tribal sovereign immunity

Class Certification Denied in Challenge to Credit Reporting to Tribal Payday Lenders (among others)

Matthew L.M. Fletcher

Here are the materials in Aleksic v. Clarity Services (N.D. Ill.):

50 Motion for Class Certification

74 DCT Order on Motions to Dismiss

91 DCT Order on Amended Motions to Dismiss

114 Amended Motion for Class Certification

118 Clarity Response to 114

121 Reply in Support of 114

123 DCT Order Motion for Class Certification

An excerpt:

Moreover, even if the definition were narrowed, the class would still not be eligible for certification. To be certified, a class must satisfy all of the criteria of Federal Rule of Civil Procedure (“Rule”) 23(a), i.e., numerosity, commonality, typicality, and adequacy, and one of the criteria of Rule 23(b), here, “that the questions of law or fact common to class members predominate over any [individual] questions . . . , and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(a)(1)-(4), (b)(3). Assuming, arguendo, that the Rule 23(a) factors are met, plaintiff cannot satisfy Rule 23(b)(3) because individual issues predominate, including whether: (1) Clarity gave out any class member’s report “[i]n accordance with [his/her] written instructions,” as the FCRA permits, see 15 U.S.C. § 1681b(a)(2); (2) any or all of the lenders is a tribal entity, and thus, immune from state regulation, see Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. 433 U.S. 165, 172 (1977) (“Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”); see also Kiowa Tribe of Okla. Mfg. Tech., Inc., 523 U.S. 751, 756 (1998) (stating that “tribal immunity is a matter of federal law and is not subject to diminution by the States”); Cook v. AVI Casino Enters., Inc. 548 F.3d 718, 725 (9th Cir. 2008) (“[T]ribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.”); (3) Clarity was aware of any lender’s status as a tribal entity; and (4) the amount of damages, if any, suffered by each class member. Because these individual issues would dwarf any issues common to even the hypothetically-narrowed class, this is not an appropriate case for class certification.

And:

Contrary to plaintiff’s assertion, these principles survived Michigan v. Bay Mills Indian Cmty.,134 S. Ct. 2024 (2014) and Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014). Bay Mills held that individual Indian tribe members, but not “the Tribe itself,” can be sued for violations of state law committed “beyond reservation boundaries.” 134 S. Ct. at 2034-35. Jackson held that a tribal court did not have subject matter jurisdiction over state law claims asserted against a tribe member arising from conduct committed off reservation land. 764 F.3d at 772-82.

D.C. Circuit Rejects Bid by Buena Vista Rancheria to Intervene in Challenge to Trust Acquisition

Matthew L.M. Fletcher2 Comments

Here is the opinion in Amador County v. Dept. of Interior.

An excerpt:

In 2005, Amador County, California brought suit against the Department of Interior challenging the Secretary’s approval of a gaming compact between the Buena Vista Rancheria of Me-Wuk Indians (the “Tribe”) and the State of California. After nearly six-and-a-half years of litigation, the Tribe sought to intervene for the limited purpose of moving to dismiss the amended complaint under Federal Rule of Civil Procedure 19. The district court denied the motion as untimely, and this appeal followed. Because we conclude that the district court did not abuse its discretion, we affirm.

Briefs and lower court materials here.

Supreme Court Denies Cert in Friends of Amador County v. Jewell

Matthew L.M. Fletcher2 Comments

Here is the order list.

Cert stage briefs here.

Lower court materials here.

Federal Court Orders Exhaustion of Tribal Remedies in Suit against Penobscot Corporation

Matthew L.M. Fletcher1 Comment

Here are the materials in Rassi v. Federal Program Intergrators LLC (D. Me.):

33 Motion to Dismiss

34 Opposition

35 Reply

45 DCT Order

An excerpt:

I conclude that the sovereign immunity of the Penobscot Indian Nation does extend to FPI, but that FPI waived its immunity by adopting the “sue and be sued clause” in § 12.07 of its Operating Agreement, as required by 13 C.F.R. § 124.109(c)(1) in order for FPI to participate I the § 8(a) program. Nevertheless, I conclude that the tribal exhaustion doctrine applies to this case. The case is ORDERED STAYED with regard to FPI pending a determination by the tribal court as to its jurisdiction, and if necessary, an adjudication of the case on its merits. After the tribal court has ruled on the issue of its jurisdiction, and, if necessary, adjudicated the case on the merits, either party may return to this court and request that the stay be lifted. It is further ORDERED that all claims against PINE are DISMISSED, without prejudice.

New York Court of Appeals Finds Seneca-Owned Company Not Cloaked with Tribal Immunity

Matthew L.M. Fletcher1 Comment

Here is the opinion in Sue/Perior Concrete and Paving v. Lewiston Golf Course Corp.

