2012-13 Term
Supreme Court Cases Related to Indian Law
Three Indian law-related cases were granted.
Petition for certiorari was denied in 15 Indian law-related cases.
Two cases were dismissed.
Cert Granted
*Issues: (1) Can a non-custodial parent invoke the Federal Indian Child Welfare Act to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? (2) Does the ICWA define "parent" in 25 U.S.C. ? 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?
*Summary from U.S. Law Week: A provision of the 1978 federal Indian Child Welfare Act, 25 U.S.C. ?1912(f), which bars involuntary termination of parental rights where there is not a heightened showing that serious harm to an Indian child is likely to result from the parent's "continued custody" of the child, is inapplicable where the relevant parent never had custody of the child. Further, Section 1912(d), "which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the ?breakup of the Indian family'?is inapplicable when, as here the parent abandoned the Indian child before birth and never had custody of the child," Justice Samuel A. Alito Jr. writes for the majority. The court also makes clear that Section 1915(a), "which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family" like the adoptive couple here "from adopting an Indian child when no other eligible candidates have sought to adopt the child." The case involved a dispute over a little girl who is 3/256 Cherokee. The state court below ruled that the ICWA required her to be taken at the age of 27 months from her adoptive parents and turned over to her biological father, with whom she had had no prior contact.
History: Petition was filed on 10/1/12. Petition was granted on 1/4/13. Oral argument took place on 4/16/13. Judgment REVERSED and case REMANDED on 6/25/13. Mandate issued to the Supreme Court of South Carolina on 7/05/13.
*Holding Below: Adoptive Couple v. Baby Girl, 731 S.E.2d 550. The lower court did not err in denying the adoption and awarding custody to the biological father. The Federal Indian Child Welfare Act?not state law?controls whether the biological father was a "parent" within the meaning of the ICWA. The biological father was a "parent" because he acknowledged his paternity through the pursuit of court proceedings as soon as he realized his daughter had been placed up for adoption and established his paternity through DNA testing. The biological father did not voluntarily terminate his parental rights because the consent requirements of the ICWA?including the requirement of written consent and the right to revoke consent?were not satisfied. Additionally, the biological father's parental rights may not be involuntarily terminated because no remedial services have been offered to the biological father and the evidence does not support a finding, beyond a reasonable doubt, that custody by the biological father would result in serious harm to his daughter.
Related News Stories: Drama over Baby Veronica goes on (SCOTUSBlog) 6/27/13. U.S. Supreme Court issues decision in Adoptive Couple v. Baby Girl (NARF Blog) 6/25/13. Supreme Court says Native American child doesn?t have to be given to biological father (Washington Post) 6/25/13. Justices Rule in Favor of Adoption of Indian Child (NY Times) 6/25/13. Focus on preserving heritage can limit foster care for Indians (New York Times) 1/26/13. Supreme Court to examine Indian Child Welfare Act requirements in adoption dispute (Washington Post) 1/4/13. Media failures lead to flawed understandings in Cherokee adoption case (Truthout) 1/13/13. High court to tackle Native American adoption dispute (CNN) 1/4/13. U.S. Supreme Court schedules review of Baby Veronica case (News on 6) 12/31/12.
Case pits adoptive parents against tribal rights (New York Times) 12/24/12. US Supreme Court urged to hear Baby Veronica case (Bartlesville Examiner-Enterprise) 11/4/12. Baby Veronica case appeal filed with U.S. Supreme Court (Oklahoma's Own) 10/05/12.
*Issues: (1) Does the Tucker Act, 28 U.S.C. ? 1491(a)(1), or the Indian Tucker Act, 28 U.S.C. ? 1505, grant the U.S. Court of Federal Claims subject matter jurisdiction over a Native American tribe's claim for money damages against the United States, based on the United States' purported violation of sources of law that do not themselves mandate a damages remedy for their violation? (2) May the United States be required to pay damages for failing to provide a Native American tribe with a statutorily defined portion of a statutory fund, where Congress enacted limited appropriations for that fund and those appropriations were exhausted over a decade before the tribe filed its action for money damages?
