tribal sovereign immunity – Page 63

Occidental characterizes the issue in this case as whether it may assert or waive the Nation’s sovereign immunity in connection with insurance coverage on a claim made on the policy. It has not been suggested that Congress provided authority for an insurer such as Occidental to abrogate, waive, or otherwise assert the sovereign immunity of an Indian nation through appropriate legislation. Consequently, the source of the waiver must be the Nation itself. The sole unequivocal statement of the relationship between the Nation and the insurers is the policy itself. Indeed, Occidental recognizes this fact by relying upon certain provisions within the policy to argue the Nation has specifically granted it a waiver or control over the assertion of sovereign immunity. The interpretation of the terms of the policy as a contract is governed exclusively by state law.

Who Won American Indian Law and Policy in 2014? Championship Round

January 14, 2015Matthew L.M. Fletcher

The final is here.

#2 Tribal Sovereign Immunity v. #10 Tribal In-House Counsel Association

Immunity won with a narrow 54-46 percent margin over Alaska Native tribes. The big splash of the Supreme Court victory overwhelms the big news year for Alaska Native tribes.

The Tribal In-House Counsel Association wins easily over Justice Sotomayor. As Frank Pommersheim once said, the real practice of Indian law is in the trenches, as opposed to the high-stakes reality television of the Supreme Court. A perfect matchup for the final.

Who Won American Indian Law and Policy in 2014? Final Four

January 13, 2015January 12, 2015Matthew L.M. Fletcher

It’s been a long strange trip but we’re down to the final four.

#1 Alaska Native tribes v. #2 Tribal Sovereign Immunity

Alaska Native tribes win again with 55 percent of the vote over Bay Mills Indian Community. The top overall seed defeated the Buena Vista Rancheria, the Omaha Tribe, and the Wisconsin Oneidas before facing Bay Mills.

Tribal sovereign immunity also advances with 74 percent of the vote over ICWA. Immunity knocked out alternative energy, American Indian education, and VAWA before taking out ICWA.

The matchup looks very similar for the Alaska tribal communities. In effect, Bay Mills gets a second chance at the prize, along with all the other tribes that have raised sovereign immunity this year. Westlaw says there are 16 tribal immunity cases from 2014 alone. Of course, there are 229 Alaska Native tribes.

#2 Justice Sotomayor v. #10 Tribal In-House Counsel Association

Justice Sotomayor wins out in the people bracket, narrowly eliminating Judge Humetewa with 54 percent of the vote. She eliminated the McAllen Grace Baptist Church, Frank Pommersheim, and the authors of Structuring Sovereignty before facing Judge Humetewa.

TICA is the big upstart in this inaugural tournament, winners of the groups bracket but the lowest seed remaining. Obviously, I underestimated their staggering power at the beginning. TICA squeaked by NABA and the Tribal Supreme Court Project before gathering steam and completely destroying the Carcieri challengers and the 1491s.

Hmm, this semifinal features one versus many, begging us to ask Spock’s stark question — do the needs of the many outweigh the needs of the few, or the one?

Who Won 2014? Fourth Round — The Final Eight

January 12, 2015Matthew L.M. Fletcher

Here are the category finals in all four categories:

Category 1 — Indian nations

#1 Alaska Native tribes v. #3 Bay Mills Indian Community

Alaska Native tribes knock off the Wisconsin Oneidas, who made a very good showing against the northwest leviathan, but Alaska wins 68 percent. And, yes, there is internet in the UP, or there are just plenty of downstaters (hearing me Port Huron?) banking on the BMIC casino? The Gun Lakers only garner 41 percent of the vote.

So the two big tribal winners of the year face off.

Category 2 — Laws, Doctrines, and other stuff

#1 ICWA v. #2 Tribal sovereign immunity

The Indian Child Welfare Act motors on with 64 percent of the vote over intra-tribal disputes. I think we’re all in denial. Too bad, too, cuz tribal sovereign immunity, one of the reasons we have such compelling intra-tribal disputes, also moved on, defeating VAWA narrowly with 54 percent of the vote.

Oil and water face off. We at Turtle Talk know for a fact that ICWA and tribal immunity cases absolutely dominate the federal and state cases we see almost every day here. You can make your living on these two, so long as you’re willing to work for next-to-nothing as an ICWA attorney and so long as you don’t try to make a living suing Indian tribes.

Category 3 — People and Parties

#1 Hon. Diane Humetewa v. #2 Justice Sotomoyor

Sarah Deer gave her a serious run for her money, but fell by a mere two percentage points in the most highly contested (the most votes that is) pairing of the third round. Judge Hemetewa prevails again but only to face the most recognizable and fabulous Supreme Court Justice in history. Yes, I said that.

