tribal sovereign immunity – Page 76

Oklahoma SCT Overrules Bittle v. Bahe

September 26, 2013Matthew L.M. Fletcher2 Comments

Here is the opinion in Sheffer v. Buffalo Run Casino.

From the court’s syllabus:

Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when their 18-wheeler tractor trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Plaintiffs sued Carolina Forge on theories of respondeat superior and negligent entrustment. They also sued the Buffalo Run Casino, the Peoria Tribe of Indians of Oklahoma, and PTE, Inc. for dram-shop liability. The trial court granted summary judgment in favor of Carolina Forge, finding as a matter of law Carolina Forge was not liable for its employees’ actions under a theory of respondeat superior and did not negligently entrust the rental vehicle to its employees. The trial court also dismissed, sua sponte, the Buffalo Run Casino, PTE, Inc., and the Peoria Tribe of Indians of Oklahoma, determining that injunctions issued by the Honorable Lee R. West in the Western District of Oklahoma in Case No. 10-CV-00050-W and Case No. 10-CV-01339-W, prohibited suit for any tort claims against a tribe or a tribal entity. Plaintiffs appealed both orders, and we retained the appeals. In Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544, we reversed the trial court’s grant of summary judgment to Carolina Forge and found issues of material fact precluded summary judgment on both the respondeat superior and negligent entrustment claims. In the present case, we find the Peoria Tribe is immune from suit in state court for compact-based tort claims because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. We also hold that because Congress has not expressly abrogated tribal immunity from private, state court dram-shop claims and because the Peoria Tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from dram-shop liability in state court. The trial court’s dismissal of the Peoria Tribe and its entities is affirmed.

American University Law Review Article on Tribal Sovereign Immunity

September 24, 2013Matthew L.M. Fletcher1 Comment

Here. By Bill Wood.

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court’s marginalization of tribal immunity to limit the doctrine’s scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa’s discrediting of tribal sovereign immunity’s legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity’s origins, development, and purposes.

Tort Claim against Quapaw Tribe and Casino Dismissed

September 20, 2013Matthew L.M. Fletcher

Here are the materials in Martin v. Quapaw Tribe (N.D. Okla.):

20 DCT Amended Order Dismissing Complaint

Ninth Circuit Briefs in Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

September 13, 2013Matthew L.M. Fletcher1 Comment

Here are the briefs in White v. University of California:

White Opening Brief

Kumeyaay Cultural Repatriation Committee Answer Brief

University Answer Brief

White Reply

Lower court materials are here.

FMLA Suit against Nevada Inter-Tribal Council Dismissed

September 12, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in Carsten v. Inter-Tribal Council of Nevada (D. Nev.):

17 State AGs File Amicus Briefs Supporting Michigan in Bay Mills Case

September 9, 2013Matthew L.M. Fletcher

Here:

Amicus Brief of Oklahoma in support of Petititoner

Amicus Brief of Alabama, et al., in support of Petitioner — 16 states

Sac and Fox Company Sues Ponca Tribe in Federal Court over Construction Contract

September 9, 2013September 8, 2013Matthew L.M. Fletcher

Here is the complaint in G2 v. Ponca Tribe of Indians of Oklahoma (W.D. Okla.):

G2 Complaint

An excerpt:

5. On March 1, 2010, the Ponca Tribe executed a “Construction Loan” in favor of G2 in the principal amount of $750,000.00, with a rider that all construction should be performed at cost plus 10%.

6. G2 performed all of its obligations under the Construction Loan contract.

7. The Ponca Tribe had been substantially performing on this Construction Loan by making payments to G2 in the amount of $35,000.00 per month. See attached Exhibit 2.

8. Despite G2’s notice of default and demand for repayment, the Ponca Tribe has defaulted on repayment pursuant to the terms of the Construction Loan. Said failure constitutes an event of default pursuant to the Construction Loan. The Ponca Tribe breached its contract with G2 by failing to make payments on the principal balance, and failing to otherwise cure the default.

9. G2 has sustained damages in connection with the Ponca Tribe’s breach of contract.

10. G2 has sustained damages and costs in connection with the Ponca Tribe’s continued use of its tax license, incurring fees and monies owed (OTC Case No. P-13-037-K).

11. G2 is entitled to recover damages it has sustained, including repayment of the remaining principal balance of $350,000.00, interest which continues to accrue, plus the expenses related to filing this action and reasonable attorneys’ fees.

Tenth Circuit Abates Oklahoma v. Hobia until Supreme Court Decides Michigan v. Bay Mills — Updated

September 6, 2013September 11, 2013Matthew L.M. Fletcher2 Comments

Here:

2013.09.05 – Order Abating

UPDATE (9/11/13) — Supplemental Briefs are here:

Kialegee Supplemental Brief

Oklahoma Supplemental Brief

Briefs are here.

Lower court materials here.