History: Petition was filed on 6/1/12. Petition granted on 10/9/12. The judgment with respect to all matters relating to respondent's Revenue Sharing Act claim is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit with instructions to dismiss that claim as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
*Holding Below: Samish Indian Nation v. United States, 657 F.3d 1330. The Revenue Sharing Act, 31 U.S.C. ? 1221 et seq., directs that Native American tribes "shall be allocated" a portion of federal funds distributed to state and local governments based on population. This language makes the act a money-mandating statute. The government's argument that the Anti-Deficiency Act, 31 U.S.C. ? 1341, limits recovery in this case fails because the tribe does not seek release of appropriated funds. Rather, it seeks compensation under the Tucker Act, 28 U.S.C. ? 1491(a)(1), for damages sustained due to the government's wrongful failure to recognize the tribe and its members' inability to participate in programs to which they were entitled. The U.S. Court of Federal Claims based its analysis of the Anti-Deficiency Act's applicability on cases from other circuits. Those cases involved the limited jurisdiction of district courts in actions brought under the Administrative Procedure Act, 5 U.S.C. ? 551 et seq., and are not suits for damages under the Tucker Act. Under the APA, a district court can grant a limited monetary award only if it is in the form of specific relief paid from a particular res. In contrast, the Court of Federal Claims need not identify a res against which a judgment for declaratory or injunctive relief can be paid. Its judgments are paid from the Permanent Judgment Fund, which was established to pay monetary damage judgments entered against the government when other funds are unavailable. The decision of the Court of Federal Claims that the Revenue Sharing Act is a money-mandating statute is affirmed, its decision that the Anti-Deficiency Act limits recovery is reversed, and the case is remanded for further proceedings.
Related News Stories: Supreme Court puts end to Samish Nation federal funding case (Indianz.com) 10/9/12.
*Issues: (1) Does a federal court have jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act but takes place outside of Native American lands? (2) Does tribal sovereign immunity bar a state from suing in federal court to enjoin a tribe from violating IGRA outside of Native American lands?
History: Petition was filed on 10/23/12. Petition was granted on 6/24/13.
*Holding Below: Michigan v. Bay Mills Indian Community, 2012 WL 3326596. Under the Michigan Indian Land Claims Settlement Act, the defendant tribe used trust funds to purchase new "Indian lands." It then built a casino on the property. The state of Michigan sued the tribe under the Indian Gaming Regulatory Act, arguing that the casino was built in violation of the parties' tribal-state compact. Michigan's own pleadings defeat its argument that the IGRA supplies jurisdiction here, because it expressly alleges that the casino is not located on Native American land. Additionally, under U.S. Supreme Court precedent, a state may regulate tribal activities that occur outside Native American lands but it may not enforce those regulations by suing the tribe itself absent waiver or abrogation of tribal immunity. Michigan has not demonstrated that either of those exceptions exist in this case. The district court's preliminary injunction against gambling at the casino is vacated, and the case is remanded for further proceedings consistent with this opinion.
Related News Stories: Cliff Schrader: Supreme Court doesn't bode well for Bay Mills' casino bid (thetimesherald.com) 6/27/13. U.S. Supreme Court to hear Bay Mills casino case, could impact other proposed Michigan casinos (MLive) 6/24/13. Michigan asks Supreme Court to hear Bay Mills gaming lawsuit
(Indianz.com) 12/3/12.
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Cert Denied
*Issues: (1) Are police officers employed by an Indian tribe but trained, certified, and cross-commissioned by a state and armed, equipped, and provisioned by the federal government subject to the Constitution, federal civil rights laws, and state tort law? (2) Do the Treaty of Medicine Creek and additional sources of federal and state law preempt any claims of qualified immunity by individual tribal police officers?
History: Petition was filed on 6/4/12. Petition was denied on 6/24/13.
