Miccosukee Tribe of Indians of Florida v. Lewis Tein, P.L. ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed August 9, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2826
Lower Tribunal No. 16-21856
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Miccosukee Tribe of Indians of Florida,
Appellant,
vs.
Lewis Tein, P.L., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, John W. Thornton, Jr., Judge.
Saunooke Law Firm, P.A., and Robert O. Saunooke (Miramar); Alston &
Bird LLP, George B. Abney, Daniel F. Diffley, and Michael J. Barry (Atlanta,
Georgia), for appellant.
Colson Hicks Eidson, P.A., Curtis B. Miner, Roberto Martinez, and
Stephanie Casey, for appellees.
Rice Pugatch Robinson Storfer & Cohen PLLC, and Craig A. Pugatch, for
United South and Eastern Tribes, Inc., as amicus curiae.
Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
LUCK, J.
“There are reasons to doubt the wisdom of perpetuating the doctrine” of
tribal immunity. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751,
758 (1998). It “can harm those who are unaware 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.” Id. No one knows this more than Guy Lewis and Michael
Tein. The Miccosukee Tribe of Indians of Florida, according to Lewis and Tein’s
complaint, spent five years filing false lawsuits, suborning perjury, and obstructing
justice, in an effort to damage the attorneys’ finances, reputations, and law firm.
Whatever its wisdom, tribal immunity endures, and Indian tribes are not subject to
the civil jurisdiction of our courts absent a clear, explicit, and unmistakable waiver
of tribal sovereign immunity or a congressional abrogation of that immunity.
Because neither exception to tribal immunity has been established in this case, we
reverse the trial court’s denial of the Miccosukee Tribe’s motion to dismiss.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Bermudez Wrongful Death Case. In 2000, the Bermudez family filed a
wrongful death action against Tammy Billie and Jimmie Bert, two members of the
Miccosukee Tribe, based on their involvement in a 1998 car accident in which
Gloria Bermudez was killed and her husband and son were injured. The Tribe was
not a party to the action. In 2005, Lewis and Tein were hired to take over Billie
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and Bert’s defense in the wrongful death action.1 Damages were awarded in 2009
in the amount of $3.177 million to the Bermudez family. Following entry of the
2009 civil judgment, the Bermudez family began collections proceedings against
Tammy Billie and Jimmy Bert; the family also sought to enforce the judgment
against the Tribe itself, even though the Tribe was not a party to the suit.
In September 2011, Bernardo Roman, the Tribe’s new attorney, provided the
Bermudez family attorney with copies of sixty-one checks and check stubs from
the Tribe’s general account, payable to Lewis and Tein in the amount of
$3,111,567. By doing so, the Tribe falsely represented to the trial court that the
Tribe paid for the defense of Tammie Billie and Jimmie Bert in the wrongful death
action. (In fact, the Tribe loaned the money to Billie and Bert to pay for their
attorney’s fees out of their quarterly dividends that all Tribe members receive.)
Based on Roman’s actions, the Bermudez attorney launched, what turned out to be,
a false claim of perjury and fraud on the court against Lewis and Tein. During
these proceedings, Roman filed a motion for protective order and to quash a
subpoena for deposition.
In Miccosukee Tribe of Indians of Florida v. Bermudez, 92 So. 3d 232 (Fla.
3d DCA 2012), this court held that the Tribe and Roman’s conduct in providing
1From 2005 to 2010, Lewis and Tein represented the Tribe and individual Tribe
members in various legal proceedings.
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the Bermudez attorney with the checks constituted a waiver of the Tribe’s
sovereign immunity. This Court explained that:
[T]here can be no mistake about what occurred in our case. Mr.
Roman, in an act approved by the Tribe, admittedly, has purposefully
sought to participate in or influence a state court proceeding. We can
conceive of no motive for the Tribe or Mr. Roman to have done so.
The only plausible legal conclusion that can be drawn from the
actions of Mr. Roman and the Tribe in this case is the one made by the
trial court – the Tribe’s and Mr. Roman’s conduct constituted a clear,
explicit, and unmistakable waiver of the Tribe's claim to sovereign
immunity.
Id. at 235. This Court further expressed bewilderment as to the purpose of the
Tribe’s actions. Id. at 233 (“[F]or reasons mystifying to us . . . [the Tribe] supplied
plaintiff’s counsel with copies of checks drawn on the Miccosukee Tribe General
Account payable to Lewis Tein.”). After numerous hearings and discovery in the
Bermudez proceedings, the trial court found that Lewis and Tein did not commit
perjury and did not engage in fraud on the court or misconduct.
