Metropolitan News-Enterprise


Monday, October 2, 2006


Page 3


Indian Tribes’ Sovereign Immunity Extends to Tribe-Owned Casinos—C.A.


By a MetNews Staff Writer


Indian tribes’ sovereign immunity protects tribe-owned casinos from suits brought by their employees, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court upheld the dismissal by Senior Judge Lawrence K. Karlton of the Eastern District of California of wrongful termination claims brought by Mark Allen against the Gold Country Casino and the Tyme Maidu Tribe of the Berry Creek Rancheria in California.

Allen was employed as a surveillance supervisor at the casino, which is owned and operated by the tribe. The casino is a tribal entity formed by a compact between the tribe and the State of California pursuant to the Indian Gaming Regulatory Act.

Allen filed suit against the tribe, the casino and certain individuals, claiming he was discharged from his job in retaliation for reporting that rats were in the Casino’s restaurant, and for applying for guardianship of three tribal children in “the white man’s court.”

In dismissing all of Allen’s claims, Karlton adopted the recommendations of a magistrate judge who held that sovereign immunity shielded the tribe from suit and that the tribe’s immunity extended to the casino.

On appeal, Allen conceded that the tribe was immune from suit, but contended the immunity did not extend to the casino. He claimed Karlton should have analyzed the relationship between the tribe and the casino to determine whether the casino had immunity. Allen also argued that the court should analogize the purported waiver of tribal immunity to waivers of immunity under the Foreign Sovereign Immunities Act, applicable to foreign states.

Alternatively, he argued the casino waived any immunity it had when it provided, in Allen’s employment application, that he could be terminated “for any reason consistent with applicable state or federal law,” or when it stated in the employee orientation booklet that it would “practice equal opportunity employment and promotion regardless of race, religion, color, creed, national origin . . . and other categories protected by applicable federal laws.”

But Senior Judge William C. Canby Jr., writing for the Ninth Circuit, said:

“Allen’s contention that the district court erred in failing to scrutinize the nature of the relationship between the Tribe and the Casino fails to accord sufficient weight to the undisputed fact that the Casino is owned and operated by the Tribe.”

Canby explained:

“With the Tribe owning and operating the Casino, there is no question that these economic and other advantages inure to the benefit of the Tribe. Immunity of the Casino directly protects the sovereign Tribe’s treasury, which is one of the historic purposes of sovereign immunity in general.”

Canby also found that the casino did not waive its immunity, saying:

“The statements in Allen’s employment documents did not approach . . . [being] explicit waivers of immunity from suit the statements’ references to federal law did not mention court enforcement, suing or being sued, or any other phrase clearly contemplating suits against the Casino. These documents did not amount to an unequivocal waiver of the Casino’s sovereign immunity.”

Canby also rejected Allen’s argument that the court should analogize to the Foreign Sovereign Immunities Act, saying:

“There is simply no room to apply the FSIA by analogy . . . . The FSIA precludes immunity of a foreign state when that state engages in commercial activities in the United States. . . . To apply that provision to the Tribe would contravene the Supreme Court’s . . . holding that tribal immunity extended to commercial activities of the tribe. FSIA also permits a waiver of immunity to be implied . . . while the Supreme Court permits no such implied waiver in the case of Indian tribes.”

Judges David R. Thompson and Michael Daly Hawkins concurred in the opinion.

The case is Allen v. Gold Country Casino, 05-15332.


Copyright 2006, Metropolitan News Company