Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998)

In each case, we said a State must resort to other remedies, even if they would be less “efficient.” Id., at 514; see Kiowa, 523 U. S., at 755 (“There is a difference between the right to demand compliance with state laws and the means available to enforce them”).

Cf Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751 , 759 (1998) (“In considering Congress’ role in reforming tribal immunity, we find instructive the problems of sovereign immunity for foreign countries.”).

See Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 , 756 (1998) (“[T]he immunity possessed by Indian tribes is not coextensive with that of the States”).

See Brief for Petitioners 35-38; Tr. of Oral Arg. 49; Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 , 754 (1998) (“an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”).

See Brief for Petitioners 35-38; Tr. of Oral Arg. 49; Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 , 754 (1998) ("an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity"). 14 The issue pivotal here is whether a tribe qualifies as a claimant —a "person within the jurisdiction" of the United States—under §1983. 5 The United States maintains it does not, invoking the Court's "longstanding in…

Tech., Inc., 523 U.S. 751 , 754, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“[0]ur cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred.”).

See, e.g., Florida Paraplegic Assn., Inc. v. Miccosukee Tribe, 166 F.3d 1126, 1129-33 (11th Cir.1999) (holding that the Americans with Disabilities Act applies to Indian tribes, but that the Act does not abrogate tribal immunity, and therefore that private entities may not sue tribes under the Act); cf. Kiowa Tribe, 523 U.S. at 754-56 , 118 S.Ct. at 1703 (“To say substantive state laws apply to off-reservation conduct ... is not to say that a tribe no longer enjoys immunity …

See, e.g., Florida Paraplegic Assn, Inc. v. Miccosukee Tribe, 166 F.3d 1126, 1129-33 (11th Cir. 1999) (holding that the Americans with Disabilities Act applies to Indian tribes, but that the Act does not abrogate tribal immunity, and therefore that private entities may not sue tribes under the Act); cf. Kiowa Tribe, 118 S. Ct. at 1703 ("To say substantive state laws apply to off-reservation conduct . . . is not to say that a tribe no longer enjoys immunity from suit."). 52 F…

Techs., Inc. , 523 U.S. 751 , 754, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) ; Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla. , 63 F.3d 1030 , 1050 (11th Cir. 1995) ("Tribal sovereign immunity would be rendered meaningless if a suit against a tribe asserting its immunity were allowed to proceed to trial.").

Technologies, Inc., 523 U.S. 751 , 758, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“[Tjribal [sovereignty] extends beyond what is needed to safeguard tribal self-governance.”).

See Seminole Tribe of Florida, 181 F.3d at 1242 (With respect to 25 U.S.C. § 2710 (d)(7)(A)(ii), it is “clear that Congress abrogated tribal immunity only in the narrow circumstance in which a tribe conducts class III gaming in violation of an existing Tribal-State compact.”); see also Kiowa Tribe of Oklahoma, 523 U.S. at 758 (“[Congress] has restricted tribal immunity from suit in limited circumstances.”) (citing 25 U.S.C. § 2710 (d)(7)(A)(ii)).

In any event, even assuming arguendo that a regulation can abrogate immunity, Garcia’s argument suffers from a fatal defect: "the fact that a statute applies to Indian tribes does not mean that Congress abrogated tribal immunity in adopting it.” Bassett, 204 F.3d at 357 ; see also Kiowa Tribe v. Manufacturing Tech., Inc., 523 U.S. 751 , 755, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) ("There is a difference between the right to demand compliance with state laws [by an Indian tr…

Ct. Order at 6 (R. 23, p.6). “[W]hether an Indian tribe is subject to a statute and whether the tribe may be sued for violating the statute are two entirely different questions.” Florida Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1130 (11th Cir. 1999) (emphasis in original); see also Kiowa Tribe v. Manufacturing Tech., Inc., 523 U.S. 751 , 755, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“There is a difference between the right to demand c…

Techs., Inc., 523 U.S. 751 , 754, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“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.”); Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 928 (7th Cir.2008). 7 Therefore, in the Indenture, Lake of the Torches agreed to a limited waiver of its sovereign immunity for suits connected to the bonds, the Indenture, the corporate resolution authorizing i…

Techs., Inc., 523 U.S. 751 , 759, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir.2006) (holding that a casino that “function[ed] as an arm of the Tribe” enjoyed tribal immunity), ce rt. denied., — U.S. —, 127 S.Ct. 1307 , 167 L.Ed.2d 119 (2007)…

Techs., Inc., 523 U.S. 751 , 756-58, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Kiowa Tribe”).