State Court Action. On April 2, 2012, the Tribe filed an action against Lewis
and Tein in Miami-Dade circuit court, alleging malpractice, breach of fiduciary
duty, fraud, fraud in the concealment, conspiracy to defraud, civil RICO
conspiracy, civil racketeering, theft, and conversion. The trial court granted Lewis
and Tein’s motion for summary judgment and, alternatively, dismissed the case for
lack of subject matter jurisdiction because the complaint was predicated on an
intra-tribal dispute. In Miccosukee Tribe of Indians of Florida v. Lewis, 165 So. 3d
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9 (Fla. 3d DCA 2015), this court affirmed the summary judgment because “the
Tribe’s expert was unable to identify a single invoice by the Lawyers that he
believed was fraudulent, illegal, or excessive.” Id. at 12. Subsequently, the trial
court awarded Lewis and Tein reasonable attorney’s fees as a sanction against the
Tribe. In its order the trial court expressly found that the Tribe knew the claims
were unfounded and frivolous and that “[t]he Tribe and Roman filed this lawsuit in
bad faith.”
Federal Court Action. On July 1, 2012, the Tribe filed an action against
Lewis and Tein and other parties in federal court, alleging, in part, federal
racketeering, conspiracy to engage in racketeering, fraud, aiding and abetting
fraud, state racketeering, and breach of fiduciary duty. See Miccosukee Tribe of
Indians of Fla. v. Cypress, 975 F. Supp. 2d 1298, 1301-02 (S.D. Fla. 2013). The
federal court dismissed the lawsuit for lack of subject matter jurisdiction, id. at
1308, and the Eleventh Circuit Court of Appeals affirmed. See Miccosukee Tribe
of Indians of Fla. v. Cypress, 814 F.3d 1202 (11th Cir. 2015). After a hearing on
sanctions, the federal district court issued a written order sanctioning the Tribe and
Roman in the amount of $975,750, and remarked that Roman’s “behavior [was]
egregious and abhorrent.” See Miccosukee Tribe of Indians of Florida v. Cypress,
No. 12-22439-CIV, 2015 WL 235433, at *19 (S.D. Fla. Jan. 16, 2015) (“Here, the
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wrongful conduct is the filing of the complaints with no reasonable factual basis to
support their allegations”).
Second State Court Action. On November 16, 2013, the Tribe filed a second
state court action, asserting essentially the same claims that were dismissed in
federal court. On July 30, 2015, the trial court dismissed the second state court
action based on res judicata grounds, stating that, “[a]t bottom, this case is simply
another attempt to make the same claims that two prior judges have determined are
factually baseless, or are outside the Court’s jurisdiction as tribal governance.” See
Miccosukee Tribe of Indians of Fla. v. Cypress, No. 2013CA35936, 2015 WL
9438244, at *3 (Fla. 11th Cir. Ct. Jul. 30, 2015).
This Case. On August 22, 2016, Lewis and Tein filed a complaint against
the Tribe, alleging one count of civil remedies for criminal practices pursuant to
section 772.103(3), Florida Statutes, and four counts of malicious prosecution
premised on the Bermudez wrongful death action (count two),2 the 2012 state court
action (count three), the federal court action (count four), and the second state
court action (count five). The complaint sought both economic and non-economic
damages.
2 Following the appeal in this case, the trial court granted a motion to dismiss for
failure to state a cause of action as to the malicious prosecution claim pertaining to
the Bermudez wrongful death action (Count II).
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The Tribe filed a motion to dismiss for lack of subject matter jurisdiction
based on tribal sovereign immunity. Lewis and Tein responded that the Tribe’s
sovereign immunity waiver in the Bermudez case applied broadly to this case, too,
and that, alternatively, the Tribe’s litigation conduct in knowingly filing frivolous
lawsuits against Lewis and Tein waived the Tribe’s immunity.
The trial court denied the motion because, it concluded, the Bermudez
decision found an explicit waiver of immunity, and the Tribe’s litigation conduct
in the four prior cases “demonstrated a clear, explicit and unmistakable waiver of
sovereign immunity with regard to this matter.” This appeal followed.
STANDARD OF REVIEW
We have jurisdiction to review appeals of non-final orders that determine, as
a matter of law, a party is not entitled to sovereign immunity. Fla. R. App. P.
9.130(a)(3)(C)(xi) (“Appeals to the district courts of appeal of non-final orders are
limited to those that . . . determine . . . that, as a matter of law, a party is not
entitled to qualified immunity.”).3 “The issue of sovereign immunity . . . is a legal
3 Traditionally, the Florida courts had reviewed a trial court’s denial of a tribe’s
motion to dismiss based on sovereign immunity under its certiorari jurisdiction.
