{ "id": 4168056, "name": "MEHERRIN INDIAN TRIBE, DOROTHY LEE, JONATHAN CAUDILL, MARGO HOWARD, ABBY REID, THERESA LANGSTON, WAYNE MELTON, WAYNE BROWN, and KELLY BROWN, Plaintiffs v. THOMAS LEWIS, ERNEST POOLE, DIANE BYRD, AARON WINSTON, TERRY HALL, PATRICK RIDDICK, JANET L. CHAVIS, DOUG PATTERSON, DENYCE HALL, DOROTHY MELTON, and BEVERLY MELTON, Defendants", "name_abbreviation": "Meherrin Indian Tribe v. Lewis", "decision_date": "2009-06-02", "docket_number": "No. COA08-928", "first_page": "380", "last_page": "386", "citations": [ { "type": "official", "cite": "197 N.C. App. 380" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "658 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640628 ], "year": 2008, "pin_cites": [ { "page": "35", "parenthetical": "citing Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994)" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0033-01" ] }, { "cite": "352 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "dismissing child custody case on jurisdictional grounds of sovereign immunity arising from Eastern Band of Cherokee reservation" } ], "opinion_index": 0 }, { "cite": "319 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748431 ], "year": 1987, "pin_cites": [ { "parenthetical": "dismissing child custody case on jurisdictional grounds of sovereign immunity arising from Eastern Band of Cherokee reservation" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0052-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "422 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522165 ], "year": 1992, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0024-01" ] }, { "cite": "492 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "386", "parenthetical": "citing EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 27, 422 S.E.2d 338, 340 (1992), overruled on other grounds by Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997)" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799017 ], "year": 1997, "pin_cites": [ { "page": "601", "parenthetical": "citing EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 27, 422 S.E.2d 338, 340 (1992), overruled on other grounds by Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0599-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "189 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157152 ], "year": 2008, "pin_cites": [ { "page": "235", "parenthetical": "citing Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0232-01" ] }, { "cite": "360 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357977 ], "year": 1987, "pin_cites": [ { "page": "133-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0132-01" ] }, { "cite": "545 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "245-46", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1-277 (1996) and Zimmer v. N.C. Dep't of Transp., 87 N.C. App. 132, 133-34, 360 S.E.2d 115, 116 (1987)" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433311 ], "year": 2001, "pin_cites": [ { "page": "100", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1-277 (1996) and Zimmer v. N.C. Dep't of Transp., 87 N.C. App. 132, 133-34, 360 S.E.2d 115, 116 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0097-01" ] }, { "cite": "293 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "184" } ], "opinion_index": 0 }, { "cite": "306 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568484 ], "year": 1982, "pin_cites": [ { "page": "327-28" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0324-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "521 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "709", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" }, { "page": "709" } ], "opinion_index": 0 }, { "cite": "351 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155764 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "174-75", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0172-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 635, "char_count": 15371, "ocr_confidence": 0.741, "pagerank": { "raw": 2.220620360603994e-07, "percentile": 0.7775822065301876 }, "sha256": "3d068da39b65eabf2eae3694054478c9bce626f08a629c63f5db39229831b325", "simhash": "1:b92857df58a583ba", "word_count": 2522 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and JACKSON concur." ], "parties": [ "MEHERRIN INDIAN TRIBE, DOROTHY LEE, JONATHAN CAUDILL, MARGO HOWARD, ABBY REID, THERESA LANGSTON, WAYNE MELTON, WAYNE BROWN, and KELLY BROWN, Plaintiffs v. THOMAS LEWIS, ERNEST POOLE, DIANE BYRD, AARON WINSTON, TERRY HALL, PATRICK RIDDICK, JANET L. CHAVIS, DOUG PATTERSON, DENYCE HALL, DOROTHY MELTON, and BEVERLY MELTON, Defendants" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nThomas Lewis, el al. (collectively, \u201cdefendants\u201d) appeal an order entered 8 May 2008, which denied their motion to dismiss based on N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1), (2), and (6). We affirm the trial court\u2019s dismissal of the Rule 12(b)(2) and (6) motions and dismiss the appeal of the Rule 12(b)(1) motion as interlocutory.