Tribes Immunity From Lawsuit Intact

Metropolitan News-Enterprise

Monday, August 6, 2007 - Page 1

Appeals Court Rejects Attack on Indian Tribe’s Immunity

By a MetNews Staff Writer

An Indian tribe whose gambling compact included a limited waiver of sovereign immunity did not thereby consent to being sued in state court, nor can an action be maintained in state court based solely on the alleged unfairness of its tribal proceedings, the Fourth District Court of Appeal has ruled.

In a July 18 decision, certified Friday for publication, Div. One affirmed San Diego Superior Court Judge Patricia Y. Cowett’s order quashing service of Nellie and Keith Lawrence’s complaint on the operators of the Barona Valley Ranch Resort and Casino.

The Barona Band of Mission Indians operates the casino, pursuant to the Indian Gaming Regulatory Act of 1988 and a compact with the state of California. Under the compact, the tribe agreed, among other things, to establish a tort claims procedure for patrons of the casino and resort, to maintain at least $5 million in liability insurance to cover claims, and to waive sovereign immunity to the extent of its insurance and within the limitations of an ordinance to be adopted by the tribe.

Under that ordinance, patrons may bring claims for injuries resulting from the negligence of the tribe, “its enterprises, agencies, and officers,” or its employees or agents acting within the scope of their employment or agency. The ordinance specifies that claims are to be submitted to the tribe’s insurer, and that appeals from rejected claims may be taken to the Barona Tribal Council, sitting as a tribal court.

In 2004, after Nellie Lawrence was injured at the casino as a result of being run into and knocked down, the Lawrences made a $1 million claim, alleging that the person who knocked her down was a casino employee. The insurance carrier rejected the claim, and the tribal council ruled that the negligent party was a fellow patron, not a casino employee, and rejected the claim as well.

The Lawrences then sued in San Diego Superior Court. The tribe demurred, claiming sovereign immunity, to which the Lawrences responded that the tribe waived its immunity by entering into the compact and that the claims process was “grossly unfair” to claimants.

But in an opinion by Justice James McIntyre, the appellate court agreed with Barona and the trial judge that neither the compact nor the right to due process provided the Lawrences with enough ammunition to pierce the tribe’s immunity.

The justice explained that a waiver of sovereign immunity is not, in and of itself, a consent to be sued in state court. He distinguished last year’s ruling allowing the Fair Political Practices Commission to force tribes to comply with campaign finance reporting laws.

That decision, McIntyre noted, was based on federal constitutional provisions that the state Supreme Court said allowed the state to enforce laws governing its electoral processes. The ruling cannot be stretched to cover a private action related to a commercial activity, the justice concluded.

As to the alleged unfairness of the tribal proceedings, McIntyre said that issue could not be litigated in state court for several reasons, including the plaintiffs’ failure to raise the issue or plead the relevant facts in their complaint; the lack of any provision in the compact designating the state courts as the forum for such a challenge; and the requirement that any waiver of sovereign immunity be narrowly construed.

“That the Lawrences find Barona’s choices unacceptable does not render Barona subject to suit in state court,” the justice summarized, although he suggested that the language of the compact might give them a remedy in federal court.

The case is Lawrence v. Barona Valley Ranch Resort and Casino, 07 S.O.S. 4886.



Copyright 2007, Metropolitan News Company