Berrey v. Asarco Inc.

439 F.3d 636



Claims in recoupment arise out of the same transaction or occurrence, seek the same kind of relief as the plaintiff, and do not seek an amount in excess of that sought by the plaintiff. The waiver of sovereign immunity is predicated on the rationale that recoupment is in the nature of a defense arising out of some feature of the transaction upon which the sovereign's action is grounded.


The Quapaw Indian Tribe brought suit against Blue Tee Corporation and Gold Fields Mining, alleging they and their predecessors in interest caused environmental contamination on Quapaw lands as a result of their mining activities in the 1900s. The defendants asserted counterclaims for contribution and indemnity, which the tribe moved to dismiss on the basis of tribal sovereign immunity. The court held that the tribe waived its immunity as to the companies' counterclaims, which sounded in recoupment, by filing suit.


Does an Indian tribe waive its sovereign immunity to counterclaims of a defendant that sound in recoupment?




The scope of a waiver under the doctrine of recoupment is limited only by the requirements for a recoupment claim. These requirements are that the claim arise from the same transaction as the plaintiff's claim, seek the same relief as the plaintiff's claim, and seek an amount not in excess of the plaintiff's claim. Because the companies' counterclaims arose from the same transaction or occurrence as the tribe's claims and sought relief of the same kind or nature, but not in excess of the amount sought by the tribe, they were claims in recoupment. Therefore, the tribe waived its sovereign immunity by brining suit against the companies.

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