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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 12-022

General Memorandum 12-022
Arizona State Court Holds Indian Self-Determination Act is a Waiver of Tribal Sovereign Immunity

In an Arizona state court case, Shirk v. Lancaster et al., the Maricopa County Superior Court has held that § 102(c) of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. § 450f(c), (hereafter § 450f(c)), provides a waiver of tribal sovereign immunity in tort cases against a tribe and its employees up to the amount of liability coverage not covered by the Federal Tort Claims Act (FTCA).

Section 450f(c) makes the Secretary of the Interior responsible, beginning in 1990, for obtaining liability insurance for tribes and tribal organizations carrying out ISDEAA agreements. In obtaining this insurance, the Secretary must take into consideration the extent to which liability is covered by the FTCA. Any insurance policy obtained or provided by the Secretary shall contain a provision that the insurance carrier shall waive any right the insurance carrier may have to raise the sovereign immunity of the tribe as a defense. In other words, the insurance carrier may not hide behind the tribe’s sovereign immunity from suit.

The lawsuit, originally filed in the Arizona Superior Court in October 2007, originated from a motor vehicle accident that occurred on a state highway. Two Gila River Indian Community (GRIC) police officers had noticed a car being driven erratically. The officers activated their emergency lights and pursued the driver who stopped at a red light. When the officers pulled up behind the driver he accelerated through the red light, hitting the plaintiff, a motorcyclist, causing serious injuries. Plaintiff initially sued the two officers alleging that they negligently attempted to effectuate a traffic stop and that this negligence caused the driver to run the red light resulting in the collision with the plaintiff.

The Arizona Superior Court dismissed the case due to GRIC’s sovereign immunity. The plaintiff did not appeal but rather filed a case in U.S. District Court seeking relief under the FTCA. The District Court dismissed the case for lack of jurisdiction. The court determined that the officers’ actions were not covered by the FTCA because the incident occurred off-reservation.

The plaintiff then returned to the Maricopa County Superior Court, asking that the court set aside its prior judgment because both the plaintiff and the Court had been unaware that § 450f(c) provided an express waiver of the Tribe’s sovereign immunity. Defendants argued that the plaintiff should have known of the existence of § 450f(c) but that in any event, this section does not effectuate a waiver of the Tribe’s sovereign immunity. On June 8, 2011, the Gila River Indian Community filed a friend of the court brief that also opposed setting aside the previous state court judgment on the ground that § 450f(c) does not waive the Tribe’s sovereign immunity.

The United States also filed a friend of the court brief to clarify federal law applicable to claims against the U.S. and claims against tribal police officers under the ISDEAA. Contrary to the GRIC’s position, the United States argued that the court had mistakenly dismissed the case because it had been unaware of the waiver of sovereign immunity contained in § 450f(c). The United States argued that Congress provided liability insurance for Indian tribes under a contract or compact for claims which are not covered by the FTCA, and waived sovereign immunity up to the policy limits. It further stated that such a limited waiver of tribal sovereign immunity expressly prohibits the insurance carrier from raising tribal sovereign immunity as a defense, within these limits.

The court agreed with the United States’ legal analysis. It held that the Defendants’ activities fell within § 450f(c) and as such that GRIC waived its sovereign immunity to suit in Arizona state court to the amount of GRIC liability coverage for the Defendants’ law enforcement activities off Indian Country not covered by the FTCA. Thus the Plaintiff’s suit against the GRIC officers may now proceed in Arizona state court on the merits.

The defendants have appealed the decision to the Arizona Court of Appeals. We will continue to follow this litigation. Please let us know if you would like more information regarding the issues posed in this case.

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Inquires maybe directed to:
Geoff Strommer (gstrommer@hobbsstraus.com or 503-242-1745)
Duke McCloud (dmccloud@hobbsstraus.com or 202-822-8282)

Available Documents for Download ( any referenced attachments are included in download )


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