No IN THE SUPREME COURT OF ALABAMA. Appellant, Appellees.

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1 E-Filed 01:55:53 PM Honorable Robert Esdale Clerk Of The Court No IN THE SUPREME COURT OF ALABAMA JERRY RAPE, Appellant, v. POARCH BAND OF CREEK INDIANS, ET AL., Appellees. BRIEF OF THE NATIONAL CONGRESS OF AMERICAN INDIANS AS AMICUS CURAIE IN SUPPORT OF APPELLEES AND AFFIRMANCE On appeal from the Circuit Court of Montgomery County (CV , Hon. Eugene W. Reese presiding) Richard A. Guest District of Colombia Bar # Joel West Williams Pennsylvania State Bar #91691 Admitted Pro Hac Vice #2010P42P Native American Rights Fund 1514 P Street, NW, Suite D Washington, DC (202) (202) (fax) richardg@narf.org williams@narf.org R. Bernard Harwood, Jr. (HAR032) ROSEN HARWOOD, P.A Jack Warner Parkway Suite 200 Tuscaloosa, AL Telephone: (205)

2 Facsimile: (205) Attorneys for Amicus Curiae i i

3 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES i i i STATEMENT OF ORAL ARGUMENT 1 STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT 1 ARGUMENT 4 I. TRIBAL SOVEREIGN IMMUNITY BARS STATE COURT JURISDITION OVER INDIAN TRIBES, TRIBAL ENTITIES, TRIBAL OFFICIALS AND TRIBAL EMPLOYEES 4 A. Tribal Sovereign Immunity is Settled Law: Absent a Clear Waiver by the Tribe or Congressional Abrogation, Suits Against Indian Tribes are Barred by Sovereign Immunity 4 1. Although i t has expressed some reservation regarding "the wisdom of perpetuating the doctrine," the Supreme Court of the United States has consistently affirmed the doctrine of tribal sovereign immunity 4 2. The lower federal courts and state courts have unsurprisingly and uniformly adhered to the doctrine of tribal sovereign immunity 12 B. The Doctrine of Tribal Sovereign Immunity and the Doctrine of Indian Pre-emption are Separate and Distinct Doctrines 21 C. Sovereign immunity does not have a diminished application when i t is held by a tribe rather than a i

4 state, and states do not have the authority to limit a tribe's sovereign immunity 2 5 CONCLUSION 27 CERTIFICATE OF SERVICE 2 9 i i

5 TABLE OF AUTHORITIES Cases Alden v. ^e., 52 7 U.S. 706 (1999) 26 Alltel Commc'ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012) 13 Beecher v. Mohegan Tribe of Indians, 918 A.2d 880 (Conn. 2007) 20 Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) 24, 25 C&L Ent. Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001) 11 Chance v. Coquille Indian Tribe, 963 P.2d 638 (Or. 1998). 20 Chayoon v. Chao, 355 F.3d 141 (2d Cir. 2004) 12 Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012) 14, 16, 17 Cook v. AVI Casino Enters., 548 F.3d 718 (9th Cir. 2008). 13 Dilliner v. Seneca-Cayuga Tribe, 255 P.3d 516 (Okla. 2011) 25 Freemanville Water Sys. v. Poarch Band of Creek Indians, 563 F.3d 1205 (11th Cir. 2009) 14, 15 Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (11th Cir. 2012) passim Gallegos v. Pueblo of Tesuque, 46 P.3d 668 (N.M. 2002) Gavle v. Little Six, 555 N.W.2d 284 (Minn. 1998) 20, 21 Hoffman v. Sandia Resort and Casino, 232 P.3d 901 (N.M. Ct. App. 2010) 18, 19 Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (1993) 17, 18 iii

6 Kennerly v. Dist. Ct. of Ninth Jud. Dist. of Montana, 400 U.S. 423 (1971) 23 Kiowa Tribe v. Mfg. Techs., Inc. 523 U.S. 751 (1998). passim McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) 22, 24 Meier v. Sac & Fox Indian Tribe of Mississippi, 476 N.W.2d 61 (Iowa 1991) 20 Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917 (6th Cir. 2009) 13 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) 22 Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008) 13, 14 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) 24 Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth., 207 F.3d 21 (1st Cir. 2000) 12 Oklahoma Tax Commission v. Citizen Band Pottawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991) 7 Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165 (1977) 5 Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, 658 N.E.2d 989 (N.Y. 1995) 20 Rice v. Rehner, 463 U.S. 713 (1983) 23, 24 Sanderford v. Creek Casino Montgomery, 2013 U.S. Dist. LEXIS 3750, at *4 (M.D. Ala. January 10, 2013) 15 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)...passim T T E A v. Ysleta Del Sur Pueblo, 181 F.3d 676 (5th Cir. 1999) 13 Thompson v. Crow Tribe of Indians, 962 P.2d 577 (Mont. 1998) 21 Three Affiliated Tribes of the Fort Berthold Reservation v. World Engineering, P.C., 476 U.S. 877 (1986) 6, 7 iv