*Holding Below: Young v. Duenas, 272 P.3d 8513. The defendant officers in this civil action acted within the scope of the authority of the Puyallup Tribe and, therefore, they are protected by the tribe's sovereign immunity.
*Issues: (1) Does tribal immunity from suit allow a Native American tribe, a price fixing competitor, to be immune from federal antitrust liability? (2) Can the officials of a Native American tribe, acting beyond their authority, be protected by tribal immunity when prospective relief is sought?
History: Petition was filed on 4/9/13. Petition was denied on 6/17/13.
*Holding Below: Miller v. Wright, 705 F.3d 919. The district court properly dismissed federal antitrust claims brought by cigarette vendors challenging cigarette taxes imposed by the Puyallup Tribe for lack of subject matter jurisdiction. In particular, the tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures and by ceding its authority to the state of Washington when entering into a cigarette tax contract. Nothing about agreeing to comply with Washington's complex statutory requirements for cigarette fees evidences a clear waiver of the tribe's sovereign immunity. And while agreeing to an arbitration clause may establish a clear waiver of sovereign immunity, the contract here included a mediation provision, not an arbitration provision. Because mediation generally is not binding, it does not reflect an intent to submit to adjudication by a non-tribal entity. Finally, the tribal officials are protected by the tribe's sovereign immunity because they were acting under the tribe's authority.
*Issues: Does the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displace federal common law claims for damages?
History: Petition was filed on 2/25/13. Petition was denied on 5/20/13.
*Holding Below: Native Village of Kivalina
v.
Exxon Mobil Corporation, 696 F.3d 849.The Clean Air Act and Environmental Protection Agency actions taken under the statute displace a federal common law claim of public nuisance brought by the plaintiffs, a Native Alaskan tribe and an Alaskan city, against the defendant energy producers for global warming caused by greenhouse gas emissions. In American Electric Power Co. v. Connecticut, 79 U.S.L.W. 4547 (U.S. 2011), the U.S. Supreme Court determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The district court's dismissal of the plaintiffs' action for damages is affirmed.
*Issues: (Not yet available)
History: Petition was filed on 3/4/13. Petition was denied on 4/29/13.
*Holding Below: Santana v. Muscogee (Creek) Nation, 2013 WL 323223. (From the opinion) "The Indian Gaming Regulatory Act ("IGRA") provides for "class III gaming" activities on Indian lands pursuant to a valid compact between states and Indian tribes. 25 U.S.C. ? 2710(d)(1)(C). Eddie Santana, a self-professed gambling addict, invoked Oklahoma's tribal gaming compact with the Muscogee (Creek) Nation ("Creek Nation") to sue the tribe in Oklahoma state court. Similar to allegations he raised in a previously dismissed federal suit, see Santana v. Cherokee Casino, 215 F. App'x 763, 764 (10th Cir.2007), Mr. Santana claimed the Creek Nation induced him to gamble at its casino, resulting in the tribe's unjust enrichment. Unlike his previous suit, however, Mr. Santana has invoked the tribal-state gaming compact as a predicate for state-court jurisdiction. He asserts that by executing the compact, the Creek Nation consented to suit in Oklahoma state courts. He therefore sought to recover $49,000 of the $60,000 in student loan money he allegedly lost gambling."
*Issues: (1) Can a federal statute supply the basis for federal question jurisdiction even though the statute does not create a federal cause of action, does not provide a federal remedy or federal penalty, and does not include a jurisdictional grant that would allow enforcement in a federal court? (2) Must a federal statute include language that creates a specific federal cause of action in order to supply the basis for federal question jurisdiction? (3) Should the U.S. Supreme Court adopt a bright line rule that a federal law providing no private remedy cannot supply a "jurisdiction-triggering federal question" and thus cannot give rise to 28 U.S.C. ? 1331 jurisdiction?
History: Petition was filed on 2/6/13. Petition was denied on 4/15/13.
*Holding Below: Cook Inlet Region v. Rude, 690 F.3d 1127. The district court correctly determined that it had subject matter jurisdiction over the Alaska Native Claims Settlement Act claims under 28 U.S.C. ? 1331. The ruling of the district court is affirmed.
