Wisconsin Court of Appeals Affirms Immunity of Tribal Enterprise

WI CapitolLast week, the Wisconsin Court of Appeals affirmed that the Lac du Flambeau Band of Lake Superior Chippewa Indians’ Lake of the Torches Casino is immune from a state-court suit by a former employee. After competing litigation in state and tribal court—the state court first transferred the case to tribal court, but after the tribal court ruled against the plaintiff on the merits of his claim, the state court reasserted jurisdiction and ruled against the Casino—the state court ultimately vacated its judgment against the Casino.

In affirming the Casino’s immunity, the Court of Appeals held that:

  • The gaming compact’s requirement that the Tribe maintain public-liability insurance only forbids the Tribe’s insurer from invoking the Tribe’s sovereign immunity, and does not address the Tribe’s ability to invoke immunity in a direct suit;
  • The gaming compact only relates to Class III gaming activities, so even if the compact waived the Tribe’s immunity, it would only do so for claims related to gaming activity;
  • The statement of the Tribe’s third-party claim administrator did not waive the Casino’s immunity because only the Tribe’s governing body can waive immunity;
  • A promise to pay medical bills is not an unequivocal consent to suit in state court; and
  • The Tribe’s consent to a tribal-court suit did not subject it to suit in tribal-court.

The opinion thus reaffirms foundational immunity principles: any waiver must be clear and express and must be strictly construed according to its terms. The text of the opinion is available here, and the appellate briefing in the case is available here.

Hogen Adams founding members Andrew Adams III, Jessica Intermill, and William Szotkowski, and associate Jessie Stomski Seim represented Lac du Flambeau in post-judgment briefing before the lower court and defended vacatur of the judgment on appeal.

Jessica Intermill earns highest Martindale-Hubbell ranking

JESSICA-INTERMILLMartindale-Hubbell has rated Hogen Adams founding member Jessica Intermill as an AV Preeminent lawyer, the highest ranking awarded by the organization The Martindale-Hubbell ratings allow other members of the bar and the judiciary to evaluate a lawyer’s high ethical standards and professional ability. One reviewer called Jessica “an excellent attorney!” Another reported, “Jessica is a fine lawyer and a great person. I am proud and happy to call her my friend.” According to Martindale-Hubbell, the AV Preeminent rating is “a significant rating accomplishment—a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.” To learn more about Jessica and her practice, click here.

Hogen Adams congratulates of-counsel attorney Colette Routel, and Lac Courte Oreilles attorney Kekek Jason Stark, for obtaining a unanimous Seventh Circuit decision in favor of Chippewa tribes seeking to hunt deer at night in the ceded territory of northern Wisconsin

Hogen Adams would like to congratulate Hogen Adams of-counsel attorney, Colette Routel, and Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin Lead Attorney, Kekek Jason Stark, for their Seventh Circuit victory in the efforts to restore night hunting rights to Wisconsin Chippewa tribes. The Plaintiff tribes are: Lac Courte Oreilles Band of Lake Superior Chippewa Indians; Lac du Flambeau Band of Lake Superior Indians; Sokaogan Chippewa Indian Community, Mole Lake Band of Wisconsin; Bad River Band of Lake Superior Chippewa Indians; St. Croix Chippewa Indians of Wisconsin; and Red Cliff Band of Lake Superior Chippewa Indians.

Under a 1991 Western District of Wisconsin judgment, the tribes were prohibited from exercising their treaty rights to off-reservation deer hunting in the ceded territory covering about the northern one-third of Wisconsin. In Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin et al. v. Wisconsin, a group of Wisconsin Chippewa tribes sought to regain the right by moving to vacate the night-hunting portion of the 1991 judgment. The Western District refused to vacate, citing a threat to public safety.

Writing for the Seventh Circuit, Judge Richard Posner found little evidence of a threat to public safety in the plans set forth by the tribes. There is “compelling reason for vacating the 1991 ruling,” Posner wrote.

The case will now return to the Western District for further evidence on whether the court should vacate the night hunting prohibition in its 1991 decision.

Routel is a professor at the William Mitchell College of Law, where she and the law students in her Indian law clinic undertake a variety pro-tribal projects. Stark is the Lead Attorney for the Lac Courte Oreilles Tribe, and he was formerly an attorney and policy analyst for the Great Lakes Indian

Fish and Wildlife Commission (GLIFWC). GLIFWIC, the driving force behind the efforts to restore the tribes’ night hunting rights, represents eleven Ojibwe tribes in Minnesota, Wisconsin, and Michigan who reserved hunting, fishing and gathering rights in the 1837, 1842, and 1854 Treaties with the United States government.

The decision is available here.

Super Lawyers magazine honors Hogen Adams attorneys for excellence in Indian law

Hogen Adams is proud to announce that Vanya Hogen Moline and Jessica Intermill have once again been named Super Lawyers in Indian law. Hogen Adams is the only firm with Minnesota Indian law Super Lawyers. This is Vanya’s eleventh year as an Indian law Super Lawyer, and Jessica’s second year. Jessica was previously named a Rising Star in Indian law.