7 Vann v. United States Dep't of the Interior, 701 F.3d 927 (D.C. Cir. 2012) 14 Wells Fargo Bank, N.A. v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684 (7th Cir. 2011) 13 Williams v. Lee, 358 U.S. 217 (1959) 23, 24 Worchester v. Georgia, 31 U.S. 515, 561 (1832) 23, 24 Wright v. Colville Tribal Enterprises Corp., 147 P.3d 1275 (Wash. 2006) 21 Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541 (4th Cir. 2006) 13 Statutes 7 U.S.C et seq. (2006) U.S.C. 1322(a) (2006) U.S.C (2006) 5 18 U.S.C (2006) U.S.C (2006) U.S.C (2006) 18 Other Authorities American Indian Tort Liability Insurance Act, S. 2302, 106th Cong. (1999) 10 Andrea M. Seielstad, The Recognition and Evolution of Tribal Sovereign Immunity Under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty, 37 Tulsa L. Rev. 661 (2002) 10, 26 Cohen's Handbook of Federal Indian Law (Nell Jessup Newton ed., 2012) 5, 23 v

8 S. Rep. No (1999) 10 Thomas P. Schlosser, Sovereign Immunity: Should the Sovereign Control the Purse?, 24 Am. Indian Law Rev. 309 ( ) 10, 26 vi

9 STATEMENT OF ORAL ARGUMENT The National Congress of American Indians ("NCAI") defers to the Poarch Band of Creek Indians' ("Tribe") position regarding oral argument. STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT Established in 1944, NCAI is the oldest and largest American Indian organization, representing more than 250 Indian tribes and Alaska Native villages. While variations exist among them, including their lands, economic bases, populations, and histories, a l l of the tribes share a common interest in opposing the attacks on the doctrine of tribal sovereign immunity made in this case by Plaintiff/Appellant Jerry Rape ("Plaintiff"). 1 This appeal presents an issue of first impression for this Court: whether a state court has jurisdiction over a dispute between a non-indian plaintiff and an Indian tribe in the absence of clear congressional abrogation or waiver by a tribe of its sovereign immunity. NCAI takes no position on the underlying merits of the tribal casino 1 In accordance with Ala. R. App. P. 28(f), Jerry Rape is herein referred to by his party designation in the lower court. 1

10 transaction dispute in this case. However, NCAI fully supports the position of the Poarch Band of Creek Indians that: (1)the tribal defendants enjoy sovereign immunity from suit in this case; (2) Plaintiff's Carcieri-based arguments must f a i l since he brings them too late, in the wrong forum, and without the United States as an indispensable party; and (3) Alabama courts lack subject matter jurisdiction over a non-indian's claims arising from conduct on Indian lands affecting the economic interests of the Tribe. NCAI submits this brief to present this Court with a clear and accurate representation of the legal principles underlying federal Indian law and, in particular, the doctrine of tribal sovereign immunity. NCAI is extremely concerned about the novel theory of tribal sovereign immunity advanced by Plaintiff and the Alabama Attorney General. Sovereign immunity is an aspect of sovereignty that shields governments from unpermitted lawsuits. Tribal sovereign immunity is similar, but not identical, to the immunity enjoyed by federal, state and foreign governments. Despite Plaintiff's assertions to the contrary, tribal sovereign immunity is not a dying doctrine that courts shy away from. Rather, i t is a doctrine that is 2

