Here is the brief:
This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views of the United States. After the petition for a writ of certiorari was filed, amendments to tribal law were proposed that could substantially affect the basis for the decision of the Supreme Court of Alabama in this case. In the view of the United States, if those changes are enacted, the petition should be granted, the judgment vacated, and the case remanded for further proceedings.
Cert stage materials are here.
Petitioners Supplemental Brief
Here is the complaint in Wilson v. Umpqua Indian Development Corporation (D. Or.):
1-7 Tribal Court Decision
15 Motion to Dismiss
Depublication briefs here, here, and here.
Here are the materials in Hardie v. Nisqually Corrections Superintendent (W.D. Wash.):
18 Nisqually Motion to Dismiss
22 Magistrate R&R
25 DCT Order
Here (from the Viejas Band of Kumeyaay Indians):
Request for Depublication 07 14 15
Prior request for depublication here.
Here is the request to the California Supreme Court for depublication of Cosentino v. Fuller (Cal. Ct. App.) submitted by thirteen California Indian tribes:
Cosentino Request for Depublication – File Endorsed
Here’s an excerpt:
Here, it is undisputed that Plaintiff’s suit rests entirely on the quintessentially sovereign action of the Pechanga Gaming Commission: revocation of Plaintiff’s gaming license. Opinion, pp. 6-7. That action cannot be effected by Gaming Commissioners in their personal capacity — only a properly constituted Gaming Commission can revoke a gaming license. Indeed, Congress has recognized that regulation of gaming on tribal lands is central to tribal self-governance. 25 U.S.C. § 2701.
Even though it was “the official action of the [Tribe], following [Defendants’] votes, that caused [Plaintiff]’s alleged injury” (Imperial Granite, 940 F.2d at 1271), the Opinion appears to condition an officer’s immunity on the additional showing that the sovereign’s action fell within its authority and was benignly motivated. Specifically, the Opinion evaluated whether the Tribe’s Commission acted with a retaliatory motive and whether it “revoked [Plaintiff’s] license on a ground identified in the IGRA, the Tribal-State Compact, or the Pechanga Ordinance.” Opinion, pp. 16-17. But where, as here, a plaintiff challenges official action of the tribe, the “tribe’s immunity is not defeated by an allegation that it acted beyond its powers.” Imperial Granite Co., 940 F.2d at 1271. The Opinion invites courts and litigants to disregard this firmly established protection of sovereign action under the guise of a “masked official capacity suit.” Pistor, 2015 WL 3953448, at *5.
Here are previous TurtleTalk posts on this matter:
Motion for rehearing here.
Panel materials here.
Here are the materials:
Petition for Rehearing
Cosentino – Application and Amicus Brief
Here’s a snippet from the petition:
The Opinion effectively holds that the Tribe’s Gaming Commission lacks authority to revoke a gaming license unless it cites to reasons for its actions that are expressly and affirmatively authorized to do so by codified law. That is incorrect as a matter of law. The Opinion also wrongly asserts that tribal sovereign immunity can be overcome by alleging that a tribal official acted in excess of his or her authority and that, upon such allegation, tribal official immunity is subject to an evidentiary weighing and balancing that involves shifting burdens of production and persuasion, similar to California’s law of qualified immunity. Tribal official immunity, however, is an absolute privilege, like the absolute immunity enjoyed by the Justices of this Court.
We previously covered this case here.
Here is the opinion in Cosentino v. Fuller:
For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity and within the scope of their official authority. An official’s actions that exceed the scope of his or her authority are not protected. Although the parties do not dispute that as members of the tribe’s gaming commission Defendants had the authority to revoke a gaming license if they received reliable information the licensee no longer satisfied the requirements for obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its gaming activities, the record lacks evidence showing Defendants received any such information about Cosentino or an explanation of why they revoked his gaming license. Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause and in retaliation against him. Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by using their official position to intentionally harm Cosentino.
Materials in a related Ninth Circuit matter are here.