the district court ruled that indian tribes enjoy sovereign immunity from suit with respect to their off reservation tortious cond to the supreme court or this court has ever held that in addition the district court ruled that the tribe had not waived this reported sovereign immunity with respect to its disaster relief activities of wimberley texas where it was acting as a federally deployed in federally funded america or disaster response team i want to address the  with respect to the tribes allegation that it was acting as a team employee of the federal government and that it in its petition that the federal government be substituted as a defendant and its stead united states that period in a pose that the court task is to see if there is a claim whether it's a diversity or ordered federal question claim that falls within the jurisdiction of the court if there are other claims have been alleged that do not fall within the or jurisdiction of the court the court said that that is of no moment to the initial determination is merely do we have jurisdiction under diversity that is amount of controversy and complete diversity as to one claim the fact that we court didn't focus solely on the amount of controversy issue and that was it that was a consolidation of a class action in an individual suit the st certain level circuit had disagreed on how to  handle supplemental jurisdiction and the court pointed out that the fact that there were cases where the amount controversy didn't meet the original jurisdiction amount for diversity was was irrelevant if the court had diversity jurisdiction as to some of the claims it could exert supplemental jurisdiction over the other claims even though they did meet the amount of controversy but the court went beyond that and talked about the complete diversity requirement even though it was an issue in the case and the court pointed out the purposes of supplemental jurisdiction the complete diversity quorum requirement is not mandated by the constitution or the plain t alleging that they had to buy lated their guarantee of the royalty payments the trouble and this was one year before supplemental jurisdiction was an act about congress it was in one thousand eight hundred and nine dollars the problem with the american citizen he had not reside in the united states in many years had no domicile on the united states and therefore he was not a citizen of any state that made him a spoiler as far as relying on diversity under section one hundred and thirty t eighty three what the th circuit held was that didn't destroy the whole case the plaintiff had the option to to dismiss under rule twenty one dollars that dispensable not diverse party and not destroy the whole diversity and in that case with the supreme court about whether the plaintiff had waived that right now a court said no that that right to dispense with a dispensable non diverse party can be raised by the plaintiff in a time including on appeal which occurred here or even after judgment but since we that was before supplemental jurisdiction that would supplemental jurisdiction there would be no need to dispense with that american citizen who ratted reside in this way because he was a stateless individual and adding him under supplemental jurisdiction would not violate a complete diversity requirement as spellbound by the court in exxon mobil sovereignty tribes enjoy over their lands and peoples the courts have postulated that the tribes also enjoyed sovereign immunity from suit with respect activities on tribal lands but in for the  issue was whether the tribe could be sued for that breach of the promise or agreement and for the st time the court held that there was severed immunity for this that the actual ruling of the court was very narrow the court said tribes enjoy immunity from suits on contracts whether those contracts involve governmental or commercial activities whether they were made on or off the reservation and that's it's seventy six thousand seven hundred and sixty one dollars also are there any instances that you can think of that you've been able to where the court pointed out something very important on that issue good engelhard the court said the following although the court has taken the lead in drawing the bantams of tribal immunity congress subject to constitutional limitations can alter its limits through explicit legislation so it because our court said it was important there are balance to travel sovereign immunity that the supreme court has taken the lead in drawing those bounds those boundaries those limits but congress can step in subject to constitutional limitations and and either expand or contract with the supreme court has done up until now this congress has not stepped in to change anything the supreme court has done it in its drawing of boundaries of trouble sovereign immunity what do you best case a supreme court or even a circuit to anyone that supports the idea that we should  take this opportunity to license or are there a limitation on sovereign immunity that matt is battles that he play in the michigan versus barry mills indian community case that i spoke of the tribe had agreed in his contact with michigan it would not open or operate casinos off of the reservation and seven years after agreeing to do that the tribe bought some land one hundred and twenty five miles from the from the reservation and undertook to build and operate a casino michigan  waive their sovereign immunity for on reservation gambling and you could take them to court and enforce your regulations but since you didn't do it you can't regulate off reservation to members of the thomas in his dissenting opinion if you allow off reservation immunity that can harm people who haven't chosen to deal with a tribe such as a tour victim and you would leave him with no remedy in footnote number eight the majority and bay landrum the supreme court for the st time had a case that didn't involve a breach of contract it was where the tribe had bought some land off reservation and then challenge some adjoining the land saying our fences in the right location the tribe took the position we're immune from suit you can't fight we you can't join us to us to quiet idle and the supreme court did not recognize that the tribe had sovereign immunity from suit as to that lawsuit they sent the case back to the state of washington and asked the washington spring court to determine for itself whether the tribes enjoyed sovereign immunity  and justice roberts said we can't have a situation where the tribes can go off reservation do willy whatever they choose and that and there will be no remedy for their wrongs it was just concurring opinion thereafter this spring court of alabama and wilkes versus p c i gaming authority said we read footnote number eight of code what does say the