Ninth Circuit rules Indian tribal immunity extends to profit-making businesses

Ninth Circuit rules Indian tribal immunity extends to profit-making businesses

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday ruled [opinion, PDF] that tribal sovereign immunity [NCAI backgrounder] applies to lawsuits brought in federal court dealing with the profit-making businesses of Indian tribes. In Cook v. Avi Casino Enterprises, Christopher Cook filed suit against Avi Casino Enterprises (ACE), a tribal corporation, and its employees after he was hit by a drunk driver. The driver was an employee of the casino who had been served drinks at a function at the Avi Casino, located on the Fort Mojave reservation in Nevada. Cook argued that public policy demands that tribal corporations operating in the economic mainstream should not receive the same immunity granted to Indian tribes themselves. The court rejected that argument, and concluded that immunity applied to the corporation and its employees:

Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe. This immunity applies to the tribe’s commercial as well as governmental activities.

The Supreme Court has somewhat grudgingly accepted tribal immunity in the commercial context…[T]he settled law of our circuit is that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.

The final question is whether ACE’s tribal immunity extends to two of its employees…We conclude that it does…[W]e hold that tribal immunity protects tribal employees acting in their official capacity and within the scope of their authority. Cook has sued Dodd and Purbaugh in their official capacity only, and thus the district court correctly dismissed them from this suit.

The court also found that despite diversity of citizenship between the parties, tribal sovereign immunity applies. The Las Vegas Sun has more.

In 2007, the US Court of Appeals for the District of Columbia [official website] upheld [opinion, PDF] a 2004 ruling that the National Labor Relations Board (NLRB) [official website] had jurisdiction over tribunal businesses including casinos, placing the tribes under the National Labor Relations Act [text], which bars unfair labor practices and gives workers the right to organize and bargain with employers. The opinion stated that "tribal sovereignty in American law…recognizes the independence of [Indian communities] as regards [to] internal affairs…[giving] latitude to maintain traditional customs and practices [but does not confer] absolute autonomy [and] permit a tribe to operate in a commercial capacity without legal constraint."