See Seminole Tribe of Fla. v. McCor, 903 So. 2d 353, 357 (Fla. 2d DCA 2005)
(Canady, J.) (“We have previously exercised our common law certiorari
jurisdiction to review a trial court order denying a motion to dismiss where the
motion was based on the assertion that the trial court lacked subject matter
jurisdiction because the suit was barred by tribal sovereign immunity. Certiorari
jurisdiction exists in this context because the inappropriate exercise of jurisdiction
by a trial court over a sovereignly-immune tribe is an injury for which there is no
adequate remedy on appeal.” (citations omitted)). In 2014, however, the Florida
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issue subject to a de novo standard of review.” Plancher v. UCF Athletics Ass’n,
Inc., 175 So. 3d 724, 725 n.3 (Fla. 2015); see also Sanderlin v. Seminole Tribe of
Florida, 243 F.3d 1282, 1285 (11th Cir. 2001) (“We review de novo the district
court’s dismissal of a complaint for sovereign immunity.”).4
DISCUSSION
The Tribe contends the trial court erred in concluding that it waived its
immunity. First, the Tribe claims, its immunity waiver in Bermudez was limited to
the issue in that case – the disclosure of the sixty-one checks and check stubs by
the Tribe’s attorney – and did not extend beyond that to a separate lawsuit
involving conduct over a five year period. Second, the Tribe argues, its litigation
conduct in the first and second state court actions and the federal court action was
not an express waiver of its tribal immunity.
“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.” Congressional waiver or abrogation of tribal sovereign
immunity must be unequivocal and does not arise by implication.
Likewise, a waiver of tribal immunity by a tribe must be clear.
Supreme Court added determinations by the trial court that a party is not entitled to
sovereign immunity as one of the few non-final orders that are appealable. In re
Amends. to Fla. R. App. P. 9.130, 151 So. 3d 1217, 1217-18 (Fla. 2014) (“[W]e
modify the Committee’s proposal to authorize appeals from nonfinal orders which
determine, as a matter of law, that a party is not entitled to sovereign immunity.”).
Because of this amendment, we review this case as an appeal of a non-final order
rather than a petition for writ of certiorari.
4 Because “[t]ribal immunity is a matter of federal law,” Kiowa Tribe, 523 U.S. at
756, we rely on a number of federal court decisions throughout this opinion.
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“Absent an effective waiver or consent, it is settled that a state
court may not exercise jurisdiction over a recognized Indian tribe.”
Seminole Tribe of Fla. v. McCor, 903 So. 2d 353, 358 (Fla. 2d DCA 2005)
(Canady, J.) (citations omitted). This is a waiver case (there is no allegation that
Congress abrogated the Tribe’s sovereign immunity), and for us to find the Tribe
waived its immunity, the party claiming the waiver must “show a clear, express
and unmistakable waiver of sovereign immunity by the Tribe.” Cupo v. Seminole
Tribe of Fla., 860 So. 2d 1078, 1079 (Fla. 1st DCA 2003).
1. The Limited Waiver in Bermudez
One of the basic principles of appellate law is that the holding of a decision
cannot extend beyond the facts of the case. See Adams v. Aetna Cas. & Sur. Co.,
574 So. 2d 1142, 1153 (Fla. 1st DCA 1991) (“It is elementary that the holding in
an appellate decision is limited to the actual facts recited in the opinion, so the
supreme court’s statements hypothesizing about the absence of a written rejection,
being contrary to the actual facts in this case, are pure dictum.”); see also UPS
Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1293 (11th Cir.
2014) (“The holdings of a prior decision can reach only as far as the facts and
circumstances presented to the Court in the case which produced that decision.”
(quotation omitted)); Twyman v. Roell, 166 So. 215, 217 (Fla. 1936) (“To be of
value as a precedent, the questions raised by the pleadings and adjudicated in the
case cited as a precedent must be in point with those presented in the case at bar.”);
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Rey v. Philip Morris, Inc., 75 So. 3d 378, 381 (Fla. 3d DCA 2011) (“No Florida
appellate decision is authority on any question not raised and considered, although
it may be involved in the facts of the case.” (quotation omitted)). Our conclusion
in Bermudez – that “the Tribe’s and Mr. Roman’s conduct constituted a clear,
explicit, and unmistakable waiver of the Tribe’s claim to sovereign immunity,”
Bermudez, 92 So. 3d at 235 – is, likewise, limited to the facts of that case.
