Supreme Court Denies Cert for Cook v. Avi Casino Enterprises

In November of 2008, the 9th Circuit held that tribal sovereign immunity extends to tribal corporations owned and operated by Indian tribes.  (Click here to view original article as well as explanation of holding.)

The plaintiffs in the case (who lost on appeal) then sought certiorari to the Supreme Court in February of 2009.

On May 4th, 2009 the Supreme Court denied certiorari, leaving the 9th Circuit’s holding in place.  (2009 WL 185422)

 

Plaintiffs from Cook v. Avi Casino appeal to the Supreme Court

Last November, I talked about a new 9th Circuit decision in Cook v. Avi Casino.  In Cook, the 9th Circuit Court of Appeals ruled that tribal sovereign immunity extends to corporations run by an Indian tribe.

Now, according to the Native American Rights Fund website, the plaintiffs are appealing their case to the United States Supreme Court.  Click here to view their petition for certiorari (PDF, 48 pages).

Among the questions the plaintiffs present for the court is the subject of jurisdiction, i.e., the power of the court to adjudicate a case.  Historically, the doctrine of tribal sovereign immunity prevents courts from hearing lawsuits filed against Indian tribes.

If the SCOTUS grants cert and holds for the plaintiffs then the immunity doctrine may be limited in its application and reverse the 9th Circuit’s decision (which the Supreme Court has a habit of doing) which, in turn, would have a tremendous impact on tribal sovereignty.  Of course, the Court has to grant certification first.

Will let you know what happens.

UPDATED (5/4/2009): The United States Supreme Court has denied certiorari.  (2009 WL 185422)

 

New 9th Circuit Case: Tribal Sovereign Immunity extends to Tribal Corporations

Picked this up from the JURIST: the 9th Circuit Court of Appeals has filed its decision in Cook v. Avi Casino Enterprises (opinion, PDF), holding that tribal sovereign immunity applies to tribal corporations owned and operated by Indian tribes.  In this case:

[The plaintiff] 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. [The plaintiff] 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…

The drunk driving employee, whose BAC was 0.25, plead guilty to aggravated assault and driving under the influence and was sentenced to four years imprisonment.  She was given alcohol after already being drunk by two casino employees who were acting in their capacity as employees for a party held at the Casino.

The Court outlined the basics of tribal sovereignty:

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 parties do not dispute that the Fort Mojave Tribe itself is protected by sovereign immunity, but they disagree on whether ACE enjoys immunity as a tribal corporation.  (Cook v. Avi Casino Enterprises (9th Cir. Nov. 11, 2008, No. 07-15088) __ F.3d __ [2008 WL 4890167].)

The plaintiff argued that tribal corporations that compete in mainsteam business, like every other corporation, should not be subject to tribal sovereign immunity from suit, however the Court, while realizing that the plaintiff made a good argument, the established precedent denied him his relief.  The U.S. Supreme Court has upheld tribal sovereign immunity (begrudginly) in Kiowa Tribe v. Manufacturing Tech., Inc. (523 U.S. 751), but noted that only Congress could truly take it away.  Until that time, the 9th Circuit ruled in favor of the casino:

And the 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 plaintiff also sued the two casino employees who gave the drunk driving employee alcohol after seeing that she was clearly intoxicated.  The employees’ motion for dismissal was granted because sovereign immunity extends to casino employees acting in their official capacity.

UPDATE! (1/9/2009): Cook v. Avi Casino Enterprises has been given an official reporter cite – 548 F.3d 718.

UPDATE (5/4/2009): Supreme Court has denied certiorari, so this decision stands as-is.