waiver of sovereign immunity in California

2020“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 .) “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.” (Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751 , 754.) Moreover, a waiver of sovereign immunity may not be implied; it must be unequivocally expressed by the tribe or Congress.

2020“Once the [tribal] entity demonstrates that it is an arm of the tribe, it is immune from suit unless the opposing party can show that tribal immunity has been abrogated or waived.” (Miami Nation, supra, 2 Cal.5th at p. 236 .) The law is well established that “a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ ” (Santa Clara Pueblo v. Martinez, supra, 436 U.S. at p. 58 .) To prove waiver, Rosas relies on the agreement by which Scott Tucker’s former company, CLK, was merged into and acquired by AMG.

2011(Warburton/ Buttner, supra, 103 Cal.App.4th 1170, 1186 ; Smith, supra, 95 Cal.App.4th at p. 10, fn. 9 .) Always, “[t]he proper inquiry is whether a waiver of sovereign immunity was effected by one with the authority to do so.” (Warburton/ Buttner, supra, 103 Cal.App.4th 1170, 1186 , citing Smith, supra, 95 Cal.App.4th at p. 10, fn. 9 .) Nation argues that since it chose to expressly reaffirm its previous waivers of sovereign immunity pertaining to earlier amendments, by enacting separate legislation, it must have been required to do so again in LB-07-08, when authorizing the fourth amendment,

2011(Warburton/ Buttner, supra, 103 Cal.App.4th 1170, 1186 ; Smith, supra, 95 Cal.App.4th at p. 10, fn. 9 .) Always, “[t]he proper inquiry is whether a waiver of sovereign immunity was effected by one with the authority to do so.” (Warburton/ Buttner, supra, 103 Cal.App.4th 1170, 1186 , citing Smith, supra, 95 Cal.App.4th at p. 10, fn. 9 .) Nation argues that since it chose to expressly reaffirm its previous waivers of sovereign immunity pertaining to earlier amendments, by enacting separate legislation, it must have been required to do so again in LB-07-08, when authorizing the fourth amendment,

2008(C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 418 [ 149 L.Ed.2d 623 , 121 S.Ct. 1589 ] (C&L Enterprises); Kiowa, supra, 523 U.S. at p. 754 .) To constitute an effective relinquishment of the right to immunity, the waiver must be “ ‘clear.’ ” (C&L Enterprises, at p. 418; Lawrence v. Barona Valley Ranch Resort & Casino, supra, 153 Cal.App.4th at p. 1369 ; see also Santa Clara Pueblo v. Martinez (1978) 436,U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670, 1677 ] [“[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally

2008(C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 418 [ 149 L.Ed.2d 623 , 121 S.Ct. 1589 ] (C&L Enterprises); Kiowa, supra, 523 U.S. at p. 754 .) To constitute an effective relinquishment of the right to immunity, the waiver must be “ ‘clear.’ ” (C&L Enterprises, at p. 418; Lawrence v. Barona Valley Ranch Resort & Casino, supra, 153 Cal.App.4th at p. 1369 ; see also Santa Clara Pueblo v. Martinez (1978) 436,U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670, 1677 ] [“[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally

1985(Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 172 [ 53 L.Ed.2d 667, 674 , 97 S.Ct. 2616 ].) The Supreme Court has held that, while Congress can authorize suits against Indian Nations, a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.

1985(Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 172 [ 53 L.Ed.2d 667, 674 , 97 S.Ct. 2616 ].) The Supreme Court has held that, while Congress can authorize suits against Indian Nations, a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.

2020“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 .) “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.” (Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751 , 754.) Moreover, a waiver of sovereign immunity may not be implied; it must be unequivocally expressed by the tribe or Congress.

2008(C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 418 [ 149 L.Ed.2d 623 , 121 S.Ct. 1589 ] (C&L Enterprises); Kiowa, supra, 523 U.S. at p. 754 .) To constitute an effective relinquishment of the right to immunity, the waiver must be “ ‘clear.’ ” (C&L Enterprises, at p. 418; Lawrence v. Barona Valley Ranch Resort & Casino, supra, 153 Cal.App.4th at p. 1369 ; see also Santa Clara Pueblo v. Martinez (1978) 436,U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670, 1677 ] [“[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally

2008(C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 418 [ 149 L.Ed.2d 623 , 121 S.Ct. 1589 ] (C&L Enterprises); Kiowa, supra, 523 U.S. at p. 754 .) To constitute an effective relinquishment of the right to immunity, the waiver must be “ ‘clear.’ ” (C&L Enterprises, at p. 418; Lawrence v. Barona Valley Ranch Resort & Casino, supra, 153 Cal.App.4th at p. 1369 ; see also Santa Clara Pueblo v. Martinez (1978) 436,U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670, 1677 ] [“[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally

2008(C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 418 [ 149 L.Ed.2d 623 , 121 S.Ct. 1589 ] (C&L Enterprises); Kiowa, supra, 523 U.S. at p. 754 .) To constitute an effective relinquishment of the right to immunity, the waiver must be “ ‘clear.’ ” (C&L Enterprises, at p. 418; Lawrence v. Barona Valley Ranch Resort & Casino, supra, 153 Cal.App.4th at p. 1369 ; see also Santa Clara Pueblo v. Martinez (1978) 436,U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670, 1677 ] [“[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally

2016Moreover, it is settled that a waiver of sovereign immunity “ ‘must be unequivocally expressed.’ ” (United States v. Testan (1976) 424 U.S. 392, 399 , quoting United States v. King (1969) 395 U.S. 1, 4 .) The policy language relied by plaintiffs does not amount to an unequivocal waiver of the immunity expressed in section 850.4.