These are the facts of the Bermudez case. The Bermudezes sought to have
the trial court reconsider its sanctions order based on new information they
received showing that the Tribe had paid Lewis and Tein’s attorney’s fees. To
their motion, the Bermudezes attached copies of sixty-one checks and check stubs
showing payments from the Tribe to Lewis and Tein that the Bermudezes claimed
they received from Roman, the Tribe’s attorney. In response, Lewis and Tein
subpoenaed Roman for a deposition. Roman filed an emergency motion for
protective order and to quash the subpoena based on tribal immunity.
a. Response to Emergency Motions for Protective Order and to Quash
Subpoenas. Lewis and Tein responded to Roman’s motion. In their response,
Lewis and Tein said that if the Tribe authorized Roman to disclose the checks to
the Bermudezes, then it “waived its sovereign immunity as to the subject matter of
the act.” Roman’s “act” of giving the checks “waived sovereign immunity as to
the subject matter of his action.” Lewis and Tein described the nature and
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limitation of the sovereign immunity waiver. “If [] Roman was actually working
in his tribal capacity,” they wrote, “then he waived sovereign immunity as to the
subject matter of his disclosure by injecting himself and the Tribe into this case.”
Lewis and Tein, then, defined “the subject matter of the disclosure – the checks
and the check stubs, as well as the underlying documents pertaining to them.”
Lewis and Tein relied, primarily, on a federal district court decision out of
Idaho, Knox v. United States Department of the Interior, No. 4:09-CV-162-BLW,
2012 WL 465585, at *1 (D. Idaho Feb. 13, 2012). Lewis and Tein, describing
Knox, wrote that the tribal members in that case “had injected themselves into the
litigation by seeking to file an amicus brief and declaration of the tribal officers
concerning the Tribes’ gaming operation.” Lewis and Tein acknowledged that
“the filing of these documents did not waive the Tribes’ sovereign immunity
generally.” However, quoting from the Knox case, Lewis and Tein wrote that by
inserting itself in the litigation, the Idaho tribe gave a limited waiver of its
immunity “to resist a deposition limited to the topics covered in their
Declarations.” (This last part was bolded.) The Idaho federal court, the pair
explained, “granted the plaintiffs the right to take deposition of the tribal members
limited to the matters contained in the tribal official’s declarations.” In the
response’s conclusion section, Lewis and Tein sought the same limited relief as in
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Knox: to take the deposition of Roman in connection with the disclosure of the
sixty-one checks and check stubs.
b. Hearing on Emergency Motions for Protective Order and to Quash
Subpoenas. At the hearing on Roman’s motion to quash, Lewis and Tein made the
same points. Citing again to the Knox case, they told the trial court:
The [Knox] Court granted the motion to compel attendance of
these [tribal] lawyers at the depositions to quote, “Answer questions
limited to the matters relevant to the contents of the declarations they
filed in this case,” unquote.
That is all we are seeking.
Lewis and Tein defined the scope of the inquiry to “questions about when [Roman]
gave those records, what [he] said to the person [he] gave the records to, how [he]
got the records, where [he] gave it to [the Bermudezes], [and his] communications
with the [Bermudezes’ attorney].”
At the end of the hearing, the trial court explained that it was “inclined to
say that there is a waiver by the production of those documents.” However, the
trial court continued, “I think there is a limited issue here and I am limiting the
scope of the discovery to those questions that [Lewis and Tein] just proffer[ed] that
he wanted to ask.” “I’m going to find that there is sovereign immunity,” the trial
court ruled, but “I believe the actions of turning those checks over have at least
resulted in a limited waiver of that immunity. So to that extent, I’m going to
overrule [Roman’s] immunity objection.” After the trial court gave its oral ruling,
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Lewis and Tein clarified the scope of any appeal, “So the only thing that Your
Honor is ruling on today . . . is so it’s a narrow issue for the – the narrow issue for
the Third DCA is [] Roman’s emergency motion.” The trial court’s written order
denied Roman’s emergency motion to quash the subpoena, and confirmed its
“find[ing] that Mr. Roman gave a limited waiver of sovereign immunity by
disclosing checks and check stubs to plaintiffs’ counsel.”
c. Response to Miccosukee Tribe of Indians of Florida’s Petition for Writ of
Certiorari. As promised, the Tribe filed a petition for writ of certiorari with our
court to quash the trial court’s order. In their response to the petition, Lewis and
Tein summarized their position that “[e]ven if sovereign immunity applies, Mr.
