Redding Rancheria v. Superior Court

105 Cal.Rptr.2d 773

88 Cal.App.4th 384

REDDING RANCHERIA, Petitioner, v. The SUPERIOR COURT of Shasta County, Respondent, Suzanne Hansard, Real Party in Interest.

No. C036723.

Court of Appeal, Third District.

April 6, 2001.

Review Denied June 13, 2001.

Rapport & Marston and David J. Rapport, Ukiah, for Petitioner.

No appearance for Respondent.

Dugan Barr & Associates, Redding, Douglas Mudford and J. Michael Favor, for Real Party in Interest.

MORRISON, J.

Here we hold an Indian tribe and its commercial entity are immune from an ordinary tort suit arising outside of Indian country.

Suzanne Hansard (plaintiff) sued Win River Casino and several Does in Shasta County Superior Court. She alleged she was working as a bartender at a Redding hotel, attending to a party "for defendant WIN RIVER and its employees, who had booked one of the facility's banquet rooms[.]" "[O]ne or more" of the employees threw gifts into the crowd, and a package struck her, causing injury. She framed the complaint in terms of negligence, assault and battery.

Redding Rancheria (Tribe) moved to quash service of summons (Code Civ. Proc, § 418.10, subd. (a)(1)), alleging Win River Casino is "an economic enterprise of the Redding Rancheria, a federally recognized Indian tribe," and, hence, immune from a state tort suit. The Tribe also alleged: "Plaintiff failed to exhaust her tribal administrative remedies, which, under tribal law, is a prerequisite to filing suit." The facts regarding the Tribe's status, tribal laws, and the structure of Win River Casino as a tribal enterprise were supported by a declaration of the Tribe's attorney. In part, she declared: "The Tribe owns and operates the Win River Casino which is located within the exterior boundaries of the Tribe's Reservation in Shasta County. All persons who work in the casino enterprise are tribal employees." Although plaintiff had submitted her claim to the tribal council pursuant to a tribal claims ordinance, she declined to allow the council to adjudicate her claim; according to an annexed letter by her lawyer, plaintiff believed the fact all Tribe members had an economic interest in the casino would render the proceedings unfair.

In opposition, plaintiff filed a declaration explaining she was just doing her job at the hotel, had no knowledge of any tribal immunity, and had never consented "to waive any of my rights as a citizen of [the] State of California or the United States of America." Had she understood the immunity now claimed by the Tribe, for conduct occurring off tribal lands, "I very likely would have declined to work the party." She presented no evidence to contest the casino's status as a tribal entity, nor that she had submitted a claim to the Tribe.

At the hearing, the Tribe urged all of the legal points raised by plaintiffs opposition had been rejected by the United States Supreme Court decision, Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (Kiowa). The trial court denied the motion, stating in part: "I can see that if they were running a business off reservation, but I can't see it here where it's a tort action."

A formal order denying the motion was served on the Tribe; the Tribe responded by filing a petition for writ of mandate. We issued an alternative writ. We now grant the Tribe's prayer for relief, for the reasons that follow.

1. An aboriginal American tribe is a sovereign nation and "As a matter of federal law, ... is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." (Kiowa, supra, 523 U.S. at p. 754, 118 S.Ct. 1700; see Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1419-1420, 88 Cal.Rptr.2d 828 (Morongo Band).) Plaintiff does not point to any federal law which grants California jurisdiction over alleged off-reservation Indian torts. In some cases, the United States Supreme Court has looked to organic acts to determine whether Congress granted a state power to regulate off-reservation Indian conduct. (E.g., Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-150, 93 S.Ct. 1267, 1270-1271, 36 L.Ed.2d 114, 119-120 [New Mexico may levy nondiscriminatory taxes on off-reservation Indian ski resort, based on provision of Enabling Act for New Mexico]; Organized Village of Kake v. Egan (1962) 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 [considering effect of Alaska Statehood Act on tribe's right to fish].) But a state's power to regulate a tribe's conduct is not the same as a state's power to sue a tribe. (See Oklahoma Tax Com. v. Potawatomi Tribe (1991) 498 U.S. 505, 511-514, 111 S.Ct. 905, 910-912, 112 L.Ed.2d 1112, 1121-1123 (Potawatomi) [State may impose tax on Indian cigarette sales to non-Indians, but may not sue Tribe to collect tax; "There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives"].) In any event, we find nothing in California's organic act (Act for Admission of the State of California, 9 Stat. 452), or in any other federal law, which grants California any special power over Indian tribes. (See Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 171 Cal.Rptr. 733 (Long) [Tribe immune from tort suit, reviewing federal law and finding no congressional waiver of immunity]; Middletown Rancheria v. Workers' Comp. Appeals Bd. (1998) 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 [Workers' Compensation Appeals Board lacks jurisdiction over Tribe].) Plaintiff attempts to analogize the tribal claim system with California's Tort Claims Act, but this mixes apples and oranges. (See Long, supra, at p. 858, 171 Cal.Rptr. 733, fn. 6 ["Longs mistakenly rely on various California statutes. They fail to recognize that Congress, not the California Legislature, is the entity that controls the extent to which states may exercise jurisdiction over Indian tribes"].)