11 widely accepted as a rule of law and applied by both federal and state courts. The arguments of Plaintiff and the Alabama Attorney General are not new and have been debated in the proper forum: Congress. Instead of enacting a broad abrogation of tribal sovereign immunity, Congress has taken a measured approach that furthers federal policies of tribal selfdetermination, cultural autonomy, and sustainable economic development, balancing the broader interests of the public and non-tribal governments. The very types of arguments they make regarding the need for abrogation in the areas of torts, contracts, and commercial activities have a l l been considered and rejected by Congress. Indeed, Plaintiff and the Alabama Attorney General urge this Court to ignore precedent, to make policy determinations, and to diminish a fundamental attribute of another government. Plaintiff asserts that the Supreme Court of the United States has "moved away from a bright line rule on tribal sovereignty" and, by implication, has abrogated the doctrine of tribal sovereign immunity. Pl.'s Br Rather than rely on the holdings of applicable 3

12 precedent, Plaintiff asks this Court to follow a fictional "trend" in the law wherein federal and state court judges may adopt a policy-based abrogation of tribal sovereign immunity--based on his misguided Indian pre-emption analysis. This Court is not faced with applying a doctrine that is in transition, but has before i t a case with a clearly applicable rule for which no valid exception has been offered. NCAI simply asks this Court to review the case law on point and to follow the law that governs this case. ARGUMENT I. TRIBAL SOVEREIGN IMMUNITY BARS STATE COURT JURISDITION OVER INDIAN TRIBES, TRIBAL ENTITIES, TRIBAL OFFICIALS AND TRIBAL EMPLOYEES. A. Tribal Sovereign Immunity is Settled Law: Absent a Clear Waiver by the Tribe or Congressional Abrogation, Suits Against Indian Tribes are Barred by Sovereign Immunity. 1. Although i t has expressed some reservation regarding "the wisdom of perpetuating the doctrine," the Supreme Court of the United States has consistently affirmed the doctrine of tribal sovereign immunity. 4

13 Since 1977, the Supreme Court of the United States has addressed the question of tribal sovereign immunity on six occasions, and has affirmed and reaffirmed its viability in each case. Cohen's Handbook of Federal Indian Law 7.05[1][a], at 636 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook]. In Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165 (1977), the State of Washington sought to enjoin tribal members from violating state fishing laws, and the Tribe entered an appearance to represent its members. Although the Court held that the tribal members were amenable to suit in state court, tribal sovereign immunity prevented suit directly against the Tribe. 433 U.S. at 172. The Court held: "Absent an effective waiver or consent, i t is settled that a state court may not exercise jurisdiction over a recognized Indian tribe." Id. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the Court was faced with the question of whether Congress had abrogated tribal sovereign immunity and authorized suit against Indian tribes through the habeas corpus relief provision under the Indian Civil Rights Act, 25 U.S.C (2006). In holding that Congress did not abrogate 5

14 tribes' immunity, the Court reaffirmed the rule that "Indian tribes have long been recognized as possessing the common-law immunity from suit enjoyed by sovereign powers," and i t emphasized that any waiver of sovereign immunity "cannot be implied but must be unequivocally expressed" by Congress. 436 U.S at (citations omitted). Next, in a very unusual case, Three Affiliated Tribes of the Fort Berthold Reservation v. World Engineering, P.C., 476 U.S. 877 (1986), the Court was faced with a North Dakota law requiring tribes suing non-indian defendants in state court to waive sovereign immunity -not just on the claim filed, but a blanket waiver of a l l tribal sovereign immunity in state court. 476 U.S. at 881. Here, the Court found that the state law at issue was pre-empted by federal law -by the doctrine of tribal sovereign immunity -and concluded that sovereign immunity is a necessary corollary to Indian sovereignty and self-government. Id. at Additionally, the Court pointed out that allowing a tribe to sue a non-indian in state court, even though a non- Indian may not be able to sue a tribe, was no different than the same inequity that existed vis-a-vis federal and state government, who likewise could sue while at the same 6

15 time limit suits against themselves through sovereign immunity. Id. at 893. Then, in Oklahoma Tax Commission v. Citizen Band Pottawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991), the State of Oklahoma directly challenged the doctrine of tribal sovereign immunity, contending that i t interfered with a state's ability to administer tax laws and, in the commercial context, was so detached from traditional tribal interests that i t no longer made sense. Once again, the Court recognized that Indian tribes are entitled to immunity from suit "absent a clear waiver by the tribe or congressional abrogation." Id. at 509. Thus, the Court held that although the state was empowered to collect taxes on the sale of cigarettes to non-indians, sovereign immunity barred suit against the tribe for collection of those taxes. Id. at 510. Perhaps the clearest explanation and discussion by the Court of the rule governing the present case came in Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998). In Kiowa, the Oklahoma Court of Appeals had held that Indian tribes were subject to suit in state court for breaches of 7