Roman gave a limited waiver, as the trial court found here, by voluntarily
disclosing the checks and check stubs to [the Bermudezes].” Lewis and Tein
described the trial court’s order under review as finding “a limited waiver, thus
permitting [Roman’s] deposition.” Lewis and Tein argued the trial court’s
“decision to allow the deposition should be affirmed because . . . Mr. Roman’s
actions constituted a limited waiver of sovereign immunity.” Relying again on the
Knox case, Lewis and Tein wrote that Roman “waived sovereign immunity as to
the subject matter of his disclosure” and they “are permitted to take discovery from
[] Roman regarding the subject matter of the disclosure – the checks and check
stubs, as well as the underlying documentation pertaining to them.” Lewis and
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Tein concluded that the trial court was correct in “finding that [] Roman gave a
limited waiver of sovereign immunity by injecting himself into the trial court
litigation.”
d. The Bermudez Decision. In Bermudez, we described the Tribe’s petition
as seeking “certiorari relief from an order denying the Tribe’s Motion for
Protective Order and to Quash Subpoena for Deposition issued to” Roman, the
Tribe’s attorney. Bermudez, 92 So. 3d at 232. We, likewise, explained that “the
inquiry desired to be made of [Roman] [was] solely whether Lewis Tein, PL’s
legal bills were made by the Tribe or the individual defendants.” Id. at 234. It was
in this context that we found “the Tribe’s and Mr. Roman’s conduct constituted a
clear, explicit, and unmistakable waiver of the Tribe’s claim to sovereign
immunity,” id. at 235, and denied the petition for writ of certiorari.
* * *
From this record, the extent of the Tribe’s immunity waiver in the Bermudez
case is clear. The Tribe was immune from the Bermudez lawsuit but waived its
immunity to a limited extent to allow Roman’s deposition about the disclosure of
the sixty-one checks and check stubs. Lewis and Tein asked for a limited waiver,
and described the waiver as allowing them to depose the Tribe’s attorney about the
disclosure. The trial court granted a limited waiver on those terms. Lewis and
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Tein, in the Bermudez appeal, described the trial court’s order as a limited waiver
in arguing to deny the Tribe’s certiorari petition.
We rely on the same Knox case that Lewis and Tein relied on, and that we
cited in Bermudez. In Knox, “the Tribes asked, and were granted, the right to file
an amicus brief accompanied by Declarations [of three tribe members] that
discussed the Tribes’ gaming operations.” Knox, 2012 WL 465585, at *1. The
federal district court concluded that although the filing of these declarations “did
not waive the Tribes’ sovereign immunity generally, it did waive the right” of the
three tribal executives “to resist a deposition limited to topics covered in their
Declarations.” Id. If the Tribe dips its toe in the litigation waters, the reasoning
goes, it can be asked about its toe but not the whole body.
Here, too, Roman, on the Tribe’s behalf, dipped his toe in the ongoing
Bermudez litigation by giving to the Bermudezes the checks and check stubs. As
in Knox, the Tribe maintained its immunity generally, but waived it to the limited
extent that its tribal attorney was subject to a deposition about the checks. That
was the limited waiver advocated by Lewis and Tein, adopted by the trial court,
and the subject of the petition for writ of certiorari that was before the court in
Bermudez.
Importantly, filing the declarations in Knox, while a limited immunity
waiver, did not open up the Idaho tribes to being hauled into court as defendants in
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that case. The federal district court had “already denied plaintiffs’ attempt to add
the Tribes as defendants, holding that the Tribes were protected by sovereign
immunity.” Id. The amicus brief and attached declarations didn’t open the
sovereign immunity door any more than allowing the deposition of the tribal
executives on the subject of the declarations.
Likewise in this case, the Bermudez limited immunity waiver did not open
the door to the Miccosukee Tribe being hauled into court in the underlying
Bermudez case, or any subsequent cases. The limited waiver in Bermudez opened
the door a crack for the Roman deposition about the checks, but it didn’t bust the
door open to allow in everything that happened after the deposition, including the
allegations of the Tribe’s perjury, obstruction of justice, and vexatious litigation in
the five years that followed.
While participating in litigation is not a one-way street, as we explained in
Bermudez, the length of the street extends only so far as the Tribe’s participation.
In Knox, the Idaho tribes participated in the litigation to the extent they filed the
amicus brief and attached the declarations of the three tribal executives. Tribal
immunity was waived only to allow the plaintiffs in that case to depose the tribal
executives about the substance of the declarations. In Bermudez, the Tribe
participated by authorizing Roman to give the checks to the plaintiffs. Lewis and
Tein argued for a limited immunity waiver to depose Roman about the checks and
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check stubs; the trial court granted the “limited waiver”; and we refused to quash
the limited waiver by denying the petition for writ of certiorari.
Our holding in Bermudez could not have found a waiver of sovereign
immunity beyond what the facts dictated, what Lewis and Tein requested, and
what the trial court ordered. We did no more than deny the petition to review the
trial court’s order allowing the Tribe’s attorney to be deposed about the checks and
check stubs, and confirm the limited waiver of immunity. Reading Bermudez for a
broader waiver of the Tribe’s immunity, as the trial court did here, is not supported
by the facts of the Bermudez case, Lewis and Tein’s opposition to the motion to
quash, the trial court’s order, and the parties’ arguments before this court.
