Tulsa World: Ruling may affect tribes here

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Ruling may affect tribes here
An appeals court ruling has broad implications for sovereign immunity, a lawyer says.

By ROBERT BOCZKIEWICZ World Correspondent
Published: 11/24/2008 2:23 AM
Last Modified: 11/24/2008 2:58 AM

An appeals court ruling has broad implications for sovereign immunity, a lawyer says.

DENVER — A Tulsa lawyer said a recent decision by the federal appeals court in Denver has broad implications for any company that conducts business with American Indian tribes.

The court ruled last week that the Seneca-Cayuga tribe's cigarette business cannot be sued in federal court because the business is shielded by tribal sovereign immunity.

Lawyer Scott Wood, who represented top officials of the cigarette business, said he thinks the decision applies to any sovereign Indian tribe being sued in any court.

"In the past 10 years, there's been a lot of discussion and bellyaching by people who do business with Indian tribes, including lots of deals with casinos," Wood, speaking from his Tulsa office, said last week.

"This is an excellent decision that further confirms the tribe's status and its possession of sovereign immunity," he said.

The broad implications could be that a company doing business with a sovereign tribe will have no recourse in any court if a dispute develops, he said.

A similar legal doctrine of governmental immunity applies in some instances in which governmental entities are sued.

The 10th U.S. Circuit Court of Appeals made the ruling Nov. 17 in a lawsuit in which a distributor of the tribe's cigarettes alleged the tribe's cigarette business and the business officials engaged in illegal competitive practices.

The

distributor, Native American Distributing, contracted in 2001 with Seneca-Cayuga Tobacco Co. to distribute its cigarettes.

The distributing company also alleged the cigarette business and its officials repeatedly broke agreements with the distributor.

Native American sued in 2005 in federal court in Tulsa. U.S. District Judge Terence Kern dismissed the lawsuit on grounds the sovereign tribe cannot be sued in federal court and the appeals court last week agreed.

"As sovereign powers, federally recognized Indian tribes possess immunity from suit in federal court," the appellate judges wrote in a 23-page decision.

The plaintiffs claimed the tobacco company had given up its immunity because the tribe in 1937 adopted a corporate charter for its business activities and the charter allowed the tribe's business committee to sue and be sued "in any court."

Kern and the appellate judges concluded the tobacco company is not a division of the tribe's corporate business entity, but instead is an enterprise of the tribe as a governmental entity, which has not given up its immunity.

John Dilliner, a member of the tribe and a shareholder and officer of the distributing company, was the other plaintiff in the company's lawsuit. The other defendants were Leroy Howard, a former chief of the tribe; Floyd Lockamy, general manager of the tobacco company, and Richard Wood, plant manager of the company.

Dilliner alleged that company officials told him at the time when they entered into the distributing contract the company was not immune from being sued.

The primary evidence Kern relied upon was the tribe's business committee resolution that created the tobacco company. The appellate judges said: "For several reasons, this resolution provides substantial support for (Kern's) finding that the (tobacco company) was a division of the tribe," rather than of the tribal corporation.

Native American's attorney, Jonathan Neff of Tulsa, was unavailable for comment. By ROBERT BOCZKIEWICZ World Correspondent

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	Report Comment Ayo2, T-Town (11/24/2008 8:57:41 AM) You rock Scott! We needed this win.
	Report Comment Missy M, on the block (11/24/2008 11:11:32 AM) Yikes!!That was a blaze for someone but absolutly not one for the nation.Well they just hung a target at their buttocks,I guess someone just took a shot at theim.
	Report Comment Missy M, on the block (11/24/2008 11:19:17 AM) You know Real Cherokee Vote,You ought to have a little of respect for your people.by george.Thats not nice.
	Report Comment Bullhead, Nicut (11/24/2008 12:24:15 PM) Funny how the Tobacco Stops with me is right next to the tobacco section of this article. I'm afraid you're right Missy. We keep hanging targets on our butts. Let's hope our high priced lawyers can get us out of this one.
	Report Comment Eagle 4, Tulsa (11/24/2008 6:14:40 PM) Well, if contracts are as one-sided to the Tribes as the old treaties were to the white man only one word can be applied - karma.
	Report Comment oldrustytulsa, Tulsa (11/24/2008 7:18:34 PM) How did it go, as long as the sky is blue, and the grass is green, this treaty will be honored.
	Report Comment Z Samples, Tulsa (11/24/2008 8:22:18 PM) Here'a an honest proposition. I am disabled. PUBLIC NOTICE Public notice is herewith made upon this twenty-fourth day of November, Monday, 2008, of intent to establish various tribes consisting of varying individual citizens and familial units towards recognition of same as soverign nations, distinctly. Subsequent constitution and charters to determine independent jurisdictions of each, any essential levy, cause for varying legislation, proclamation as to citizen rights and more. Please go to my web site, or not, either way simply email me and simply state that you too desire to become united with newly forming sovereign nations. Warning: Preponderance of revenue shall not result from gaming enterprise nor any noted personal, leisure or other habit. Ethnicity not any specific basis for our newly forming sovereign nations, nor for individual, familial or chartered membership, but rather our distinct disadvantage(s) as any one might so discern as relevant cause for affiliation. Signed, Zach Samples Self-Appointed Committe Lobbyist National Immunity Claimed Upon Basis of Sovereignty P.S. as with other groups, nations, we forfeit no manner of national citizenship or rights, but thence embrace similarly distinct duality of citizenships! Otherwise, I have had Native American friends, and offer no manner of ethnic insult to any.
	Report Comment Cherokee Vote, (11/25/2008 4:31:21 PM) Z: Are you on drugs?
	Report Comment AzaD, (12/1/2008 2:11:37 PM) I could see this cutting both ways. If a businessman knows that the person he is doing business with can screw him over with no consequences, why would he do business with them in the first place? Easy solution, though - get the Tribe to enter into a contract, or just don't do business with them!

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