Tribal immunity bars plaintiff’s lawsuit in tort case, appeals court says

By Joe Forward, Legal Writer, State Bar of Wisconsin

Feb. 20, 2012 – A man who slipped and fell in the parking lot of a golf course owned by the Stockbridge-Munsee Community Indian Tribe cannot sue the Tribe or the Tribe’s insurer, a state appeals court recently concluded.

In Koscielak v. Stockbridge-Munsee Community, 2011AP364 (Feb. 14, 2012), the District III Wisconsin Court of Appeals relied on the general rule of immunity for tribal businesses and rejected plaintiff Robert Koscielak’s claim that tribal immunity did not apply in this situation.

In 2008, Robert Koscielak slipped on ice in the parking lot at Pine Hills Golf Course & Supper Club (Pine Hills) in Gresham. He sustained injuries requiring hospitalization. A federally-recognized Indian tribe, the Stockbridge-Munsee Community purchased Pine Hills in 1993.

The Tribe chartered Pine Hills, under its tribal constitution, as a “subordinate organization and economic enterprise.” The charter stated that Pine Hills retained tribal immunity that could not be waived by Pine Hills. The Tribe also purchased a commercial general liability policy from First Americans Insurance Group, which retained tribal immunity as a defense.

In general, Indian tribes are not subject to lawsuits in state courts unless Congress expressly authorizes the suit or the tribe has waived immunity, which protects government and commercial activities and extends to a tribe’s business enterprises. Like foreign sovereign immunity, the appeals court explained, tribal immunity is a matter of federal law.

“Tribes must surmount many developmental challenges, including tribal remoteness, lack of a tax base, capital access barriers, and the paternalistic attitudes of federal policymakers,” wrote Judge Mark Mangerson, appointed in 2011. “Tribal immunity promotes this economic development, as well as tribal self-determination and cultural autonomy.”

In Kiowa Tribe of Okla. V. Manufacturing Techs, Inc. 523 U.S. 751 (1998), the U.S. Supreme Court noted that tribal immunity could harm individuals who aren’t aware of tribal immunity, or tort victims, but left tribal immunity intact until Congress decides otherwise.

“Congress has not abrogated the Tribe’s immunity in this case, nor has the Tribe waived it,” Judge Mangerson wrote.

Koscielak and his wife argued that the U.S. Supreme Court in Kiowa did not intend to allow tribal immunity to bar tort claims. The appeals court recognized a division of authority on the matter in other state courts, but deferred that issue.

“Because Wisconsin law has never before distinguished between tort and contract claims for tribal immunity purposes, we decline to draw such a distinction here,” Judge Mangerson wrote in a footnote. “That matter is best left to the Wisconsin Supreme Court or the federal courts.”

The appeals court also rejected the Koscielaks’ claim that the Tribe asserted Pine Hills was a gaming entity in an unrelated federal legal proceeding, and under the Gaming Compact of 1992, the Tribe’s insurer must waive a right to invoke tribal immunity as a defense.

“Of the many problems with the Koscielaks’ argument, the most glaring is that the Tribe lost in federal court. Pine Hills is not located within the boundary of the Tribe’s reservation as it exists today. Accordingly, the Tribe is not permitted to operate slot machines at Pine Hills. The Gaming Compact of 1992 does not apply,” Judge Mangerson wrote.