supreme court has not held diversity statute does not provide jurisdiction for any of plaintiff claims because the requirement of complete diversity of citizenship is lacking due to the presence of the  plaintiff also cannot rely on the supplemental jurisdictions dance you to a certain jurisdiction over who nor is there any federal question jurisdiction over mr mitchell's purely state law tort or contract claims even if any any states for purposes of diversity every circuit court of appeal to address the issue has also agreed that indian tribes are not citizens of states for purposes of diversity and when very occur speech or stiction if the tribe were not named as a defendant absolutely this case just involved mr mitchel suit against forego bayley without the tribe involved there's no question that there would be diversity jurisdiction and so we agree with you that there is a case that is for the th circuit addressed in that case the district court addressed sovereign immunity in that case and dismissed the case with prejudice based on sovereign immunity and then later on appeal the immunity the reason why the due out of complete diversity in this case is important even though mr mitchell did not assert diversity jurisdiction over who is because mr mitchell claims that there is a basis for supplemental jurisdiction over  there can be no claim of supplemental jurisdiction in our position is that original jurisdiction was lacking to due to the lack of complete diversity of supreme court cases such as owen equipment vs kroger and the exxon mobil amount in controversy requirements and not the complete diversity or acquirement in terms of what the case was about the court did on multiple occasions confirm that one thousand three hundred and sixty seven still requires complete diversity of citizenship and that its case was not stating that that requirement was no longer present in fact it expressly distinguished the amount of controversy requirement from the complete diversity requirement it stated  multiple occasions that complete diversity or the lack thereof continues to contaminate all claims in the action which preclude original jurisdiction and was not being affected by their decision with regard to a mountain controversy for example here is a super had been brought in at this case only began as a case where mr mitchell to mr bailey and who had been brought in as a rd party defended by mr bailey kroger and the supreme court's opinion  clear that there has to be complete diversity of citizenship between all plaintiffs no the fent the plaintiff has the burden to establish federal court jurisdiction and the plaintiff failed to cite even one case nor is there any federal question jurisdiction in this case this case involved at the outset purely state law tort and contract claims there was no assertion of any federal playing in mr mitchell's complaint the  of federal question jurisdiction now we're live solely on a defense that was raised in the litigation by the who were valid tribe in which it claims that the united states should be substituted under the westfall act of the proper one that case was not a jurisdiction case at all because there was no dispute the diversity of citizenship existed in that case that case was purely about whether an attorney general certification under the westfall  but there was no dispute that diversity jurisdiction existed and it's not a case that involves federal question jurisdiction or its basis in osborne versus haley that case involved two thousand six hundred and seventy nine d two in when a cases removed based on an affirmative attorney general certification from state court that affirmative certification is conclusive for purposes of removal and the matter cannot be remanded back to state court even in the event that the united states is later found not to be the proper defendant this case doesn't deal with any of those situations in this case there was a purely state law tort claim filed improperly in federal court and then with no federal state law claims me for that matter the tribe sovereign immunity defense is a defense that arises under federal law but the cases that hold and show that the mere existence of a sovereign immunity issue under federal law  for addressing the sovereign immunity questions says his best case for finding him in a click ability of immunity here is a case that six years old from the supreme court that strongly affirms sovereign immunity was presented the supreme court was president with arguments about the state of michigan that an indian tribe set up be allowed to develop a casino outside of indian lands in violation of federal law and the so you in michigan argued that but the supreme court should find a waiver or a limitation on sovereign immunity in the supreme court strongly affirmed that it had recognized and applied sovereign immunity and multiple occasions not just in cairo where it said the was not a one off it's a sovereign immunity was settled law both on and off reservation and that it had brazil been presented with multiple arguments over the years by  people seeking to carve exceptions into it and it had rejected those invitations every time it was found and it stated in bills that congress has plenty every power over indian tribes congress does have the authority to waive and to limit travel sovereign immunity which is different than states are would mean you tribes are subject to the will of congress and can have their own immunity limited by congress and congress sees fit and the supreme court found it inappropriate for it let alone for you know circuit courts of appeal just records to current judicial we based on polls the exceptions into the broad and all inclusive doctrine of tribal sovereign exceptional limitation on sovereign immunity if presented with that case but in the normal way in the normal situation applying sovereign immunity as it has been applied by the supreme court in every single case is come before so what would be the remedy or an off reservation let's say a tort let's say an auto accident where one of the vehicles is driven by a member of the tribe and there's an attempt to liability and some remedy or even a contract back and i think the case that we talked about earlier involved an action or i a title against either a tribe or a member of a private who owns property what would be the tribal tor codes and they sometimes do provide forms in tribal court for tort claims or other claims but there are cases addressed your questions in the supreme court lose the court a recent supreme court case addressed a off reservation vehicle accident and the court found that it was states and other sovereigns the individual tortfeasor can be sued in an individual capacity  without implication if implicating sovereign immunity so that as a remedy even though it