Associate Jessie Stomski Seim, who joined the firm this year, was also named a Minnesota Rising Star for the fourth consecutive year.

Only 5% of nominated Minnesota attorneys are selected as Super Lawyers, and only 2.5% of nominated Minnesota attorneys are selected as Rising Stars. Super Lawyers selects attorneys using a patented multiphase selection process that combines peer nominations and evaluations with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.

This recognition reflects Hogen Adams’ commitment to providing legal excellence in Indian country. To learn more about these exceptional attorneys, visit their biographies: Vanya Hogen Moline, Jessica Intermill, Jessie Stomski Seim.

Andrew Adams III to speak at upcoming Tribal Rights, Sovereignty and Economic Development in the Midwest Conference

ANDREW-ADAMS-IIISt. Paul, MN., June 24, 2014 – Founding Hogen Adams lawyer Andrew Adams III will speak at the September 11-12, 2014 Law Seminars International Tribal Rights, Sovereignty and Economic Development in the Midwest Conference at Mystic Lake Casino Hotel.  On September 11, Andrew will speak on the recent United States Supreme Court Tribal sovereign immunity decision in Michigan v. Bay Mills Indian Community.  To register for the event, or to learn more about the Tribal Rights, Sovereignty and Economic Development in the Midwest two-day conference held at Mystic Lake Casino Hotel in Prior Lake, MN, Click Here.

Andrew Adams III to speak at upcoming Tribal Lending & Financial Institutions Conference

St. Paul, MN., April 23, 2014 – Founding Hogen Adams lawyer Andrew Adams III will join firm co-founder Vanya Hogen Moline in speaking at the June 19-20, 2014 Law Seminars International Tribal Lending & Financial Institutions Conference at Mystic Lake Casino Hotel.  On June 20, Andrew will speak on Strategies for Evaluating and Pursuing Financial Opportunities Beyond Gaming and Lending Operations. To learn more about Tribal Lending & Financial Institutions at the two-day conference held at Mystic Lake Casino Hotel in Prior Lake, MN, Click Here.

Vanya Hogen Moline to speak at upcoming Tribal Lending & Financial Institutions Conference

St. Paul, MN., April 11, 2014 – Founding Hogen Adams lawyer Vanya Hogen Moline will speak at the June 19-20, 2014 Law Seminars International Tribal Lending & Financial Institutions Conference at Mystic Lake Casino Hotel.  On June 19, Vanya will speak on Tax Considerations for Planning Tribal Economic Development and Activities.  To learn more about Tribal Lending & Financial Institutions at the two-day conference held at Mystic Lake Casino Hotel in Prior Lake, MN, Click Here.

Jessica Intermill, Vanya Hogen Moline, and Colette Routel to speak at upcoming Indian Law Conference

St. Paul, MN, April 7, 2014 – Founding Hogen Adams lawyers Jessica Intermill and Vanya Hogen Moline will each be featured as panelists at an all-day May 2 conference at Mystic Lake Casino Hotel. Colette Routel, of counsel for the firm, will also present at the conference.

Although the Supreme Court has not yet issued its decision in the case, Michigan v. Bay Mills Indian Community raises sovereign-immunity questions critical to tribes and their commercial partners. Jessica will discuss the much-anticipated decision and its implications.

Because each jurisdiction has its own rules and applicable law, Tribal Court practice differs from court to court. Vanya, a sitting judge of the Shakopee Mdewakanton Sioux Community Tribal Court, will discuss the court’s jurisdiction and and practice before the court.

Colette will also present at the conference, addressing pending and recent decisions of the U.S. Supreme Court, 7th and 8th Circuits, and Minnesota state courts.

Learn more about the Friday, May 2, 2014 Indian Law Conference at Mystic Lake Casino Hotel in Prior Lake, Minnesota.

Jessie Stomski Seim joins Hogen Adams PLLC

St. Paul, MN., February 3, 2014 – Jessie Stomski Seim has joined Hogen Adams PLLC, a boutique Indian-law firm that serves Indian Country clients nationwide.  Ms. Stomski Seim is a citizen of the Muscogee (Creek) Nation and an experienced litigator.  She has been recognized by her peers as a Minnesota Super Lawyers Rising Star and is an active member of the Minnesota American Indian Bar Association, and the Minnesota State and Federal Bar Associations.

William Szotkowksi, the Chief Executive Officer of Hogen Adams, says that the group “is excited to welcome Jessie to our practice.  Her experience and talent will serve our clients well.”

Hogen Adams offers the unique combination of deep-rooted Indian-law experience and an agile, flexible approach to representing tribes and their business partners.  For more information about Hogen Adams, visit www.hogenadams.com.