Luckerman v. Narragansett Indian Tribe

Filing 22

OPINION AND ORDER denying 18 Motion for Reconsideration. So Ordered by Chief Judge William E. Smith on 1/7/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
NARRAGANSETT INDIAN TRIBE,
)
)
Defendant.
)
___________________________________)
DOUGLAS J. LUCKERMAN,

C.A. No. 13-185 S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
On

August

Narragansett

29,

Indian

2013,

Tribe’s

this

Court

(“Tribe”)

denied

motion

to

Defendant

dismiss,

but

stayed adjudication of the case pending tribal exhaustion. 1

Now,

the

that

Tribe

has

filed

a

motion

for

reconsideration

of

decision (ECF No. 18), re-emphasizing the Tribe’s position that
its

tribal

asking

1

sovereign

again

that

immunity

the

Court

bars

the

dismiss

instant

the

claims

lawsuit,
brought

and
by

The Tribe made a colorable argument that the dispute
should be heard in its Tribal Court.
The Court of Appeals for
the First Circuit has explained: “The tribal exhaustion doctrine
holds that when a colorable claim of tribal court jurisdiction
has been asserted, a federal court may (and ordinarily should)
give the tribal court precedence and afford it a full and fair
opportunity to determine the extent of its own jurisdiction over
a particular claim or set of claims.”
Ninigret Dev. Corp. v.
Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 31 (1st
Cir. 2000).

Plaintiff

Douglas

J.

Luckerman.

For

the

reasons

set

forth

below, Defendant’s motion for reconsideration is DENIED.
I.

Facts
The facts are familiar to the parties.

a

Massachusetts

attorney

and

non-member

In 2002, Luckerman,
of

representing the Tribe in legal matters.
prepared

and

sent

a

letter

the

Tribe,

began

In March 2003, he

memorializing

the

terms

of

engagement to the Tribe’s Chief Sachem Matthew Thomas.

this
This

March 2003 letter provides that “[t]he 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.”
was

(Ex. to Stipulation 8, ECF No. 4-1.)

sent,

the

Tribe

continued

to

accept

After the letter

the

legal

services

rendered by Luckerman. 2
In February 2007, the Tribe once again sought Luckerman’s
services,
offices,
Office

and
the

he

agreed

Narragansett

(“NITHPO”).

agreement,

which

to

act

Indian

Luckerman

provided

as

Tribal

and

that

counsel

Historic

NITHPO

“NITHPO

for

one

its

Preservation

entered

agrees

of

to

into
a

an

limited

waiver of Tribal sovereign immunity in Tribal, federal and state
courts, solely for claims arising under this Agreement.” (Ex. to
2

Of additional importance, the 2003 letter provides the
following note: “THIS IS YOUR AGREEMENT. . . .
IF YOU DO NOT
UNDERSTAND IT OR IF IT DOES NOT CONTAIN ALL THE AGREEMENTS WE
DISCUSSED, PLEASE NOTIFY ME.” (Ex. to Stipulation 9, ECF No. 41.)
2

Stipulation
Historic

11,

ECF

No.

4-1.)

Preservation

Officer

years,

two

Narragansett
John

Brown

Indian

signed

Tribal

the

2007

agreement.
For

these

agreements

Luckerman were non-controversial.

between

the

Tribe

and

Indeed, the Tribe made some

payments to Luckerman for his services pursuant to these very
agreements.

These

payments,

however,

were

insufficient

to

compensate Luckerman for all of his work, and he now claims that
the Tribe owes him more than $1.1 million.
Luckerman brought suit seeking payment of the fee he claims
is owed to him.

The Tribe steadfastly maintains that sovereign

immunity bars the lawsuit – and this argument is the basis for
the Tribe’s motion to reconsider.
II.

Discussion
A

motion

to

reconsider

“is

an

extraordinary

remedy

and

should be used sparingly ‘[u]nless the court has misapprehended
some material fact or point of law.’” Lincoln Nat. Life Ins. Co.
v. Wilmington Trust Co., C.A. No. 08-74 S, 2013 WL 4042659, at
*3 (D.R.I. Aug. 9, 2013) (quoting Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006)).

The extraordinary nature of this

remedy is apparent from the fact that the Federal Rules of Civil
Procedure do not provide for a motion to reconsider; instead, a
court’s inherent power gives it the ability to re-examine its
interlocutory orders.

Id.

“To obtain relief, the movant must
3

demonstrate

either

that

newly

discovered

evidence

(not

previously available) has come to light or that the rendering
court committed a manifest error of law.”