\nI. Background\nThe Meherrin Indian Tribe (\u201cthe Tribe\u201d) is composed of the descendents of indigenous peoples who formerly resided at the mouth of the Meherrin River Valley and \u201cwho are of the same linguistic stock as the Cherokee, Tuscarora, and other tribes of the Iroquois Confederacy of New York and Canada . . . .\u201d N.C. Gen. Stat. \u00a7 71A-7.1 (2007). These descendents \u201cnow resid[e] in small communities in Hertford, Bertie, Gates, and Northampton Counties . . . \"Id. The Tribe has not been recognized by the federal government and although N.C. Gen. Stat. \u00a7 71A-7.1 states that \u201cin 1726 [the Tribe] w[as] granted reservational lands[,]\u201d any such right to these lands now appears extinguished.\nThe Tribe is governed by the 1996 Meherrin Tribe Constitution and By-Laws, as amended. On 10 November 2007, the Tribe held a duly noticed and regularly scheduled meeting of its General Body. The Tribe, Dorothy Lee, el al. (collectively, \u201cplaintiffs\u201d) allege that at that meeting, the General Body removed defendant Thomas Lewis as Chief of the Tribe and scheduled the next meeting of the General Body for 12 January 2008.\nAt this second meeting, plaintiffs allege that the General Body removed the remaining members of the Tribal Council, removed the Tribe\u2019s representative to the North Carolina Commission on Indian Affairs, and elected a new Tribal Council. As a result of these actions, plaintiffs allege that plaintiff Dorothy Lee became Acting Chief of the Tribe. Plaintiffs further allege that the Secretary of the General Body was removed by the General Body at the Tribe\u2019s regularly scheduled 8 March 2008 meeting. It is the dispute between these factions of the Tribe which underlie this litigation.\nOn 13 March 2008, plaintiffs individually and on behalf of the Tribe filed a complaint against the individuals plaintiffs contend formerly held tribal office. The complaint contained a claim for declaratory judgment, a claim for injunctive relief, and an action to quiet title. Plaintiffs\u2019 complaint alleged: (1) the Tribe\u2019s General Body removed defendants at tribal meetings on 10 November 2007, 12 January 2008, and 8 March 2008; (2) defendants did not timely appeal their removal to the Tribe\u2019s Grievance Committee; (3) plaintiffs were properly elected by the Tribe\u2019s General Body at meetings on 12 January 2008 and 8 March 2008; (4) plaintiffs directed defendants to deliver \u201call books, records, materials, funds, keys, material relating to control of the Meherrin Indian Tribe web site, and property in their possession or control belonging to the Meherrin Indian Tribe[;]\u201d (5) defendants failed to deliver all requested material; and (6) the Tribal Council and the Tribe\u2019s General Body never approved the property transfer purportedly accomplished by a deed recorded on 21 October 2005 in Hertford County\u2019s Register of Deeds Office.\nIn addition to the Tribe there is alleged to exist another entity entitled Meherrin Indian Tribe (\u201cMIT, Inc.\u201d), a non-profit North Carolina corporation. The legal relationship between the Tribe and the non-profit corporation is not articulated in the pleadings, but the 21 October 2005 deed challenged by plaintiffs transferred a 46.965-acre parcel from MIT, Inc., to \u201cthe MEHERRIN INDIAN TRIBE, known as petitioners 119A by the Bureau of Indian Affairs . . . .\u201d\nOn 8 May 2008, defendants filed a pre-answer motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1), (2), and (6). Defendants\u2019 motion to dismiss claimed \u201cthe underlying facts raised in the Complaint arise from acts of self-governance over the people and property of the Meherrin Tribe of North Carolina[;] this action should be dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction and for Plaintiffs\u2019 failure to state a claim upon which relief may be granted.\u201d Defendants further alleged that \u201cPlaintiffs\u2019 action should be dismissed for lack of subject matter jurisdiction based on Plaintiffs\u2019 lack of standing to bring suit.\u201d\nThe trial court denied defendants\u2019 motion to dismiss, found \u201cthat [its] Order affect[ed] a substantial right of Defendantsf,]\u201d and certified its order for immediate appeal pursuant to N.C. Gen. Stat. \u00a7\u00a7 l-277(a) and 1A-1, Rule 54(b). Defendants appeal.\nII. Interlocutory Appeal\nOn 8 August 2008, plaintiffs filed a motion to dismiss defendants\u2019 appeal as interlocutory and premature. Plaintiffs alleged the trial court\u2019s certification for immediate appeal had no effect and the denial of defendants\u2019 motion to dismiss did not affect a substantial right of defendants.\n\u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).