Their statements about when a tribe is “subject to suit” address the circumstances in which a tribe cannot assert sovereign immunity as a defense: when “Congress has authorized the suit or the tribe has waived its immunity.” Kiowa, 523 U.S. at 754; see also id. at 760 (“Congress has not abrogated this immunity, nor has [the tribe] waived it, so the immunity governs this case.”); C & L Enters., 532 U.S. at 418 (“To abrogate tribal immunity, Congress must ‘unequivocally’ expre…

See id. at 800 (“[I]t is fundamentally Congress’ job, not ours, to determine whether or how to limit tribal immunity.”); Kiowa, 523 U.S. at 759 (“The capacity of the Legislative Branch to address [this] issue by comprehensive legislation counsels some caution by us in this area.”); Santa Clara Pueblo, 436 U.S. at 60 (“[A] proper respect both for tribal sovereignty and for the plenary authority of 11The dissent adds one, equally unpersuasive argument, asserting that Indian tr…

Kiowa, 523 U.S. at 758 (“There are reasons to doubt the wisdom of perpetuating [tribal immunity] . . . . [T]ribal immunity extends beyond what is needed to safe- guard tribal self-governance.

The Supreme Court, while recognizing that “immunity can harm those who are unaware that they are dealing with a tribe,” nevertheless deferred to Congress “to weigh and accommodate the competing policy concerns and reliance interests” and upheld the exercise of sovereign immunity in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998).

Cf. Kiowa, 523 U.S. at 755 (“There is a difference between the right to demand compliance with state laws and the means available to enforce them.”).

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014); see Kiowa Tribe of Okla., 523 U.S. at 759 (“Like foreign sovereign immunity, tribal immunity is a matter of federal law.”).

Kiowa, 523 U.S. at 755 (“We have 8 recognized that a State may have authority to tax or regulate tribal activities occurring 9 within the State but outside Indian country.”); Potawatomi I, 498 U.S. at 515 (holding 10 that Oklahoma may tax cigarette sales by a tribe’s store to nonmembers.).

See, e.g., Chayoon, 355 F.3d at 143 ; Myers v. Seneca Niagara Casino, 488 F.Supp.2d 166, 171 (N.D.N.Y.2006); Cf. Kiowa Tribe v. Manufacturing Tech., Inc., 523 U.S. 751 , 755, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“There is a difference between the right to demand compliance with state laws [i.e. exemption] and the means available to enforce them [i.e. immunity].”); Miccosukee Tribe, 166 F.3d at 1130 (“[W]hether [a Native American] tribe is subject to a statute and whether…

Techs., Inc., 523 U.S. 751 , 754 (1998) (citations omitted); see Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 356 (2d Cir. 2000) (“It is by now well established that Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers.”) (citations omitted). “[C]ongressional abrogation of tribal immunity . . . ‘cannot be implied but must be unequivocally expressed.” Bassett, 204 m| F.3d at 356 (quoting Santa Clara Pueblo, 436 U.S. at 98 ).

We have found only two cases that seem to acknowledge this approach, Kiowa Tribe of Oklahoma, Inc., 523 U.S. at 758 , 118 S.Ct. at 1704 ("At one time, the doctrine of tribal inmunity from suit might '» have been thought necessary to protect nascent tribal© governments from encroachments by - States"), and Sokaogon, 86 F.3d at 659 ("the only © purpose that a requirement of a clear statement could serve would be the admittedly, perhaps archaically, paternalistic purpose of pro…

Cf. 28 U.S.C. § 1605 (a)(2) (exception to immunity for “commercial activity carried on in the United States”) with Kiowa, 523 U.S. at 760 (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”).

Cf. 28 U.S.C. § 1605 (a)(2) (exception to immunity for “commercial activity carried on in the United States”) with Kiowa, 523 U.S. at 760 (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”).

As such, plaintiff’s bare assertions that 22 this court should find a “special justification” for not applying tribal immunity here because the 23 7 Moreover, in Kiowa, the court noted that “[tribal] immunity can harm those who are unaware 24 that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims,” but nonetheless declined to “confine it to reservation or 25 to noncommercial activities.” Kio…

See id. at 814 (stating the expansion of tribal immunity in Kiowa was “error” and “an affront to state sovereignty”); Kiowa, 523 U.S. at 758 (“There are reasons to doubt the wisdom of perpetuating the doctrine. . . .

