Thursday, July 5, 2012

Speaking of the Miccosukee Tribe.....

 
There's been a lot of discussion about the Miccosukee Tribe lately, and into the fray comes this opinion by Judge Marcus affirming Judge Seitz in a tragic case upholding tribal immunity:
The appeal presents us with tragic facts; it also yields a straightforward legal resolution. John Furry, as personal representative of the estate of his daughter Tatiana Furry, appeals the district court’s order granting the Miccosukee Tribe’s motion to dismiss his complaint. Furr 1 y complained that the Miccosukee Tribe violated 18 U.S.C. § 1161 and Florida’s dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who then got in her car, drove off while intoxicated, and ended up in a fatal head-on collision with another vehicle on a highway just outside Miami. The Miccosukee Tribe moved to dismiss the complaint on the jurisdictional ground that it was immune from suit under the doctrine of tribal sovereign immunity. In its order granting the tribal defendants’ motion to dismiss, the district court determined that tribal sovereign immunity barred it from entertaining the suit.

We agree. The Supreme Court has made clear that a suit against an Indian tribe is barred unless the tribe has clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity. Furry argues that both of these exceptions have been met here, but these arguments are ultimately without merit. Accordingly, we affirm the judgment of the district court.
There's an interesting discussion about whether modern policy concerns require that the doctrine be abrogated or narrowed, noting the interdependence of tribal activity in our Nation's commerce (I guess tribal gambling impacts the Commerce Clause more than health care?), but in the end the ball is in Congress' court:
We share these concerns about the broad scope of tribal sovereign immunity. But at the end of the day, notwithstanding the Supreme Court’s reservations about the tenuous origins of the tribal immunity doctrine and the wisdom of the doctrine’s current breadth (both points that Furry emphasizes heavily), the Court could not have been clearer about placing the ball in Congress’s court going forward: “[W]e decline to revisit our case law and choose to defer to Congress.” Id. at 760.
So good luck with that.

145 comments:

  1. Very interesting. Plaintiff's adult daughter is a chronic alcoholic who frequents the casino where she is served drinks. She gets drunk and crashes her car and dies. We don't know what happened to the other victims of the accident. But the girl's father, as representative of her estate, sues the casino. I have never heard of a customer suing under a dramshop act for his or her own injuries caused by their own intoxication. The father is basically saying that his daughter is not to blame for her own intoxication. DUI lawyers might want to take note of this novel theory: blame it on the bartender.

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  2. STL - she was an f'ing teenager...way to hate an obviously troubled youth. I could have just as easily been a school bus full of kids she hit. The point is to hold the fuckers responsible for getting a young girl so drunk she couldn't drive.

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  3. No where in the opinion is there mention that she was a teenager, i.e., underage and illegal. If that were true, the tribe's liquor license would have been revoked. It seems that the theory of liability was that the tribe habitually served her drinks, an exceoption in the dram shop act along with being underage. But I have to believe that if she were less than 21, and a "f'ing teenager" as you say, Marcus would have stated so as it would have figured prominently in the complaint.

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  4. You are right, she was older than 21, I was wrong. But the rest of my post still stands, the theory is there to protect people - who's judgment necessarily decreases with increased alcohol intake...the tribe simply doesn't care so long as they make money - they are immune, where is the incentive?

    You are heartless.

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  9. Hey SFL. You must have taken the day off. The WSJ Law Blog just reported what has to be the opinion of the year coming out of the 11th Circuit, courtesy of Judge Carnes. Every young man's nightmare come true. Check it out: Butler v. Sheriff of Palm Beach County. http://www.ca11.uscourts.gov/opinions/ops/201113933.pdf.

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