Update in California Valley Miwok Tribe v. Salazar — Updated 9/27/13

September 6, 2013September 27, 2013Matthew L.M. Fletcher2 Comments

The court has issued an opinion in California Valley Miwok Tribe v. Salazar (D. D.C.):

DCT Order

From the order:

This matter is before the Court on Intervenor-Defendant’s motion to dismiss for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, Fed. R. Civ. P. 12(b)(6). See Motion to Dismiss Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief (“Mot.”), Dkt. No. 58, at 2 (Mar. 26, 2012). Intervenor-Defendant also argues that it is a required party but that its joinder is precluded by sovereign immunity, id. at 21; for clarity the Court will construe this argument as a motion to join a required party under Federal Rule of Civil Procedure 19(a)(2). Because the Court agrees that Intervenor-Defendant is a required party but not that its joinder is precluded by sovereign immunity, the motion to join a required party is GRANTED. Because the Court finds Intervenor-Defendant’s remaining arguments to be largely — but not entirely — without merit, the motion to dismiss is GRANTED in part and DENIED in part.

Materials are here.

Update — additional materials:

2013 09 20 Motion for Reconsideration

2013 09 20 Motion for Stay Pending Reconsideration

DCT Order Denying Stay

Guest Post — Keeping a Close Eye on Michigan v. Bay Mills Indian Community (Jefferson Keel and John Echohawk)

September 4, 2013Matthew L.M. Fletcher1 Comment

Keeping a Close Eye on Michigan v. Bay Mills Indian Community (Jefferson Keel and John Echohawk):

Since it was established in 2001, the National Congress of American Indians and the Native American Rights Fund have jointly coordinated the work of the Tribal Supreme Court Project. The Project was established by tribal leaders in response to a series of devastating losses for Indian tribes before the Supreme Court of the United States. As you may recall, tribes were losing 3 out of every 4 Indian law cases argued before the Court and resulted in decisions significantly eroding the doctrine of inherent tribal sovereignty. Our work has focused on coordinating tribal resources throughout Indian country and bringing the best legal minds to the table to develop litigation strategies to put forward the strongest legal arguments when litigation could not be avoided. But our message to tribes became and remains: “Stay away from the Supreme Court!”

During its early years, the Project experienced relative success with tribes increasing their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in the 9 Indian law cases heard by the Rehnquist Court. But since 2005, with the installment of John Roberts as Chief Justice, the retirement of Justices O’Connor, Souter and Stevens, the tribes winning percentage has plummeted to 10%—with 1 win and 9 losses in the 10 Indian law cases heard by the Roberts Court. And neither Chief Justice Roberts nor Justice Alito has voted in favor of tribal interests in a single case!

With this background, we recently read the State of Michigan’s opening brief in Michigan v. Bay Mills Indian Community–a case granted review by the Court even though the United States had filed a brief recommending that cert be denied. Although this litigation should be about the merits of Bay Mills’ claims under the Michigan Indian Land Claims Settlement Act to conduct gaming on lands acquired with settlement funds—it is not. In its current posture before the Court, the State of Michigan is using this case to mount a full frontal attack on tribal sovereign immunity and the authority of states to regulate “gaming activity” under the Indian Gaming Regulatory Act (IGRA).

First, Michigan asks the Court to examine “IGRA as a whole” to find Congressional intent to waive of tribal sovereign immunity or, in the alternative, to overrule Santa Clara Pueblo and apply a “less strict standard” when considering whether legislation such as IGRA abrogates tribal sovereign immunity. Second, if the statutory arguments are not successful, Michigan asks the Court to recognize that tribal sovereign immunity “is a federal common law doctrine” created by this Court and subject to adjustment by this Court. Thus, according to Michigan, the Court should narrowly read Kiowa as a “contract-based ruling” and (at the extreme) hold that a tribe’s immunity is limited to its on-reservation governmental functions.

With the doctrine of tribal sovereign immunity and the authority of states under IGRA on the table, this case has become high-stakes litigation for Indian tribes across the country. Although Bay Mills and other tribes have solid legal arguments to make to the Court, the optics and politics of this case do not bode well for a good outcome. The last time the doctrine of tribal sovereign immunity was before the Court was in Madison County v. Oneida Indian Nation of New York back in 2010. Madison County, the State of New York and other local governments had filed briefs taking aggressive approaches similar to the State of Michigan. Their positions were supported by a number of other states, local governments and non-Indian property rights organizations as amicus parties. In response to similar concerns expressed here, the Oneida Indian Nation passed a resolution which irrevocably waived its sovereign immunity and resulted in the Court vacating and remanding the case to the lower courts for further proceedings on the merits. Although that result may be difficult to replicate, our hope is that the on-going efforts by the Bay Mills Indian Community to find an alternative resolution to this case, or at least change the posture of this case before the Court, will bear fruit.

To repeat our message to all tribes: “Stay away from the Supreme Court!”