Oh boy more trouble for the Tribe: Judge Gold has once again refused to quash an IRS subpoena dealing with payments to Tribal members.
In a well-written 29-page order, the Judge refused to apply sovereign immunity and specifically addresses the recent 11th Circuit opinion upholding sovereign immunity in the dram shop context:
I note that the recent Eleventh Circuit decision in Furry v. Miccosukee Tribe of Indians of Florida, --- F.3d ----, 2012 WL 2478232 (11th Cir. June 29, 2012) does not change my conclusion that tribal sovereign immunity does not bar IRS summons enforcement proceedings. Furry involved the application of sovereign immunity to a private action under 18 U.S.C. § 1161 and Florida’s dram shop law. Id. at *1. TheI also like footnote 6, where the Judge notes that his conclusions of law can be in the form of a narrative, rather than numbered paragraphs.
Eleventh Circuit affirmed the district court’s dismissal of Furry’s claims on sovereign immunity grounds, concluding Congress did not abrogate tribal sovereign immunity or authorize private suit relating to tribal liquor transactions, and the Tribe did not waive sovereign immunity by applying for a state liquor license and electing to serve alcohol with the benefit of that license.
The Eleventh Circuit in Furry did not, however, address the application of sovereign immunity to a suit by a superior sovereign, Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1135 (11th Cir. 1999) (“Tribal sovereign immunity does not bar suits by the United States.”) (citation omitted). Further, the Furry decision does not affect my conclusion that summons enforcement proceedings are not “suits” against the sovereign. Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.") (citations and internal quotation marks omitted).
Readers everywhere thank you!