2009 American Indian Law Deskbook Supplement

Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act

34 P.288, n.8. Replace “, with” in line 9 of the footnote with a period. Add the following to the end of the footnote: A tribe’s immunity from suit also has been held inapplicable to in rem actions that may affect its property interests. E.g., Smale v. Noretep, 208 P.3d 1180, 1181 (Wash. Ct. App. 2009) (applying Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (Wash. 1996), and holding that tribal immunity from suit did not preclude an in rem action to quiet title under an adverse possession claim without regard to whether land was within or without the tribe’s reservation). P.294, n.50. Add the following to line 4 of the footnote after the semi-colon: Ameriloan v. Superior Ct., 86 Cal. Rptr. 3d 572, 579 (Ct. App. 2008) (noting state agency’s contention that Manufacturing Technologies “is inapposite because it involved a private action, not a government-initiated enforcement action,” and responding that the agency “misapprehends the relevant case law and confuses principles of preemption with those governing tribal sovereign immunity”); Add the following to the end of the footnote before the period: ; see generally Nathaniel T. Haskins, Note, Framing Current Jurisdiction Issues in the Self-Determination Era: Accepting the First Circuit’s Analysis but Rejecting Its Application to Preserve Tribal Sovereignty, 32 Am. Indian L. Rev. 441, 458 (2007–2008) (characterizing the Narragansett majority opinion’s analysis as “a work of fiction” to the extent it reasoned “that tribal sovereign immunity was an incident of its sovereignty, and therefore, when the tribe subjugated its autonomy by consenting to concurrent jurisdiction, it did the same to its sovereign immunity”) Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act 35 Tribal Sovereign Immunity and the Indian Civil Rights Act P.295, n.51. Add the following to line 2 of the footnote after “E.g.,”: Vann v. Kempthorne, 534 F.3d 741, 756 (D.C. Cir. 2008) (concluding that Ex parte Young relief is available against tribal officers, but remanding for a determination of “whether ‘in equity and good conscience’ the suit can proceed with the [tribe’s] officers but without the [tribe] itself”); Add the following to the eleventh-to-last line of the footnote after “see generally”: Katherine Florey, Sovereign Immunity’s Penumbras: Common Law, “Accident,” and Policy in the Development of Sovereign Immunity Doctrine, 43 Wake Forest L. Rev. 765, 767, 826, 829 (2008) (contending that courts, other than the United States Supreme Court, “have gone from strictly construing the doctrine to creating a sort of common law, ‘penumbral’ sovereign immunity that extends well beyond what are normally considered to be the doctrine’s boundaries[;]” identifying several such penumbral areas including derivative sovereign immunity , indispensable party decision-making, and res judicata; and suggesting four principles for resolving “marginal sovereign immunity” cases among which is treating different types of sovereigns discretely in penumbral areas, with tribes having “strong and unique policy justifications . . . for a vigorous doctrine of tribal immunity”); P.297, n.61. Add the following to the beginning of the footnote: Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1209 (11th Cir. 2009) (no abrogation under Consolidated Farm and Rural Development Act with respect to “anti-curtailment” lawsuits; reasoning in part clear-and-unequivocal standard was not satisfied given the fact that “Indian tribes are explicitly included within the scope of seven provisions of the Rural Development Act, but they are not mentioned in [the] anti-curtailment provision” and the settled canon that “‘it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’”); Add the following to line 11 of the footnote after the semi-colon: Bales v. Chickasaw Nation Indus., 606 F. Supp. 2d 1299, 1308 (D.N.M. 2009) (even if secretarialy-chartered corporation did not partake of the coverage exemption accorded tribes themselves under Title VII of the Equal Employment Opportunity Act, “Plaintiff has failed to convince the Court that Congress has unequivocally abrogated tribal sovereign immunity” as to claims under the statute; corporation also immune from suit under the Age Discrimination in Employment Act, notwithstanding law’s general applicability, given the lack of congressional abrogation); cf. United States v. Menominee Tribal Enters., 601 F. Supp. 2d 1061, 1068 (E.D. Wis. 2009) (tribe is not a “person ” under the False Claims Act, but tribal employees sued in their individual capacity are; as to the former, “the existence of...