*Issues: (1) Do a federal official's receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute "agency action" for purposes of Section 7(a)(2) of the Endangered Species Act? (2) Do federal courts lack jurisdiction over the action in light of changed circumstances?.
History: Petition was filed on 8/29/12. Petition was denied on 3/18/13.
*Holding Below: Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006. The U.S. Forest Service violated the Endangered Species Act when it approved recreational gold mining along the Klamath River in a national forest without consulting with fish and wildlife agencies. In accordance with established case law, "there is 'agency action' sufficient to trigger the ESA consultation duty whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed." The approval of the notices of intent related to the mining activities at issue in this case were such discretionary decisions.
*Issues: (1) Does Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), provide a basis for finding a waiver of tribal sovereign immunity where a Native American tribe has expressly waived sovereign immunity, is sued in state court, removes the case to federal court, and then asserts sovereign immunity based on the tribe's concealment of the fact that it did not comply with the lease approval requests of the secretary of the Department of the Interior? (2) Does Justice Brandeis's opinion in Turner v. United States, 248 U.S. 354 (1919), support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc., 523 U.S. 751 (1998), be revisited and discarded? (3) Does the Indian Civil Rights Act, 25 U.S.C. ?? 1302(a)(5) and (a)(8), create an implicit cause of action permitting the respondent to be sued for the taking of property without due process of law?
History: Petition was filed on 9/21/12. Petition was denied on 1/7/13.
*Holding Below: Contour Spa at the Hard Rock
v. Seminole Tribe of Florida, 2012 WL 3740402. This case arises out of a leasing agreement between the plaintiff spa and the defendant Native American tribe that went sour. The plaintiff appeals from a district court order dismissing its amended complaint for lack of subject matter jurisdiction on account of the defendant's sovereign immunity. The plaintiff claims that the defendant's removal of this case to federal court constitutes a voluntary waiver of its immunity, relying on the U.S. Supreme Court's decision in the 11th Amendment case, Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002). Because the problems of inconsistency and unfairness that were inherent in the procedural posture of Lapides are absent here, and because a Native American tribe's sovereign immunity is of a far different character than a state's 11th Amendment immunity, we decline to extend Lapides. The plaintiff's second argument?that Congress has authorized its suit by creating an implied cause of action under the Indian Civil Rights Act?fails because the Supreme Court has already held that Native American tribes are immune from suit under that statute. Finally, the plaintiff's argument that principles of equitable estoppel prevent the defendant from asserting immunity also fails. The equitable estoppel claim is unavailable because it is grounded on a waiver provision contained within a lease agreement that is wholly invalid as a matter of federal law. The judgment of the district court is affirmed.
*Issues: (1) Did the Ninth Circuit misconstrue and misunderstand requirements for finding a federal trust responsibility to Indians? (2) Is there a conflict in the Circuits regarding the government's trust responsibility, for example, compare Brown v. United States, 86 F.3d 1554, 1560-61 (Fed. Cir. 1996) and the Ninth Circuit's previous decision in this case, at 540 F.3d 916 (9th Cir. 2008)? (3) Is there a special burden on the federal government as it relates to Indian housing in view of the congressional acts on housing, the disadvantage to Indians caused by the Indian Allotment Act, which prohibits Indians from holding title to their land, and the Indian trust responsibility of the federal government? (4) Was the Ninth Circuit wrong in summarily dismissing plaintiffs' Administrative Procedure Act claim as time barred when the true state of affairs was not discovered until well within the statute of limitations? (5) Was the Ninth Circuit wrong in not considering the federal Indian trust responsibility in connection with its decision on the statute of limitations? (6) Was the Ninth Circuit wrong in holding that the Department of Housing and Urban Development had no duty to act on a specific request of the Housing Authority and the Blackfeet Tribe to "fix it"? (7) Was the Ninth Circuit wrong in not considering the federal Indian trust responsibility in connection with its decision on HUD's duty to act?