16 contract involving off-reservation commercial transactions. Id. On review, the Supreme Court of the United States reiterated the rule: "As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Id. at 754. Then, the Court analyzed the Oklahoma Supreme Court's decision in Hoover v. Oklahoma, which the lower court had followed for the principle that "tribal immunity for offreservation commercial activity, like the decision not to exercise jurisdiction over a sister State, is solely a matter of comity." Id. at 755 (citations omitted). But the Court took issue with this principle, noting that tribal sovereign immunity is not "coextensive" with state sovereign immunity since tribes, unlike the States, were not at the Constitutional Convention. Id. at 756 (citations omitted). Thus, the Court concluded, "tribal immunity is a matter of federal law and is not subject to diminution by the States." Id. In its discussion of tribal sovereign immunity, the Kiowa Court did express reservation regarding "the wisdom of perpetuating the doctrine," especially in light of a tribe's participation in the nation's commerce, in relation 8

17 to those who may be unaware that they are dealing with a tribe, or with respect to tort victims. Id. at 758. However, the Court declined the invitation to abrogate tribal sovereign immunity, either in whole or in part, and instead "defer[red] to the role Congress may wish to exercise in this important judgment." Id. The Court proceeded to describe the actions already taken by Congress in abrogating tribal sovereign immunity in limited circumstances (e.g., mandatory l i a b i l i t y insurance, certain gaming activities), and actions taken by Congress to preserve the doctrine (e.g., financial assistance programs). Id. at The Court clearly recognized that Congress, not the courts, is in the best position to "weigh and accommodate the competing policy concerns and reliance interests." Id. at 759. At the same time that the Court was deciding Kiowa, Congress was examining tribal sovereign immunity and was well aware of the concerns being expressed by the Court and others. Between 1996 and 1999, Congress held extensive hearings on the topic of tribal sovereign immunity and heard a f u l l range of views, including those who advocated for abrogating tribal sovereign immunity in commercial 9

18 transactions. S. Rep. No , at (1999). Congress considered a number of legislative bills which proposed a spectrum of tribal sovereign immunity abrogation, including allowing states to sue tribes and tribal businesses to collect state taxes and not allowing tribes to assert sovereign immunity in tort suits. 2 Through these bills and in the hearings, Congress heard the types of policy-based arguments made in the case sub judice for abrogating tribal sovereign immunity. Instead of broadly abrogating tribal sovereign immunity, Congress chose a more limited, measured approach that balanced the policies of self-determination and economic development with concerns of those opposing tribal sovereign immunity. Seielstad, supra, at , 763, For a f u l l discussion of pending legislation during that time, see Thomas P. Schlosser, Sovereign Immunity: Should the Sovereign Control the Purse?, 24 Am. Indian Law Rev. 309, ( ), and Andrea M. Seielstad, The Recognition and Evolution of Tribal Sovereign Immunity Under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty, 37 Tulsa L. Rev. 661, , (2002). One of the bills before Congress specifically referenced Kiowa in its findings. Id. (citing American Indian Tort Liability Insurance Act, S. 2302, 106th Cong. (1999). 10

19 And finally, the most recent tribal sovereign immunity case to come before the Court dealt with the question of whether a tribe had waived its immunity in a construction contract that contained an arbitration clause and choice of law provision. C&L Ent. Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001). In C&L, the Court affirmed the continued viability of the doctrine of tribal sovereign immunity, but held that the specific and explicit nature of the arbitration clause and choice of law provision in the contract at issue was sufficiently clear to waive the tribe's immunity from suit to enforce the arbitrator's decision in state court. Id. at 418. Therefore, the Supreme Court has had many opportunities to refute the doctrine of tribal sovereign immunity over the past thirty-five years and in every instance has reaffirmed the doctrine. Based on the foregoing, i t should be clear that Plaintiff's arguments are not new. In addition to the Court, these arguments have also been presented to Congress, who has thoroughly examined the arguments and balanced the policy-based needs of tribes, the public, and non-tribal governments. This court, similar 11

