DEFENDING CLAIMS AGAINST TRIBAL AGENTS IN VIEW OF PISTOR v. garcia California Indian Law Association October 14, 2016 Sam Coffman Dickinson Wright PLLC 602.285-5029 scoffman@dickinsonwright.com

THE PISTOR FACTS A group of four advantage gamblers descended upon a small tribal casino outside of Payson Arizona The four players moved up to the top of the Players Club in record time displaying gaming techniques never seen before Tribal gaming had the players under surveillance for months The Tribal Chief of Police took over the investigation. It was believed they were cheating County and State police assisted in taking the players off the floor for interrogations.

The lawsuit Plaintiffs brought causes of action under 42 U.S.C. §1983 for various constitutional violations including search and seizure/taking of property. Plaintiffs brought claims under Arizona state law for battery, false imprisonment, conversion, defamation. A Motion to Dismiss was filed asserting that each of the Tribal Defendants including the Police Chief, Casino CEO and security officer were all protected by the same sovereign immunity that bars direct suit against the Tribe itself.

Tribal sovereignty cases Harden v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985) (“tribal immunity extends to individual tribal officer acting in their representative capacity of the scope of their authority”);

IMPERIAL GRANITE CO. v. PALA BAND OF MISSION INDIANS “[T]he only action taken by those officials was to vote as members of the Band’s governing body … it is difficult to view the suit against the officials as anything more than a suit against the Band. The votes individually have no legal effect; it is the official action of the Band, following the votes, that caused Imperial’s alleged injury.” 940 F.2d 1269, 1271 (9th Cir. 1991) 5

THE PISTOR ADVERSE HOLDING The 9th Circuit followed its analysis in its previous ruling in the Maxwell v. County of San Diego. 708 F. 3d 1075 (9th Cir. 2013) The 9th Circuit employed a “remedy-focused analysis” for individual suits, rather than focusing on whether the individuals were acting in their official capacity or not. 9th Circuit approach allowed the Plaintiffs to control the litigation by seeking to impose personal liability on a government official for actions he taken “under the color of … law.”

WHERE TO NOW? LEWIS V. CLARKE UNITED STATES SUPREME COURT Pennsylvania couple sued the driver of a Mohegan Sun limousine that rear-ended a vehicle in which they were riding, seriously injuring Connecticut’s Supreme Court found that the limousine driver, William Clarke of Norwich, couldn’t be sued in state courts because he was driving for a Native American gaming authority at the time of the accident The holdings of Pistor and particularly Maxwell are front and center in the case.

LIKELY OUTCOMES? Uphold ruling. Insiders don’t seem to think so. Overule on narrow holding. Permit claims for off reservation activity. Permit claims by plaintiffs who have no intentional contact with tribe. Hopefully if adverse there is language that will limit Pistor and protect on reservation conduct by tribal officials conducting tribal business.

WHAT DEFENSES REMAIN? As long as conduct is on the tribal reservation – tribal sovereinty. Move cases to tribal courts.

THE PISTOR HOLDING (positive) The District Court dismissed all state law claims finding that state law had no application to events taking place on the tribal reservation.

THE KEY TO DEFENDING STATE LAW CLAIMS – TRIBAL SOVEREIGNTY Tribal Sovereignty not to be confused with Tribal Sovereign Immunity (plaintiff’s counsel often gets this wrong) Tribal Sovereignty not defined by whether there is financial impact to the Tribe The characterization of the plaintiff’s legal theories as in Maxwell and Pistor is irrelevant.

WILLIAMS V. LEE, 358 U.S. 217 (1959) NON-INDIAN (WILLIAMS) WENT ONTO NAVAJO RESERVATION AND DID BUSINESS WITH A NAVAJO COUPLE (LEE) WILLIAMS SUED THE LEES IN THE ARIZONA SUPERIOR COURT THE ISSUE OF WHETHER THE STATE OF ARIZONA HAD JURISDICTION WENT UP TO THE U.S. SUPREME COURT THE CASE DID NOT INVOLVE ANY ISSUE OF TRIBAL SOVEREIGN IMMUNITY, NAVAJO NATION WAS NOT A PARTICIPANT DIRECTLY OR INDIRECTLY IN THE TRANSACTION, YET THE COURT HELD:

IOWA MUT. INS. CO. v. LAPLANTE “Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development. … If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.” 480 U.S. 9, 14-15 (1987) Slide 13 13

TRIBAL SOVEREIGNTY “CONGRESS HAS CONSISTENTLY GUARDED THE AUTHORITY OF INDIAN GOVERNMENTS OVER THEIR RESERVATION.” “TO ALLOW THE EXERCISE OF STATE JURISDICTION HERE WOULD UNDERMINE THE AUTHORITY OF THE TRIBAL COURTS OVER RESERVATION AFFAIRS AND HENCE WOULD INFRINGE ON THE RIGHT OF THE INDIANS TO GOVERN THEMSELVES.” WILLIAMS V. LEE, 358 U.S. 217 (1959)

EXAMPLE OF SUCCESSFUL STATE LAW DEFENSE (case on appeal in Arizona – trial court ruling available on request) LETS EXAMINE A SUCCESSFUL DEFENSE IN STATE COURT DEFENDING TRIBAL BOARD MEMBERS, EXECUTIVES AND A COUNCILMAN SUED IN STATE COURT FOR EVENTS THAT TOOK PLACE ON THE RESERVATION THE PLAINTIFF TRIED A PISTOR APPROACH – IT DID NOT WORK

Plaintiff Designs and Builds an “Old West Town” on the Reservation

Plaintiff Builds/Operates 26 Cabins on the Reservation

The “Horse Incident” The incident takes place on the Tribal Reservation, at the Tribal Ranch, and involves Tribal police.

Plaintiff alleged improper Condemnation of the Ranch Barn  

The “conspiracy to terminate the development agreement” All of these so called conspiracies involved activity of the Tribal Defendants on the Tribal Reservation

TEST WOULD PERMITTING JURISDICTION “UNDERMINE THE AUTHORITY OF THE TRIBAL COURT OVER ITS RESERVATION AFFAIRS” ? Tribal Reservation Tribal corporation and tribal board Tribal board members, officers and employees Tribal Town, Ranch and Cabins Challenge to a Condemnation of a Tribal Barn Report to Tribal Council Treatment of a Tribal Horse on the Tribal Ranch on the Tribal Reservation Investigated by Tribal Police Tribal Contracts The alleged breach of a tribal contract for failure to comply with tribal codes

IOWA MUT. INS. CO. v. LAPLANTE “Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development. … If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.” 480 U.S. 9, 14-15 (1987) Slide 22 22

THE TRIAL COURT Trial court dismisses under tribal sovereignty Finds it has no jurisdiction over matters that took place on the tribal reservation. Finds that state law does not apply to events on tribal reservation. Finds that defendants are protected by tribal sovereign immunity (notwithstanding citation to Pistor by plaintiffs)

IMPERIAL GRANITE CO. APPLIED: The alleged termination of the Amended Agreement was an official action of GCRC. Any individual motivation or reason of the Tribal Defendants for favoring issuance of the corporate notice of breach “have no legal effect.” Slide 24 24