At this link is an article about a lawsuit filed against the Desert Diamond Casino in Tucson, Arizona. The non-Indian plaintiffs originally sued in state court, but the Tohono O’odham Nation hadn’t waived its immunity for state court cases — but it had in tribal court. The tribal court case is ongoing.
As is typical for recent national news reports featuring Indian Country, the article is overwhelmingly unfavorable to Indian Country — and deeply unfair, if not wholly biased. This is unfortunate. In large part, the WSJ’s reporting is excellent (it’s editorial page is what I usually find myself shuddering over). [Thanks to Trent Crable for pointing the article out to me.]
Here are some excerpts and my responses:
But when Mr. Filer went to sue the casino in state court in Tucson, he quickly learned that the textbook on civil litigation doesn’t apply on tribal land, or to tribal entities. Under federal law, tribes are considered sovereign nations and are immune from most lawsuits. The Desert Diamond Casino where the driver, Douglas Levitski, got drunk, is on the San Miguel Reservation of the Tohono O’odham nation.
So even though the accident itself involved no tribal members and took place off the reservation, Mr. Filer’s state civil suit seeking $2 million in damages from the tribal-owned casino was rejected. Arizona’s appeals court upheld the decision. “This conclusion, we hasten to add, may be unsatisfactory to some and arguably divorced from the realities of the modern world,” wrote Judge John Pelander in the opinion.
Sovereign immunity shouldn’t be such a surprise to anyone — especially a lawyer working out of Tucson, Arizona who’s failure to seek tribal remedies in the first instance borders on malpractice, in my view. Both the States and the Federal Government have been dodging suits from individuals and entities (including Indian tribes) for the entire history of American law — the first Amendment to the Constitution codified state sovereign immunity, for example. Some states never waived immunity for well over 150 years. And keep in mind, as the article writer admits later, the T.O. Nation waived its immunity in tribal court. Not only is there a waiver here, but there is a fundamental flaw in the writer’s logic. Why would the State of Arizona, for example, agree to be sued in New Mexico or California courts? Or why would the US agree to be sued in Canada?
Mr. Filer moved his claim to tribal court and is waiting for a hearing. But he and his lawyer are nervous about the outcome, even though their case appears to be strong.
I’m no tort lawyer, but I’m suspicious. It is extremely difficult to prove as a matter of fact that the dramshop owner was liable under state law. And I am all but certain that the business people operating the Desert Diamond Casino would be more forthcoming with a settlement if the case really was “strong.” And doesn’t the WSJ’s editors usually complain about the explosion of tort claims in state courts? Ironic.
More than a century’s worth of conflicting federal laws and judicial precedents have left the tribal legal system in tatters. Tribal authorities pursuing criminal cases face tough restrictions, have little say in meting out sentences and have virtually no authority in prosecuting non-Indians who commit crimes on reservations.
I don’t see the relevance of the Supreme Court ruling eliminating tribal criminal jurisdiction over non-Indians whatsoever. This is a civil case. The notion that tribal courts are in “tatters” because they don’t have criminal jurisdiction over some people is a classic non sequitur. Finally, this is a broad generalization that doesn’t stand up to reality. I doubt the T.O. tribal courts are in tatters. And there are stories cropping in places like Mashantucket Pequot where non-Indians and their lawyers would rather sue each other over non-tribal matters in tribal courts — because they’re faster and more efficient.
Of the nation’s 560 federally recognized tribes, only 275 have court systems. If the case can even be heard, tribes often sharply limit potential damages. And tribes often have close links to businesses that might be sued — especially casinos. Such connections would be considered a conflict of interest in a regular U.S. court.
“You try the case in front of a judge who is picked by the tribe,” says Stephen Embry, a Connecticut Attorney and past president of the Workers Injury and Law Advocacy Group. “What you normally would like to have is a judge who is not being paid by the guy you’re suing,” he says. Federal and state judges who hear cases against the government are also government employees, but the conflicts tend to be less glaring than in the small tribal communities.
There is some weight to this argument, but again it depends heavily on broad generalizations. Is there a conflict at T.O.? We don’t know from this article. Most, if not all, tribes and tribal courts have conflict of interest rules. And there’s no comparison to “regular U.S. court[s]” — just see Cheney v. District Court and Justice Scalia’s incredibly arrogant refusal to recuse himself after going duck hunting with the Veep. Or check out Toobin and Greenberg’s recent books on the Supreme Court, how close-knit the people are who decide who becomes a Supreme Court Justice, argues Supreme Court cases, and then eventually become S. Ct. Justices and federal judges.