20 to the Kiowa Court, should decline Plaintiff's invitation to usurp the role of Congress in this matter. 2. The lower federal courts and state courts have unsurprisingly and uniformly adhered to the doctrine of tribal sovereign immunity. Plaintiff's contention that there is a judicial trend in the lower federal courts and state courts abrogating tribal sovereign immunity is without merit. It simply cannot be squared with Kiowa and the large body of federal and state case law reaffirming and applying tribal sovereign immunity. Every U.S. Circuit Court of Appeals, except the Third Circuit where there are no federally recognized tribes, has issued opinions that affirm the viability of the doctrine of sovereign immunity. See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth., 207 F.3d 21, 29 (1st Cir. 2000) ("doctrine of tribal sovereign immunity precludes a suit against an Indian tribe except in instances in which Congress has abrogated that immunity or the tribe has forgone i t " ) ; Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir.) (claims barred against individual members of the tribal council and employees of the gaming enterprise), cert, denied, 543 U.S. 12

21 966 (2004); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 552 (4th Cir. 2006) (tribe was necessary and indispensable party which could not be joined under doctrine of tribal sovereign immunity); T T E A v. Ysleta Del Sur Pueblo, 181 F.3d 676, 680 (5th Cir. 1999) (dismissed suit against tribe on basis on sovereign immunity and failure to state a claim); Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, (6th Cir. 2009) (affirming dismissal of suit against a tribal corporation because there was no waiver); Wells Fargo Bank, N.A. v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684, 689 (7th Cir. 2011) (Indian tribes are sovereign governments "immune from suit absent waiver or congressional abrogation"); Alltel Commc'ns, LLC v. DeJordy, 675 F.3d 1100, 1102 (8th Cir. 2012) (granting motion to quash third-party subpoenas against a tribe and tribal officer); Cook v. AVI Casino Enters., 548 F.3d 718, 725 (9th Cir. 2008) (negligence and dram shop l i a b i l i t y claims barred against a tribal corporation and its employees), cert, denied, 129 S. Ct (2009); Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, (10th Cir. 2008) (breach of contract and c i v i l 13

22 conspiracy action barred against tribal business entities and individual officers because the enterprise did not waive its immunity); Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (11th Cir.) (wrongful death case barred against a Tribe, tribal business entities, and the tribal police), cert, denied, 133 S. Ct. 663 (2012); Vann v. United States Dep't of the Interior, 701 F.3d 927, 928 (D.C. Cir. 2012), rehearing en banc denied (Mar. 12, 2013) (Indian tribe is a sovereign government "entitled to sovereign immunity [which] may not be sued without its consent"). Of particular note are the recent decisions by the U.S. Court of Appeals for the Eleventh Circuit, in particular, Freemanville Water Sys. v. Poarch Band of Creek Indians, 563 F.3d 1205 (11th Cir. 2009); Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224; and Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012), cert, denied, 133 S. Ct. 843 (2013). In Freemanville, the Poarch Band claimed that a rural water authority could not bring suit against i t seeking declaratory and injunctive relief. 563 F.3d at The suit arose because the Poarch Band had begun developing 14

23 infrastructure to supply its own water, and some of the tribal water system was to be located within Freemanville's service area, allegedly in violation of the Consolidated Farm and Rural Development Act of 1961, 7 U.S.C et seq. (2006). Id. at In no uncertain terms, the Eleventh Circuit stated and followed the doctrine of tribal sovereign immunity, and held that the Poarch Band of Creek Indians is immune from suit: "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Thus "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived immunity." Tribal sovereign immunity, where i t applies, bars actions against tribes regardless of the type of relief sought. 563 F.3d (internal citations omitted); accord Sanderford v. Creek Casino Montgomery, 2013 U.S. Dist. LEXIS 3750, at *4 (M.D. Ala. January 10, 2013) ("[Poarch Band] is a federally recognized Indian Tribe and enjoys sovereign immunity absent Congressional abrogation or waiver"). In Furry, the father of a woman who was killed in a motor vehicle collision after she left a casino bar visibly 15

24 intoxicated filed a wrongful death suit against the Tribe, tribal business entities and the tribal police. 685 F.3d at The father alleged that the Miccosukee Tribe had violated 18 U.S.C and Florida's dram shop law by knowingly serving excessive amounts of alcohol to his daughter. Id. at The Eleventh Circuit held that a wrongful death suit against the Miccosukee Tribe was barred by the doctrine of tribal sovereign immunity, and that neither 18 U.S.C nor the Tribe's application for a state liquor license waives that immunity. 685 F.3d And in Contour Spa, a company that had invested $1.5 million into a spa facility at a tribally owned casino resort only to find out that the Bureau of Indian Affairs had not approved the lease sued the Tribe when the Tribe threatened to, and in fact did, retake the premises. 692 F.3d The Eleventh Circuit rejected the arguments of Contour Spa that the Seminole Tribe's immunity was: (1) voluntarily waived by the Tribe in its removal of the case from state to federal court; (2) impliedly waived under the Indian Civil Rights Act; or (3) foreclosed under the principles of equitable estoppel. Id. at The court 16

