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| Casino Tribe Revocation of Waiver of Sovereign Immunity Document Filed June 4, 2003 Superior Court of the District of Columbia |
| In every compact signed by
Oregon's Governor with a casino tribe, there are provisions that
require the tribe to "waive" their sovereign immunity on certain
issues, so that state courts have the right to enforce the terms of the
agreement. This document, filed by the casino tribe in Florence,
shows how little import they place on any previous promise of "waiver",
which they apparently believe can easily be "unwaived" at any point in
the future, regardless of the original agreement. "VI. ANY
TRIBAL WAIVER WHICH MIGHT HAVE ALLOWED THIS SUIT HAS BEEN WITHDRAWN AND
NULLIFIED
On November 26, 2002, prior to the filling of this suit, the Tribal Council of the Confederated Tribes adopted Resolution NO. 02-080. See Resolution 02-080, attached as Exhibit 3. This resolution withdraws and nullifies all waivers of immunity that might have been made, or might have been attempted to have been made, by the Tribes or any of its officers or employees prior to the adoption of the resolution. Even if Plaintiff or its affiants are accurate regarding a waiver being made in favor of Plaintiff, that waiver has now been legislatively nullified." (Jackson Kelly PLLC v. Confederated Tribes, Civil Action No. 03-0000414, filed 6/4/03) Also see: Law Firm Sues Tribe Over Legal Bills for Florence Site |
IN THE SUPERIOR COURT FOR THE
DISTRICT OF COLUMBIA
Civil Division Civil Action No. 03-0000414 Calendar 18 JACKSON KELLY PLLC Plaintiff, v. CONFEDERATED TRIBES OF COOS, LOWER UMPQUA & SIUSLAW INDIANS Defendant. DEFENDANT’S REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN
RESPONSE TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS I.
INTRODUCTION Plaintiff in its Opposition argues that sovereign immunity has been waived by the Confederated Tribes, that it is unnecessary to plead a waiver of immunity, that they are not bound by the statues and tribal provisions requiring approved attorney contracts, and that the tribal court lacks jurisdiction over the claims made here. However, the Plaintiffs have produced no clear and explicit waiver of immunity, have provided no decisional authority to support their argument that pleading a waiver is unnecessary, have provided no authority to support their claim of exemption from federal statues requiring approval of attorney contracts with tribes, and failed to argue that any of the exceptions to the exhaustion of tribal remedies doctrine apply to this case. II.
PLAINTIFF HAS NOT PLEADED OR ARGUED ANY OF THE EXCEPTIONS TO THE TRIBAL EXHAUSTION DOCTRINE “The Tribal Exhaustion rule is subject to three narrow exceptions.” Bowen v. Doyle, 236 F.3d 525, at 530 (2nd Cir. 2000). Courts need not defer to a tribal forum if (1) the party seeking exhaustion has acted in bad faith or with the intent to harass; (2) if the matter clearly exceeds tribal court jurisdiction; or (3) if exhaustion would be futile for lack of adequate opportunity to challenge the tribal court’s jurisdiction. See National Farmers Union v. Crow Tribes, 471 U.S. 845 at 856 n.21; 105 S. Ct. 2447; 85 L.Ed. 2d 818 (1985). The Plaintiff here, however, has not raised a single one of these three exceptions. III.
TRIBAL WAIVERS OF IMMUNITY DO NOT ALSO WAIVE THE TRIBAL EXHAUSTION REQUIREMENT Even if a tribe has waived its immunity from suit, exhaustion of tribal court remedies is still required. Defendants confuse sovereign immunity with the tribal court exhaustion doctrine...(and) fail to cite any authority to show that a waiver of immunity constitutes a waiver of the exhaustion doctrine. We therefore find no reason to indicate the plaintiff waived tribal court exhaustion. Tunica Biloxi Indians v. Pecot, 248 F. Supp. 2d 576, 583 (W.D. La. 2003) IV.
