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.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 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.
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.