tribal sovereign immunity – Page 78

The panel affirmed the district court’s summary judgment in this diversity action seeking to hold the Alaskan city of Quinhagak liable for injuries caused by the negligence of Derrick Johnson, a Native Village of Kwinhagak tribal police officer.

The panel noted that under Alaska state law, an employee’s immunity from tort liability precludes an employer from being held vicariously liable for the employee’s negligence. The panel held that Johnson was immune from individual liability for plaintiffs’ tort claims, both under the Federal Tort Claims Act and the tribe’s sovereign immunity. Accordingly, because plaintiffs sought to hold the City vicariously liable on a non-delegable duty theory for the negligent conduct of an immune independent contractor, plaintiffs’ claims against the City failed.

Tonasket v. Sargent Cert Opposition Brief:

July 2, 2013Matthew L.M. Fletcher

Here:

Tonasket v Sargent Cert Opp

The petition is here.

SCT Denied Cert in Miller v. Wright — Challenge to Puyallup Tax Agreement

June 20, 2013Matthew L.M. Fletcher

On Monday, the Supreme Court denied Miller v. Wright, a challenge to the Puyallup-Washington tax agreement. Order list here.

Lower court materials here.

Additional Tribal Court Materials in Nooksack Tribal Disenrollment Case — Second Emergency Motion for TRO

June 20, 2013Matthew L.M. Fletcher1 Comment

Here are the new materials in Lomeli v. Kelly (Nooksack Tribal Ct.):

Second Emergency Motion for Temporary Restraining Order

Defendants’ Response in Opposition to Second Emer Motion for TRO

Reply in Support of Second Emergency Motion for TRO

Tribal Court Order Denying Second TRO Motion re Election

Tribal Court Order Denying Second TRO Re General Special Meetings

Prior posts here, here, here, and here.

Arizona SCT Petition for Review of Dismissal of Tort Claim against Gila River Indian Community — Updated 8-28-13

June 20, 2013August 28, 2013Matthew L.M. Fletcher1 Comment

Here is the petition in Shirk v. Lancaster:

Shirk Petition for Review

Update: Lancaster Response

Lower court materials here.

Wrongful Death Action arising from Hot Pursuit against Warm Springs Police Dismissed

June 19, 2013Matthew L.M. Fletcher

Here are the materials in Estate of Kalama v. Jefferson County (D. Or.):

DCT Order Adopting Recommendations

Magistrate Recommendations

Warm Springs Motion

Plainitffs’ Response

Warm Springs Reply

Gaming Facility Lease Dispute Dismissed from Conn. Courts

June 18, 2013June 17, 2013Matthew L.M. Fletcher1 Comment

Here is the opinion in Big Bubba’s BBQ, LLC v. Mohegan Tribal Gaming Auth. (Conn. Super.) (PDF).

An excerpt:

As a matter of fact and of law, this court finds no waiver of sovereign immunity that would permit this court to proceed with this case. More specifically, the court finds no such waiver as to a suit under Conn. Gen.Stat. § 47a–43, whether the trial be by court or jury (see Conn. Gen.Stat. § 47a–44 and § 47a–45), or as to the equitable relief sought in this case (see Conn. Gen.Stat. § 47a–45a(a), including restitution, and § 52–471 et seq., as to an injunction with or without bond) or as to any potential (but not pled) double damages claim (see Conn. Gen.Stat. § 47a–46).

N.Y. Appellate Division Concludes Tribal Enterprise Formed under Tribal Law Not Immune From Suit

June 17, 2013Matthew L.M. Fletcher1 Comment

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

Sue Perior v Lewiston Golf

An excerpt:

Other factors, however, including what the Court of Appeals has characterized as the “[m]ore important[]” financial factors, weigh in favor of a determination that LGCC does not share in the Nation’s sovereign immunity (id.). With respect to whether LGCC’s “purposes are similar to or serve those of the tribal government” (id.), we conclude that this factor supports the denial of sovereign immunity to LGCC. In minutes from its August 2002 meeting approving the creation of SGC, the Council declared that “it is . . . the policy of the Nation to promote the welfare and prosperity of its members and to actively promote, attract, encourage and develop economically sound commerce and industry through governmental action for the purpose of preventing unemployment and economic stagnation,” and that “the Gaming industry is vitally important to the economy of the Nation and the general welfare of its members.” To that end, the Council created SNFGC for the purpose of “developing, financing, operating and conducting the Nation’s gaming operations on its Niagara Falls Territory at the Niagara Falls Gaming Facility.” In creating the LGCC, the Council declared that, “in furtherance of the economic success of the Nation’s gaming operations, [SNFGC] has commenced development of a . . . golf course located in the Town of Lewiston, New York[, which] will be developed and operated as an amenity to . . . SNFGC’s casino operations, . . . the purpose of which amenities is to enhance the overall success and profitability of the casino’s operations” (emphasis added). In that manner, the Council believed that the golf course project “may reasonably be expected to benefit, directly or indirectly, the Nation” (emphasis added). Thus, the Council’s own statements reflect that the purpose of LGCC – to develop a golf course as an “amenity” to the Nation’s gaming operations – is several steps removed from the purposes of tribal government, e.g., “promoting tribal welfare, alleviating unemployment, [and] providing money for tribal programs” (Gristede’s Foods, Inc., 660 F Supp 2d at 477; cf. Ransom, 86 NY2d at 560).

These common law tests to decide whether a tribal enterprise is under the cloak of tribal immunity are baffling, generating far too many unpredictable results like this one. It’s fairly clear to me that the wide majority of courts would conclude a tribally-owned enterprise chartered under tribal law is immune without looking toward subjective factors such as what the purpose of the corporation is — tribes just aren’t for-profit entities. They’re governments.