DATE OF ESTABLISHMENT OF TRIBAL COURT DOES NOT LIMIT ITS JURISDICTION Plaintiff points to the fact that the Tribal Court of the Confederated Tribes was established after the events giving rise to the claims presented in this case occurred in order to argue that the date of establishment of a court somehow limits its jurisdiction to events taking place subsequent to the date of the creation of the court. Plaintiff cites no authority for this proposition. The Tribes has not been able to find any authority that would support Plaintiff’s proposition. The jurisdiction of a newly created court is not generally limited to causes of action arising subsequent to the creation of the Court, e.g., Garcia v. State, 429, S.W. 2d 468 (Tex. Cr. App. 1968); but by the legislation creating the court, e.g. Rowland v. Theobald, 409 P.2d 272 (Colo. 1965); and any statutes of limitation which might be applicable. Such a rule makes logical sense because new courts are generally created as legislative response to a need to provide a forum for the resolution of existing or emergent disputes, e.g. Theodore v. Zurich General Accident, 364 P.2d 51 (Alaska 1961). Questions regarding tribal court jurisdiction should be presented to the tribal court for decision. In a recent decision, Sharber v. Spirit Mountain Gaming, Inc., 2003 WL 21147447 (9th Cir., May 15, 2003) the Ninth Circuit Court of Appeals explicitly held, (1) that a tribal court should have the first opportunity to determine whether it has jurisdiction to hear actions based on a federal statute (the Family and Medical Leave Act); (2) the absence of any ongoing tribal court action does not defeat the tribal exhaustion requirement; and (3) that the tribal exhaustion requirement also applies to issues of tribal sovereign immunity. Moreover, in Gaming World Int’l., Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840 (8th Cir. 2003), the Eight Circuit rejected precisely the argument made by Plaintiffs. The incidents giving rise to Gaming World’s claims against the Band occurred during the period 1992 through March of 1997. The White Earth Band Tribal Court was established in November of 1997. Gaming World argued that the tribal court did not exist at the time the incidents giving rise to the claims took place, and, therefore, the federal court should not require exhaustion. See id. at 847, 849. Gaming World was, however required to exhaust remedies in the tribal court. See id. at 851. V.
NO WAIVER OF IMMUNITY EXISTS Pursuant to Article VI, Sec. 4 (f) & (g) of the Constitution of the Confederated Tribes, the Tribal Council of the Confederated Tribes may only formally act by ordinance or resolution. See Const. of Confederated Tribes at 4, attached as Exhibit 1. An employee of the Tribes has reviewed all the resolutions of the Confederated Tribes from 1985 to the present and found no resolution waiving the immunity of the Tribes for the benefit of Dennis Whittlesey or Plaintiff. See Affidavit of Judith G. Anderson, attached as Exhibit 2. VI.
ANY TRIBAL WAIVER WHICH MIGHT HAVE ALLOWED THIS SUIT HAS BEEN WITHDRAWN AND NULLIFIED On November 26, 2002, Prior to the filling of this suit, the Tribal Council of the Confederated Tribes adopted Resolution NO. 02-080. See Resolution 02-080, attached as Exhibit 3. This resolution withdraws and nullifies all waivers of immunity that might have been made, or might have been attempted to have been made, by the Tribes or any of its officers or employees prior to the adoption of the resolution. Even if Plaintiff or its affiants are accurate regarding a waiver being made in favor of Plaintiff, that waiver has now been legislatively nullified. The Supreme Court of the United States has directly held that consent to suit given by the legislature may be “withdrawn” at any time. See Lynch v. United States, 292 U.S. 571, 582; 54 S. Ct. 840, 844; 78 L.Ed. 1434 (1934) Decisions to grant, withdraw, or restrict waivers of sovereign immunity are matters of legislative grace. See Morris V. State, 2002 WL 31247079, 19 IER Cases 324, Tenn. Ct. App. Oct. 8, 2002, at F.N. 11; Sikes v. Candler County, 274 S.E. 464, 466 (Ga. 1981); Withers v. University of Kentucky, 939 S.W. 2d 340, 344 (Ky. 1997); Betancourt v. Metropolitan Dade County, 393 So. 2d 21, 22 (Fla. App. 1981). The legislature may withdraw waivers of sovereign immunity at any time before a suit relying on the waiver is filed. See Athens-Clarke County v. Torres, 540 S.E. 2d 225, 227 (Ga. App. 2000); Donaldson v. Department of Transportation, 414 S.E. 2d 638, 641 (Ga. 1992). Such a withdrawal is effective even if instituted after the occurrence of events giving rise to a later lawsuit. See Dennis Bail Bonds, Inc. V. State, 622 A.2d 495, 501 (Vt., 1993). VII