2. The Tribe’s Litigation Conduct
In addition to the Bermudez limited waiver, the trial court found a clear,
explicit, and unmistakable waiver of the Tribe’s sovereign immunity based on the
Tribe’s litigation conduct during the five years after Bermudez – frivolous
lawsuits, false statements, and obstruction of justice. The Tribe contends that bad
litigation conduct in one case does not constitute an immunity waiver in a
subsequent, related case.
We begin by noting that nothing in this opinion precludes a trial court from
sanctioning a tribe for bad faith conduct or vexatious litigation in the case where
the conduct occurred. Where the tribe chooses to litigate in our courts, it must
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follow the same rules that apply to all litigants: no lying; no destroying evidence;
no filing claims without a basis in law or fact. Here, for example, the trial court
sanctioned the Miccosukee Tribe in the first and second state court actions for
claims that were “baseless” and brought in “bad faith.” Assuming the allegations
in the complaint are true, the sanctions were entirely proper in the case where the
Tribe was actively litigating.
This case presents a much narrower issue: Was the Miccosukee Tribe’s
litigation in Bermudez, the first and second state court actions, and the federal
court action a clear, explicit, and unmistakable waiver of its sovereign immunity,
opening the door to the Tribe being sued by Lewis and Tein in a subsequent,
related case for malicious prosecution and civil liability under section 772.103(3)?
The general rule is that a tribe’s immunity waiver in litigating one case does not
waive immunity in subsequent cases. Two decisions of the federal appellate courts
explain the point well.
In McClendon v. United States, 885 F.2d 627 (9th Cir. 1989), two couples
sued the Colorado River Tribe for breach of a lease agreement. Id. at 628. The
federal trial court dismissed the case for lack of subject matter jurisdiction based
on tribal sovereign immunity. Id. at 629. On appeal, the couples argued that the
Tribe waived its immunity regarding its rights to the leased property because it had
initiated and litigated an earlier case over the same property in 1972. Id. at 629-30.
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The Ninth Circuit affirmed, explaining that while “[i]nitiation of a lawsuit
necessarily establishes consent to the court’s adjudication of the merits of that
particular controversy,” the “tribe’s waiver of sovereign immunity may be limited
to the issues necessary to decide the action brought by the tribe; the waiver is not
necessarily broad enough to encompass related matters, even if those matters arise
from the same set of underlying facts.” Id. at 630. “The initiation of the suit, in
itself,” the court continued, “does not manifest broad consent to suit over collateral
issues.” Id. at 631. In response to the argument “that allowing the Tribe to sue
without exposing itself to suit for subsequent related matters is unfair,” the Ninth
Circuit, quoting from the United States Supreme Court, explained: “[t]he
perceived inequities of permitting the Tribe to recover from a non-Indian for civil
wrong in instances where a non-Indian allegedly may not recover against the Tribe
simply must be accepted in view of the overriding federal and tribal interests in
these circumstances.” Id. (quoting Three Affiliated Tribes v. Wold Eng’g, 476
U.S. 877, 893 (1986)).
Likewise, in Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir. 1987),
an oil company sued the tribe “seeking to pay adjusted bonuses to preserve its
interests in certain oil and gas leases.” Id. at 538. The federal trial court dismissed
the lawsuit “for lack of jurisdiction over the Tribe.” Id. The tribe’s earlier
litigation over the same oil and gas leases, the court explained, was not “a
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sufficiently unequivocal expression of waiver in subsequent actions related to the
same leases.” Id. at 539.
The United States Supreme Court has extended the general rule – that the
tribe’s immunity waiver in one lawsuit does not open the door to waiver in a
related suit – to compulsory counterclaims.5 That is, even if the tribe waives its
immunity by suing a non-tribe party, the immunity waiver does not extend to the
non-tribe’s compulsory counterclaims in the same litigation.
In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe,
498 U.S. 505 (1991), the tribe sued the state for injunctive relief prohibiting the
state from collecting state cigarette taxes on tribe property. Id. at 507. The state
counterclaimed for a declaratory judgment that its tax lien was enforceable and an
injunction for the tribe to stop selling cigarettes without collecting state taxes. Id.
at 507-08. The tribe moved to dismiss the counterclaims because it had not waived
its sovereign immunity and could not be sued by the state. Id. at 508. The state
responded that its counterclaims were “compulsory” under Federal Rule of Civil
Procedure 13(a), which requires a party to bring a counterclaim that “arises out of
the transaction or occurrence that is the subject matter of the opposing party’s
claim.” Id. at 509; Fed. R. Civ. P. 13(a). Even where the tribe is affirmatively
5 There is an exception for recoupment counterclaims arising out of the same facts
as the underlying lawsuit, but the exception does not apply to Lewis and Tein’s
claims (and they do not contend that it does).
