Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

• Email This
• Print
• Comments
• Trackbacks

Connecticut State Attorney General Richard Blumenthal has waged a war against the doctrine of tribal sovereign immunity, and he has chosen politically convenient drunk driving dramshop liability case against the Mohegan Tribe as his battle ground. He has filed an amicus curiae brief with a Connecticut state appeals court, arguing that tribal governments do not stand immune from liquor-related liability claims. If possible, tribes must avoid giving politicians like Blumenthal or money-driven plaintiffs’ lawyers such a chance to attack tribal immunity, especially on facts that make groups like Mothers Against Drunk Driving (MADD), well, mad.

Plaintiffs’ lawyers increasingly argue that a federal statute, 18 U.S.C. 1161, somehow operates to waive sovereign immunity – a common law doctrine that exists in order to protect tribal treasuries from litigation attack so tribal governments can use, e.g., net gaming revenues to provide essential governmental services as required by federal law. Section 1161 authorizes states to control the sale and distribution of alcoholic beverages within their borders, including Indian Country thanks to the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983). Given the natural provision of alcohol in tribal governmental casinos, as in Las Vegas or other non-tribal gaming establishments, many tribal-state gaming compacts recognize Rice’s holding that states can regulate liquor sales in Indian casinos. But no compacts that I am aware of expressly and unequivocally waive tribal sovereign immunity from third-party dramshop lawsuits.

State appellate courts in Arizona, Washington and Texas have all rejected arguments that Section 1161 and/or gaming compacts somehow operate to waive tribal immunity from citizen dramshop claims. Only the Oklahoma Supreme Court has ruled otherwise. But that is because Oklahoma state courts are the most anti-Indian judiciary any where; as there is undying political and judicial will to vitiate tribal immunity in Oklahoma, the courts there routinely find ways to do so. See Tribes & Insurance Defense Lawyers Should Avoid Asserting Sovereign Immunity.

Nevertheless, tribal governments within all states must be more vigilant in disallowing private plaintiffs, state politicians, citizen groups and state and federal court judges any opportunity to abrogate sovereign immunity. In the dramshop context, here are a few preventative measures tribes and tribal casinos should implement:

 Ensure all tribal employees who serve or oversee the service of liquor are fully state and tribally trained to prevent problems associated with patrons’ misuse of alcohol.
 Maintain video surveillance of the activities within tribal casinos relating to the sale and consumption of alcohol.
 Offer free shuttle or cab rides home to patrons who appear under the influence of alcohol when they attempt to leave a tribal establishment.
 Pass tribal tort claims ordinances that will set forth the time, place and manner by which the tribe might administratively consider and resolve alcohol-related liability claims.
 Maintain liability insurance to help insulate the tribal treasury from attack; such policies should include, among other things, clear defense and indemnity rights and tribal choice of defense counsel. See Tribal Insurance Policies: Buyers Beware.
 When sued, consider alternatives to asserting sovereign immunity, such as settling claims with merit before active litigation; consenting to a court’s jurisdiction up to available liability insurance policy limits; or defending the matter on the merits, possibly with a view towards obtaining summary judgment dismissal of a plaintiff’s claims.

With regard to the assertion of tribal sovereign immunity – whether in dramshop or other tort actions – tribes must “know when to say when.”
 

• Email This
• Print
• Comments
• Trackbacks

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.