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Litigation

: Northwest Business Litigation Blog

Ninth Circuit extends tribal sovereign immunity to casino employees

By Rob Roy Smith

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The Ninth Circuit issued a fascinating Indian law ruling on Friday, November 15, in a case named Cook v. AVI Casino Enterprises. In Cook, plaintiff sued a Tribal casino enterprise organized as a Tribal corporation under Tribal law, and two casino employees in their official capacities, for personal injuries from a drunk driving incident involving another casino employee. The Ninth Circuit panel held 2-1 that the court could exercise jurisdiction over the case under principles of Federal diversity jurisdiction, but held 3-0 that the court lacked subject matter jurisdiction because of Tribal sovereign immunity.

The case is interesting for three reasons. First, this appears to be the first court of appeals decision to squarely hold that a Tribal corporation, incorporated under Tribal law, can be considered a citizen of the state where its principal place of business is located -- even though all business is conducted within Tribal lands in that state. Second, the case is the first to hold that Tribal sovereign immunity extends to Tribal employees sued in their official capacity. Previously, the rule of Tribal sovereign immunity extended only to Tribal officials acting in their official capacities. Third, Judge Ronald M. Gould, who authored the panel opinion, filed a concurrence requesting that either the U.S. Supreme Court take the case or that Congress take some action to limit Tribal sovereign immunity in the "wholly commercial" Indian gaming context to avoid what Judge Gould saw as the unjust result in this case.

This decision is one of many recent opinions to express frustration with the use of tribal sovereign immunity to bar certain claims. This might be the type of case that gets the U.S Supreme Court's or Congress's attention. In the short term, however, this is a major victory for proponents of Tribal sovereign immunity, as the Ninth Circuit has now insulated official actions of Tribal employees under the doctrine.

Full post as published by Northwest Business Litigation Blog on November 18, 2008 (boomark / email).