Jessica Intermill Founding Member, Hogen Adams PLLC

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Presentation transcript:

Jessica Intermill Founding Member, Hogen Adams PLLC 2016 Case law: Now what? Tribal In-House Counsel Association November 4, 2016 Jessica Intermill Founding Member, Hogen Adams PLLC

Big Supreme Court Year Menominee Indian Tribe of Wisconsin v. United States Nebraska v. Parker Dollar General Corporation v. Mississippi Band of Choctaw Indians United States v. Bryant

More to come in 2016-17 Lewis v. Clarke: “Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.”

More to come in 2016-17 Lee v. Tam: “Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.” And more???

Take-away 1: Immunity is still hot Bay Mills warnings Lewis v. Clarke (cert. accepted) Nov. 14: opening brief Dec. 14: employee’s brief Dec. 21: tribal amicus support

Take-away 1: Immunity is still hot Suits against employees increasing Immunity creep continues in other contexts Eminent domain Recoupment But Rule 19 lives

Take-away 2: Tuscarora persists Little River Band of Ottawa Indians v. National Labor Relations Board (denied) Soaring Eagle Casino & Resort v. National Labor Relations Board (denied)

Take-away 2: Tuscarora persists If you expect a general federal statute may apply: Consider arguing that the statute does not abrogate tribal immunity Legislate a parallel recovery scheme that allows a remedy but limits the tribe’s exposure

Take-away 3: Tribal jurisdiction? Dollar General Corporation v. Mississippi Band of Choctaw Indians

Take-away 3: Tribal jurisdiction? Dollar General had great facts and troubling oral argument questions Justice Thomas is becoming more vocal about his disdain for Indian law and tribal sovereignty The Court at least seems comfortable with tribal jurisdiction over members

Founding Member, Hogen Adams PLLC 2016 Case law: Now what? Tribal In-House Counsel Association November 4, 2016 Jessica Intermill Founding Member, Hogen Adams PLLC jintermill@hogenadams.com 651-842-9104