Texas v. Ysleta del Sur Pueblo
Texas v. Ysleta del Sur Pueblo
Opinion of the Court
On this day, the Court considered Defendants Ysleta del Sur Pueblo, the Tribal *707Council, and the Tribal Governor Carlos Hisa or his Successor's [hereinafter "Defendants"] "Opposed Motion to Amend Orders to Certify for Interlocutory Appeal Under
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a dispute between Plaintiff and Defendants regarding bingo activities on the Ysleta del Sur Pueblo [hereinafter "Pueblo" or "the Tribe"] reservation in El Paso, Texas. Plaintiff seeks a declaration that the bingo activities in question are illegal and an injunction prohibiting Defendants from continuing the activities.
Defendants aver that the Court does not have jurisdiction to allow discovery against the Fraternal Organization because, according to Defendants, it possesses sovereign immunity from suit and discovery. Defs. Opposed Mot. To Reconsider and Mot. For Protective Order 1, Aug. 14, 2018, ECF No. 108. Notwithstanding Defendants' position, the Court has allowed Plaintiff to conduct depositions of and take discovery on the Tribal Governor Carlos Hisa and the Fraternal Organization. Order, Aug. 21, 2018, ECF No. 114; Order, Aug. 8, 2018, ECF No. 107. In their instant Motion, Defendants ask the Court to amend its prior Orders to allow an interlocutory appeal pursuant to
Specifically, Defendants aver that the following issues should be immediately appealable: "(1) Whether the Fraternal Organization possesses tribal sovereign immunity that has not been waived; and, (2) Whether the Fraternal Organization's tribal sovereign immunity protects the Fraternal Organization and its officers and directors from participating in the discovery process in this case."
II. LEGAL STANDARD
A district court may make an order appealable that would otherwise not be appealable *708if the court is of the opinion that: (1) "such order involves a controlling question of law as to which there is substantial ground for difference of opinion" and (2) "an immediate appeal from the order may materially advance the ultimate termination of the litigation."
The Fifth Circuit "adhere[s] to a strict interpretation of § 1292(b)" and commands that the conditions in § 1292(b)"are to be strictly construed and applied." Ala. Labor Council, AFL-CIO, Pub. Emp. Union, Local No. 1279 v. State of Ala. ,
III. ANALYSIS
The Court concludes that the issues raised in this case are not the types of exceptional issues appropriate for interlocutory appeal. As discussed below, the questions raised regarding the Fraternal Organization's immunity, though novel, are insufficient to demonstrate a substantial ground for difference of opinion. Further, an interlocutory appeal will delay-rather than advance-the termination of this litigation.
A. Substantial Ground for Difference of Opinion
The Tribe is not immune from this lawsuit.
By the express terms of the Fraternal Organization's charter, its immunity runs with the Tribe's. See Defs.' Second Mot. To Dismiss Pl.'s First Am. Compl. Ex. 1 (Federal Charter of Incorporation ... [for the] Fraternal Organization), art. IV(C) & XVI(A). The charter provides that the Fraternal Organization has "the same immunities under federal law as the Tribe" and "is an instrumentality of the Yselta del sur Pueblo and is entitled to all of the privileges and immunities of the Tribe ...."
Further, the Court expresses serious doubts regarding whether a tribal corporation that is chartered pursuant to § 17 of the IRA could ever have greater immunity than that enjoyed by the tribe. The history and purpose of § 17 corporations suggest that, while a tribal corporation may choose to waive immunity when the tribe did not, the corporation cannot retain immunity when its parent tribe has waived it.
When it enacted the IRA, Congress authorized Indian tribes to, among other things, organize a governing body pursuant to § 16 of the IRA as well as a corporate entity pursuant to § 17 of the IRA. See generally Indian Reorganization Act, Pub. L. No. 73-383,
While a § 17 corporation is entitled to waive its immunity without waiving the tribe's, the Court is unable to find authority suggesting that the opposite can occur. Importantly, Defendants fail to cite any authority suggesting that a § 17 corporation can retain sovereign immunity when its parent tribe has waived it.
Additionally, Defendants aver that the Restoration Act fails to waive the Fraternal Organization's immunity because the Act "speaks to offenses 'committed by the tribe , or by any member of the tribe ...,' " but does not expressly name the Fraternal Organization. Reply 3. However, Defendants mischaracterize the Restoration Act's text. The text in § 107(c) that refers to the Tribe and its members is a provision that limits jurisdiction over gaming violations to federal courts: "the courts of the United States shall have exclusive jurisdiction over any offense in violation of subsection (a) that is committed by the tribe, or by any member of the tribe, on the reservation or on lands of the tribe."
