September 21, 2017 | General
Tort Rights and Tribal Grounds
Being a small personal injury firm, Tom and I handle all of our new client consultations and most potential new client phone calls. Occasionally, we get situations out of the ordinary pop up that call for some immediate research. I had one of those situations pop up the other day, and thought it would be a good blog discussion. Earlier this week, a potential new client called explaining that she had been hurt at a Casino out of state and had some claim paperwork sent to her from the Casino. She was still treating for her injuries and wanted us to come to her house (as we often do) for a free consultation. At first, nothing struck me as unusual about this case. In fact, we have had similar cases in the past at out of state Casinos for similar premise liability claims. However, when I first started looking at the paperwork sent by the Casino for the claim, I instantly knew this was a sovereign immunity issue. That’s because, this particular Casino was owned by a Native American tribe and located on tribal lands. Meaning, it was not subject to the jurisdiction of the United States in any Federal or State Court.
This was problematic for many reasons. The only chance for recovery is if the Tribe waived sovereign immunity with respect to torts on their lands. During my research I beging to find that most tribes have consented to waive their sovereign immunity in certain cases, such as premise cases at their casinos. Here’s the waiver language:
“The Tribal Council declares that the purpose of this Act is to establish a limited waiver of the Tribe’s sovereign immunity, and to impose strict procedures under which a person may file an action or claim for monetary damages against the Tribe, its agents, employees, and officers. This Act is not intended to be a general waiver of the Tribe’s immunity, and it shall be narrowly and strictly construed. The Tribe’s limited waiver of sovereign immunity is conditioned upon the claimant’s full and complete compliance with all of the procedures contained in this Act.”
Just because there is some sort of consent to waive their sovereign immunity does not mean this becomes a normal claim or suit. For example, the statute of limitations with this particular tribal Council was 1 year from the date of the injury, and if the claim is not filed within 90 days, the compensation is automatically deducted by 10%. Additionally, all procedures and claim paperwork must be strictly complied with or the claim will not be recognized. By stepping into this Casino, all patrons have agreed to jurisdiction with a tribal council and have agreed to tribal council mediation. Only if the claim has been denied or agreement is not reached may a Plaintiff bring their case before the Tribal Court of general jurisdiction. Even damages are different. Some damages are not available like mental anguish or pain and suffering. If you wish to pursue a claim with a Tribal Council your attorney has to be licensed by the tribal bar or recognized as an inidivual who can appear in front of a tribal council. Keep in mind that claim procedures will vary Tribe to Tribe and you will need to thoroughly inspect any statutes that have been adopted by that specific tribe.
So next time you are planning on going to a Casino, first consider your available legal rights if the worst were to happen. If the worst does happen, you need to immediately contact an attorney who is licensed or recognized to practice in front of that particular Tribal Council. Rarely do we encounter cases like this one where we do not have the ability to help a potential client but when we do, we like to be as prepared as possible to point them in the direction of someone who can help.