Techs., Inc. , 523 U.S. 751 , 760, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) ("Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation."); Okla.

Techs., Inc., 523 U.S. 751 , 759, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”).

Techs., Inc., 523 U.S. 751 , 756, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“[Tjribal immunity is a matter of federal law and is not subject to diminution by the States.”).

Techs., Inc., 523 U.S. 751 , 755-56, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) ("We have often noted ... that the immunity possessed by Indian tribes is not coextensive with that of the States.") and Puyallup Tribe, Inc. v. Dep't of Game of State of Wash., 433 U.S. 165, 172 , 97 S.Ct. 2616 , 53 L.Ed.2d 667 (1977) ("Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.").

Techs., Inc., 523 U.S. 751 , 759, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir.2006) (holding that a casino that “function[ed] as an arm of the Tribe” enjoyed tribal immunity), cert. denied, 549 U.S. 1231 , 127 S.Ct. 1307 , 167 L.Ed.2d 119 (2…

Techs., Inc., 523 U.S. 751, 756-58 , 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Kioiua Tribe”).

Corp. v. Meyer, 510 U.S. 471, 475 , 114 S.Ct. 996, 1000 , 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Kiowa Tribe v. Manufacturing Tech., 523 U.S. 751 , 754, 118 S.Ct. 1700 , 1702, 140 L.Ed.2d 981 (1998) (“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.”)).

Corp. v. Meyer, 510 U.S. 471, 475 , 114 S.Ct. 996 , 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Kiowa Tribe v. Manufacturing Tech., 523 U.S. 751 , 754, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“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.”).

Techs., Inc., 523 U.S. 751 , 756 (1998)). 164 See, e.g., Linneen v. Gila River Indian Cmty., 276 F.3d 489 , 492 (9th Cir. 2002) (“Such ‘sue and be sued’ clauses waive immunity with respect to a tribe’s corporate activities, but not with respect to its governmental activities.”); Barron v. Alaska Native Tribal Health Consortium, 373 F. Supp. 3d 1232, 1241-42 (D.

See Kiowa Tribe of Okla v Manufacturing Technologies, Inc, 523 US 751 , 756; 118 S Ct 1700 ; 140 L Ed 2d 981 (1998) (“[T]he immunity possessed by Indian tribes is not coextensive with that of the States”).

However, as discussed above, the Supreme Court recently stated in Upper Skagit Indian Tribe v. Lundgren, “immunity doctrines lifted from other contexts do not always neatly apply to Indian tribes.” 138 S.Ct. at 1654 (citing Kiowa Tribe of Okla., 523 U.S. at 1654 (“[T]he immunity possessed by Indian tribes is not coextensive with that of the States.”).

Id., 118 S.Ct. at 1704-1705 (“The capacity of the Legislative Branch to address the issue by comprehensive legislation counsels some caution by us in this area.... [W]e decline to revisit our case law and choose to defer to Congress.”).

Techs., Inc., 523 U.S. 751 , 754 (1998); see also Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 928 (D.C.

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 755 (1998) (“[A]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”).

Tech., Inc., 523 U.S. 751 , 754 (1998) (“an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”)).

Techs., Inc., 523 U.S. 751 , 754 (1998); see also Cook v. AVI Casino Enterprises, Inc., 28 548 F.3d 718, 725 (9th Cir. 2008) (“Tribal sovereign immunity protects Indian tribes from 1 suit absent express authorization by Congress or clear waiver by the tribe.”) Tribal 2 sovereign immunity also protects individual tribal defendants when the tribe is the “real, 3 substantial party in interest.” Pistor v. Garcia, 791 F.3d 1104, 1114 (9th Cir. 2015) 4 (quoting Maxwell v. Cnty. of…

See Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 755 (1998) (“[A]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”).

Techs., Inc., 523 U.S. 751 , 755— 56 (1998) (“We have often noted, however, that the immunity possessed by Indian tribes is not coextensive with that of the States.”).

See also Kiowa Tribe, 523 U.S. at 754 (“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.”).

Techs., Inc., 523 U.S. 751 , 760, 118 S.Ct. 1700 , 140 L.Ed.2d 981 (1998) (“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.