25 dismissed the suit for lack of subject matter jurisdiction. Id. Likewise, state courts of last resort have also uniformly affirmed the doctrine of tribal sovereign immunity. A few cases involving tribal casinos serve to illustrate this fact. In Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (1993), the Supreme Court of Florida was asked to decide whether a state statute waived the Seminole Tribe's immunity from suit for personal injuries a woman sustained from a f a l l while patronizing the Tribe's bingo hall. The t r i a l court denied the Tribe's motion to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity, but the judgment was reversed on appeal. The Supreme Court of Florida held that, absent a waiver of its immunity, the "Seminole Tribe is immune from suit and that Florida courts lack subject matter jurisdiction" over the suit. Id. at In Houghtaling, the court engaged in a lengthy discussion of the legal history of the sovereign immunity of Indian tribes such history reflecting a tradition of recognizing the retained sovereignty of tribes and, as a corollary, their immunity from suit. Id. at Then the court 17

26 considered whether the Florida statute that assumed jurisdiction over criminal and c i v i l causes of action between Indians and other persons, pursuant to federal Public Law , 18 U.S.C (2006), 28 U.S.C (2006), waived tribes' immunity. Id. at The court turned to the oft-cited rule that "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Id. at 1239 (citing Santa Clara Pueblo, 436 U.S. at 58) (internal quotation marks omitted). Thus, under Houghtaling, even where a state has actively assumed jurisdiction over c i v i l and criminal causes of action between Indians and other persons pursuant to a federal grant of jurisdiction, the state courts nonetheless lack subject matter jurisdiction over suits against Indian tribes based on the doctrine of tribal sovereign immunity. Another highly relevant example is a case in which the New Mexico Court of Appeals considered nearly identical circumstances to the present case and affirmed the tribe's immunity from suit. Hoffman v. Sandia Resort and Casino, 232 P.3d 901 (N.M. Ct. App.), cert, denied, 240 P.3d 15 (N.M), cert, denied, 131 S. Ct. 227 (2010). Mr. Hoffman 18

27 had sued the Sandia Resort and Casino (Sandia) under breach of contract, prima facie tort, and violation of the Unfair Practices Act after he allegedly won a jackpot over $1.5 million on a slot machine and Sandia refused to pay out the money, claiming the machine had malfunctioned. Id. at 902. The district court dismissed the action based on the tribe's sovereign immunity, and the New Mexico Court of Appeals affirmed. Id. The court "readily dismiss[ed]" Hoffman's argument urging the court to abandon the principle of sovereign immunity as an "anachronistic legal theory" and held that i t was obligated to follow precedent established by both the United States Supreme Court and the New Mexico Supreme Court, which "recognize tribal sovereign immunity as a legitimate legal doctrine of significant historical pedigree." Id. at And the doctrine remains robust, with most state courts that have considered the doctrine holding that sovereign immunity protects a tribe, its entities, and i t officers from suit absent an express waiver by Congress or the tribe itself. The underlying facts or causes of action in a state court case have done l i t t l e to change the result. For example, the New Mexico Supreme Court held that a tribe was 19

28 immune from a tort suit brought by a casino patron. Gallegos v. Pueblo of Tesuque, 46 P.3d 668 (N.M.), cert, dismissed 123 S. Ct. 32 (2002). New York's highest court held that a tribal fund was entitled to the tribe's sovereign immunity, and that the "sue and be sued" clause in the fund's charter did not waive that immunity. Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, 658 N.E.2d 989, 992 (N.Y. 1995) ("That Indian tribes possess common-law sovereign immunity from suit akin to that enjoyed by other sovereigns is part of this Nation's long-standing tradition."). The Oregon Supreme Court upheld tribal sovereign immunity when i t held that the president of a tribal corporation did not validly waive immunity. Chance v. Coquille Indian Tribe, 963 P.2d 638, 639 (Or. 1998) ("little question that the Coquille Tribe generally possesses the immunity from claims" asserted). In addition, the highest courts in Connecticut, Iowa, Minnesota, Montana, and Washington have dismissed cases on the basis of tribal sovereign immunity. Beecher v. Mohegan Tribe of Indians, 918 A.2d 880, 884 (Conn. 2007); Meier v. Sac & Fox Indian Tribe of Mississippi, 476 N.W.2d 61 (Iowa 1991); Gavle v. Little Six, 555 N.W.2d 284, 292 (Minn.), cert. 20

