Chapter 6 Civil Adjudicatory Jurisdiction
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49 Civil Adjudicatory Jurisdiction 49 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), cert. denied, 130 S. Ct. 624 (2009). 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”), aff’d in part and vacated in part, 609 F.3d 927 (8th Cir. 2010), cert. denied, 131 S. Ct. 1003 (2011). Chapter 6 Civil Adjudicatory Jurisdiction 50 2011 Supplement—American Indian Law Deskbook, Fourth Edition 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.68. Add the following to the end of the footnote before the period: ; see also QEP Field Servs. Co. v. Ute Indian Tribe, 740 F. Supp. 2d 1274, 1280 (D. Utah 2010) (analyzing, and relying upon, arbitration provision in surface use and access agreement to conclude that exhaustion of tribal court remedies not required; “because there was a clear and unambiguous waiver of Tribal Court jurisdiction in the Agreement, the litigation in Tribal Court is patently violative of the parties’ written agreement and exhaustion is unnecessary”) 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”), cert. denied, 130 S. Ct. 624 (2009); 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...


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