An excerpt:

Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation’s sovereign immunity. Applying the factors set out in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 NY2d 553 [1995]), we hold that it is not.

Briefs and other materials here:

A102214-196-Oral-Argument-Transcript

ASuePeriorConcretevLewiston-amic-SenecaNation-amicbrf

ASuePeriorvLewiston-app-Lewiston-brf

ASuePeriorvLewiston-app-Lewiston-Rec

ASuePeriorvLewiston-app-Lewiston-replybrf

ASuePeriorvLewiston-res-SuePerior-brf

ASuePeriorvLewiston-res-SuePerior-BrfRspAmic

Lower court materials here. My commentary on the appellate division’s reasoning applies here as well.

Friends of Amador County v. Jewell a Petition to Watch for This Week’s SCT Conference

Matthew L.M. Fletcher

Here:

Friends of Amador County v. Jewell
14-340
Issue: Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

We posted on this matter here.

Also, the petition was yesterday’s petition of the day.

Second Circuit Brief in IFP, Pro Se Employment Discrimination Complaint against Mohegan Sun Casino

Matthew L.M. Fletcher

Here is the tribe’s brief in Tremblay v. Mohegan Sun Casino:

Mohegan Brief

From the brief:

On May 20, 2014, the Court granted the Defendant’s Motion to Dismiss based on sovereign immunity. The full text of the decision is as follows:

ORDER granting [27] Motion to Dismiss; denying [28] Motion Not to Dismiss. Plaintiff brings this action against her former employer, the Mohegan Sun Casino, alleging employment discrimination in violation of Title VII and the Age Discrimination in Employment Act (“ADEA”). The defendant has filed a motion to dismiss based on sovereign immunity. The motion is granted. The Mohegan Tribe of Indians of Connecticut, which operates the defendant Casino through the Mohegan Tribal Gaming Authority (“MTGA”), is a federally recognized Indian tribe. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe *4 has waived its immunity.” Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998). Neither has occurred here. The Mohegan Tribe has not waived its immunity from suit in this Court, and the statutes under which plaintiff brings this action do not abrogate the Tribe’s immunity. Title VII is expressly inapplicable to Indian tribes, 42 U.S.C. § 2000e(b)(1), and nothing in the ADEA revokes tribal sovereign immunity from private lawsuits. Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2d Cir. 2001). Thus, plaintiff cannot bring claims of employment discrimination against an Indian tribe under Title VII or the ADEA. The Mohegan Tribe has enacted legislation establishing a tribal court system as well as legislation waiving the sovereign immunity of the Tribe and the Gaming Authority for discrimination claims by employees against the MTGA, but only in the Mohegan Gaming Disputes Court. Thus, plaintiff’s only remedy is to proceed in that Court. Accordingly, because this Court lacks subject matter jurisdiction over plaintiff’s claims, defendant’s motion to dismiss [ECF No. 27] is granted and plaintiff’s motion not to dismiss [ECF No. 28] is denied. The Clerk is directed to close the case. So ordered. Signed by Judge Robert N. Chatigny on 05/20/2014. (Bialek, T.)

Friends of Amador County v. Jewell Cert Stage Briefs

Matthew L.M. Fletcher2 Comments

Here:

FAC Cert Petition

Buena Vista Rancheria Opposition

FAC Reply

Question presented:

Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

Lower court materials here.

Tenth Circuit Reverses Oklahoma v. Hobia Relying on Bay Mills

Matthew L.M. Fletcher1 Comment

Here is the opinion:

CA10 Opinion

Lower court supplemental briefs here.

Briefs are here.

Lower court materials here.

Stockbridge-Munsee Community v. New York Cert Petition

Matthew L.M. Fletcher3 Comments

Here:

11-7-14 Stockbridge-Munsee Cert Petition_(filed)

Questions presented:

In Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), this Court held that courts may not override Congress’ judgment and apply laches to summarily dispose of claims at law filed within a statute of limitations established by Congress, thereby foreclosing the possibility of any form of relief. Equitable remedies may be foreclosed at the litigation’s outset due to a delay in commencing suit only in “extraordinary circumstances,” such as the need to prevent unjust hardship on innocent third parties. Id. at 1978.

The question presented is: Where Petitioner’s claims were filed within the statutory-limitations period established by Congress, did the court of appeals contravene this Court’s
decision in Petrella by invoking delay-based equitable principles to summarily dismiss all of Petitioner’s federal treaty, statutory and common-law claims, including one for money damages as upheld by this Court in County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 246 (1985)?

Lower court materials here. En banc petition materials here.