29 denied, 118 S. Ct (1998); Thompson v. Crow Tribe of Indians, 962 P.2d 577, 580 (Mont. 1998); Wright v. Colville Tribal Enterprises Corp., 147 P.3d 1275 (Wash. 2006), cert. dismissed, 127 S. Ct (2007). Tribal sovereign immunity is s t i l l alive and well in state courts. This context demonstrates the solidity of the doctrine and the courts' continued commitment to i t. B. The Doctrine of Tribal Sovereign Immunity and the Doctrine of Indian Pre-emption are Separate and Distinct Doctrines. Throughout his argument, Plaintiff confuses the doctrine of tribal sovereign immunity with the doctrine of Indian preemption. Plaintiff makes this mistake by incorrectly conflating the use of the term "sovereignty" in the line of Indian preemption cases with the rule for tribal sovereign immunity, which leads him to ask this Court to reach a conclusion inconsistent with the law. Tribal sovereign immunity and the Indian preemption doctrine may ultimately bar legal claims against a tribe, but each doctrine is applied by a court to resolve distinctly different questions. 21

30 As explained in f u l l above, tribal sovereign immunity applies when an Indian tribe is sued, and i t prevents suit based on the tribe's status as a sovereign government, absent a waiver by Congress or the tribe. See, e.g., Santa Clara Pueblo, 436 U.S at 58 (1978); Kiowa, 523 U.S. at 760. By contrast, Indian preemption has nothing to do with whether a tribe is immune from suit in federal or state court. Instead, Indian preemption analysis probes whether state interests are irreconcilable with federal interests and, thus, prohibit the application of state law in Indian country regardless of whether applied to a tribal government or an individual. The doctrine of Indian preemption has been applied to determine, for example, whether a state has authority to tax activities occurring on Indian lands, or to tax activities of a tribe outside its reservation, or whether such state authority is preempted by federal law. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) (federal law preempted taxation of individual Indian's wages earned within reservation); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (applying preemption analysis to determine extent of state authority to tax tribal activities outside its 22

31 reservation); Rice v. Rehner, 463 U.S. 713 (1983) (applying preemption analysis to determine state authority over Indian trader selling alcoholic beverages on a reservation). Preemption analysis is slightly different in Indian law cases because tribal sovereignty concepts raise a presumption favoring preemption of state law, whereas there is a presumption against preemption in other contexts. Cohen's Handbook at 6.03[2][a]. Accordingly, state courts lack c i v i l jurisdiction over tribal defendants for claims arising on a reservation unless the tribe has consented to the state's jurisdiction. Williams v. Lee, 358 U.S. 217 (1959); Kennerly v. Dist. Ct. of Ninth Jud. Dist. of Montana, 400 U.S. 423 (1971); 25 U.S.C. 1322(a). Therefore, unless the State of Alabama has assumed jurisdiction and the Poarch Band of Creek Indians consented to i t, the state lacks c i v i l jurisdiction over exactly the type of claims in this case. The cases Plaintiff cites for his contention that sovereign immunity is a dying doctrine come from a line of Indian preemption cases discussing state authority over 23

32 Indians. The famous case of Worchester v. Georgia, 31 U.S. 515, 561 (1832), originally announced the principle that state law "can have no force" in Indian territory. Later, the Court in Williams v. Lee held that, absent congressional action, a state may not infringe upon the "right of reservation Indians to make their own laws and be ruled by them." 358 U.S. at 220. The Supreme Court has since developed a more tempered balancing test whereby "[s]tate jurisdiction is pre-empted by the operation of federal law i f i t interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). It is under this test that the Indian sovereignty doctrine from Worchester and Williams becomes "a backdrop" to the court's analysis of federal statutes and treaties in preemption analysis. McClanahan, 411 U.S. at 172. Sovereign immunity remains intact. Although Plaintiff cites Bittle v. Bahe, 192 P.3d 810 (Okla. 2008), in support of his position, the case is not an example of proper tribal sovereign immunity analysis. In 24