Category 4 — Other things

#1 1491s v. #10 Tribal In-House Counsel Association

The 1491s sneak past the Cohen Handbookies with 54 percent of the vote. Did I call it or what? All four top seeds are in the final eight. They appear to be in serious trouble though as the Tribal In-House Counsel Association is gaining unbelievable momentum, absolutely crushing the Carcieri beneficiaries with 78 percent of the vote. Of course, that might merely be a question of popularity because who likes those guys anyway? TICA’s going to have to rely more on beneficence to defeat the staggering monolith that is the 1491s.

Who Won American Indian Law and Policy 2014? Third Round Bracket 1 of 2

January 9, 2015January 9, 2015Matthew L.M. Fletcher

Now it’s getting tight. We’re down to the last 16.

Category 1 — Indian nations

#1 Alaska Native tribes v. #12 Oneida Tribe of Wisconsin

Alaska Native tribes once again won handily, earning 86 percent of the votes over the Omaha Tribe. The Wisconsin Oneidas continue to surprise, knocking off the Cayugas and their impressive Second Circuit tax victory with two-thirds of the vote.

Interesting matchup here, with two contenders that had a big year facing off against state and local governments.

#7 Gun Lake Tribe v.#3 Bay Mills Indian Community

Enrollment numbers don’t matter! The Gun Lakers earn 61 percent of the vote and take out the Sault Tribe and its vast membership. It can’t be that there’s no internet in the UP, right?

Well, the internet worked for Bay Mills, winning by one vote over LCO and the Wisconsin treaty tribes. Bay Mills makes a living winning by one vote.

So another ‘Nish matchup. Will Gun Lake be able to get past another Upper Peninsula Chippewa community?

Category 2 — Laws, Doctrines, and the Like

#1 Indian Child Welfare Act v. #5 Intra-tribal disputes

In the battle for Indian civil rights, nonvoters prevailed over voters, and ICWA moves on with 57 percent of the vote. Maybe that TT post on South Dakota came a day too late.

Well, intra-tribal disputes took down Indian gaming, with 58 percent of the vote. I hope that won’t be true in real life.

#2 Tribal sovereign immunity v. #3 VAWA

With 72 percent of the vote, it turns out sovereignty does predate knowledge of sovereignty. Cool, I guess.

VAWA and the hopes it encourages for tribal governance in the future (as well as its 67 percent vote tally) easily defeated tribal court exhaustion, which wilted with fatigue near the end.

Who Won American Indian Law and Policy, 2014, Second Round, Bracket 2 of 4

January 8, 2015January 7, 2015Matthew L.M. Fletcher

Now we move on to the Category 2 quarterfinals.

#1 Indian Child Welfare Act v. #9 Indian country voting rights

The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?

This one is an old-fashioned clash of civil rights.

#4 Indian gaming v. #5 Intra-tribal disputes

Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.

Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.

#2 Tribal sovereign immunity v. #7 American Indian education

Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.

Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.

#3 VAWA v. #6 Tribal court exhaustion

VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.

Who Won Indian Law and Policy in 2014? First Round Bracket — 4 of 8

January 6, 2015January 7, 2015Matthew L.M. Fletcher3 Comments

Whew, losing steam. Maybe finish round 1 tomorrow.

Here’s the second half of the Category 2 bracket.

# 2 Tribal sovereign immunity

Big winner in the Supreme Court.And perhaps SCOTUS has had its fill by denying some petitions, here, here (filed out of time), and here, and here.

Some other good cases for tribes: no waiver in gaming compact (California), and Minnesota, immunity from state tax foreclosures, immunity from third party subpoenas in federal court litigation, immunity of tribally owned payday lenders, and immunity from simple contract claims.

Some where tribal interests lost: waiver through removal to federal court, waiver by virtue of not being sufficiently governmental, waiver by Congress in Bankruptcy Act, waiver by purchase of insurance, no immunity of tribal governmental organizations, and no immunity from tribal court exhaustion.

And no, Western Sky is not immune from suit.

v.

# 15 Alternative energy

Solar power is controversial at Colorado River Indian Tribes, and wind energy at Osage. So quit messing with mineral estates and sacred sites, please!

# 7 American Indian education

2014 was the 60th year since Brown v. Board, and so Indian law programs are hosting conferences on Indian education (MSU, Kansas, and now Arizona State but that’s 2015). Dept. of Education did a listening tour. Cobell money. BIE reorganizing.

# 10 Climate Change

Seems odd to seed this so low, but there’s no significant litigation out there pending (unless the Court grants cert in this), no administrative or legislative action. Depressing. There’s this: