tribal sovereign immunity

Ninth Circuit Affirms Rule 19 Dismissal in Friends of Amador County v. Jewell

Matthew L.M. Fletcher5 Comments

Here is the unpublished opinion. An excerpt:

The district court concluded next that joinder would not be feasible because the Tribe enjoys sovereign immunity as a federally recognized Indian tribe. Appellants challenge the validity of the Tribe’s federally recognized status but concede its existence. Indeed, the Tribe has been federally recognized since at least 1985, see Indian Tribal Entities Recognized and Eligible to Receive Services, 50 Fed. Reg. 6055-02 (Feb. 13, 1985), and it thus has “the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States,” Indian Entities Recognized and Eligible to Receive Services from the Board of Indian Affairs, 77 Fed. Reg. 47,868-01 (Aug. 10, 2012).

Briefs and link to oral argument audio here.

Lower court materials here.

Ute Tribe Prevails in Tenth Circuit Immunity Decision on Third Party Subpoenas/Collateral Order Doctrine

Matthew L.M. Fletcher2 Comments

Here are the materials in Bonnet v. Ute Indian Tribe:

CA10 Opinion

An excerpt:

The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. Exercising jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine, we hold the answer is yes. We therefore reverse the district court’s denial of the Tribe’s motion to quash based on tribal immunity.

And the briefs:

Ute Opening Brief

Bonnet Brief

Ute Reply

Lower court materials here.

Ninth Circuit Materials in Friends of Amador County v. Salazar (Jewell)

Matthew L.M. Fletcher1 Comment

Here:

Friends Opening Brief

Tribe Answer Brief

Friends Reply Brief

Oral argument audio here.

Lower court materials here.

En Banc Petition Materials in Michigan v. Sault Tribe

Matthew L.M. Fletcher

Here:

2014-01-16 Petition for Panel Rehearing with a Suggestion for Rehearing …

2014-01-22 NHBPI Motion for leave to file amicus brief -rehearing

2014-01-23 NHBPI Amicus Curiae Brief in Support of St of MI Pet

2014-01-23 Order Granting Motion for Leave to file Amicus Brief NHBPI

Panel materials are here.

California COA Affirms Immunity of Tribally-Owned Payday Lenders

Matthew L.M. Fletcher3 Comments

Here are the materials in People of the State of California v. MNE:

B242644_Opinion

California Opening Brief

MNE Brief

California Reply Brief

An excerpt from the opinion:

Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 (Ameriloan), the trial court dismissed for lack of subject matter jurisdiction this action by the Commissioner of the California Department of Corporations against five “payday loan” businesses owned by Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe. Because the two tribal entities and their cash-advance and short-term-loan businesses are sufficiently related to their respective Indian tribes to be protected from this state enforcement action under the doctrine of tribal sovereign immunity, we affirm.

A second related opinion from the same court:

B236547_Opinion

An excerpt:

The Commissioner of the California Department of Corporations (Commissioner),1 on behalf of the People of the State of California, sued Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash for injunctive relief, restitution and civil penalties, alleging they were providing short-term, payday loans over the Internet to California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe, specially appeared and moved to quash service of summons and to dismiss the complaint on the ground the lending businesses named as defendants were simply trade names used by the two tribal entities and, as wholly owned and controlled entities of their respective tribes operating on behalf of the tribes, they were protected from this state enforcement action under the doctrine of tribal sovereign immunity.

During the course of this litigation on the issue of subject matter jurisdiction, the trial court imposed $34,437.50 in discovery sanctions against the Commissioner after the court denied in substantial part her motion to compel further responses to a second set of requests for production of documents from MNE and SFS. We affirm.

Additional Materials in California Valley Miwok Tribe v. Jewell

Matthew L.M. Fletcher

Here:

2014 01 07 CVMT Background Memo (FINAL)

2014 01 06 Exs 1-9 CVMT Memo

2014 01 06 Exhs 10-23 CVMT Memo 

We posted most recently on this case here and here.

Arizona COA Affirms Tribal Immunity from Contract Claim in MM&A v. Yavapai-Apache

Matthew L.M. Fletcher2 Comments

Here is the opinion in MM&A PRODUCTIONS, LLC v. YAVAPAI-APACHE NATION. An excerpt:

MM&A Productions, LLC, appeals from the trial court’s judgment dismissing its contract action against the Yavapai-Apache Nation and related entities for lack of subject matter jurisdiction. It argues the court erred by concluding it had failed to show a valid waiver of the Nation’s sovereign immunity, and by not allowing further discovery and holding an evidentiary hearing before ruling. We affirm.

Here are the briefs:

MM&A Brief

Yavapai-Apache Answer Brief

MM&A Reply

“Advantage Gamblers” Civil Rights Suit against State and County Officials Continues

Matthew L.M. Fletcher1 Comment

Here are the materials in Pistor v. Garcia (D. Ariz.):

106 Plaintiff Motion for Partial Summary J

129 County Defendants Response

132 State Defendants Response

168 DCT Order

The suit against the tribal officials is before the Ninth Circuit now, materials here.

Federal Court Dismisses Skokomish Treaty Rights Claims against State under 11th Amendment and Rule 19

Matthew L.M. Fletcher2 Comments

Here are the materials in Skokomish Indian Tribe v. Goldmark (W.D. Wash.):

59 State Defendants Motion to Dismiss

60 Prosecuting Attys Motion to Dismiss

67 Tribal Amici Motion to Dismiss

71 Skokomish Reponse

116 DCT Order Dismissing Complaint

An excerpt:

Being fully advised, the court GRANTS both motions on grounds that Skokomish Indian Tribe failed to join certain other Indian tribes in this action. These other tribes are required parties under Federal Rule of Civil Procedure 19, but cannot be joined due to their sovereign immunity. Because the court concludes that the action cannot proceed “in equity and good conscience” without these other tribes, see id., the court dismisses Skokomish Indian Tribe’s action without prejudice. With respect to Defendants Goldmark and Young only, the court also grants Defendants’ motions to dismiss on grounds of Eleventh Amendment sovereign immunity and because Skokomish Indian Tribe has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nevertheless, despite granting Defendants’ motions, the court also grants Skokomish Indian Tribe leave to amend its Amended Complaint.

We posted the complaint here.

Federal Court Seeks Briefing on Whether Tribe Waived Immunity by Removing FMLA Claim against Tribe to Federal Court

Matthew L.M. Fletcher1 Comment

Here are the materials in Bodi v. Shingle Springs Band of Miwok Indians (E.D. Cal.):

19 Shingle Springs Motion to Dismiss

31 Bodi Opposition

37 Shingle Springs Reply

40 DCT Order

From the order:

The court is concerned by a predicate question: whether the Tribe waived sovereign immunity by removing the action to federal court.

The issue is an open one in the Ninth Circuit. District courts to have considered it focus their analysis on whether tribal immunity is more analogous to states’ immunity to suit under the Eleventh Amendment, or to foreign nations’ immunity under the Foreign Sovereign Immunities Act of 1976, 27 U.S.C. § 1602 et seq. Courts taking the former position have found removal to constitute waiver, see, e.g., State Eng’r v. S. Fork Band of the Te–Moak Tribe of W. Shoshone Indians, 66 F. Supp. 2d 1163 (D. Nev. 1999), while  courts taking the latter position have not, see, e.g., Ingrassia v. Chicken Ranch Bingo and  Casino, 676 F. Supp. 2d 953 (E.D. Cal. 2009).