Palmer, 465 F.3d at

30.
The Tribe’s motion to reconsider focuses on its argument
that

tribal

lawsuit.
immunity

sovereign

immunity

short-circuits

Luckerman’s

“Generally speaking, the doctrine of tribal sovereign
precludes

a

suit

against

an

Indian

tribe

except

in

instances in which Congress has abrogated that immunity or the
tribe has foregone it.”

Ninigret Dev. Corp., 207 F.3d at 29.

The

Order

Court’s

August

29

(the

“Order,”

ECF

No.

16),

recognized that the Tribe could not impliedly waive sovereign
immunity.

(Order at 4-5.)

With respect to the 2003 agreement,

this Court determined that the Tribe affirmatively waived its
sovereign immunity by receiving that agreement and treating it
as valid, despite the agreement’s unequivocal provision waiving
the Tribe’s sovereign immunity. 3

(Id.)

agreement was signed by a NITHPO officer.

Meanwhile, the 2007
The Court rejected

the Tribe’s argument that NITHPO lacked the authority to waive
the Tribe’s sovereign immunity finding that NITHPO and the Tribe

3

The Tribe argues that it is unclear from the record
whether it received these two letters from Luckerman.
(Def.
Mot. for Reconsideration 5, ECF No. 18.)
Tellingly, however,
the Tribe never disputes that it actually received the letter.
4

were not independent legal entities, and thus their sovereign
immunity was one and the same.

(Id. at 5-6.)

Now, the Tribe seeks to meet its burden of demonstrating
that these determinations constituted manifest errors of law by
rehashing

its

previously

rejected

arguments

and

pointing

to

additional case law that it failed to cite in its motion to
dismiss.

The Tribe’s arguments fail.

The three cases relied on

by the Tribe all share a key characteristic that is missing here
– each of the Indian tribes in those cases had constitutional
provisions or ordinances that dictated how sovereign immunity
was to be waived.

Sanderlin v. Seminole Tribe of Florida, 243

F.3d 1282, 1287 (11th Cir. 2001) 4; World Touch Gaming, Inc. v.
Massena Mgmt., LLC, 117 F. Supp. 2d 271, 272 (N.D.N.Y. 2000);
Danka Funding Co. v. Sky City Casino, 329 N.J. Super. 357, 36566

(N.J.

Super.

Ct.

Law

Div.

1999).

Such

constitutional

provisions and ordinances put those dealing with the tribes on
notice of the procedures that must be followed.

The Seminole

Tribe’s ordinance explains that “the Seminole Tribe of Florida
desires
otherwise

to

make

dealing

clear

to

all

with

the

Seminole

4

persons

having

Tribe

of

business
Florida,

or
its

The Plaintiff in Sanderlin relied on an argument that the
Seminole
Tribe
implicitly
waived
its
sovereign
immunity.
Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1286
(11th Cir. 2001).
By contrast, Luckerman has successfully
advanced an argument that the Narragansett Indian Tribe
explicitly waived its sovereign immunity through its actions.
5

subordinate
officials,
Tribe

of

economic
employees

Florida

and
and

does

governmental

authorized

not

under

units,

agents

any

that

its
the

circumstances

voluntarily waive its entitlement to immunity.”

tribal
Seminole

intend

to

Sanderlin, 243

F.3d at 1287.
Here, the Tribe’s Constitution and By-Laws are silent on
how the Tribe must waive sovereign immunity, and thus Luckerman
reasonably
Tribe.

relied

on

the

agreement

he

entered

into

with

the

The Tribe has provided an affidavit from Chief Thomas

which explains that the “Chief Sachem and the Tribal Secretary
execute any Tribal Council resolution memorializing a waiver of
immunity.”
This

(Aff. of Chief Sachem Thomas ¶ 7, ECF No. 20-1.)

affidavit,

however,

unlike

the

constitutional

provisions

and ordinances in the cases upon which the Tribe relies, does
not put those dealing with the Tribe on notice of its alleged
practices regarding sovereign immunity waivers.

Additionally,

the Tribe points to one provision of its Constitution and ByLaws which states: “The Narragansett Tribe of Indians shall have
a private seal.

All legal papers must be signed by the Chief

Sachem and Secretary and stamped with the Tribal Seal.”
¶ 6.)

(Id. at

This provision simply does not dictate how the Tribe must

waive sovereign immunity.
In sum, nothing has changed in the time between the Tribe’s
motion to dismiss and its motion for reconsideration to suggest
6

the Court committed a manifest error of law in its August 29
Order.
III. Conclusion
For

the

reconsideration

foregoing
is

DENIED.

reasons,

Defendant’s

The

remains

tribal exhaustion.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: January 7, 2014

7

case

motion

stayed

for

pending