People Against a Casino Town
News of Interest
Most civil laws don't apply at reservation casinos
 Millions of people enter Indian reservations each  year for work or play,
unaware they might be leaving behind things they take for  granted elsewhere,
such as the right to sue if injured.


Tribal  justice not always fair, critics contend
Reservation's courts include members as lawyers, judges
By Onell R. Soto
UNION-TRIBUNE STAFF WRITER 
December 17, 2007

Millions of people enter Indian reservations each  year for work or play, unaware they might be leaving behind things they take for  granted elsewhere, such as the right to sue if injured.

NELVIN CEPEDA  / Union-Tribune

Nellie Lawrence of San Carlos displayed photos taken when she  was hospitalized after she was knocked down by a man running in Barona's  casino.

The deals that California Indian tribes signed with the state  for Las Vegas-style casinos require them to pay “all legitimate claims” from  people who have been injured. Critics say not all tribes are living up to the  spirit of such agreements, and some lawyers say the system is rigged against  them and their clients.

The agreements with the state require tribes to  waive sovereign immunity – the right of governments to be shielded from lawsuits  – but the way that happens varies. Many tribes have retired state judges decide disputes. Others direct complaints to tribal courts.

“It's not  fair,” said lawyer Bonnie Kane, who sued in state court when the Barona tribal  court rejected a claim by Nellie Lawrence, 93, of San Carlos after she was  knocked down by a man running in the tribe's casino.

Kane doesn't object  to tribes having courts to hear these matters. But she says the process should  have guarantees of fairness, as other courts do.

HOWARD LIPIN /  Union-Tribune

The Barona trial court is composed of the tribal council - to  which operators of reservation's casino (above) also answer. Hearings are led by  a lawyer for the tribe.

Her biggest problem? That the Barona court is composed of the tribal council – to which casino operators also answer. Court  hearings are led by a lawyer for the tribe. “If Nellie Lawrence were deciding  her own case, how fair would that be?” Kane asked.

Kathryn Clenney, one  of the lawyers for the 450-member tribe, said the process she oversees is fair,  but no outside court should review whether it is proper.

Clenney said  council members can effectively separate their duties as decision-makers in  court and leaders of the entity that owns the 2,000-slot casino.  “They  have no problem ruling against the casino if they believe the casino is wrong,”  Clenney said.

Conflicts arise from the growing role that tribes play in American life.

Tribes employ 670,000 workers, and last year, their  casinos drew gamblers who lost more than $25 billion, $7.7 billion of that in  California.

Because of a history reaching back before colonization and  the U.S. Constitution, tribes operate from a different legal framework than  other governments.

HOWARD LIPIN / Union-Tribune

Recent compacts,  including those signed by Viejas, call for $10 million insurance policies and  for disputes to be settled in state court or through arbitration by retired  judges.

Most state civil laws don't apply on Indian reservations in  California, although criminal laws do. That different legal grounding is the  main reason tribes can operate casinos in ways others cannot.

“It's like  being in another country,” said San Diego County Supervisor Dianne Jacob, whose  district includes several reservations.

Like federal, state and local  governments, tribal governments only can be sued if they give permission and can  set the conditions under which that happens.

If tribes don't allow  themselves to be sued, state and federal courts generally throw such cases  out.

An El Cajon Superior Court judge ruled Nov. 30 that he had no  jurisdiction over the Barona court in a different case involving a hotel  guest. “The issue for this court is not whether the forum was fair,”  Judge Jan Goldsmith ruled. A woman said bed bugs at the Barona hotel bit her.  “The issue is whether the tribe consented to jurisdiction.”

The tribe  denies that its hotel has bed bugs.

The tribal court dismissed the  bed-bug case, so that means the guest, Gloria Chisley, and her lawyers now have  no place to take her claim.

“The lack of a remedy, as harsh as it may be,  is a common consequence of immunity,” Goldsmith said.  Barona's setup  appears unique in San Diego County, which has 17 tribal governments, 10 of which  operate casinos. But it's not unheard of elsewhere.

Independent  judiciaries

About half of the more than 560 Indian tribes in the United  States have courts, and maybe one-tenth of those use their tribal council as the  judges, said Vincent Knight, executive director of the federally funded National  Tribal Justice Resource Center in Boulder, Colo. “That doesn't necessarily mean  they're going to be unfair,” Knight said.

Tribal courts nationwide hear a  variety of cases. Some have sophisticated systems with appeals courts and  independent judiciaries. It is up to each tribe to decide how that is set  up.

In Lawrence's case, a state appeals court found in July that it is up  to the tribe to decide how it deals with injured patrons. In October, the state  Supreme Court declined to take the case.

A review by The San Diego  Union-Tribune of more than a dozen lawsuits filed against tribes in San  Diego courts in the past four years indicates that Lawrence's experience is not  unusual.

Federal and Superior Court judges throw out most suits when  tribal leaders claim sovereign immunity.

Many personal-injury lawyers don't bother with people claiming they were hurt on tribal property, said Mark  Merin, a Sacramento lawyer who helped draft ordinances that tribes use to deal  with such situations.

“They are basically out of luck,” Merin said. “The  law is, (the tribes) have absolute immunity.”

