tribal sovereign immunity – Page 58

No adequate alternative forum exists to address the Town of Browning’s ex Parte Young action. The Blackfeet Tribal Court appears to represent an adequate alternative forum, however, to address the ongoing dispute between the Blackfeet Tribe and the Town of Browning. Indeed, in the Blackfeet Tribal Court, the Town of Browning can litigate against the Blackfeet Tribe directly rather than through an ex Parte Young action. Further, the Town of Browning appears to have moderated its position regarding the relief that it seeks. (Doc. 159). The Town of Browning appears to seek some reasonable compensation from the Blackfeet Tribe for use of the Town of Browning’s water main to deliver water to utility customers. The Town of Browning can seek and obtain this relief as a counterclaim in the breach of contract claim currently pending in the Blackfeet Tribal Court. Although the Town of Browning has challenged the Blackfeet Tribal Court’s jurisdiction over it on the grounds of sovereign immunity, the existence of a contract between the parties appears to confer jurisdiction on the Blackfeet Tribal Court. Montana v. United States, 450 U.S. 544, 565 (1981). An alternative forum exists for the Town of Browning to obtain the relief it seeks.

After weighing the factors listed in Rule 19(b), this Court has determined that this case should not proceed in the absence of the Blackfeet Tribe, a required party. The potential prejudice to the Blackfeet Tribe far outweighs the harm to the Town of Browning. The Blackfeet Tribal Court represents an alternative forum for the Town of Browning to address its underlying dispute with the Blackfeet Tribe.

Materials on the preliminary injunction stage of this litigation are here.

First Circuit Rejects Narragansett Interlocutory Appeal in Sovereign Immunity Matter (Waited Too Long to Appeal Denial of Motion for Reconsideration)

June 1, 2015Matthew L.M. Fletcher

Here is the opinion in Luckerman v. Narragansett Indian Tribe:

CA1 Opinion

An excerpt:

Surveying the foregoing, a prior duty panel of this court cleared the underbrush by dismissing as untimely any appeal from the denial of the Motion to Dismiss. Luckerman v. Narragansett Indian Tribe, No. 14-1106, Order at 1 (1st Cir. Aug. 29, 2014). That decision obviates the need to decide whether we would have had jurisdiction over an interlocutory appeal from the Motion to Dismiss. We do need to decide, though, whether we have appellate jurisdiction under the collateral order doctrine to review the only order before us: the denial of the untimely Rule 59(e) Motion. For the reasons described below, we conclude that the denial of the Tribe’s untimely Rule 59(e) Motion does not qualify as a collateral order that we may review prior to the end of the litigation in the district court.

Briefs here.

Federal Court Dismisses Title VII Claim against Seminole Casino

June 1, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Longo v. Seminole Indian Casino–Immokalee (M.D. Fla.):

An excerpt:

Remarkably, Plaintiff demands that the Court ignore this clear and dispositive analysis, and hold that the Tribe is not actually a federally recognized tribe. Plaintiff acknowledges that to do so, this Court would have to find not only that its own previous opinion, Mastro v. Seminole Tribe of Florida, No. 2:12–cv–411–SPC–38UAM, 2013 WL 3350567, at *1 (M.D.Fla.2013), was incorrect, but also that the Eleventh Circuit has erred on multiple occasions too, see Mastro, 578 F.App’x 801; Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir.2012). To support this sizeable request, Plaintiff provides the Court with numerous pages of historical context and argument, explaining how the Tribe, to this date, has failed to achieve federal recognition as an Indian tribe. But this argument is completely without merit. This Court, the Eleventh Circuit, and the Florida Supreme Court “rotely” accept that the Tribe is federally recognized because it is. Unsurprisingly, this has not changed in 2015. A simple search in the Federal Register reveals as much. To be sure, the United States Bureau of Indian Affair’s most recent list of “Indian entities … acknowledged to have the immunities and privileges available to federally recognized Indian tribes” includes the Seminole Tribe of Florida. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 80 FR 1942–02 (2015) (emphasis added).

Federal Court Dismisses Title VI Claim against Chickasaw Housing

June 1, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Sanders v. Anoatubby (W.D. Okla.):

An excerpt:

Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual allegations are true and construing them in the light most favorable to plaintiff, the Court finds that this Court lacks subject matter jurisdiction to hear plaintiff’s claims alleged in her Complaint. The Court specifically finds that jurisdiction is not vested in this Court based on plaintiff’s claim that defendants violated Title VI by not complying with the NAHASDA since the NAHASDA specifically exempts federally recognized tribes, such as the Chickasaw Nation and the tribally designated housing entities of those tribes such as the Chickasaw Nation Housing Administration, from Title VI. Further, the Court finds jurisdiction is not vested in this Court based on the Ex parte Young doctrine. Plaintiff specifically included defendants’ official titles in the caption of this lawsuit and alleges that defendants violated tribal policies. Other than conclusory statements that defendants were acting outside the scope of their official tribal capacity, plaintiff has failed to allege facts to support her claim that defendants were acting outside the scope of their tribal capacity or violating federal law. Therefore, the Court finds plaintiff’s Complaint against defendants Governor Bill Anoatubby, Wayne Scribner, Renee Sweet, Jackie Williams, and Terry Davis should be dismissed.

California Appeals Court Holds Pechanga Casino Officials May Be Sued in Employment Action

May 29, 2015Matthew L.M. Fletcher2 Comments

Here is the opinion in Cosentino v. Fuller:

Opinion

An excerpt:

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity and within the scope of their official authority. An official’s actions that exceed the scope of his or her authority are not protected. Although the parties do not dispute that as members of the tribe’s gaming commission Defendants had the authority to revoke a gaming license if they received reliable information the licensee no longer satisfied the requirements for obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its gaming activities, the record lacks evidence showing Defendants received any such information about Cosentino or an explanation of why they revoked his gaming license. Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause and in retaliation against him. Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by using their official position to intentionally harm Cosentino.

Materials in a related Ninth Circuit matter are here.