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litigating based on the same facts as the opposing party’s claim, the Court held, “a
tribe does not waive its sovereign immunity from actions that could not otherwise
be brought against it merely because those actions were pleaded in a counterclaim
to an action filed by the tribe.” Citizen Band, 498 U.S. at 509.
The general rule still holds even if the tribe’s sovereign immunity is deeply
troubling to the courts, and results in unfairness and inequity to the non-tribe party.
See Lewis v. Norton, 424 F.3d 959, 963 (9th Cir. 2005) (“We agree with the
district court’s conclusion that this case is deeply troubling on the level of
fundamental substantive justice. Nevertheless, we are not in a position to modify
well-settled doctrines of tribal sovereign immunity. This is a matter in the hands of
a higher authority than our court.”); Wichita & Affiliated Tribes of Oklahoma v.
Hodel, 788 F.2d 765, 781 (D.C. Cir. 1986) (“Immunity doctrines inevitably carry
within them the seeds of occasional inequities; in this case the Wichitas have used
the courts as both a sword and shield. Nonetheless, the doctrine of tribal immunity
reflects a societal decision that tribal autonomy predominates over other
interests.”). For example, even where a tribe engages in vexatious and bad faith
litigation in a prior lawsuit, the unfairness and inequity to the non-tribe party still
does not waive the tribe’s immunity in a subsequent case arising out of the same
facts.
21
In Beecher v. Mohegan Tribe of Connecticut, 918 A.2d 880 (Conn. 2007),
the tribe sued one of its former employees to enjoin him “from communicating any
confidential information pertaining” to the tribe. Id. at 883. In a subsequent
lawsuit, the former employee, now the plaintiff, alleged the tribe’s earlier lawsuit
was “vexatious,” in that it was “an attempt to extort money” and part of a larger
“threat[] to disclose confidential information” about the former employee. Id. at
882-83. The bad faith purpose of the tribe’s earlier lawsuit, the former employee
alleged, was to “restrain [him] from making adverse comments [about the tribe] to
relevant state authorities” while the tribe was “in need of regulatory approval in
order to purchase various gambling enterprises in Pennsylvania.” Id. at 883. The
tribe moved to dismiss the former employee’s lawsuit “because, absent consent or
congressional abrogation, it enjoy[ed] sovereign immunity from suit in state court
as a federally recognized Indian tribe.” Id. The former employee “argued that the
[tribe] had waived that immunity by having commenced the prior action against
the plaintiffs in state court.” Id. The Connecticut Supreme Court agreed with the
tribe “that, in bringing the prior action in state court, it consented only to the
adjudication of the merits of that action, and not to the adjudication of any
subsequent state court claims.” Id. at 883-84.
“In its prior action,” the court explained, the tribe “necessarily consented to
the state court adjudication of its affirmative claims, including any special defenses
22
and recoupment counterclaims related thereto.” Id. at 886. However, “[t]hat
consent to the adjudication of its affirmative claims did not . . . constitute a blanket
waiver of its tribal sovereign immunity in the prior action, let alone in any
subsequent action.” Id. Applied to the former employee’s allegations of vexatious
litigation, threats, and extortion, the court held that his “present claim, which
alleges that the defendant’s prior action constituted vexatious litigation, neither
falls within any valid exception to nor constitutes a waiver of the broad tribal
sovereign immunity federal law affords to Indian tribes.” Id. In response, the
former employee, too, appealed to the court’s “reason and simple fairness.” Id. at
887. “Neither reason nor fairness,” the Connecticut Supreme Court concluded,
“permits us to disregard the well established doctrine of tribal sovereign
immunity.” Id. at 887.
We are persuaded by Beecher. First, its reasoning is consistent with the
United States Supreme Court and federal appellate court cases that have applied
immunity and found no waiver even where the results are deeply troubling, unjust,
unfair, and inequitable. Beecher, likewise, is consistent with the federal case law
that the tribe’s immunity waiver in one suit does not waive immunity in a second
suit arising out of the same subject matter. If the unfairness and inequity of a tribal
employee negligently killing or battering someone is not enough to waive
23
immunity,6 it follows that allegations of vexatious and bad faith litigation are also
not enough to waive or abrogate it.
