Chapter 6 Civil Adjudicatory Jurisdiction
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28 P.225, n.2. Add the following to line 1 of the footnote after “See”: Cook v. Avi Casino Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008), cert. denied, 129 S. Ct. 2159 (2009); P.231, n.34. Add the following to the eleventh-to-last line of the footnote before the semi-colon: , vacated in part & remanded, 569 F.3d 589, 596 (6th Cir. 2009) (§ 1983 claim remanded for determination of “whether the [tribe] was entitled to the federal funds (a) only as a result of its sovereignty, or (b) simply because it provides certain social services” since, under any “plausible” reading of Inyo County, “[i]f it is the latter, then [the tribe’s] § 1983 suit would not be in any way dependent on its status as a sovereign, and it should be considered a ‘person’ within the meaning of that statute, so long as other private, nonsovereign entities could likewise sue under § 1983”) P.233, n.48. Add the following to the end of the footnote: As would appear implicit from National Farmers—where exhaustion had not occurred—appellate review is available of a stay or dismissal order. See Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 936 (9th Cir. 2009) (order staying action to allow for tribal court exhaustion deemed appealable under 28 U.S.C. § 1292(a)(1)); Elliott v. White Mountain Apache Tribal Ct., 566 F.3d 842, 845–46 (9th Cir. 2009) (order dismissing action without prejudice to allow for tribal court exhaustion deemed final for appeal purposes under 28 U.S.C. § 1291). Also implicit is the absence of tribal immunity from suit where its courts are alleged to be acting in contravention of federal law–imposed limitations. See Attorney’s Process and Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, No. 05-CV-168-LRR, 2009 WL 1783497, at *6 (N.D. Iowa June 18, 2009) (“[t]he wealth of federal case law concerning tribal court civil jurisdiction over non-members demonstrates that sovereign immunity does not bar a district court from considering this matter”). Chapter 6 Civil Adjudicatory Jurisdiction 29 Civil Adjudicatory Jurisdiction P.234, n.54. Add the following to the end of the footnote before the period: ; see Miner v. Standing Rock Sioux Tribe, 619 F. Supp. 2d 715, 726 (D.S.D. 2009) (declining to consider merits of contract claim by former tribal court judge against tribe which was resolved against the federal court plaintiff by tribal courts and where no claim existed that the latter lacked jurisdiction; complaint dismissed for lack of subject matter jurisdiction since neither diversity nor federal question jurisdiction existed) P.234, n.55. Delete “Id.” and replace the deletion with “480 U.S.”. P.238, n.73. Add the following to line 1 of the footnote after “E.g.,”: Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 935 (9th Cir. 2009) (engaging in detailed analysis of the merits to determine whether the defendant’s claim of tribal court jurisdiction is “colorable”); Elliott v. White Mountain Apache Tribal Ct., 566 F.3d 842, 848 (9th Cir. 2009) (“plainly lacking” exception identified in Strate footnote 14 resolved on the basis of whether assertion of tribal adjudicatory authority over nonmember was “plausible” or “colorable”); P.245, n.115. Add the following to the beginning of the footnote: Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 944 (9th Cir. 2009) (rejecting contention that “Hicks . . . stand[s] for a rule that tribes have no jurisdiction over federal statutory claims absent an explicit statutory grant[,]” but holding further that “where Congress is silent—as in the Lanham Act—tribal jurisdiction rests on inherent sovereignty, and its scope is prescribed by Montana”); Add the following to the end of the footnote before the period: ; but see Graham v. Applied Geo Techs., Inc., 593 F. Supp. 2d 915, 919–21 (S.D. Miss. 2008) (exhaustion of tribal remedies required with respect to employment discrimination claim under Title VII of the Civil Rights Act of 1964, where the action was against a for-profit corporation chartered by tribe, not a non-Indian, and was predicated upon conduct occurring on reservation out of a consensual relationship) P.255, n.168. Add the following to line 13 of the footnote after the semi-colon: Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 934 (9th Cir. 2009) (rejecting reliance...