\nA party may appeal an interlocutory order under two circumstances. First, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. \u00a7 1A-1, Rule 54(b) (1990). Second, a party may appeal an interlocutory order that \u201caffects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\u201d\nDep\u2019t of Transp. v. Rowe, 351 N.C. 172, 174-75, 521 S.E.2d 707, 709 (1999) (quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381). A party may also immediately appeal a denial of a motion to dismiss based on lack of personal jurisdiction. N.C. Gen. Stat. \u00a7 l-277(b) (2007).\nA. Rule 54(b) Certification\nHere, the trial court certified its order \u201cfor immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure and Section l-277(a) of the North Carolina General Statutes.\u201d The trial court did not, however, \u201center[] a final judgment as to fewer than all of the claims or parties in [the] action.\u201d Rowe, 351 N.C. at 175, 521 S.E.2d at 709. The trial court\u2019s certification of its denial of defendants\u2019 motion to dismiss has no effect in this instance. We now turn to whether this appeal although interlocutory, is properly before us pursuant to N.C. Gen. Stat. \u00a7 l-277(b).\nB. N.C. Gen. Stat. \u00a7 1-277\nN.C. Gen. Stat. \u00a7 1-277 allows a party to immediately appeal the denial of a motion to dismiss if the denial either (1) affects a substantial right or (2) is based on lack of personal jurisdiction. N.C. Gen. Stat. \u00a7 1-277 (2007). In the present case, the sole basis for defendants\u2019 Rule 12(b)(2) and (6) motions to dismiss is defendant\u2019s claim of sovereign immunity. Defendant\u2019s 12(b)(1) motion to dismiss is based on sovereign immunity and plaintiffs\u2019 lack of standing.\nDefendants\u2019 appeal from denial of Rule 12(b)(2) motion\nIn Teachy v. Coble Dairies, Inc., our Supreme Court stated:\nAlthough the federal courts have tended to minimize the importance of the designation of a sovereign immunity defense as either a Rule 12(b)(1) motion regarding subject matter jurisdiction or a Rule 12(b)(2) motion regarding jurisdiction over the person, the distinction becomes crucial in North Carolina because G.S. l-277(b) allows the immediate appeal of a denial of a Rule 12(b)(2) motion but not the immediate appeal of a denial of a Rule 12(b)(1) motion.\nTeachy v. Coble Dairies, Inc., 306 N.C. 324, 327-28, 293 S.E.2d 182, 184 (1982). While our Supreme Court in Teachy declined to determine whether sovereign immunity is a question of subject matter jurisdiction or personal jurisdiction, our Court has held \u201cthat an appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction, and is therefore immediately appealable.\u201d Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245-46 (2001) (citing N.C. Gen. Stat. \u00a7 1-277 (1996) and Zimmer v. N.C. Dep\u2019t of Transp., 87 N.C. App. 132, 133-34, 360 S.E.2d 115, 116 (1987)). Therefore, pursuant to Data Gen. Corp and Zimmer, plaintiffs\u2019 motion to dismiss defendants\u2019 appeal as interlocutory is denied with respect to defendants\u2019 appeal from denial of their Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.\nDefendants\u2019 appeal from denial of Rule 12(b)(1) motion\nN.C. Gen. Stat. \u00a7 l-277(b) allows only for an immediate appeal of the denial of a motion to dismiss based on personal jurisdiction, not subject matter jurisdiction. Further, pursuant to Data Gen. Corp., the claim of sovereign immunity cannot be the basis for a motion to dismiss for lack of subject matter jurisdiction. Therefore, we hold defendants\u2019 appeal from the denial of their Rule 12(b)(1) motion based on sovereign immunity is neither immediately appealable pursuant to N.C. Gen. Stat. \u00a7 l-277(b), nor affects a substantial right.\nDefendants alleged plaintiffs\u2019 lack of standing as a second basis for their motion to dismiss based on lack of subject matter jurisdiction. However, on appeal, defendants failed to argue why the denial of a motion to dismiss based on lack of standing affects a substantial right of defendants. \u201cAn appellant bears the burden of demonstrating that an order will adversely affect a substantial right.\u201d Crouse v. Mineo, 189 N.C. App. 232, 235, 658 S.E.2d 33, 35 (2008) (citing Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994)). Therefore, plaintiffs\u2019 motion to dismiss defendants\u2019 appeal as interlocutory is granted with respect to defendants\u2019 appeal from the denial of their Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.\nDefendants\u2019 appeal from denial of Rule 12(b)(6) motion\nOur Court in Anderson v. Town of Andrews held that an appeal from the denial of a Rule 12(b)(6) motion to dismiss based on sovereign immunity affects a substantial right and is therefore immediately appealable. Anderson v. Town of Andrews, 127 N.C. App. 599, 601, 492 S.E.2d 385, 386 (1997) (citing EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 27, 422 S.E.2d 338, 340 (1992), overruled on other grounds by Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997)) (holding if immunity is raised as a basis in the motion for summary adjudication, a substantial right is affected and the denial is immediately appealable). Therefore, plaintiffs\u2019 motion to dismiss defendants\u2019 appeal from the denial of their Rule 12(b)(6) motion to dismiss based on sovereign immunity is denied.