1999“It is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ United States v. Testan, 424 U. S. 392, 399 [ 96 S.Ct. 948, 953 , 47 L.Ed.2d 114 ] (1976), quoting, United States v. King, 395 U. S. 1, 4 [ 89 S.Ct. 1501, 1502 , 23 L.Ed.2d 52 ] (1969).” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58-59 [ 98 S.Ct. 1670, 1677 , 56 L.Ed.2d 106 ]; see also Amer.

2016Moreover, it is settled that a waiver of sovereign immunity “ ‘must be unequivocally expressed.’ ” (United States v. Testan (1976) 424 U.S. 392, 399 , quoting United States v. King (1969) 395 U.S. 1, 4 .) The policy language relied by plaintiffs does not amount to an unequivocal waiver of the immunity expressed in section 850.4.

1999“It is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ United States v. Testan, 424 U. S. 392, 399 [ 96 S.Ct. 948, 953 , 47 L.Ed.2d 114 ] (1976), quoting, United States v. King, 395 U. S. 1, 4 [ 89 S.Ct. 1501, 1502 , 23 L.Ed.2d 52 ] (1969).” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58-59 [ 98 S.Ct. 1670, 1677 , 56 L.Ed.2d 106 ]; see also Amer.

2016(Id. at p. 1188; see Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 10, fn. 9 [ 115 Cal.Rptr.2d 455 ]; California Parking Services, Inc. v. Soboba Band of Luiseño Indians (2011) 197 Cal.App.4th 814, 820 [ 128 Cal.Rptr.3d 560 ] (California Parking); Kiowa, supra, 523 U.S. at p. 756 [“tribal immunity is a matter of federal law and is not subject to diminution by the States”].) “[T]he interpretation and construction of a written instrument . . . may be conducted de novo where ‘(a) the trial court’s contractual interpretation is based solely upon the terms of the written instrument

2016(Id. at p. 1188; see Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 10, fn. 9 [ 115 Cal.Rptr.2d 455 ]; California Parking Services, Inc. v. Soboba Band of Luiseño Indians (2011) 197 Cal.App.4th 814, 820 [ 128 Cal.Rptr.3d 560 ] (California Parking); Kiowa, supra, 523 U.S. at p. 756 [“tribal immunity is a matter of federal law and is not subject to diminution by the States”].) “[T]he interpretation and construction of a written instrument . . . may be conducted de novo where ‘(a) the trial court’s contractual interpretation is based solely upon the terms of the written instrument

2010(Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 [ 123 Cal.Rptr.2d 40 , 50 P.3d 751 ] (Myers).) 4 Overruled on another ground as noted in United States v. Varig Airlines (1984) 467 U.S. 797, 813 , footnote 10 [ 81 L.Ed.2d 660 , 104 S.Ct. 2755 ]. 5 The Feres doctrine is another exception to the waiver of sovereign immunity in the FTCA for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” (Feres, supra, 340 U.S. at p. 146 ; see Stencel, supra, 431 U.S. 666 .) 6 For the same reason Taylor held there was no need to deci

2010(Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 [ 123 Cal.Rptr.2d 40 , 50 P.3d 751 ] (Myers).) 4 Overruled on another ground as noted in United States v. Varig Airlines (1984) 467 U.S. 797, 813 , footnote 10 [ 81 L.Ed.2d 660 , 104 S.Ct. 2755 ]. 5 The Feres doctrine is another exception to the waiver of sovereign immunity in the FTCA for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” (Feres, supra, 340 U.S. at p. 146 ; see Stencel, supra, 431 U.S. 666 .) 6 For the same reason Taylor held there was no need to deci

2010(Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 [ 123 Cal.Rptr.2d 40 , 50 P.3d 751 ] (Myers).) 4 Overruled on another ground as noted in United States v. Varig Airlines (1984) 467 U.S. 797, 813 , footnote 10 [ 81 L.Ed.2d 660 , 104 S.Ct. 2755 ]. 5 The Feres doctrine is another exception to the waiver of sovereign immunity in the FTCA for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” (Feres, supra, 340 U.S. at p. 146 ; see Stencel, supra, 431 U.S. 666 .) 6 For the same reason Taylor held there was no need to deci

2006But ‘without congressional authorization,’ the ‘Indian Nations are exempt from suit.’ ” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670 ].) “It is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ ” (Ibid.) “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories. [Citation.] Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. [Citation.]” (Oklahoma Tax Co

2006But ‘without congressional authorization,’ the ‘Indian Nations are exempt from suit.’ ” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 [ 56 L.Ed.2d 106 , 98 S.Ct. 1670 ].) “It is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ ” (Ibid.) “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories. [Citation.] Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. [Citation.]” (Oklahoma Tax Co

2002(Also see Ute Distribution Corp. v. Ute Indian Tribe, supra, 149 F.3d 1260, 1269 [remanding a case dealing with water rights to the district court because it had not been determined whether the Ute Tribe as constitutional organization or the Ute Tribe as a federal corporation was the proper defendant here, for purposes of interpreting a waiver of sovereign immunity].) As explained in the American Indian Law Deskbook (2d ed. 2000) Conference of Western Attorneys General, chapter 7, section B, pages 171 through 174 (Deskbook), the issue of a waiver by an Indian tribe of its sovereign immunity fr

1999Doctrinal Bases for Determining Tort Liability of Appellants Until 1961, when the Supreme Court decided Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ], absent a waiver of sovereign immunity, the state and its political subdivisions had no tort liability to private persons.

1999Doctrinal Bases for Determining Tort Liability of Appellants Until 1961, when the Supreme Court decided Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ], absent a waiver of sovereign immunity, the state and its political subdivisions had no tort liability to private persons.