33 rejecting the case, the United States Court of Appeals for the Eleventh Circuit wrote, "...[W]e find [the Oklahoma Supreme Court's analysis] unpersuasive and inconsistent with precedents from this Court and the United States Supreme Court..." Furry, 685 F.3d at 1234 n.7 (11th Cir. 2012). Bittle was rejected because i t engaged in precisely the type of confused analysis that Plaintiff encourages this Court to adopt that blurs the well-established rule of sovereign immunity on the one hand and Indian preemption analysis on the other. The Eleventh Circuit recognized this error and this court should likewise avoid the confused analysis that Plaintiff urges. Even the Oklahoma Supreme Court, in a decision after Bittle, recognized the import of the doctrine and applied i t to dismiss a suit against a tribe. See Dilliner v. Seneca-Cayuga Tribe, 255 P.3d 516 (Okla. 2011). C. Sovereign immunity does not have a diminished application when i t is held by a tribe rather than a state, and states do not have the authority to limit a tribe's sovereign immunity. The repeated affirmation of tribal sovereign immunity by courts and Congress demonstrates a deliberate recognition of an attribute held by tribes as sovereign 25

34 nations. Sovereign immunity is a fundamental aspect of any government's sovereignty. The reasoning behind tribal sovereign immunity is essentially the same as the reasons the federal government, States, and foreign governments have sovereign immunity: i t avoids interference with governmental functions and a government's control of its instrumentalities, funds and property. See Schlosser, supra, at 309. Moreover, in the tribal context, sovereign immunity furthers the federal policy of self-determination, cultural autonomy and economic development. See Seielstad, supra, at , 763, The Alabama Attorney General's attempt to distinguish tribal sovereign immunity from state sovereign immunity as a basis for this Court to reshape the doctrine is unpersuasive. The U.S. Supreme Court has said that state sovereign immunity does not derive from the Eleventh Amendment, but is a fundamental aspect of sovereignty that states enjoyed before ratification of the Constitution. Alden v. Me., 527 U.S. 706, 713 (1999). The Court has made a similar observation regarding tribal sovereign immunity: As separate powers pre-existing the Constitution, tribes have historically been regarded as 26

35 unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.... Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo, 436 U.S. at 58. Accordingly, tribal sovereign immunity is federal law and is not subject to diminution by the states. Kiowa, 523 U.S. at 756. CONCLUSION For the above-stated reasons, the t r i a l court was correct in dismissing Plaintiff's lawsuit based on the straight-forward application of well-established law and should be affirmed. Respectfully submitted, /s/ Richard Guest Attorney /s/ Joel West Williams Attorney Admitted Pro Hac Vice, #2010P42P Native American Rights Fund 1514 P Street, NW, Suite D Washington, DC (202) (202) (fax) richardg@narf.org /s/ R. Bernard Harwood, Jr. R. Bernard Harwood, Jr. (HAR032) ROSEN HARWOOD, P.A. 27

36 2200 Jack Warner Parkway Suite 200 Tuscaloosa, AL Telephone: (205) Facsimile: (205) Attorneys for Amicus Curiae 28

37 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served on this 17 t h day of April, 2013, to the following by as noted: Andrew J. Moak Matt Abbott Abbott Law Firm, LLC 308 Martin Street North, Suite 200 Pell City, AL (205) (205) (fax) matt@abbottfirm.com andrew@abbottfirm.com Luther Strange John C. Neiman, Jr. Andrew L. Brasher Office of the Attorney General 501 Washington Avenue Montgomery, AL Telephone: (334) Facsimile: (334) lstrange@ago.state.al.us jneiman@ago.state.al.us abrasher@ago.state.al.us Bryan M. Taylor 2005 Cobbs Ford Road Suite 403 Prattville, AL Telephone: (334) Facsimile: (334) Bryan@bryantaylorlaw.com Ed R. Haden BALCH & BINGHAM LLP Post Office Box 306 Birmingham, AL Telephone: (205) Facsimile: (205) ehaden@balch.com 29

38 Kelly F. Pate, Esq. Robin G. Laurie, Esq. J. Eric Getty, Esq. Balch & Bingham, LLP P.O. Box 78 Montgomery, AL (334) ; (334) (866) ; (334) (fax) /s/ Richard Guest Attorney Native American Rights Fund 30