Tribes & Insurance Defense Lawyers Should Avoid Asserting Sovereign Immunity
Three decisions by the Oklahoma Supreme Court this summer are troubling but not just because they each allow casino patrons to sue tribal governments or casinos in state court. The trilogy of losing Indian cases are equally, if not more, troubling because they each appear to have been catapulted into state appellate courts by ill-conceived assertions of tribal sovereign immunity.
The Oklahoma Supreme Court started by handing down its opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6 (mandate issued June 11, 2009), holding that the state district court is a court of competent jurisdiction as that phrase is used in the Cherokee Nation’s tribal gaming compact. Then, on June 30, 2009, in separate opinions in Griffith v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 51, and in the related case of Dye v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 52, the Court ruled that Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma’s statutory model tribal gaming compact and therefore the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.
In short, none of the three cases should have reached the Oklahoma Supreme Court. None of the three cases should have involved a tribal assertion of sovereign immunity.
Consider the facts of Griffith: Plaintiff “went to the casino on February 11, 2005. According to Griffith, as she and other patrons approached an entrance to the casino, she heard a casino guard directing patrons to the north entrance. As Griffith followed the others toward the north entrance, she stepped into a flowerbed and fell on her face and head.” 2009 OK 51. It is hard to imagine a more frivolous claim than, “I stepped into a flowerbed and fell on my face and head.”
Given what appears to be a very defensible claim, and the renown anti-Indian sentiment of the Oklahoma Supreme Court, Choctaw’s insurance defense lawyers should not have moved to dismiss Griffith’s claim on sovereign immunity grounds. If a nominal settlement with Griffith was not possible, defense counsel should have litigated the matter on the merits. Perhaps her tort claim was procedurally or substantively invalid. More likely, Griffith could not likely prove a prima facie case of negligence against the casino. Based on the silly nature of her claim, the casino’s defense team could have (and can still) likely beaten Griffith on summary judgment or at trial. Invoking tribal immunity in Oklahoma was risky and unnecessary.
There is extensive discussion in Griffith of the Choctaw Casino’s liability insurance, which is mandated by the model Oklahoma tribal gaming compact. That general insurance policy, by design, should cover the casino’s defense costs associated with defeating Griffith on summary judgment or at trial. That policy should also indemnify the casino in the event Griffith can somehow prove it was the casino’s fault that she fell on her face and head in the flowerbed.
The same goes for Cossey and Dye. Tribal sovereign immunity should not have been asserted in those cases either. Instead, alternative defense and/or settlement strategies, which would not have placed Oklahoma tribal immunity in harm’s way, should have been pursued.
Unfortunately, these cases may have been lost before the plaintiffs even filed suit. Consider just two of many morals to this story: First, the Choctaw Casino should have acted on Griffith and Dye’s administrative tort claims rather than “fail[ing] to act” and causing them to be “deemed denied.” 2009 OK 51. Not only is it best practices to process and in turn affirmatively accept or deny such claims, but heightened care must be given to even the most frivolous of tort claims filed by non-Indians. If not, bad case law like Cossey, Griffith and Dye will inevitably be made.
Second, a quick Google search of the three law firms involved in the trilogy reveals that they are all insurance defense lawyers who do not possess Indian law expertise. What business do they have defending the Cherokee Nation and Choctaw Casino? Those lawyers were likely hired by Cherokee and Choctaw’s liability insurer(s), not the tribes, because their hourly rates are much cheaper than that of defense counsel who specialize in representing and defending tribal interests. As the old adage goes, you get what you pay for. Here, the tribal defendant-insureds appear to have gotten a short-sighted defense strategy.
But that didn’t need to be the case. I would bet money that both Cherokee and Choctaw liability policies do not allow them, as tribal government-insureds, which pay six-figure annual insurance premiums, to select tribal defense counsel of the tribes’ choice. Both tribes should have negotiated into their insurance policies the right to select defense counsel: any of the highly skilled tribal defense counsel on Oklahoma who understand the significant legal, political and social implications of even the silliest of tort claims against tribes or Indian casinos in this day and age. Those Indian lawyers would certainly pause before asserting sovereign immunity, especially before a hostile Oklahoma state judiciary. Those Indian lawyers would likely recommend that the tribal defendants pursue a strategy of settlement, or defense on the merits, instead of jeopardizing the immunity defense for all tribes in and beyond Oklahoma.
Tribes, it’s time to take a much harder look at those two-inch thick liability insurance policies to ensure tribal sovereign rights are not being breached or jeopardized. Insurance defense counsel, it’s no longer time to recklessly assert tribal immunity to attack otherwise defensible claims.
See also “Waiving Goodbye to Tribal Sovereign Immunity.” and “Are We in Good Hands?” in Indian Country Today, Parts 1, 2 and 3.
