Luckerman v. Narragansett Indian Tribe

965 F. Supp. 2d 224, 2013 WL 4616084, 2013 U.S. Dist. LEXIS 124060
CourtDistrict Court, D. Rhode Island
DecidedAugust 29, 2013
DocketC.A. No. 13-185 S
StatusPublished

This text of 965 F. Supp. 2d 224 (Luckerman v. Narragansett Indian Tribe) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luckerman v. Narragansett Indian Tribe, 965 F. Supp. 2d 224, 2013 WL 4616084, 2013 U.S. Dist. LEXIS 124060 (D.R.I. 2013).

Opinion

OPINION AND ORDER

WILLIAM E. SMITH, District Judge.

Plaintiff Douglas Luckerman, an attorney who formerly represented Defendant Narragansett Indian Tribe (“Tribe”), brought suit against the Tribe in state court for breach of contract, alleging that the Tribe failed to fully compensate him for his services. The Tribe removed the case to federal court and filed the instant motion to dismiss, arguing, among other things, that the case falls within the jurisdiction of its tribal court. (ECF No. 8.) Luckerman filed an opposition to the Tribe’s motion (ECF No. 10), as well as his own motion to remand the matter to state court (ECF No. 11). For the reasons set forth below, both motions are DENIED, and the case shall be stayed pending adjudication in the tribal court.

I. Facts

Luckerman, a Massachusetts attorney and non-member of the Tribe, began representing the Tribe in 2002. In March 2003, Luckerman prepared and directed to the Tribe’s Chief Sachem Matthew Thomas, a letter memorializing the terms of the engagement (“2003 agreement”). The 2003 agreement provides, in pertinent part: “The Tribe agrees to waive any defense of sovereign immunity solely for claims or actions arising from this Agreement that are brought in state or federal courts.” (Ex. to Stipulation 8, ECF No. 4-1.) While the agreement is not signed by any representative of the Tribe, the complaint alleges that the Tribe accepted its terms. A note at the end of document states: “THIS IS YOUR AGREEMENT.. .. IF YOU DO NOT UNDERSTAND IT OR IF IT DOES NOT CON[227]*227TAIN ALL THE AGREEMENTS WE DISCUSSED, PLEASE NOTIFY ME.” (Id. at 9.)

In February 2007, Luckerman was again engaged by the Tribe to act as counsel to one of its offices, the Narragansett Indian Tribal Historic Preservation Office (“NITHPO”). Luckerman and NITHPO entered into an agreement setting forth the terms of the engagement (“2007 agreement”). The agreement provides, in pertinent part: “The NITHPO agrees to a limited waiver of Tribal sovereign immunity in Tribal, federal and state courts, solely for claims arising under this Agreement.” (Id. at 11.) The 2007 agreement is signed by John Brown, the Narragansett Indian Tribal Historic Preservation Officer. Like the 2003 agreement, it directs the recipient to notify Luckerman if there is any problem with the terms.1

The Tribe made some payments to Luckerman, but those payments allegedly were not sufficient to meet the Tribe’s obligations under the 2003 and 2007 agreements. Luckerman claims that the Tribe is currently indebted to him in an amount of over $1.1 million.

II. Discussion

“The question whether an Indian tribe retains the power to compel a non-Indian ... to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law....” Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 27-28 (1st Cir.2000) (quoting Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)). Thus, in the present case, this Court has federal question jurisdiction to determine “(1) the extent of the tribal court’s jurisdiction over the plaintiffs claims, and (2) the defendant’s assertion that, as an arm of a federally recognized Indian tribe, the impervious shield of tribal sovereign immunity protected it from suit.”2 Id. at 25. The First Circuit has indicated that the latter issue should be addressed first. See id. at 28.

A. Sovereign Immunity

“Generally speaking, the doctrine of tribal sovereign immunity precludes a suit against an Indian tribe except in instances in which Congress has abrogated that immunity or the tribe has foregone it.” Id. at 29. Here, the Tribe argues that the complaint must be dismissed on sovereign immunity grounds pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Luckerman counters that the Tribe waived its immunity in the 2003 and 2007 agreements.

With regard to the 2003 agreement, the Tribe responds that the document was not signed by any of its representatives. However, the complaint alleges that Luckerman sent the agreement to Chief Thomas and that the Tribe accepted the terms of the agreement through its conduct. Indeed, the Tribe does not dispute the fact that it received the letter and continued to accept Luckerman’s legal services. While it is true that “a waiver of sovereign immunity cannot be implied,” Santa Clara Pueblo v. Martinez, 436 U.S. 49, [228]*22858, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (internal citation and quotation marks omitted), the Tribe’s conduct here cannot fairly be characterized as an implied waiver. By receiving a proposed agreement that unequivocally purported to waive the Tribe’s sovereign immunity, and treating that agreement as valid, the Tribe expressly waived its immunity. The cases cited by the Tribe are not to the contrary. See id. at 58-59, 98 S.Ct. 1670 (holding that a statute making habeas corpus available to individuals detained by Indian tribes did not constitute a general waiver of sovereign immunity); Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir.1979) (“[T]he Tribe’s mere acceptance of benefits conferred upon it by the state cannot be considered a voluntary abandonment of its sovereignty and its attendant immunity from suit.”); Federico v. Capital Gaming Int’l, Inc., 888 F.Supp. 354, 356 (D.R.I.1995) (holding that “a waiver of sovereign immunity cannot be inferred from [an Indian] Nation’s engagement in commercial activity” (internal citation and quotation marks omitted) (alteration in original)).

The 2007 agreement, unlike the 2003 agreement, is signed by a representative of NITHPO. The Tribe, however, contends that this organization is “an entity of the Tribe,” which lacked the authority to waive the Tribe’s sovereign immunity. (Def. Narragansett Indian Tribe’s Mem. in Supp. of its Mot. to Dismiss 6, ECF No. 8-1.) However, three federal courts of appeals, including the First Circuit, have reached the opposite conclusion on similar facts. See Ninigret, 207 F.3d at 29-31 (holding that the Narragansett Indian Wetuomuck Housing Authority, which the court characterized as “an arm of the Tribe,” acting pursuant to a tribal ordinance, waived sovereign immunity by contract); Confederated Tribes of the Colville Reservation Tribal Credit v. White, (In re White), 139 F.3d 1268, 1269, 1271 (9th Cir.1998) (holding that Colville Tribal Credit, “an agency of the Confederated Tribes of the Colville Reservation,” waived sovereign immunity by participating in a Chapter 11 bankruptcy proceeding); Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803

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Bluebook (online)
965 F. Supp. 2d 224, 2013 WL 4616084, 2013 U.S. Dist. LEXIS 124060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luckerman-v-narragansett-indian-tribe-rid-2013.