The issue goes beyond  personal injury lawsuits in state and federal courts.

Employment lawsuits against tribes often are tossed, as are other suits in which people claim they  were injured by tribal employees.

It goes beyond California.

San  Diegan Barbara Linehan, 52, was killed July 3, 2004, when the minivan she was  driving from California to Texas was struck by a wrong-way, drunken driver on  Interstate 10 outside Tucson.

The driver of the Cadillac Escalade that  plowed into Linehan's van pleaded guilty to manslaughter and was sentenced to  more than 10 years in prison.

An Arizona state judge refused to hear the  lawsuit by Linehan's husband, Gary Filer, against the tribally-owned Desert  Diamond Casino, where the suit claims the driver got drunk and a valet brought  him his car.

An appeals court backed the judge's decision. But the  appeals court said the law it upheld “arguably is divorced from the realities of  the modern world.”

Filer, who lost a leg in the crash, is  frustrated.  “There's some responsibility the casino needs to shoulder  here,” Filer said.

He is pursuing the case in the courts of the Tohono  O'odham Nation, which owns the casino, where his lawyer is hopeful he'll get a  fair hearing.

Foxwoods' system

Some tribes have developed  sophisticated court systems. People who are injured at Connecticut's Foxwoods  Resort Casino – which claims it is the largest in the world – can sue at the  Mashantucket Pequot Tribal Court, established in 1992.

Chief Judge Thomas  Weissmuller is appointed by the tribal council, but he is not a Pequot tribal  member, and his decisions and those of two other trial judges – and three  appeals judges – aren't subject to approval by the tribe.  “If you are  responsible in setting up your court, you're going to have a good, neutral  judicial system,” Weissmuller said.  He is sometimes consulted on the  effect new laws might have on the court, which hears about 400 cases a year, but  he is not part of the tribe's legal department, whose lawyers sometimes appear  before him.

Intertribal council  Formal tribal court systems are a  relatively new thing in San Diego County.  In 2005, the Escondido-based  Intertribal Court of Southern California was  established, with a judge going  from reservation to reservation to hear cases on
behalf of 11 local  tribes.

The Rincon Band of Luiseño Indians recently decided to use the  intertribal  court, instead of arbitrators, to hear disputes from patrons of its  Harrah's  Rincon casino, tribal Chairman Vernon Wright said. “It's a real  practical way to try to bring a little bit of balance,” Wright  said.

On  other issues, the tribal council has sat as the tribal court, but the advent of  the intertribal court has changed that, partly because the council is busy but  also as a matter of fairness, Wright said.

“At a certain point, you have  to ask yourself, 'Is this really an independent review?' ” he  said.

Intertribal Court Chief Judge Anthony Brandenburg, a lawyer and  retired Superior Court commissioner, takes cases delegated to him by tribal  leaders, mostly about disputes between tribal members such as child  custody. Brandenburg is not involved with Barona's court, but he didn't  see anything wrong with it.

Ancient traditions can be difficult to  understand, Brandenburg said, like the idea that a tribal council can have  legislative, executive and judicial roles. “That's the way Indian  country's been set up since time immemorial,”  Brandenburg said.

Barona  case

One who doesn't understand is lawyer LaToya Redd, who represents the woman who claims she was bitten by bed bugs at the Barona tribe's hotel two  years ago. The woman sued the tribe in August in El Cajon Superior Court, claiming the tribal court couldn't fairly hear the case because Clenney, the  tribe's lawyer, acted as a judge.  Redd argued the gambling deal the tribe signed allows lawsuits in state court.

“California intended for there to  be 'fair and prompt adjudication,' not 'We can do whatever we want,' ” Redd  said.

Clenney said she doesn't make decisions and doesn't consider  herself a judge. She said fewer than 10 cases have gone to the council,  sitting as tribal court, in the past seven years, half of which have been  denied. She said a few resulted in rulings against the casino, and the rest in  settlements.

While Barona directs suits to its tribal court, other tribes  deal with  patrons in different ways, depending on their philosophy and the deals  they signed with the governor allowing them to operate casinos.

The  initial compacts signed in 1999 called for $5 million insurance policies and  simply said tribes would waive immunity from suit, without saying where such  suits could be heard.

Recent compacts, including those signed by Pala,  Pauma, Viejas and Sycuan, call for $10 million insurance policies and for  disputes to be settled in state court or through arbitration by retired  judges.

Giving people a recourse if they are hurt makes business sense,  said Jerry Turk, who manages the Pala casino, where disputes can go to binding  arbitration. “It's fair for the guest,” Turk said. “It's fair for the  casino.”

The Campo tribe, operator of the Golden Acorn casino in East  County, said patrons could go to arbitration, but only if they followed the  casino's rules.

An appeals court ruled last year that the tribe did not  follow its rules when it denied arbitration to Celeste Bluehawk, a woman who  said she slipped on a wet floor.

That case was significant because  justices found that the compacts tribes signed with the governor meant state  courts could intervene in such disputes under certain circumstances, like when  the tribe doesn't do what it says it will  do.

http://www.signonsandiego.com/news/nation/20071217-9999-1n17tort.html

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