may not be the remedy that most favored you know a tort victim is not guaranteed to have  a defendant that has a lot of money they can pay and it's not necessarily guarantee that if you get in a vehicle accident you will be hit by someone who has a lot of money to pay that's just not a role that issue the point is there is an alternative remedy in the in the vehicle accident case you raise because the individual tortfeasor can be sued and and that's what happened here the individual tortfeasor mr bailey was sued so this is not a case where there is no alternative  remedy let alone the fact that the tribes argue the united states could have been sued in this case under the title turk things that so that there was a alternative remedy as well this is not a case where there is no alternative remedy let me ask you a lot of the same lies let me ask you to i'm not quite sure i follow your explanation in the brief regarding the insurance requirement under this program that the dr and gage didn't alley there was some  context of the waiver issue it wasn't a factor so it but i don't quite follow why this insurance policy would have been procured it was only for the benefit of protecting the tribes asset not be the case but any insurance in that in that correct i think that in the case of the unsure i think generally when you get an insurance policy you're wanting to protect the insured that's one insure gets an insurance policy against the liability asserted by a rd party go rub it in a normal case just take a private person the existence of an insurance policy doesn't mean that that individual has waived their jurisdictional defenses doesn't mean that there are assuming that they will be liable as apply it to what we have here there's clear laws that say a waiver of immunity has to be clear and express now doesn't have to say we are waiving our sovereign immunity there's one case relied on by the scieno enterprises in which the supreme court found that when a tribe in a contract had agreed to binding arbitration had agreed in contract terms to have that or in forcing court in judgment entered on it and consented to state jurisdiction the supreme court said hold on you you've agreed to be sued you've agreed that you can be held liable by the contract important there is nothing like that in this case the contract issue has no dispute resolution  of that relationship if there was a fairly large you know some self insurance provisions or retention of holsey and again i'm not the it's not exactly relevant to your view to whether or not there's a waiver of a party that's not even related to the contract at all that he's relying on to claim a waiver of immunity from suit to which you can benefit from there is not one case anywhere supreme court circuit court anywhere that aside or that i'm aware of that has allowed a non contracting por to benefit from an implicit which is already disfavor waiver of sovereign immunity from suit  there is no case cited in which obtaining or contracting for an insurance policy has been found to be a waiver of immunity from suit and all the cases that have addressed the issue just the other and this is in the context of tribal governments this is the context of state governments the maintenance of insurance is just not enough to show that the sovereign entity whether it's tribes or state have waived their immunity from suit said the complete diversity requirement when we're talking about supplemental jurisdiction looks only at whether you have plaintiffs and defendants from the same state on opposite sat when you have a state person that does not violate strawbridge versus curtis that's why we sued to tribe is a supplemental under supplemental jurisdiction we knew the tribe was not a citizen of texas it's as it's not a  state it can be added under supplemental jurisdiction because it does not a spin that complete diversity as expressly define it exxon mobil versus pata when you're talking about supplemental jurisdiction all the traps cases were not on the federal question aspect in the form versus haley the plaintiff asserted in state court intentional tort claims every one of the claims was an intentional tor claimant or state law the attorney general stepped in and said the employer the u s forestry service was acting of course the sky was employment removed it the reason the issue came up about what do we do if it gets the district court sent the case back to the court of appeals six circuit said you can't send it back because the edit the attorney general has certified there would of course the scope of employment the attorney general admittedly the only reason he did that was he didn't believe the plaintiff's allegations and two you can't send it back and the court said the only way that's constitutional is the entire case is a federal question case from the beginning the state law intentional tort claims become federal claims they arise out of the  same dispute and therefore that we're not offending article three by saying the case can't be sent back if this case gets sent back what's going to happen is they'll raise their morn taste said this issue about scope of federal employment is an issue that should be determined in federal court and the entire case when it's raised by the defense the entire case becomes a federal question case the you ask about the contract between the the the tribes inch just so when you ask about the tribes insurance policy the insurance policy had one hundred thousand dollars are coming out of the policy i'm sure a good friend on the other side they have gone way beyond the one hundred thousand dollars self insured retention and the insurance policy is paying for the defense of this case the policy is written such that no payments can be made on behalf of mr bailey unless the tribe agrees to it this insurance policy the tribe has so control over the purse strings we we have no regrets baby because there will be no insurance coverage mr bailey because the tribe will not allow to be paid the policy provides it is governed by and interpreted according to the internal laws of the hoopa valley tribe so it's a different kind of policy but the better government required tribe to have insurance to provide a ribbit he for the persons who are injured or damaged by their federal disaster relief deployments and the tribe should the united states and the insurance policy they gave  government prove that they had a policy and they became an ameri corps disaster response team they have been terminated as of mayor quarters or this aster sponsored team because they haven't provided coverage for the injuries to mr mitchel they are no longer in america or disaster response team there is no doubt that insurance was not to protect the tribe it was to protect the persons they would injure in the course of their deployments