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Richmond Casino Could Reject Lawsuits by Claiming Immunity

By Richard Brenneman
Wednesday November 26, 2008 - 10:32:00 AM

Will Richmond allow a sovereign nation to build an enclave in their city, a state-within-a-city that possesses diplomatic immunity from California’s civil courts? 

Asked that question, neither developer James D. Levine nor a representative of the Guidiville Rancheria band of Pomos offered any reassurances that the tribe would give anyone injured as a result of activities at the casino or actions by casino employees recourse to any legal forum. 

Michael Derry, the tribe’s economic development specialist, would only allow that injured parties might have recourse to tribal courts—in other words, courts comprised of individuals with a direct, personal financial interest in the casino itself, something that would bar a judge or a juror from deciding a case in state court. 

That the question is more than merely hypothetical was raised in a precedent-setting decision handed down Nov. 14 by federal appellate justices in San Francisco. 

Their decision dismissed a case brought by Christopher Cook, who lost a leg and suffered other near-fatal injuries when he was hit early on the morning of May 25, 2003, by an intoxicated casino employee as she drove into the oncoming lane on the Fort Mojave Indian Reservation. 

She had been drinking at the casino with a supervisor’s blessing and had been taken to a parking lot shuttle by another casino worker. 

The driver’s blood alcohol was measured at 0.247 percent more than two hours after the collision—putting her at more than three times the legal limit.  

Maimed for life and suffering from what a three-member panel of judges of the U.S. Ninth District Court of Appeals called “catastrophic injuries,” Cook sued for damages and the costs of his care. 

The case was dismissed by the judges in a decision filed Nov. 14 in San Francisco. 

The reason was precisely the same legal rationale that allows nations to ban prosecution of accredited diplomats charged with crimes in countries where they are stationed: Sovereign immunity. 

“An Indian tribe or an unincorporated arm of a tribe is not a citizen of any state,” the justices wrote. So too under federal law, “a corporation is a citizen of the state by which it has been incorporated.” And if that “state” is a sovereign tribe, then “a sovereign can assert immunity” from litigation—just as did the Avi Casino Enterprises, Inc., in Cook’s lawsuit. 

The only limitation the court acknowledged was that a tribe must invoke immunity early in the legal process, before the plaintiffs “have invested substantial resources in a case.” 

The only way tribes can be sued is either through an immunity waiver by the tribe itself or through an act of Congress, the justices ruled. 

“The Supreme Court has somewhat grudgingly accepted tribal immunity in a commercial context,” the jurists noted, while leaving Congress the sole option to impose limits. 

The same immunity provisions apply to tribal employees, the justices wrote. 

And even while upholding the tribe’s right to invoke immunity, Justice Ronald M. Gould wrote: “I question whether that doctrine can be sensibly applied to actions wholly commercial in the gaming area where the tribe has undertaken to compete and provide services for the general public. In this sphere our law can be modified to ensure that the needs for justice for injured individuals limit the scope of the sovereign immunity doctrine engaged in commercial gaming activities.” 

While Levine’s initial proposal had Nevada-based corporate gambling giant Harrah’s as a partner to run casino operations, under a later agreement, the Point Molate casino will be run by another tribe, the Rumsey Band of Wintun Indians—which already owns and operates the Cache Creek Casino in Yolo County. 

They too would be immune from civil actions any time they choose to invoke their immunity. 

In his opinion concurring with the decision, Gould wrote, “I am sorry to say that the austerity of our jurisprudence concerning tribal sovereign immunity leaves me with the conclusion that an unjust result is reached which our law might better preclude.” 

The same legal standard would apply to the Sugar Bowl casino planned for North Richmond and at the already existing Casino San Pablo. 

The decision is available online at$file/0715088.pdf?openelement