However, the key provision, which waives sovereign immunity, is the sentence that follows: "nothing in this section shall be construed as precluding the State of Texas from bringing an action in the courts of the United States to enjoin violations of the provisions of this section."
The Fifth Circuit has not spoken on whether the Restoration Act waives the Fraternal Organization's sovereign immunity, as this appears to be a matter of first impression. The novelty of this issue does not necessarily make it suitable for an interlocutory appeal, as "the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion." In re Flor ,
Courts traditionally will find that a substantial ground for difference of opinion exists where "the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." However, "just because a court is the first to rule on a particular question ... does not mean there is such a substantial difference of opinion as will support an interlocutory appeal."
Couch v. Telescope Inc. ,
Finally, Defendants aver that, "as the parties' briefing demonstrates, there is a substantial ground for difference of opinion." Mot. 3. However, disagreement between the parties is insufficient to satisfy this condition. If fervent disagreement was sufficient to satisfy this requirement, then the majority of orders issued by district courts would be ripe for interlocutory appeal. However, § 1292(b) contemplates a more rigorous demonstration. See, e.g., Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group ,
In short, even though the issue presented here is novel and the parties disagree about how it should be decided, there is no substantial ground for difference of opinion.
B. Material Advancement of the Ultimate Termination of the Litigation
Further, the Court believes that an interlocutory appeal would unnecessarily delay litigation. See, e.g., Struthers Sci. & Int'l Corp. v. Gen. Foods Corp. ,
Defendants argue that an interlocutory appeal is appropriate because the Fraternal Organization may be exposed to unnecessary discovery and because improper materials may be used during the course of litigation. Mot. 5. However, as discussed above, the Court (i) believes that the Fraternal Organization's charter expressly states that it and the Tribe have the "same" immunities under federal law, (ii) seriously doubts that any § 17 corporation can have greater immunity than its tribe, and (iii) believes that, even if the Fraternal Organization could retain immunity when the Tribe had waived it, the text of the Restoration Act would permit this suit against the Fraternal Organization. Thus, the Court finds it improbable that allowing *711the State to take discovery against the Fraternal Organization is improper. Accordingly, an interlocutory appeal would likely delay the progress of discovery and the ultimate termination of litigation in this case.
IV. CONCLUSION
Accordingly, IT IS ORDERED that Defendants Ysleta del Sur Pueblo, the Tribal Council, and the Tribal Governor Carlos Hisa or his Successor's "Opposed Motion to Amend Orders to Certify for Interlocutory Appeal Under
Defendants filed a "Notice of Errata ..." (ECF No. 126) [hereinafter "Notice"] on September 20, 2018. Therein, Defendants notified the Court that, due to a formatting error, their Reply exceeded the five page limit by two lines of text. Notice 1. The Court appreciates Defendants' prompt correction and excuses the formatting error. As an exhibit to the Notice, Defendants attached a reformatted Reply which complies with the limit.
Defendants, as Counter-Plaintiffs, also raise counterclaims against Ken Paxton in his official capacity as the Texas Attorney General. Defs.' First Am. Counterclaim, Sept. 7, 2018, ECF No. 121.
As discussed in the August 27 Order, the Court's decision regarding the Tribe's immunity follows a line of precedent addressing the Tribe's waiver of sovereign immunity via the Restoration Act.
Defendants assert that the Fraternal Organization's immunity is "separate from, and different than, the Tribe's immunity." Reply 3. The Court agrees that the Fraternal Organization's immunity is "separate from" the Tribe's immunity, but only to the extent that the Fraternal Organization may choose to waive its sovereign immunity without, in turn, waiving the Tribe's immunity.
To be clear, the Court does not believe that the Fraternal Organization could be sued over a gaming offense in violation of subsection (a) in any forum other than federal court simply because the Fraternal Organization is not named here. As an organization that is wholly controlled by the Tribe, it is evident that this clause would limit jurisdiction over any gaming offense committed by the Fraternal Organization to federal court.
Similarly, § 107(a), which provides that "[a]ll gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the reservation and on the lands of the Tribe," contains no limiting principle that might exclude the Fraternal Organization from the Restoration Act's reach.
Moreover, the Restoration Act was enacted in 1987; the Fraternal Organization's charter states that it was formed in 2011. See generally Ysleta del Sur Peublo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No. 100-89,
Reference
- Full Case Name
- State of TEXAS v. YSLETA DEL SUR PUEBLO, the Tribal Council, and the Tribal Governor Carlos Hisa or his Successor
- Cited By
- 3 cases
- Status
- Published