\nIII. Merits of defendants\u2019 appeal\nWe now turn to review of the trial court\u2019s denial of defendants\u2019 motions to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(2) and (6). Defendants\u2019 sole basis for their Rule 12(b)(2) and (6) motions to dismiss is defendants\u2019 claim of sovereign immunity.\nThe Meherfin Tribe has no reservation. The Tribe has not been recognized by the federal government. The constitution of the Tribe has no functioning judiciary for resolution of intra-tribal disputes to which this dispute could be referred prior to litigation. The sole source of legal authority of the Tribe flows from N.C. Gen. Stat. \u00a7 71A-7.1 which reads as follows:\nThe Indians now residing in small communities in Hertford, Bertie, Gates, and Northampton Counties, who in 1726 were granted reservational lands at the mouth of the Meherrin River in the vicinity of present-day Parker\u2019s Ferry near Winton in Hertford County, and who are of the same linguistic stock as the Cherokee, Tuscarora, and other tribes of the Iroquois Confederacy of New York and Canada, shall, from and after July 20, 1971, be designated and officially recognized as the Meherrin Tribe of North Carolina, and shall continue to enjoy all their rights, privileges, and immunities as citizens of the State as now or hereafter provided by law, and shall continue to be subject to all the obligations and duties of citizens under the law.\nWhile indigenous tribes may enjoy sovereign immunity over some disputes, the predicate facts which would present a sovereign immunity defense are not present here. See Jackson Co. v. Swayney, 319 N.C. 52, 352 S.E.2d 413 (1987) (dismissing child custody case on jurisdictional grounds of sovereign immunity arising from Eastern Band of Cherokee reservation). Based upon the above-cited statute, \u2022the trial court correctly denied defendants\u2019 Rule 12(b)(2) and (6) motions to dismiss.\nAffirmed in part, dismissed in part.\nJudges McGEE and JACKSON concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Barry Nakell for plaintiff-appellees.", "Patterson Dilthey, LLP, by Edward K. Brooks, for defendant-appellants." ], "corrections": "", "head_matter": "MEHERRIN INDIAN TRIBE, DOROTHY LEE, JONATHAN CAUDILL, MARGO HOWARD, ABBY REID, THERESA LANGSTON, WAYNE MELTON, WAYNE BROWN, and KELLY BROWN, Plaintiffs v. THOMAS LEWIS, ERNEST POOLE, DIANE BYRD, AARON WINSTON, TERRY HALL, PATRICK RIDDICK, JANET L. CHAVIS, DOUG PATTERSON, DENYCE HALL, DOROTHY MELTON, and BEVERLY MELTON, Defendants\nNo. COA08-928\n(Filed 2 June 2009)\n1. Appeal and Error\u2014 appealability \u2014 Rule 54 certification\u2014 no effect\nA Rule 54(b) certification for immediate appeal had no effect where the trial court did not enter a final judgment as to fewer than all of the claims or parties in the action.\n2. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 motion to dismiss \u2014 sovereign immunity \u2014 personal jurisdiction\nThe Court of Appeals denied plaintiffs\u2019 motion to dismiss as interlocutory defendants\u2019 appeal from the denial of their Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, which was based on sovereign immunity.\n3. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 sovereign immunity\nThe denial of defendants\u2019 Rule 12(b)(1) motion to dismiss based on sovereign immunity was not immediately appealable pursuant to N.C.G.S. \u00a7 l-277(b), nor did it affect a substantial right. Although defendants alleged lack of standing as a second basis for their motion to dismiss at trial, they did not argue on appeal that this affected a substantial right.\n4. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 sovereign immunity \u2014 Rule 12(b)(6) motion to dismiss \u2014 substantial right\nPlaintiff\u2019s motion to dismiss defendant\u2019s appeal from the denial of their Rule 12(b)(6) motion to dismiss based on sovereign immunity was denied; such a motion affects a substantial right.\n5. Indians\u2014 Meherrin Indian Tribe \u2014 sovereign immunity\u2014 predicate facts not present\nThe trial court correctly denied defendants\u2019 Rule 12(b)(2) and (6) motions to dismiss where those motions were based solely on a claim of sovereign immunity as an Indian tribe. The predicate facts which would present a sovereign immunity defense were not present where the tribe has no reservation and has not been recognized by the federal government; and the constitution of the tribe has no functioning judiciary for resolution of intra-tribal disputes to which this dispute could be referred prior to litigation.\nAppeal by defendants from order entered 8 May 2008 by Judge Cy A. Grant, Sr., in Hertford County Superior Court. Heard in the Court of Appeals 14 January 2009.\nBarry Nakell for plaintiff-appellees.\nPatterson Dilthey, LLP, by Edward K. Brooks, for defendant-appellants." }, "file_name": "0380-01", "first_page_order": 410, "last_page_order": 416 }