History: Petition was filed on 8/29/12. Petition was denied on 1/14/13.
*Holding Below: Marceau
v. Blackfeet Housing Authority, 540 F.3d 916. The district court did not err in dismissing plaintiffs' Administrative Procedure Act claims?relating to the construction of homes using wooden foundations, under the direction of the Department of Housing and Urban Development?because the claims were not brought within the six year statute of limitations. When challenging an agency decision, the statute of limitations begins to run when the "disputed decision is first 'appli[ed] ... to the challenger,'" which occurred in this case in the 1970s when HUD approved the use of wooden foundations. Additionally, the district court did not err in dismissing plaintiffs' claims relating to HUD's failure to respond to homeowners' requests to repair the wooden foundations, because HUD was only legally required to respond to such requests from the tribe's housing authority, and not from individual homeowners. The appellate court did not revisit its previous decision that a trust relationship was not created by HUD's involvement in the construction of the homes.
*Issues: Should a motion to dismiss brought by a federal law enforcement officer asserting qualified immunity be granted under Ashcroft v. Iqbal, 556 U.S. 662, 85 CrL 244 (2009), where the complaint alleges a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), through nothing more than a formulaic recitation of the elements of the cause of action, general and unsupported statistics and musings, and alleged policy problems having nothing to do with the particular officer?
History: Petition was filed on 8/20/12. Petition was denied on 1/14/13.
*Holding Below: Cole v. Oravec, 465 F. App'x 687. The plaintiff in this civil rights action has sufficiently alleged an equal protection violation. Therefore, the defendant FBI agent is not entitled to qualified immunity from the claim that he violated the plaintiff's right to equal protection when, on the basis of the plaintiff's Native American race and the race of his deceased relative, the defendant conducted a less thorough investigation of the decedent's death than he conducted when investigating the deaths of similarly situated non-Native-American decedents, and that he consistently closed cases involving Native American victims without adequate investigation. The district court's denial of the defendant's qualified immunity motion is affirmed in part.
*Issues: (1) Does Justice Brandeis's opinion in Turner v. United States, 248 U.S. 354 (1919), support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc., 523 U.S. 751 (1998), be revisited and discarded, at least in the context of tribal alcoholic beverage commercial activities? (2) Do Title 18 U.S.C. ? 1161 and Rice v. Rehner, 463 U.S. 713 (1983), exclude tribal alcoholic beverage endeavors from sovereign immunity protection? (3) Does tribal sovereign immunity preclude a suit against a Native American tribe that has obtained a state liquor license and has operated an alcoholic beverage facility under that license and, in the process, violated state law subjecting the license holder to liability?
History: Petition was filed on 9/21/12. Petition was denied on 11/26/12.
*Holding Below: Furry
v.
Miccosukee Tribe of Indians of Florida, 685 F.3d 1224. Sovereign immunity bars a wrongful death lawsuit against a Native American tribe after a patron who was served alcohol at the tribe's casino bar died in a drunk-driving accident. The U.S. Supreme Court has made clear that a suit against a tribe is barred unless it clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity. The judgment of the district court is affirmed.
Related News Stories: Supreme Court Denies Cert in Dram Shop Immunity Action Involving Miccosukee Tribe (Turtletalk) 11/26/12.
*Issues: Does the 2010 Claims Resolution Act , which authorized settlement of a Native American trust account mismanagement case against the U.S. Department of the Interior, violate the Equal Protection Clause by discriminating against the petitioners on the basis of race?
History: Petition was filed on 10/1/12. Petition was denied on 11/26/12.
*Holding Below: Cobell v. Salazar, 679 F.3d 909.The district court properly dismissed the case for lack of standing because any injury to the plaintiffs is not fairly traceable to the United States and will not be redressed by a favorable decision.
*Issues: (1) May a court impose on an objector the burden to provide evidence of a structural conflict where it concedes that the defendant's conduct has destroyed any such evidence? (2) Does the payment of incentives to named plaintiffs of an amount more than 80 times the award due to each class member compromise their ability to adequately represent the class at settlement?