UNWAIVED IMMUNITY IS A BAR TO TRIAL AND DISCOVERY Immunity is an entitlement not to stand trial or face the other burdens of trial. See Verdencia v. Adams, 327 F.3d 1171, 1174 (10th Cir.,2003); Austin v. Johnson, 328 F.3d 204, 207 (5th Cir., 2003); Gonzales v. Reno, 325 F.3d 1228, 1234 (11th Cir., 2003); Kauch v. Department for Children, 321 F3d 1 (1st Cir., 2003); Figgy v. Schroeder, 312 F.3d 625, 644 n.15 (1st Cir., 2003); Figgy v. Schroeder, 312 F.3d 625, 644 n.15 (4th Cir., 2002); Loria v. Gorman, 306 F.3d 1271, 1281 (2nd Cir., 2002); Goad v. Mitchell, 297 F.3d 497, 504 (6th Cir., 2002); McNair v. Coffey, 279 F.3d 463, 472 (7th Cir., 2002); Bennett v. Murphy, 274 F.3d 133, 137 (3rd Cir., 2002); including discovery; Poe v. Leonard, 282 F.3d 123, 131 (2nd Cir,.2002); Loevrto v. Safir, 264 F.3d 154, 163 (2nd Cir., 2001); Lambert v. Fulton, 263 F.3d 588, 596 (11th Cir., 2001); Prager v. La Faver, 180 F.3d 1185, 1190 (10th Cir., 1999); Meredith v. Federal Mine Safety and Health Review Corp’n, 177 F.3d 1042; 1051 (C.A. D.C., 1999). VII.
ACTUAL CONSENT TO TRIBAL JURISDICTION IS NOT NECESSARY TO CONSENSUAL RELATIONSHIPS Plaintiff devotes a significant portion of its brief to arguing that it did not give actual consent to the jurisdiction of the Tribal Courts of the Confederated Tribes. Defendant does not argue that Plaintiff gave actual consent to tribal jurisdiction because consent is unnecessary to the assertion of such tribal jurisdiction. No opinion of any court dealing with questions of exhaustion of tribal remedies and the jurisdiction of tribal courts has ever found actual consent to be a necessary component of tribal court jurisdiction over non-Indians. Instead, the courts have focused on the existence of factors like a “consensual relationship” to determine the likelihood of tribal jurisdiction. The “consensual relationship” has been defined as a contract or agreement or, as here, an allegation of a contract or agreement between non-Indians and the tribe or tribal members. Here, that “consensual relationship” and attorney services agreement is precisely what is alleged by Plaintiff. The Court of Appeals for the Fifth Circuit recently held that a contract, or a “consensual relationship,” to determine the likelihood of tribal jurisdiction. The “consensual relationship” has been defined as a contract or agreement, or as here, an allegation of a contract or agreement between non-Indians and the tribe or tribal members. Here, that “consensual relationship” and attorney services agreement is precisely what is alleged by Plaintiff. The Court of Appeals for the Fifth Circuit recently held that a contract, or a “consensual relationship,” between a bank and a number of Choctaw Indians was the basis for upholding a decision of a district court to require exhaustion of tribal court remedies. In Bank One, N.A. v. Shumake, 281 F.3d 507 (5th Cir. 2002), tribal members financed the purchase of satellite systems by entering into credit and security agreements with Bank One. The Bank One agreements stated that the “extensions of credit would be deemed to occur in Ohio.” Id. At 509. The Bank One Court directly found that the contractual relationship between the bank and the individual Indians was a consensual relationship that supported tribal court jurisdiction and required the exhaustion of tribal remedies. See id. at 512, n.13. Moreover, the Fifth Circuit found that the exhaustion of tribal remedies doctrine applied even though the agreements between Bank One and the Indians required disputes to be resolved under provisions of the Federal Arbitration Act. Thus, under the decision in Bank One, the Choctaw tribal court would be required to rule on the applicability of federal statutes to the dispute. IX.