Second, we are persuaded by Beecher because we cannot find a single case,
and none has been cited to us, holding that litigation conduct in one lawsuit is a
clear, explicit, and unmistakable waiver of tribal immunity in a subsequent, related
lawsuit. In all the cases that have been brought to our attention, the Indian tribe
explicitly waived immunity in that case, or the tribe’s active participation in
litigation waived immunity in the case in which they participated, and not a
subsequent case.7 The tribe’s waiver in one case – whether by explicit waiver or
6 See, e.g., Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (11th Cir.
2012) (finding tribal immunity where tribal employees knowingly overserved
alcohol to casino patron and watched her get into her car intoxicated, resulting in
the patron’s death in an automobile accident); Miller v. Coyhis, 877 F. Supp. 1262
(E.D. Wis. 1995) (finding tribal immunity where one tribal employee assaulted and
battered another).
7 See Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (the
“Tribe’s act of filing suit to quiet title in the disputed lands, combined with explicit
language found in its complaint and its explicit waiver of immunity with respect to
the counterclaims during the pendency of its suit, constitute[d] an express and
unequivocal waiver of the Tribe’s sovereign immunity”); Confederated Tribes of
the Colville Reservation Tribal Credit v. White (In re White), 139 F.3d 1268, 1271
(9th Cir. 1998) (tribal agency filing collection action in the bankruptcy case waived
immunity in that bankruptcy case); United States v. James, 980 F.2d 1314, 1320
(9th Cir. 1992) (tribe having affirmatively provided documents in case, it waived
immunity with regard to those documents in that case); United States v. Oregon,
657 F.2d 1009, 1014 (9th Cir. 1981) (tribe waived sovereign immunity by
intervening in the case and consenting to litigate all disputes in federal district
court); Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria v.
Ceiba Legal, LLP, 230 F. Supp. 3d 904 (N.D. Cal. 2017) (Indian tribe sued under
federal Lanham Act and was therefore liable for attorney’s fees resulting from the
same litigation); United States v. Snowden, 879 F. Supp. 1054, 1056 (D. Or. 1995)
24
active participation – does not represent a waiver in a subsequent case in the same
litigation.
Applied here, the Miccosukee Tribe waived its sovereign immunity in
Bermudez by participating in the litigation (giving the checks and check stubs to
the Bermudezes), and in the first and second state court actions and the federal
court action, by affirmatively litigating as the plaintiff. Because of the immunity
waivers, the state and federal courts in those cases were entitled to sanction the
Tribe for its litigation conduct – and they did. The immunity waivers in those four
cases, however, do not extend to subsequent litigation, even if the subsequent case
is related and arises out of the same facts. Where the prior litigation ends and the
new case begins is the point that the waiver becomes unclear and not explicit. As
in all the cases cited in footnote seven, the Tribe’s conduct and active participation
opened itself up to litigation in the same cases in which the conduct occurred and
the participation happened – the Bermudez case, the first and second state court
actions, and the federal court action – but it did not act as a clear, explicit, and
unmistakable waiver in a subsequent case on the same subject matter, like this one.
CONCLUSION
(once tribe voluntarily appeared in court and complied with subpoena, it waive
immunity with regard to those documents in the case in which the documents were
subpoenaed); Cal. Valley Miwok Tribe v. Cal. Gambling Control Comm’n, No.
D068909, 2016 WL 3448362, at *2 (Cal. Ct. App. June 16, 2016) (tribe liable to
pay costs in lawsuit that it brought against state agency).
25
It is a “settled and invariable principle, that every right, when withheld, must
have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S.
137, 147 (1803). Lewis and Tein had a right not to have their reputations ruined
and their business destroyed by the Tribe. Like any injured party, if the allegations
are true they should have proper redress for their injuries. But just as every right
has its remedy, every rule has its exception. The exception here is sovereign
immunity. Granting immunity to Indian tribes is a policy choice made by our
elected representatives to further important federal and state interests. It is a
choice to protect the tribes understanding that others may be injured and without a
remedy. The immunity juice, our federal lawmakers have declared, is worth the
squeeze. Still, some suffer from the squeezing, including car accident victims,
beaten detainees, and Lewis and Tein. We can only respond by repeating the
words of Justice O’Connor in the Three Affiliated Tribes case:
The perceived inequity of permitting the Tribe to recover from a non-
Indian for civil wrongs in instances where a non-Indian allegedly may
not recover against the Tribe simply must be accepted in view of the
overriding federal and tribal interests in these circumstances, much in
the same way that the perceived inequity of permitting the United
States or North Dakota to sue in cases where they could not be sued as
defendants because of their sovereign immunity also must be
accepted.
Three Affiliated Tribes, 476 U.S. at 893. Because the Tribe did not clearly,
unequivocally, and unmistakably waive its immunity as to this case, we reverse the
26
trial court’s order and remand for the trial court to grant the Tribe’s motion to
dismiss on sovereign immunity grounds and dismiss the case as to the Tribe.
Reversed and remanded with instructions.
27