Sovereign Immunity Issue Did Not Divest Lower Court Or Require A Stay For Multiple Reasons.
For any practitioners having to sue an American Indian tribe, sovereign immunity is a crucial issue. It must be waived in some manner; if not, there may be no recovery no matter how bad the equities are. Well, we now have a California intermediate appellate decision involving Indian tribal issues in the context of a lower court order awarding fees to a contractor prevailing on appeal against a tribe. Better yet, it is published!
In Findleton v. Coyote Valley Band of Pomo Indians, Case No. A150444 (1st Dist., Div. 2 Sept. 25, 2018) (published), a contractor had won a previous appeal in which an American Indian tribe was found to have waived its sovereign immunity for purposes of arbitrating the contract disputes, with the waiver extending to judicial enforcement of the right to arbitrate and of any arbitration award. This prior appeal reversed an award of fees and costs to the tribe as the prevailing party. On remand, contractor moved for fees incurred in successfully appealing, with the lower court awarding costs of $4,591.79 and attorney’s fees of $28,148.75.
Tribe’s appeal did not change the result.
As to the first argument (that contractor did not prevail), this was never contested below such that it was waived on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶¶ 8:231, 8:233, p. 8-175.) Beyond that, the appellate court, based on the law of the case doctrine, did decide sovereign immunity had been waived, so that it was binding; otherwise litigants would “continually reinvent their positions on legal issues that have been resolved against them by an appellate court.” The second argument was that the lower court should have abstained until the tribe determined its own jurisdiction—an exhaustion of remedies argument. This was dispatched because contractor showed there was no tribal court in existence at the time the action was commenced, so no abstention was necessary. With respect to the last argument that the ruling on the fees/costs motion was premature, the lower court did have jurisdiction to consider the motion given the prior ruling on the sovereign immunity issue.