Native Americans — sovereign immunity

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Wisconsin Court of Appeals

Civil

Indians — sovereign immunity

A corporation operating a golf course off of tribal land, but owned by an Indian tribe, is entitled to sovereign immunity from tort claims.

“To be sure, the doctrine’s underpinnings have been questioned. In Kiowa, the Supreme Court noted the doctrine’s accidental development and questioned whether immunity remained necessary to safeguard tribes from encroachment by the states. Kiowa, 523 U.S. at 756, 758. The Court also noted that the rule can produce harsh results: ‘[I]mmunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.’ Id. at 758; see also Landreman, 191 Wis. 2d at 803-04 (noting that unfairness may result from the sovereign immunity of Indian tribes, but declaring that ‘long-standing policy dictates the promotion of tribal self-government and, consequently, sovereign immunity’). However, declaring tribal immunity ‘settled law,’ the Court declined to discard the doctrine, preferring instead to leave the matter for Congress. Kiowa, 523 U.S. at 756, 759-60. Congress has not abrogated the Tribe’s immunity in this case, nor has the Tribe waived it.”

“The case for immunity is all the stronger here because it appears the Tribe took measures to extend its immunity to Pine Hills. Section 1.5 of the Pine Hills charter specifically clothes the business and its employees with ‘all the privileges and immunities of the Tribe … including sovereign immunity from suit in any tribal, federal or state court.’ Any business contracts that waived tribal immunity required approval from the Tribal Council. In light of the general rule that tribal businesses are immune from suit and the Tribe’s explicit invocation of that immunity in the Pine Hills charter, we conclude the Koscielaks’ claims were properly dismissed.”

Affirmed.

Recommended for publication in the official reports.

2011AP364 Koscielak v. Stockbridge-Munsee Community

Dist. III, Shawano County, Habeck, J., Mangerson, J.

Attorneys: For Appellant: Brown, Jean J., Waukesha; For Respondent: Arts, Waltraud A., Madison; Conway, Gregory B., Green Bay