History: Petition was filed on 8/20/12. Petition was denied on 10/29/2012.
*Holding Below: Cobell v. Salazar, 679 F.3d 909. In a case involving the U.S. Department of the Interior's management of Individual Indian Money trust accounts, a practical, congressionally approved settlement should not be set aside. It is unlikely that individual class members would receive more with a historical accounting of the trust accounts. The judgment of the district court approving the settlement is affirmed.
Related News Stories:Supreme Court decides not to consider challenge of $3.4B American Indian land trust settlement (Washington Post) 11/7/12. Indians pull appeal to Cobell settlement; Government says payments by year's end
(Indian Country Today) 11/8/12. Secretary Salazar anticipates Cobell payments by end of year (Indianz.com) 10/23/12. Inside Kimberly Craven's Cobell appeal to U.S. Supreme Court (Indian Country Today) 8/19/12. Native Sun News: Cobell trust fund settlement moving forward (Indianz.com) 8/15/12.
*Issues: Not yet available.
History: Petition was filed on 6/20/12. Petition was denied on 10/1/12.
*Holding Below: Miranda v. Anchondo, 654 F.3d 911. (from Westlaw) The Court of Appeals held that: (1) respondents did not waive their right to appeal by filing untimely objections to magistrate judge's report and recommendation, and (2) tribe member's sentence did not violate the Indian Civil Rights Act (ICRA). Reversed.
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Case Dismissed
*Issues: (1) Can a class action settlement be approved over timely objections by class members when the single point of requisite commonality found by the court below is by definition not a common issue of law or fact applicable to all members of the class? (2) Can a class action settlement be approved over timely objections by a class member that she should be permitted to opt out of the settlement, which provides for only a monetary payment?
History: Petition was filed on 9/19/12. Petition was dismissed on 11/6/2012.
*Holding Below: Cobell v. Salazar, 679 F.3d 909. The appellants, who are class members in a congressionally approved settlement in an Indian trust account mismanagement case against the U.S. Department of the Interior, raise four objections to the settlement. Two of these arguments are foreclosed by another decision of this court, Cobell v. Salazar, 679 F.3d 909 (D.C. Cir. 2012) (80 U.S.L.W. 1623), holding that the settlement is fair and comports with the requirements of due process and Fed. R. Civ. P. 23. The objectors' other two arguments, that the district court lacked jurisdiction and that the district judge should have recused himself, are utterly without merit. As to the first, the objectors' claim that the adverseness required for an Article III case or controversy ends when the parties to a dispute reach a settlement subject to court approval is contrary to all precedent and to common sense. As to the second, it is based upon the blatant mischaracterization that certain statements made by the district judge at a status conference were made "out of court." The district court's approval of the settlement is affirmed.
Related News Stories: Supreme Court decides not to consider challenge of $3.4B American Indian land trust settlement (Washington Post) 11/7/12. Indians pull appeal to Cobell settlement; Government says payments by year's end
(Indian Country Today) 11/8/12. Secretary Salazar anticipates Cobell payments by end of year (Indianz.com) 10/23/12. Three more American Indians file Cobell settlement appeals with U.S. Supreme Court (Indian Country Today) 9/21/12.
*Issues: May a tribal corporation sue a non-Indian contractor in state court for disgorgement under California Business & Professions Code ? 7031(b), for being unlicensed while constructing improvements on tribal trust land in connection with a tribal gaming enterprise in the absence of express federal authorization?
History: Petition was filed on 5/21/13. Petition dismissed - Rule 46 on 6/26/2013.
*Holding Below: Twenty-Nine Palms Enterprises Corporation v. Bardos, 210 Cal.App.4th 1435. The defendant-appellant's assertion that California's unlicensed contractor's statute, California Business & Professions Code ? 7031(b), is not enforceable in a contract made with a tribal entity for work done on tribal land, fails because the defendant-appellant cannot assert the tribal corporation's sovereign immunity. The judgment of the trial court is affirmed.