2. Tribal immunity applies to commercial as well as governmental activities: "Our cases allowing States to apply their substantive laws to tribal activities are not to the contrary. We have recognized that a State may have authority to tax or regulate tribal activities occurring within the State but outside Indian country. [Citations.] To say substantive state laws apply to off-reservation conduct, however, is not to say that a tribe no longer enjoys immunity from suit." (Kiowa, supra, 523 U.S. at p. 755, 118 S.Ct. 1700 [pointing to Potawatomi case].) Contrary to plaintiffs view, no "tribal goal" is required to conclude a tribal activity is immunized. Nor is it necessary to determine whether, absent the immunity, a Tribe's ability to self-govern would be infringed. (See Padilla v. Pueblo of Acoma (1988) 107 N.M. 174, 178, 754 P.2d 845, 849 (Padilla) ["the infringement test applies to individual Indians and is inapplicable to the exercise of state court jurisdiction over an Indian tribe that has invoked its sovereign immunity"].) Padilla, relied on by plaintiff, did conclude immunity for offreservation conduct "is solely a matter of comity." (Id. at p. 179, 754 P.2d at p. 850, cert. den. sub nom. Pueblo of Acoma v. Padilla (1989) 490 U.S. 1029, 109 S.Ct. 1767, 104 L.Ed.2d 202 [White, J., dissenting from denial of cert., due to conflict among state courts on this question].) Well-reasoned cases have rejected this view. (See, e.g., Sac and Fox Nation v. Hanson (10th Cir.1995) 47 F.3d 1061, 1064-1065 [rejecting analogy of Indian Tribe to foreign sovereign; "we do not believe that the location of the commercial activity is determinative"]; In re Greene (9th Cir.1992) 980 F.2d 590, 593-597 [questioning Padilla, "sovereign immunity, as it existed at common law, had an extra-territorial component"; Padilla "should have looked at the scope of tribal immunity under federal law, rather than the extent of comity afforded under state law"]; Morgan v. Colorado River Indian Tribe (1968) 103 Ariz. 425, 443 P.2d 421 (Morgan) [Tribe immune from off-reservation tort suit]. See also Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2622, 53 L.Ed.2d 667, 674 [State could not sue Tribe for off-reservation conduct, only tribal members].) The comity rationale has no further viability. (See Kiowa, supra, 523 U.S. at p. 760, 118 S.Ct. 1700 ["Tribes enjoy immunity from suits on contracts, ... whether they were made on or off a reservation"]; Thompson v. Crow Tribe of Indians (1998) 289 Mont. 358, 364, 962 P.2d 577, 581 [suit to cancel liens Tribe filed with county recorder, "the fact that the Tribe's action in filing its tax liens occurred off-reservation is of no consequence as regards its defense of sovereign immunity", citing Kiowa ].)

3. A tribal entity is treated as the Tribe for immunity purposes. (See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth. (1st Cir.2000) 207 F.3d 21, 29 ["The Authority, as an arm of the Tribe, enjoys the full extent of the Tribe's sovereign immunity"] (Ninigret Dev. Corp.); Chance v. Coquille Indian Tribe (1998) 327 Or. 318, 321, 963 P.2d 638, 639.) Although plaintiffs answer argues the casino is not in legal effect an arm of the Tribe, plaintiff presented no evidence in the trial court to challenge the Tribe's evidence the casino was an arm of the Tribe. (Cf. Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th 632, 637-645, 84 Cal.Rptr.2d 65 (Trudgeon) [analyzing factors to consider when to treat a tribal entity as, in legal effect, the Tribe itself].) Trudgeon specifically held an Indian casino (a tribal corporation) was entitled to immunity because of the importance of gaming in promoting tribal self-determination, the close link between the tribe and the casino, and the existence of federal law promoting Indian gambling.

(Id. at pp. 639-642, 84 Cal.Rptr.2d 65.) Plaintiff does not analyze the facts linking the Win River Casino to the Tribe, but...