circuit Briefs in Amerind Risk Management v. Blackfeet Housing

November 19, 2015Matthew L.M. Fletcher

Here:

Amerind Risk Opening Brief

Blackfeet Housing Appellee Brief

Lower court materials here.

Federal Court Holds ERISA Abrogates Tribal Immunity

November 9, 2015Matthew L.M. Fletcher

Here are the materials in Coppe v. Sac & Fox Casino Healthcare Plan (D. Kan.):

An excerpt:

The statutory language of ERISA in 29 U.S.C. § 1002(32) demonstrates that Congress specifically intended for Indian tribes to maintain sovereign immunity for some employee benefit plans and to abrogate it for others. The language makes it clear that the exemption from the requirements of ERISA applies if all the employees in the plan established by an Indian tribe are “in the performance of essential governmental functions but not in the performance of commercial activities [whether or not an essential government function].”

Congress’s 2006 amendments to ERISA constitute an unequivocal waiver of sovereign immunity for tribal employee plans that perform commercialfunctions. Even before those amendments, circuit courts found ERISA applicable to Indian tribes whose employees performed non-governmental functions. Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683 (9th Cir. 1991); Smart, 868 F.2d at 929.