JACKSON KELLY HAD NO ENFORCEABLE CONTRACT Plaintiff clearly had no written contract. To the extent Jackson Kelly worked under Mr. Whittlesey’s approved contract, as the Tribes pointed out, Mr. Whittlesey is obligated under his contract to compensate Plaintiff. Despite all of Plaintiff’s arguments about why 25 U.S.C. 81 was amended, 25 U.S.C. 81 was the law until March of the year 2000, and Plaintiff aims a contractual arrangement existed between Plaintiff and the Tribes for more than a year before 25 U.S.C. 81 was amended. Thus, any contract was void at the time it was made. If the contract was illegal and void when it was entered into, was it somehow renewed by the amendments to the statute? Plaintiff attempts to get around this problem by claiming (in footnote G & F of its Opposition) that it had a “month to month” contractual relationship with the Tribes. Conceptually then a new contract would have to be entered into with the Tribes every month with a new resolution approving the monthly contract and a new waiver of the Tribes immunity. Such an arrangement would mean that Plaintiff entered into dozens of “consensual relationships” with the Tribes. Beyond the rather inconclusive declarations of the two former tribal officials, Plaintiff has not presented the Court with evidence of contracts, federal approvals, resolutions, or waivers that clearly and explicitly provide a basis for any of their claims. In addition, virtually everything presented by Plaintiffs is located within the jurisdiction of the Tribes - actions of declarants, actions of the Tribal Council, resolutions and documents are all Tribal. This matter should be resolved in the tribal forum. X.
THE CONFEDERATED TRIBES HAS ACTED TO REGULATE DISPUTES WITH NON- INDIANS WHO ALLEGE FAILURE TO PERFORM CONTRACTS Plaintiffs argue that the Confederated Tribes has never acted to regulate their relationship with the Tribes. This is incorrect. At this time the Plaintiff has a dispute with the Tribes over money and alleged contract obligations. In September of 2001, the Confederated Tribes adopted a comprehensive tribal code and established a tribal court to provide a forum for the regulation or resolution of just such disputes. Respectfully submitted, DEFENDANT CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SIUSLAW INDIANS By its attorneys: Amy B. Levenson D.C. Bar No. 455864 Garvey Schubert Barer 1000 Potomac Street, N.W. Fifth Floor Washington, D.C. 20007 Telephone: (202) 965-7880 Facsimile: (202) 965-1729 Michael Taylor Reservation Attorney 6700 Totem Beach Road Tulalip, WA 98271-0255 Telephone: (360) 651-4046 Facsimile: (360) 651-3711 Dated: June 4, 2003 Certificate of Service I hereby certify that on this 4th day of June, 2003, I caused a true and correct copy of the foregoing Defendant’s Reply memorandum of Points and Authorities in Response to Plaintiff’s Opposition to Defendant’s Motion to Dismiss, together with Exhibits and attachments thereto, and a proposed Order, to be served via first class. U.S. Mail, postage pre-paid upon the following: Thad S. Huffman, Esq. Dennis J. Whittlesey, Esq. Jackson Kelly PLLC 2401 Pennsylvania Avenue, N.W. Suite 400 Washington, DC 20037 (Signed), Carolyn A. Prince |
| Link: Law Firm Sues Tribe Over Legal Bills for
Florence Site Link: PACT Fact Page |